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Search & Seizure

U.S. v. Cortez

https://supreme.justia.com/cases/federal/us/449/411/

U.S. Supreme Court United States v. Cortez, 449 U.S. 411 (1981) United States v. Cortez No. 79-404 Argued December 1, 1980 Decided January 21, 1981 449 U.S. 411 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Based on their discovery of sets of distinctive human footprints in the desert, Border Patrol officers deduced that on a number of occasions groups of from 8 to 20 persons had been guided by a person, whom they designated "Chevron," from Mexico across an area of desert in Arizona, known to be heavily trafficked by aliens illegally entering the country. These groups of aliens proceeded to an isolated point on a road to be picked up by a vehicle; the officers deduced the vehicle probably approached from the east and returned to the east after the pickup. They also surmised, based on the times when the distinctive tracks were discovered, that "Chevron" generally traveled on clear nights during or near weekends, and arrived at the pickup point between 2 a.m. and 6 a.m. On the basis of this information, the officers stationed themselves at a point east of the probable pickup point on a night when they believed there was a strong possibility that "Chevron" would be smuggling aliens. The officers observed a pickup truck with a camper shell suitable for carrying sizable groups pass them heading west, and then observed the same vehicle return within the estimated time for making a round trip to the pickup point. The officers stopped the vehicle, which was being driven by respondent Cortez and in which respondent Hernandez-Loera, who was wearing shoes with soles matching the distinctive "chevron" shoeprint, was a passenger. Cortez voluntarily opened the door of the camper, and the officers then discovered illegal aliens. Prior to trial on charges of transporting illegal aliens, respondents sought to suppress the evidence of the presence of the aliens discovered as a result of the stopping of their vehicle, contending that the officers did not have adequate cause to make the investigative stop. The District Court denied the motion, and respondents were convicted. The Court of Appeals reversed, holding that the officers lacked a sufficient basis to justify stopping the vehicle, and thus respondents' Fourth Amendment rights were violated. Held: The objective facts and circumstantial evidence justified the investigative stop of respondents' vehicle. Pp. 449 U. S. 417 -422. (a) In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture, the detaining Page 449 U. S. 412 officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. The process of assessing all of the circumstances does not deal with hard certainties, but with probabilities, and the evidence collected must be weighed as understood by those versed in the field of law enforcement. Also, the process must raise suspicion that the particular individual being stopped is engaged in wrongdoing. Pp. 449 U. S. 417 -418. (b) This case implicates all of these principles -- especially the imperative of recognizing that, when used by trained law enforcement officers, objective facts, meaningless to the untrained, allow for permissible deductions from such facts to afford a legitimate basis for suspicion of a particular person and action on that suspicion. Pp. 449 U. S. 418 -421. (c) The intrusion upon privacy associated with this stop was limited, and "reasonably related in scope to the justification for [its] initiation." Terry v. Ohio, 392 U. S. 1 , 392 U. S. 29 . Based upon the whole picture, the officers, as experienced Border Patrol agents, could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity. Pp. 449 U. S. 421 -422. 595 F.2d 505, reversed. BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., filed an opinion concurring in the result, post, p. 449 U. S. 422 . MARSHALL, J., concurred in the judgment. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari, 447 U.S. 904, to consider whether objective facts and circumstantial evidence suggesting that a particular vehicle is involved in criminal activity may provide Page 449 U. S. 413 a sufficient basis to justify an investigative stop of that vehicle. I Late in 1976, Border Patrol officers patrolling a sparsely populated section of southern central Arizona found human footprints in the desert. In time, other sets of similar footprints were discovered in the same area. From these sets of footprints, it was deduced that, on a number of occasions, groups of from 8 to 20 persons had walked north from the Mexican border, across 30 miles of desert and mountains, over a fairly well-defined path, to an isolated point on Highway 86, an east-west road running roughly parallel to the Mexican border. Officers observed that one recurring shoeprint bore a distinctive and repetitive V-shaped or chevron design. Because the officers knew from recorded experience that the area through which the groups passed was heavily trafficked by aliens illegally entering the country from Mexico, they surmised that a person, to whom they gave the case-name "Chevron," was guiding aliens illegally into the United States over the path marked by the tracks to a point where they could be picked up by a vehicle. The tracks led into or over obstacles that would have been avoided in daylight. From this, the officers deduced that "Chevron" probably led his groups across the border and to the pickup point at night. Moreover, based upon the times when they had discovered the distinctive sets of tracks, they concluded that "Chevron" generally traveled during or near weekends, and on nights when the weather was clear. Their tracking disclosed that, when "Chevron's" groups came within 50 to 75 yards of Highway 86, they turned right and walked eastward, parallel to the road. Then, approximately at highway milepost 122, the tracks would turn north and disappear at the road. From this pattern, the officers concluded that the aliens very likely were picked up by a vehicle Page 449 U. S. 414 -- probably one approaching from the east, for, after a long overland march, the group was most likely to walk parallel to the highway toward the approaching vehicle. The officers also concluded that, after the pickup, the vehicle probably returned to the east, because it was unlikely that the group would be walking away from its ultimate destination. On the Sunday night of January 30-31, 1977, Officers Gray and Evans, two Border Patrolmen who had been pursuing the investigation of "Chevron," were on duty in the Casa Grande area. The latest set of observed "Chevron" tracks had been made on Saturday night, January 15-16. January 30-31 was the first clear night after three days of rain. For these reasons, Gray and Evans decided there was a strong possibility that "Chevron" would lead aliens from the border to the highway that night. The officers assumed that, if "Chevron" did conduct a group that night, he would not leave Mexico until after dark, that is, about 6 p.m. They knew from their experience that groups of this sort, traveling on foot, cover about two and a half to three miles an hour. Thus, the 30-mile journey would take from 8 to 12 hours. From this, the officers calculated that "Chevron" and his group would arrive at Highway 86 somewhere between 2 a.m. and 6 a.m. on January 31. About 1 a.m., Gray and Evans parked their patrol car on an elevated location about 100 feet off Highway 86 at milepost 149, a point some 27 miles east of milepost 122. From their vantage point, the officers could observe the Altar Valley, an adjoining territory they had been assigned to watch that night, and they also could see vehicles passing on Highway 86. They estimated that it would take approximately one hour and a half for a vehicle to make a round trip from their vantage point to milepost 122. Working on the hypothesis that the pickup vehicle approached milepost 122 from the east and thereafter returned to its starting point, they focused upon vehicles that passed them from the east, Page 449 U. S. 415 and, after about one hour and a half, passed them returning to the east. Because "Chevron" appeared to lead groups of between 8 and 20 aliens at a time, the officers deduced that the pickup vehicle would be one that was capable of carrying that large a group without arousing suspicion. For this reason, and because they knew that certain types of vehicles were commonly used for smuggling sizable groups of aliens, they decided to limit their attention to vans, pickup trucks, other small trucks, campers, motor homes, and similar vehicles. Traffic on Highway 86 at milepost 149 was normal on the night of the officers' surveillance. In the 5-hour period between 1 a.m. and 6 a.m., 15 to 20 vehicles passed the officers heading west, toward milepost 122. Only two of them -- both pickup trucks with camper shells -- were of the kind that the officers had concluded "Chevron" would likely use if he was to carry aliens that night. One, a distinctively colored pickup truck with a camper shell, passed for the first time at 4:30 a.m. Officer Gray was able to see and record only a partial license number, "GN 88__." [ Footnote 1 ] At 6:12 a.m., almost exactly the estimated one hour and a half later, a vehicle looking like this same pickup passed them again, this time heading east. The officers followed the pickup and were satisfied from its license plate, "GN 8804," that it was the same vehicle that had passed at 4:30 a.m. At that point, they flashed their police lights and intercepted the vehicle. Respondent Jesus Cortez was the driver and owner of the pickup; respondent Pedro Hernandez-Loera was sitting in the passenger's seat. Hernandez-Loera was wearing shoes with soles matching the distinctive "chevron" shoeprint. The officers identified themselves and told Cortez they were conducting an immigration check. They asked if he was Page 449 U. S. 416 carrying any passengers in the camper. Cortez told them he had picked up some hitchhikers, and he proceeded to open the back of the camper. In the camper, there were six illegal aliens. The officers then arrested the respondents. Cortez and Hernandez-Loera were charged with six counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a). By pretrial motion, they sought to suppress the evidence obtained by Officers Gray and Evans as a result of stopping their vehicle. They argued that the officers did not have adequate cause to make the investigative stop. The District Court denied the motion. A jury found the respondents guilty as charged. They were sentenced to concurrent prison terms of five years on each of six counts. In addition, Hernandez-Loera was fined $12,000. A divided panel of the Court of Appeals for the Ninth Circuit reversed, holding that the officers lacked a sufficient basis to justify the stop of the pickup. 595 F.2d 505 (1979). That court recognized that United States v. Brignoni-Ponce, 422 U. S. 873 (1975), provides a standard governing investigative stops of the kind involved in this case, stating: "The quantum of cause necessary in . . . cases [like this one] was established . . . in United States v. Brignoni-Ponce. . . ." "[O]fficers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." 595 F.2d at 507 (quoting United States v. Brignoni-Ponce, supra, at 422 U. S. 884 ) (citations omitted). The court also recognized that "the ultimate question on appeal is whether the trial judge's finding that founded suspicion was present here was clearly erroneous." 595 F.2d at 507. Here, because, in the view of the facts of the two judges constituting the majority, "[t]he officers did not have a valid basis for singling out the Cortez vehicle," id. at 508, and because Page 449 U. S. 417 the circumstances admitted "far too many innocent inferences to make the officers' suspicions reasonably warranted," ibid., the panel concluded that the stop of Cortez' vehicle was a violation of the respondents' rights under the Fourth Amendment. In dissent, Judge Chambers was persuaded that Brignoni-Ponce recognized the validity of permitting an officer to assess the facts in light of his past experience. II A The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here. Reid v. Georgia, 448 U. S. 438 , 448 U. S. 440 (1980); United States v. Brignoni-Ponce, supra at 422 U. S. 878 ; Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1 , 392 U. S. 16 -19 (1968). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [ Footnote 2 ] Brown v. Texas, 443 U. S. 47 , 443 U. S. 51 (1979); Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 661 (1979); United States v. Brignoni-Ponce, supra at 422 U. S. 884 ; Adams v. Williams, 407 U. S. 143 , 407 U. S. 146 -149 (1972); Terry v. Ohio, supra at 392 U. S. 16 -19. Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like "articulable reasons" and "founded suspicion" are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal Page 449 U. S. 418 activity. See, e.g., Brown v. Texas, supra at 443 U. S. 51 ; United States v. Brignoni-Ponce, supra at 422 U. S. 884 . The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions -- inferences and deductions that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same -- and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, supra, said that "[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence. " Id. at 392 U. S. 21 , n. 18 (emphasis added). See also Brown v. Texas, supra at 443 U. S. 51 ; Delaware v. Prouse, supra at 440 U. S. 661 -663; United States v. Brignoni-Ponce, supra at 422 U. S. 884 . B This case portrays at once both the enormous difficulties of patrolling a 2,000-mile open border and the patient skills Page 449 U. S. 419 needed by those charged with halting illegal entry into this country. It implicates all of the principles just discussed -- especially the imperative of recognizing that, when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion. We see here the kind of police work often suggested by judges and scholars as examples of appropriate and reasonable means of law enforcement. Here, fact on fact and clue on clue afforded a basis for the deductions and inferences that brought the officers to focus on "Chevron." Of critical importance, the officers knew that the area was a crossing point for illegal aliens. They knew that it was common practice for persons to lead aliens through the desert from the border to Highway 86, where they could -- by prearrangement -- be picked up by a vehicle. Moreover, based upon clues they had discovered in the 2-month period prior to the events at issue here, they believed that one such guide, whom they designated "Chevron," had a particular pattern of operations. By piecing together the information at their disposal, the officers tentatively concluded that there was a reasonable likelihood that "Chevron" would attempt to lead a group of aliens on the night of Sunday, January 30-31. Someone with chevron-soled shoes had led several groups of aliens in the previous two months, yet it had been two weeks since the latest crossing. "Chevron," they deduced, was therefore due reasonably soon. "Chevron" tended to travel on clear weekend nights. Because it had rained on the Friday and Saturday nights of the weekend involved here, Sunday was the only clear night of that weekend; the officers surmised it was therefore a likely night for a trip. Once they had focused on that night, the officers drew upon other objective facts known to them to deduce a timeframe Page 449 U. S. 420 within which "Chevron" and the aliens were likely to arrive. From what they knew of the practice of those who smuggle aliens, including what they knew of "Chevron's" previous activities, they deduced that the border crossing and journey through the desert would probably be at night. They knew the time when sunset would occur at the point of the border crossing; they knew about how long the trip would take. They were thus able to deduce that "Chevron" would likely arrive at the pickup point on Highway 86 in the timeframe between 2 a.m. and 6 a.m. From objective facts, the officers also deduced the probable point on the highway -- milepost 122 -- at which "Chevron" would likely rendezvous with a pickup vehicle. They deduced from the direction taken by the sets of "Chevron" footprints they had earlier discovered that the pickup vehicle would approach the aliens from, and return with them to, a point east of milepost 122. They therefore staked out a position east of milepost 122 (at milepost 149) and watched for vehicles that passed them going west and then, approximately one and a half hours later, passed them again, this time going east. From what they had observed about the previous groups guided by the person with "chevron" shoes, they deduced that "Chevron" would lead a group of 8 to 20 aliens. They therefore focused their attention on enclosed vehicles of that passenger capacity. The analysis produced by Officers Gray and Evans can be summarized as follows: if, on the night upon which they believed "Chevron" was likely to travel, sometime between 2 a.m. and 6 a.m., a large enclosed vehicle was seen to make an east-west-east round trip to and from a deserted point (milepost 122) on a deserted road (Highway 86), the officers would stop the vehicle on the return trip. In a 4-hour period, the officers observed only one vehicle meeting that description. And it is not surprising that, when they stopped the Page 449 U. S. 421 vehicle on its return trip, it contained "Chevron" and several illegal aliens. [ Footnote 3 ] C The limited purpose of the stop in this case was to question the occupants of the vehicle about their citizenship and immigration status and the reasons for the round trip in a short timespan in a virtually deserted area. No search of the camper or any of its occupants occurred until after respondent Cortez voluntarily opened the back door of the camper; thus, only the stop, not the search, is at issue here. The intrusion upon privacy associated with this stop was limited, and was "reasonably related in scope to the justification for [its] initiation," Terry v. Ohio, 392 U.S. at 392 U. S. 29 . We have recently held that stops by the Border Patrol may he justified under circumstances less than those constituting probable cause for arrest or search. United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 880 . [ Footnote 4 ] Thus, the test is not whether Officers Gray and Evans had probable cause to conclude that the vehicle they stopped would contain "Chevron" and a group of illegal aliens. Rather, the question is whether, based upon the whole picture, they, as experienced Border Patrol officers, could reasonably surmise that the particular vehicle Page 449 U. S. 422 they stopped was engaged in criminal activity. On this record, they could so conclude. Reversed. JUSTICE MARSHALL concurs in the judgment. [ Footnote 1 ] The second camper passed them 15 or 20 minutes later. As far as the record shows, it did not return. [ Footnote 2 ] Of course, an officer may stop and question a person if there are reasonable grounds to believe that person is wanted for past criminal conduct. [ Footnote 3 ] In United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 884 -885 (1975), the Court listed several factors to be considered as part of the totality of the circumstances in determining the existence vel non of a particularized suspicion in cases treating official attempts to stem the influx of illegal aliens into our country. Though the list did not purport to be exhaustive, it is noteworthy that several of the factors present here were recognized by Brignoni-Ponce as significant in this context; for example, information about recent border crossings and the type of vehicle involved. [ Footnote 4 ] The wide public interest in effective measures to prevent the entry of illegal aliens at the Mexican border has been cataloged by this Court. See, e.g., United States v. Ortiz, 422 U. S. 891 , 422 U. S. 899 -914 (1975) (BURGER, C.J., concurring in judgment); United States v. Brignoni-Ponce, supra, at 422 U. S. 878 -879. JUSTICE STEWART, concurring in the result. The Border Patrol officers in this case knew, or had rationally deduced, that "Chevron" had repeatedly shepherded illegal aliens up from the border; that his treks had commonly ended early in the morning around milepost 122 on Highway 86; that he usually worked on weekends; that he probably had made no trips for two weeks; and that trips were most likely when the weather was good. Knowing of this pattern, the officers could reasonably anticipate, even if they could not guarantee, the arrival of another group of aliens, led by Chevron, at milepost 122 on the first clear weekend night in late January, 1977. Route 86 leads through almost uninhabited country, so little traveled in the hours of darkness that only 15 to 20 westbound vehicles passed the police during the five hours they watched that Sunday night. Only two vehicles capacious enough to carry a sizable group of illegal aliens went by. One of those two vehicles not only drove past them, but returned in the opposite direction after just enough time had elapsed for a journey to milepost 122 and back. This nocturnal round trip into "desolate desert terrain" would in any event have been puzzling. Coming when and as it did, surely the most likely explanation for it was that Chevron was again shepherding aliens. In sum, the Border Patrol officers had discovered an abundance of "specific articulable facts" which, "together with rational inferences from [them]," entirely warranted a "suspicion that the vehicl[e] contain[ed] aliens who [might] be illegally in the country." United States v. Brignoni-Ponce , Page 449 U. S. 423 422 U. S. 873 , 422 U. S. 884 . Because the information possessed by the officers thus met the requirements established by the Brignoni-Ponce case for the kind of stop made here, I concur in the reversal of the judgment of the Court of Appeals.

The Supreme Court ruled that Border Patrol officers had reasonable suspicion to make an investigative stop of a vehicle based on the totality of the circumstances, including distinctive footprints, vehicle descriptions, and timing patterns, indicating the likelihood of alien smuggling. The Court held that the officers' deduction and subsequent discovery of specific articulable facts justified the suspicion that the vehicle contained illegal aliens, thus meeting the requirements for an investigative stop.

Search & Seizure

Rawlings v. Kentucky

https://supreme.justia.com/cases/federal/us/448/98/

U.S. Supreme Court Rawlings v. Kentucky, 448 U.S. 98 (1980) Rawlings v. Kentucky No. 79-5146 Argued March 26, 1980 Decided June 25, 1980 448 U.S. 98 CERTIORARI TO THE SUPREME COURT OF KENTUCKY Syllabus When police officers, armed with a warrant to arrest one Marquess, arrived at his house, another resident of the house and four visitors, including petitioner, were there. While searching the house unsuccessfully for Marquess, several officers smelled marihuana smoke and saw marihuana seeds. Two of the officers left to obtain a warrant to search the house, and the other officers detained the occupants, allowing them to leave only if they consented to a body search. About 45 minutes later, the officers returned with the search warrant; the warrant was read to the remaining occupants, including petitioner, and they were also given Miranda warnings; and one Cox, an occupant, was ordered to empty her purse, which contained drugs that were controlled substances under Kentucky law. Cox told petitioner, who was standing nearby in response to an officer's command, "to take what was his," and petitioner immediately claimed ownership of the drugs. At that time, an officer searched petitioner, finding $ 4,500 in cash and a knife, and petitioner was then formally arrested. Petitioner was indicted for possessing with intent to sell the controlled substances recovered from Cox's purse, and the Kentucky trial court denied petitioner's motion to suppress, as fruits of an illegal detention and illegal searches, the drugs, the money, and the statements made by him when the police discovered the drugs. Petitioner's conviction was affirmed by the Kentucky Court of Appeals, and the Kentucky Supreme Court, in turn affirmed, holding that petitioner had no "standing" to contest the search of Cox's purse because he had no legitimate or reasonable expectation of freedom from governmental intrusion into the purse, and that the search uncovering the money in petitioner's pocket was justifiable as incident to a lawful arrest based on probable cause. Held: 1. The conclusion that petitioner did not sustain his burden of proving that he had a legitimate expectation of privacy in Cox's purse so as to allow him to challenge the validity of the search of the purse is supported by the record, which includes petitioner's admission at the suppression hearing that he did not believe that the purse would be free from governmental intrusion. Nor was petitioner entitled to challenge Page 448 U. S. 99 the search, regardless of his expectation of privacy, merely because he claimed ownership of the drugs in the purse. While petitioner's ownership of the drugs is one fact to be considered, "arcane" concepts of property law do not control the ability to claim the protections of the Fourth Amendment. Cf. Rakas v. Illinois, 439 U. S. 128 . Pp. 448 U. S. 104 -106. 2. Under the totality of circumstances present (the giving of Miranda warnings, the short lapse of time between petitioner's detention and his admissions being outweighed by the "congenial atmosphere" in the house during this interval, his admissions being apparently spontaneous reactions to the discovery of the drugs in Cox's purse, the police conduct not appearing to rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of petitioner's admissions, and petitioner not having argued that his admissions were anything other than voluntary), Kentucky carried its burden of showing that petitioner's statements to the police admitting his ownership of the drugs were acts of free will unaffected by any illegality in his detention, assuming, arguendo, that the police violated the Fourth and Fourteenth Amendments by detaining petitioner and his companions in the house while they obtained a search warrant. Cf. Brown v. Illinois, 422 U. S. 590 . Pp. 448 U. S. 106 -110. 3. The search of petitioner's person that uncovered the money and the knife was valid as incident to his formal arrest. Once he admitted ownership of the drugs found in Cox's purse, the police had probable cause to arrest him, and where the arrest followed quickly after the search of petitioner's person it is not important that the search preceded the arrest, rather than vice versa. Pp. 448 U. S. 110 -111. 581 S.W.2d 348 , affirmed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and STEVENS, JJ., joined, and in Parts I and II-A of which STEWART and WHITE, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 448 U. S. 111 . WHITE, J., filed an opinion concurring in part, in which STEWARTJ J., joined, post, p. 448 U. S. 113 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 448 U. S. 114 . Page 448 U. S. 100 MR. JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner David Rawlings was convicted by the Commonwealth of Kentucky on charges of trafficking in, and possession of, various controlled substances. Throughout the proceedings below, Rawlings challenged the admissibility of certain evidence and statements on the ground that they were the fruits of an illegal detention and illegal searches. The trial court, the Kentucky Court of Appeals, and the Supreme Court of Kentucky all rejected Rawlings' challenges. We granted certiorari, 444 U.S. 989, and now affirm. I In the middle of the afternoon on October 18, 1976, six police officers armed with a warrant for the arrest of one Lawrence Marquess on charges of drug distribution arrived at Marquess' house in Bowling Green, Ky. In the house at the time the police arrived were one of Marquess' housemates, Dennis Saddler, and four visitors, Keith Northern, Linda Braden, Vanessa Cox, and petitioner David Rawlings. While searching unsuccessfully in the house for Marquess, several police officers smelled marihuana smoke and saw marihuana seeds on the mantel in one of the bedrooms. After conferring briefly, Officers Eddie Railey and John Bruce left to obtain a search warrant. While Railey and Bruce were gone, the other four officers detained the occupants of the house in the living room, allowing them to leave only if they consented to a body search. Northern and Braden did consent to such a search and were permitted to depart. Saddler, Cox, and petitioner remained seated in the living room. Approximately 45 minutes later, Railey and Bruce returned with a warrant authorizing them to search the house. Railey read the warrant to Saddler, Cox, and petitioner, and also read Miranda warnings from a card he carried in his pocket. At that time, Cox was seated on a couch with petitioner seated to her left. In the space between them was Cox's handbag. After Railey finished his recitation, he approached petitioner Page 448 U. S. 101 and told him to stand. Officer Don Bivens simultaneously approached Cox and ordered her to empty the contents of her purse onto a coffee table in front of the couch. Among those contents were a jar containing 1,800 tablets of LSD and a number of smaller vials containing benzphetamine, methamphetamine, methyprylan, and pentobarbital, all of which are controlled substances under Kentucky law. Upon pouring these objects out onto the coffee table, Cox turned to petitioner and told him "to take what was his." App. 62. Petitioner, who was standing in response to Officer Railey's command, immediately claimed ownership of the controlled substances. At that time, Railey searched petitioner's person and found $ 4,500 in cash in petitioner's shirt pocket and a knife in a sheath at petitioner's side. Railey then placed petitioner under formal arrest. Petitioner was indicted for possession with intent to sell the various controlled substances recovered from Cox's purse. At the suppression hearing, he testified that he had flown into Bowling Green about a week before his arrest to look for a job and perhaps to attend the local university. He brought with him at that time the drugs later found in Cox's purse. Initially, petitioner stayed in the house where the arrest took place as the guest of Michael Swank, who shared the house with Marquess and Saddler. While at a party at that house, he met Cox and spent at least two nights of the next week on a couch at Cox's house. On the morning of petitioner's arrest, Cox had dropped him off at Swank's house where he waited for her to return from class. At that time, he was carrying the drugs in a green bank bag. When Cox returned to the house to meet him, petitioner dumped the contents of the bank bag into Cox's purse. Although there is dispute over the discussion that took place, petitioner testified that he "asked her if she would carry this for me, and she said, yes.' . . ." App. 42. [ Footnote 1 ] Petitioner Page 448 U. S. 102 then left the room to use the bathroom and, by the time he returned, discovered that the police had arrived to arrest Marquess. The trial court denied petitioner's motion to suppress the drugs and the money and to exclude the statements made by petitioner when the police discovered the drugs. According to the trial court, the warrant obtained by the police authorized them to search Cox's purse. Moreover, even if the search of the purse was illegal, the trial court believed that petitioner lacked "standing" to contest that search. Finally, the trial court believed that the search that revealed the money and the knife was permissible "under the exigencies of the situation." Id. at 21. After a bench trial, petitioner was found guilty of possession with intent to sell LSD and of possession of benzphetamine, methamphetamine, methyprylan, and pentobarbital. Page 448 U. S. 103 The Kentucky Court of Appeals affirmed. Disagreeing with the trial court, the appellate court held that petitioner did have "standing" to dispute the legality of the search of Cox's purse, but that the detention of the five persons present in the house and the subsequent searches were legitimate because the police had probable cause to arrest all five people in the house when they smelled the marihuana smoke and saw the marihuana seeds. The Supreme Court of Kentucky, in turn, affirmed, but again on a somewhat different rationale. See 581 S.W.2d 348 (1979). According to the Supreme Court, petitioner had no "standing" because he had no "legitimate or reasonable expectation of freedom from governmental intrusion" into Cox's purse. Id. at 350, citing Rakas v. Illinois, 439 U. S. 128 (1978). Moreover, according to the Supreme Court, the search uncovering the money in petitioner's pocket, which search followed petitioner's admission that he owned the drugs in Cox's purse, was justifiable as incident to a lawful arrest based on probable cause. II In this Court, petitioner challenges three aspects of the judgment below. First, he claims that he did have a reasonable expectation of privacy in Cox's purse, so as to allow him to challenge the legality of the search of that purse. [ Footnote 2 ] Second, petitioner argues that his admission of ownership was the fruit of an illegal detention that began when the police refused to let the occupants of the house leave unless they consented to a search. Third, petitioner contends that the search uncovering the money and the knife was itself illegal. Page 448 U. S. 104 A In holding that petitioner could not challenge the legality of the search of Cox's purse, the Supreme Court of Kentucky looked primarily to our then recent decision in Rakas v. Illinois, supra, where we abandoned a separate inquiry into a defendant's "standing" to contest an allegedly illegal search in favor of an inquiry that focused directly on the substance of the defendant's claim that he or she possessed a "legitimate expectation of privacy" in the area searched. See Katz v. United States, 389 U. S. 347 (1967). In the present case, the Supreme Court of Kentucky looked to the "totality of the circumstances," including petitioner's own admission at the suppression hearing that he did not believe that Cox's purse would be free from governmental intrusion, [ Footnote 3 ] and held that petitioner "[had] not made a sufficient showing that his legitimate or reasonable expectations of privacy were violated" by the search of the purse. 581 S.W.2d at 350. We believe that the record in this case supports that conclusion. Petitioner, of course, bears the burden of proving not only that the search of Cox's purse was illegal, but also that he had a legitimate expectation of privacy in that purse. See Page 448 U. S. 105 Rakas v. Illinois, supra, at 439 U. S. 131 , n. 1; Simmons v. United States, 390 U. S. 377 , 390 U. S. 389 -390 (1968). At the time petitioner dumped thousands of dollars worth of illegal drugs into Cox's purse, he had known her for only a few days. According to Cox's uncontested testimony, petitioner had never sought or received access to her purse prior to that sudden bailment. Contrast Jones v. United States, 362 U. S. 257 , 362 U. S. 259 (1960). Nor did petitioner have any right to exclude other persons from access to Cox's purse. See Rakas v. Illinois, supra at 438 U. S. 149 . In fact, Cox testified that Bob Stallons, a longtime acquaintance and frequent companion of Cox's, had free access to her purse, and, on the very morning of the arrest, had rummaged through its contents in search of a hairbrush. Moreover, even assuming that petitioner's version of the bailment is correct, and that Cox did consent to the transfer of possession, [ Footnote 4 ] the precipitous nature of the transaction hardly supports a reasonable inference that petitioner took normal precautions to maintain his privacy. Contrast United States v. Chadwick, 433 U. S. 1 , 433 U. S. 11 (1977); Katz v. United States, supra at 389 U. S. 352 . In addition to all the foregoing facts, the record also contains a frank admission by petitioner that he had no subjective expectation that Cox's purse would remain free from governmental intrusion, an admission credited by both the trial court and the Supreme Court of Kentucky. See n 3, supra, and accompanying text. Petitioner contends nevertheless that, because he claimed ownership of the drugs in Cox's purse, he should be entitled to challenge the search regardless of his expectation of privacy. We disagree. While petitioner's ownership of the drugs is undoubtedly one fact to be considered in this case, Rakas emphatically rejected the notion that "arcane" concepts of property law ought to control the ability to claim the protections of the Fourth Amendment. See 439 U.S. at 439 U. S. 149 -150, n. 17. See also United States v. Salvucci, ante at 448 U. S. 91 -92. Page 448 U. S. 106 Had petitioner placed his drugs in plain view, he would still have owned them, but he could not claim any legitimate expectation of privacy. Prior to Rakas, petitioner might have been given "standing" in such a case to challenge a "search" that netted those drugs, but probably would have lost his claim on the merits. After Rakas, the two inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by petitioner. In sum, we find no reason to overturn the lower court's conclusion that petitioner had no legitimate expectation of privacy in Cox's purse at the time of the search. B We turn, then, to petitioner's contention that the occupants of the house were illegally detained by the police, and that his admission to ownership of the drugs was a fruit of that illegal detention. Somewhat surprisingly, none of the courts below confronted this issue squarely, even though it would seem to be presented under any analysis of this case except that adopted by the Kentucky Court of Appeals, which concluded that the police officers were entitled to arrest the five occupants of the house as soon as they smelled marihuana smoke and saw the marihuana seeds. We can assume both that this issue was properly presented in the Kentucky courts and that the police violated the Fourth and Fourteenth Amendments by detaining petitioner and his companions in the house while they obtained a search warrant for the premises. Even given such a constitutional violation, however, exclusion of petitioner's admissions would not be necessary unless his statements were the result of his illegal detention. As we noted in Brown v. Illinois, 422 U. S. 590 , 422 U. S. 603 (1975), where we rejected a "but for" approach to the admissibility of such statements, "persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality." In Brown, we also set forth Page 448 U. S. 107 the standard for determining whether such statements were tainted by antecedent illegality: "The question whether a confession is the product of a free will . . . must be answered on the facts of each case. No single fact is dispositive. . . . The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution." Id. at 422 U. S. 603 -604 (footnotes and citations omitted). See also Dunaway v. New York, 442 U. S. 200 , 442 U. S. 218 (1979). As already noted, the lower courts did not undertake the inquiry suggested by Brown. Nevertheless, as in Brown itself, we believe that "the trial resulted in a record of amply sufficient detail and depth from which the determination may be made." 422 U.S. at 422 U. S. 604 . First, we observe that petitioner received Miranda warnings only moments before he made his incriminating statements, a consideration Brown treated as important, although not dispositive, in determining whether the statements at issue were obtained by exploitation of an illegal detention. Second, Brown calls our attention to the "temporal proximity of the arrest and the confession. . . ." Id. at 422 U. S. 603 . In this case, petitioner and his companions were detained for a period of approximately 4 minutes. Although under the strictest of custodial conditions such a short lapse of time might not suffice to purge the initial taint, we believe it necessary to examine the precise conditions under which the occupants of this house were detained. By all accounts, the three people who chose not to consent to a body search in order to leave sat Page 448 U. S. 108 quietly in the living room or, at least initially, moved freely about the first floor of the house. Upon being informed that he would be detained until Officers Railey and Bruce returned with a search warrant, Dennis Saddler "just went on in and got a cup of coffee and sat down and started waiting" for the officers to return. Tr. 109. When asked by petitioner's counsel whether there was "any show of force or violence by you or Dave or anybody else," Saddler explained: "A Oh, no. One person tried to sick my four and a half month old dog on one of the officers. (laughing)" "Q48 You're saying that in a joking manner?" "A Yeah. He just wagged his tail." "Q49 And other than that, that's the most violent thing you proposed toward these police officers; is that correct?" "A Yes sir. I would -- they were more or less courteous to us and were trying to be -- we offered them coffee or a drink of water or whatever they wanted." Id. at 113. According to Saddler, petitioner's first reaction when the officers told him that he would be detained pending issuance of a search warrant was to "[get] up and put an album on. . . ." Id. at 110. As even the dissenting judge in the Court of Appeals noted: "[A]ll witnesses for both sides of this litigation agreed to the congenial atmosphere existing during the forty-five minute interval. . . ." App. 73 (Lester, J., dissenting). We think that these circumstances outweigh the relatively short period of time that elapsed between the initiation of the detention and petitioner's admissions. Third, Brown suggests that we inquire whether any circumstances intervened between the initial detention and the challenged statements. Here, where petitioner's admissions were apparently spontaneous reactions to the discovery of his drugs in Cox's purse, we have little doubt that this factor weighs heavily in favor of a finding that petitioner acted "of free will unaffected by the initial illegality." 422 U.S. at Page 448 U. S. 109 422 U. S. 603 . Nor need we speculate as to petitioner's motivations in admitting ownership of the drugs, since he explained them later to Lawrence Marquess and Dennis Saddle. Under examination by petitioner's counsel, Marquess testified as follows: "Q1 Mr Marquess, when you were talking to David Rawlings in the jail, and he told you that the things were dumped out on the table and that he admitted they were his, did he tell you why he did that?" "A Well, he said Vanessa [Cox] was freaking out, you know, or something." "Q2 Did he tell you that he did that to protect her or words to that effect?" "A Well, now, I mean he said he was going to take what was his, I mean, he wasn't going to try to pin that on her." Tr. 130. Saddler offered additional insight into petitioner's motivations: "Q114 Did Dave Rawlings make any statements to you in jail about any of these substances?" "A Yes sir." "Q115 And would you tell the Court what statements he made?" "A Well, his main concern was whether or not Vanessa Cox was going to say anything, and he just kept talking and harping on that, and I don't know how many times he mentioned it, you know, 'I hope she doesn't break,' or hope she doesn't talk. And I saw her walking on the sidewalk through the windows and got a little upset about that, because we all thought she turned State's evidence." Id. at 103. Fourth, Brown mandates consideration of "the purpose and flagrancy of the official misconduct. . . ." 422 U.S. at 422 U. S. 604 . The officers who detained petitioner and his companions uniformly testified that they took those measures to avoid the Page 448 U. S. 110 asportation or destruction of the marihuana they thought was present in the house, and that they believed that a warrant authorizing them to search the house would also authorize them to search the five occupants of the house. While the legality of temporarily detaining a person at the scene of suspected drug activity to secure a search warrant may be an open question, [ Footnote 5 ] and while the officer's belief about the scope of the warrant they obtained may well have been erroneous under our recent decision in Ybarra v. Illinois, 444 U. S. 85 (1979), the conduct of the police here does not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of petitioner's statements. Contrast Brown v. Illinois, supra at 422 U. S. 605 . Finally, while Brown requires that the voluntariness of the statement be established as a threshold requirement, petitioner has not argued here or in any other court that his admission to ownership of the drugs was anything other than voluntary. Thus, examining the totality of circumstances present in this case, we believe that the Commonwealth of Kentucky has carried its burden of showing that petitioner's statements were acts of free will unaffected by any illegality in the initial detention. C Petitioner also contends that the search of his person that uncovered the money and the knife was illegal. Like the Page 448 U. S. 111 Supreme Court of Kentucky, we have no difficulty upholding this search as incident to petitioner's formal arrest. Once petitioner admitted ownership of the sizable quantity of drugs found in Cox's purse, the police clearly had probable cause to place petitioner under arrest. Where the formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest, rather than vice versa. See Bailey v. United States, 128 U.S.App.D.C. 354, 357, 389 F.2d 305, 308 (1967); United States v. Brown, 150 U.S.App.D.C. 113, 114, 463 F.2d 949, 950 (1972). See also Cupp v. Murphy, 412 U. S. 291 (1973); United States v. Gorman, 355 F.2d 151, 160 (CA2 1965) (dictum), cert. denied, 84 U.S. 1024 (1966). [ Footnote 6 ] III Having found no error in the lower courts' refusal to suppress the evidence challenged by petitioner, we believe that the judgment of the Supreme Court of Kentucky should be, and the same hereby is, Affirmed. [ Footnote 1 ] At petitioner's trial, Vanessa Cox described the transfer of possession quite differently. She testified that, as she and petitioner were getting ready to leave the house, petitioner asked "would you please carry this for me" and simultaneously dumped the drugs into her purse. According to Cox, she looked into her purse, saw the drugs, and said "would you please take this, I do not want this in my purse." Petitioner allegedly replied "okay, just a minute, I will," and then went out of the room. At that point, the police entered the house. Tr. 12-14. David Saddler, who was in the next room at the time of the transfer, corroborated Cox's version of the events, testifying that he heard Cox say "I do not want this in my purse" and that he heard petitioner reply "don't worry" or something to that effect. Id. at 100. Although none of the lower courts specifically found that Cox did not consent to the bailment, the trial court clearly was skeptical about petitioner's version of events: "The Court finds it unbelievable that, just of his own volition, David Rawlings put the contraband in the purse of Mrs. Cox just a minute before the officers knocked on the door. He had been carrying these things around Bowling Green in a bank deposit sack for days, either on his person or in his pocket, and it is unworthy of belief that just immediately before the officers knocked on the door, that he put them in the purse of Vanessa Cox. It is far more plausible to believe that he saw the officers pull up out front and then elected to 'push them off' on Vanessa Cox, believing that search was probable, possible, and emminent [ sic ]." App. 21. [ Footnote 2 ] Petitioner also claims that he is entitled to "automatic standing" to contest the legality of the search that uncovered the drugs. See Jones v. United States, 362 U. S. 257 (1960). Our decision today in United States v. Salvucci, ante p. 448 U. S. 83 , disposes of this contention adversely to him. [ Footnote 3 ] Under questioning by his own counsel, petitioner testified as follows: "Q72 Did you feel that Vannessa [ sic ] Cox's purse would be free from the intrusion of the officers as you sat there? When you put the pills in her purse, did you feel that they would be free from governmental intrusion ?" "A No sir." App. 48. The trial court also credited this statement, noting immediately: "You know what, I believe this boy tells the truth. You all wanted to bring him in here before the Court, and he said, 'no, I want a jury.' He said 'no, I don't understand that.' And I don't blame him for not understanding that. That's the first time I've ever seen such a thing brought on before this Court, and I've been here for quite a few years as an attorney, of course." "Now, no question but what the boy fully understood what was meant by that. None at all in the Court's mind. If you want to go ahead, you can do so." Ibid. [ Footnote 4 ] But see n 1, supra. [ Footnote 5 ] "The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U. S. 200 , 442 U. S. 209 -210 (1979); Terry v. Ohio, 392 U. S. 1 , 392 U. S. 20 (1968), depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' Pennsylvania v. Mimms, 434 U. S. 106 , 434 U. S. 109 (1977); United States v. Brignoni-Ponce , [ 422 U.S. 873 , 422 U. S. 878 (1975)]. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Brown v. Texas, 443 U. S. 47 , 443 U. S. 50 -51 (1979). [ Footnote 6 ] The fruit of the search of petitioner's person were, of course, not necessary to support probable cause to arrest petitioner. MR. JUSTICE BLACKMUN, concurring. I join the Court's opinion, but I write separately to explain my somewhat different approach to the issues addressed in 448 U. S. In my view, Rakas v. Illinois, 439 U. S. 128 (1978), recognized two analytically distinct but "invariably intertwined" issues of substantive Fourth Amendment jurisprudence. Id. at 439 U. S. 139 . The first is "whether [a] disputed search or seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect," id. at 439 U. S. 140 ; the second Page 448 U. S. 112 is whether "the challenged search or seizure violated [that] Fourth Amendment righ[t]," ibid. The first of these questions is answered by determining whether the defendant has a "legitimate expectation of privacy" that has been invaded by a governmental search or seizure. The second is answered by determining whether applicable cause and warrant requirements have been properly observed. I agree with the Court that these two inquiries "merge into one," ante at 448 U. S. 106 , in the sense that both are to be addressed under the principles of Fourth Amendment analysis developed in Katz v. United States, 389 U. S. 347 (1967), and its progeny. But I do not read today's decision, or Rakas, as holding that it is improper for lower courts to treat these inquiries as distinct components of a Fourth Amendment claim. Indeed, I am convinced that it would invite confusion to hold otherwise. It remains possible for a defendant to prove that his legitimate interest of privacy was invaded, and yet fail to prove that the police acted illegally in doing so. And it is equally possible for a defendant to prove that the police acted illegally, and yet fail to prove that his own privacy interest was affected. Nor do I read this Court's decisions to hold that property interests cannot be, in some circumstances at least, weighty factors in establishing the existence of Fourth Amendment rights. Not every concept of ownership or possession is "arcane." Not every interest in property exists only in the desiccated atmosphere of ancient maxims and dusty books. Earlier this Term, the Court recognized that "the right to exclude" is an essential element of modern property rights. Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 179 -180 (1979). In my view, that "right to exclude" often may be a principal determinant in the establishment of a legitimate Fourth Amendment interest. Accordingly, I would confine analysis to the facts of this case. On those facts, however, I agree that petitioner's possessory interest in the vials of controlled Page 448 U. S. 113 substances is not sufficient to create a privacy interest in Vanessa Cox's purse, and that such an interest was not otherwise conferred by any agreement between petitioner and Cox. MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring in part. Although I join Parts I and II-A of the Court's opinion, I do not join Parts II-B, II-C, and III, because I believe that the fruits inquiry undertaken in Part 448 U. S. As the Court recognizes, the Supreme Court of Kentucky did not address the question whether petitioner's admission to ownership of the drugs was the fruit of an illegal detention, even though the question was presented there. The state court majority did state that, in concluding that the search of petitioner's person was incident to a valid arrest, it "disregard[ed] as irrelevant the detention during the period in which the officers were procuring a search warrant." The court also observed that "[t]his search was not explored in detail at the suppression hearing," and that "the sequence of the search of the purse and Rawlings' admission of ownership of the drugs is not clearly established in the record." The court then concluded that "[c]learly, after Rawlings admitted ownership of the drugs, the officers were entitled to arrest and search the person, or search and then arrest." 581 S.W.2d 348 , 350 (1979). In proceeding in this manner, the Supreme Court of Kentucky plainly failed properly to dispose of a federal question, as the Court implicitly recognizes. Because the fruits question was never addressed below and was barely mentioned in the briefs before this Court, I would vacate the judgment below and remand to permit the state court to address the question under the correct legal standard. This Court should not attempt to decide a factual issue on a record that the Page 448 U. S. 114 state court itself apparently thought inadequate for that purpose. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting. The vials of pills found in Vanessa Cox's purse and petitioner's admission that they belonged to him established his guilt conclusively. The State concedes, as it must, that the search of the purse was unreasonable and in violation of the Fourth Amendment, see Ybarra v. Illinois, 144 U. S. 85 (1979), and the Court assumes that the detention which led to the search, the seizure, and the admissions also violated the Fourth Amendment, ante at 448 U. S. 106 . Nevertheless, the Court upholds the conviction. I dissent. I The Court holds first that petitioner may not object to the introduction of the pills into evidence, because the unconstitutional actions of the police officers did not violate his personal Fourth Amendment rights. To reach this result, the Court holds that the Constitution protects an individual against unreasonable searches and seizures only if he has "a legitimate expectation of privacy' in the area searched." Ante at 448 U. S. 104 . This holding cavalierly rejects the fundamental principle, unquestioned until today, that an interest in either the place searched or the property seized is sufficient to invoke the Constitution's protections against unreasonable searches and seizures. The Court's examination of previous Fourth Amendment cases begins and ends -- as it must if it is to reach its desired conclusion -- with Rakas v. Illinois, 439 U. S. 128 (1978). Contrary to the Court's assertion, however, Rakas did not establish that the Fourth Amendment protects individuals against unreasonable searches and seizures only if they have a privacy interest in the place searched. The question before the Court in Rakas was whether the defendants could establish Page 448 U. S. 115 their right to Fourth Amendment protection simply by showing that they were "legitimately on [the] premises" searched, see Jones v. United States, 362 U. S. 257 , 362 U. S. 267 (1960). Overruling that portion of Jones, the Court held that, when a Fourth Amendment objection is based on an interest in the place searched, the defendant must show an actual invasion of his personal privacy interest. The petitioners in Rakas did not claim that they had standing either under the Jones automatic standing rule for persons charged with possessory offenses, which the Court overrules today, see United States v. Salvucci, ante p. 448 U. S. 83 , or because their possessory interest in the items seized gave them "actual standing." No Fourth Amendment claim based on an interest in the property seized was before the Court, and, consequently, the Court did not and could not have decided whether such a claim could be maintained. In fact, the Court expressly disavowed any intention to foreclose such a claim ("This is not to say that such [casual] visitors could not contest the lawfulness of the seizure of evidence or the search if their own property were seized during the search," 439 U.S. at 439 U. S. 142 , n. 11), and suggested its continuing validity ("[P]etitioners' claims must fail. They asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized, " id. at 439 U. S. 148 (emphasis supplied)). The decision today, then, is not supported by the only case directly cited in its favor. * Further, the Court has ignored Page 448 U. S. 116 a long tradition embodying the opposite view. United States v. Jeffers, 342 U. S. 48 (1951), for example, involved a seizure of contraband alleged to belong to the defendant from a hotel room occupied by his two aunts. The Court rejected the Government's argument that, because the search of the room did not invade Jeffers' privacy he lacked standing to suppress the evidence. It held that standing to object to the seizure could not be separated from standing to object to the search, for "[t]he search and seizure are . . . incapable of being untied." Id. at 342 U.S. 62 . The Court then concluded that Jeffers "unquestionably had standing . . . unless the contraband nature of the narcotics seized precluded his assertion, for purposes of the exclusionary rule, of a property interest therein. " Ibid. (emphasis supplied). Similarly, Jones v. United States, supra, is quite plainly premised on the understanding that an interest in the seized property is sufficient to establish that the defendant "himself was the victim of an invasion of privacy." 362 U.S. at 362 U. S. 261 . The Court observed that the "conventional standing requirement," id. at 362 U. S. 262 , required the defendant to "claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched," id. at 362 U. S. 261 (emphasis supplied). The Court relaxed that rule for defendants charged with possessory offenses because "[t]he same element . . . which has caused a dilemma, i.e., that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is Page 448 U. S. 117 required when standing is challenged." Id. at 362 U. S. 263 (emphasis supplied). Instead, "[t]he possession on the basis of which petitioner is to be and was convicted suffices to give him standing," id. at 362 U. S. 264 . Simmons v. United States, 390 U. S. 377 (1968), proceeded upon a like understanding. The Court there reiterated that, prior to Jones, "a defendant who wished to assert a Fourth Amendment objection was required to show that he was the owner or possessor of the seized property or that he had a possessory interest in the searched premises." 390 U.S. at 390 U. S. 389 -390 (emphasis supplied). Jones had changed that rule only with respect to defendants charged with possessory offenses, so the defendant Garrett, who was charged with armed robbery, had to establish standing. Because he was not "legitimately on [the] premises" at the time of the search, see Jones, supra at 362 U. S. 267 , "[t]he only, or at least the most natural, way in which he could found standing to object to the admission of the suitcase was to testify that he was its owner." 390 U.S. at 390 U. S. 391 (footnote omitted). See also Brown v. United States, 411 U. S. 223 , 411 U. S. 228 (1973); Mancusi v. DeForte, 392 U. S. 364 , 392 U. S. 367 (1968). The Court's decision today is not wrong, however, simply because it is contrary to our previous cases. It is wrong because it is contrary to the Fourth Amendment, which guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Court's reading of the Amendment is far too narrow. The Court misreads the guarantee of security " in their persons, houses, papers, and effects, against unreasonable searches and seizures" to afford protection only against unreasonable searches and seizures of persons and places. The Fourth Amendment, it seems to me, provides in plain language that, if one's security in one's "effects" is disturbed by an unreasonable search and seizure, one has been the victim of a constitutional violation; and so it has always been Page 448 U. S. 118 understood. Therefore, the Court's insistence that, in order to challenge the legality of the search, one must also assert a protected interest in the premises is misplaced. The interest in the item seized is quite enough to establish that the defendant's personal Fourth Amendment rights have been invaded by the government's conduct. The idea that a person cannot object to a search unless he can show an interest in the premises, even though he is the owner of the seized property, was squarely rejected almost 30 years ago in United States v. Jeffers, supra. There the Court stated: "The Government argues . . . that the search did not invade respondent's privacy, and that he, therefore, lacked the necessary standing to suppress the evidence seized. The significant act, it says, is the seizure of the goods of the respondent without a warrant. We do not believe the events are so easily isolable. Rather, they are bound together by one sole purpose -- to locate and seize the narcotics of respondent. The search and seizure are, therefore, incapable of being untied. To hold that this search and seizure were lawful as to the respondent would permit a quibbling distinction to overturn a principle which was designed to protect a fundamental right." Id. at 342 U. S. 52 . When the government seizes a person's property, it interferes with his constitutionally protected right to be secure in his effects. That interference gives him the right to challenge the reasonableness of the government's conduct, including the seizure. If the defendant's property was seized as the result of an unreasonable search, the seizure cannot be other than unreasonable. In holding that the Fourth Amendment protects only those with a privacy interest in the place searched, and not those with an ownership or possessory interest in the things seized, the Court has turned the development of the law of search Page 448 U. S. 119 and seizure on its head. The history of the Fourth Amendment shows that it was designed to protect property interests, as well as privacy interests; in fact, until Jones, the question whether a person's Fourth Amendment rights had been violated turned on whether he had a property interest in the place searched or the items seized. Jones and Katz v. United States, 389 U. S. 347 (1967), expanded our view of the protections afforded by the Fourth Amendment by recognizing that privacy interests are protected even if they do not arise from property rights. But that recognition was never intended to exclude interests that had historically been sheltered by the Fourth Amendment from its protection. Neither Jones nor Katz purported to provide an exclusive definition of the interests protected by the Fourth Amendment. Indeed, as Katz recognized: "That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all." 389 U.S. at 389 U. S. 350 . Those decisions freed Fourth Amendment jurisprudence from the constraints of "subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical." Jones, 362 U.S. at 362 U. S. 266 . Rejection of those finely drawn distinctions as irrelevant to the concerns of the Fourth Amendment did not render property rights wholly outside its protection, however. Not every concept involving property rights, we should remember, is "arcane." Cf. ante at 448 U. S. 105 . In fact, the Court, rather inconsistently, denies that property rights may, by themselves, entitle one to the protection of the Fourth Amendment, but simultaneously suggests that a person may claim such protection only if his expectation of privacy in the premises searched is so strong that he may exclude all others from that place. See ante at 448 U. S. 105 -106; Rakas v. Illinois, 439 U.S. at 439 U. S. 149 . Such a harsh threshold requirement Page 448 U. S. 120 was not imposed even in the heyday of a property rights oriented Fourth Amendment. II Petitioner also contends that his admission of ownership of the drugs should have been suppressed as the fruit of an unlawful detention. The state courts did not pass on that claim, and no factual record was developed which would shed light on the proper disposition of the claim. In such circumstances, it would be appropriate for us to defer to the state court and permit it to make the initial determination. Nevertheless, the majority proceeds to dispose of petitioner's claim by concluding that, even if the detention was illegal, "petitioner's statements were acts of free will unaffected by any illegality in the initial detention." Ante at 448 U. S. 110 . I disagree. Petitioner's admissions, far from being "spontaneous," ante at 448 U. S. 108 , were made in response to Vanessa Cox's demand that petitioner "take what was his." In turn, it is plain that her statement was the direct product of the illegal search of her purse. And that search was made possible only because the police refused to let anyone in the house depart unless they "consented" to a body search; that detention the Court has assumed was illegal. Under these circumstances, petitioner's admissions were obviously the fruit of the illegal detention, and should have been suppressed. III In the words of Mr. Justice Frankfurter: "A decision [of a Fourth Amendment claim] may turn on whether one gives that Amendment a place second to none in the Bill of Rights or considers it, on the whole, a kind of nuisance, a serious impediment in the war against crime." Harris v. United States, 331 U. S. 145 , 331 U. S. 157 (1947) (dissenting opinion). Today a majority of the Court has substantially cut back the protection afforded by the Fourth Amendment and the ability of the Page 448 U. S. 121 people to claim that protection, apparently out of concern lest the government's ability to obtain criminal convictions be impeded. A slow and steady erosion of the ability of victims of unconstitutional searches and seizures to obtain a remedy for the invasion of their rights saps the constitutional guarantee of its life just as surely as would a substantive limitation. Because we are called on to decide whether evidence should be excluded only when a search has been "successful," it, is easy to forget that the standards we announce determine what government conduct is reasonable in searches and seizures directed at persons who turn out to be innocent, as well as those who are guilty. I continue to believe that ungrudging application of the Fourth Amendment is indispensable to preserving the liberties of a democratic society. Accordingly, I dissent. * The Court invites the reader to "contrast" Jones v. United States, 362 U. S. 257 (1960), which it expressly overrules, and to "see" Simmons v. United States, 390 U. S. 377 , 390 U. S. 389 -390 (1968). Ante at 448 U. S. 105 , 448 U. S. 104 . The passage cited in Simmons contains the following language: "At one time, a defendant who wished to assert a Fourth Amendment objection was required to show that he was the owner or possessor of the seized property or that he had a possessory interest in the searched premises." 390 U.S. at 390 U. S. 389 -390 (emphasis supplied). The Court in Simmons then observed that Jones had "relaxed" those standing requirements by holding that, in a case charging a possessory offense, "the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence. . . ." 390 U.S. at 390 U. S. 390 . The Court also "contrasts" two other cases in connection with its subsidiary point that a "bailment" that is "precipitous" may not be enough to show that a person "took normal precautions to maintain his privacy." Ante at 448 U. S. 105 . The Court also cites Katz v. United States, 389 U. S. 347 (1967), as the source of the phrase "legitimate expectation of privacy." But Katz did not purport to restrict the interest protected by the Fourth Amendment, see infra at 448 U. S. 119 -120.

Here is a summary of the case verdict: The Supreme Court upheld the conviction of Rawlings, who was indicted for possessing and intending to sell controlled substances found during a search of Cox's purse. The Court agreed that Rawlings did not have a legitimate expectation of privacy in Cox's purse and thus could not challenge the search's validity. The Court also upheld the search of Rawlings' person as justifiable, incident to a lawful arrest based on probable cause. However, Justice Brennan dissented, arguing for a stronger protection of Fourth Amendment rights and disagreeing with the erosion of constitutional guarantees.

Search & Seizure

U.S. v. Ross

https://supreme.justia.com/cases/federal/us/456/798/

U.S. Supreme Court United States v. Ross, 456 U.S. 798 (1982) United States v. Ross No. 80-09 Argued March 1, 1982 Decided June 1, 1982 456 U.S. 798 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus Acting on information from an informant that a described individual was selling narcotics kept in the trunk of a certain car parked at a specified location, District of Columbia police officers immediately drove to the location, found the car there, and, a short while later, stopped the car and arrested the driver (respondent), who matched the informant's description. One of the officers opened the car's trunk, found a closed brown paper bag, and after opening the bag, discovered glassine bags containing white powder (later determined to be heroin). The officer then drove the car to headquarters, where another warrantless search of the trunk revealed a zippered leather pouch containing cash. Respondent was subsequently convicted of possession of heroin with intent to distribute -- the heroin and currency found in the searches having been introduced in evidence after respondent's pretrial motion to suppress the evidence had been denied. The Court of Appeals reversed, holding that, while the officers had probable cause to stop and search respondent's car -- including its trunk -- without a warrant, they should not have opened either the paper bag or the leather pouch found in the trunk without first obtaining a warrant. Held: Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant. Pp. 456 U. S. 804 -825. (a) The "automobile exception" to the Fourth Amendment's warrant requirement established in Carroll v. United States, 267 U. S. 132 , applies to searches of vehicles that are supported by probable cause to believe that the vehicle contains contraband. In this class of cases, a search is not unreasonable if based on objective facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained. Pp. 456 U. S. 804 -809. (b) However, the rationale justifying the automobile exception does not apply so as to permit a warrantless search of any movable container that is believed to be carrying an illicit substance and that is found in a public place even when the container is placed in a vehicle (not otherwise believed to be carrying contraband). United States v. Chadwick, 433 U. S. 1 ; Arkansas v. Sanders, 442 U. S. 753 . Pp. 456 U. S. 809 -814. Page 456 U. S. 799 (c) Where police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages, that may conceal the object of the search. The scope of the search is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. For example, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Pp. 456 U. S. 817 -824. (d) The doctrine of stare decisis does not preclude rejection here of the holding in Robbins v. California, 453 U. S. 420 , and some of the reasoning in Arkansas v. Sanders, supra. Pp. 456 U. S. 824 -825. 210 U.S.App.D.C. 342, 655 F.2d 1159, reversed and remanded. STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BLACKMUN, J., post, p. 456 U. S. 825 , and POWELL, J., post, p. 456 U. S. 826 , filed concurring opinions. WHITE, J., filed a dissenting opinion, post, p. 456 U. S. 826 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 456 U. S. 827 . JUSTICE STEVENS delivered the opinion of the Court. In Carroll v. United States, 267 U. S. 132 , the Court held that a warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband was not unreasonable within the meaning of the Fourth Amendment. The Court in Carroll did not explicitly Page 456 U. S. 800 address the scope of the search that is permissible. In this case, we consider the extent to which police officers -- who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it -- may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view. We hold that they may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant "particularly describing the place to be searched." [ Footnote 1 ] I In the evening of November 27, 1978, an informant who had previously proved to be reliable telephoned Detective Marcum of the District of Columbia Police Department and told him that an individual known as "Bandit" was selling narcotics kept in the trunk of a car parked at 439 Ridge Street. The informant stated that he had just observed "Bandit" complete a sale, and that "Bandit" had told him that additional narcotics were in the trunk. The informant gave Marcum a detailed description of "Bandit" and stated that the car was a "purplish maroon" Chevrolet Malibu with District of Columbia license plates. Accompanied by Detective Cassidy and Sergeant Gonzales, Marcum immediately drove to the area and found a maroon Malibu parked in front of 439 Ridge Street. A license check disclosed that the car was registered to Albert Ross; a computer check on Ross revealed that he fit the informant's description and used the alias "Bandit." In two passes through the neighborhood the officers did not observe anyone matching the informant's description. To avoid alerting persons on the street, they left the area. Page 456 U. S. 801 The officers returned five minutes later and observed the maroon Malibu turning off Ridge Street onto Fourth Street. They pulled alongside the Malibu, noticed that the driver matched the informant's description, and stopped the car. Marcum and Cassidy told the driver -- later identified as Albert Ross, the respondent in this action -- to get out of the vehicle. While they searched Ross, Sergeant Gonzales discovered a bullet on the car's front seat. He searched the interior of the car and found a pistol in the glove compartment. Ross then was arrested and handcuffed. Detective Cassidy took Ross' keys and opened the trunk, where he found a closed brown paper bag. He opened the bag and discovered a number of glassine bags containing a white powder. Cassidy replaced the bag, closed the trunk, and drove the car to headquarters. At the police station, Cassidy thoroughly searched the car. In addition to the "lunch-type" brown paper bag, Cassidy found in the trunk a zippered red leather pouch. He unzipped the pouch and discovered $3,200 in cash. The police laboratory later determined that the powder in the paper bag was heroin. No warrant was obtained. Ross was charged with possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a). Prior to trial, he moved to suppress the heroin found in the paper bag and the currency found in the leather pouch. After an evidentiary hearing, the District Court denied the motion to suppress. The heroin and currency were introduced in evidence at trial, and Ross was convicted. A three-judge panel of the Court of Appeals reversed the conviction. It held that the police had probable cause to stop and search Ross' car and that, under Carroll v. United States, supra, and Chambers v. Maroney, 399 U. S. 42 , the officers lawfully could search the automobile -- including its trunk -- without a warrant. The court considered separately, however, the warrantless search of the two containers found in the trunk. On the basis of Arkansas v. Sanders , Page 456 U. S. 802 442 U. S. 753 , the court concluded that the constitutionality of a warrantless search of a container found in an automobile depends on whether the owner possesses a reasonable expectation of privacy in its contents. Applying that test, the court held that the warrantless search of the paper bag was valid, but the search of the leather pouch was not. The court remanded for a new trial at which the items taken from the paper bag, but not those from the leather pouch, could be admitted. [ Footnote 2 ] The entire Court of Appeals then voted to rehear the case en banc. A majority of the court rejected the panel's conclusion that a distinction of constitutional significance existed between the two containers found in respondent's trunk; it held that the police should not have opened either container without first obtaining a warrant. The court reasoned: "No specific, well delineated exception called to our attention permits the police to dispense with a warrant to open and search 'unworthy' containers. Moreover, we believe that a rule under which the validity of a warrantless search would turn on judgments about the durability of a container would impose an unreasonable and unmanageable burden on police and courts. For these reasons, and because the Fourth Amendment protects all persons, not just those with the resources or fastidiousness to place their effects in containers that decisionmakers would rank in the luggage line, we hold that the Fourth Amendment warrant requirement forbids the warrantless opening of a closed, opaque paper bag to the same extent that it forbids the warrantless opening of a small unlocked suitcase or a zippered leather pouch." 210 U.S.App.D.C. 342, 344, 655 F.2d 1159, 1161 (1981) (footnote omitted). Page 456 U. S. 803 The en banc Court of Appeals considered, and rejected, the argument that it was reasonable for the police to open both the paper bag and the leather pouch because they were entitled to conduct a warrantless search of the entire vehicle in which the two containers were found. The majority concluded that this argument was foreclosed by Sanders. Three dissenting judges interpreted Sanders differently. [ Footnote 3 ] Other courts also have read the Sanders opinion in different ways. [ Footnote 4 ] Moreover, disagreement concerning the proper interpretation of Sanders was at least partially responsible for the fact that Robbins v. California, 453 U. S. 420 , was decided last Term without a Court opinion. There is, however, no dispute among judges about the importance of striving for clarification in this area of the law. For countless vehicles are stopped on highways and public Page 456 U. S. 804 streets every day, and our cases demonstrate that it is not uncommon for police officers to have probable cause to believe that contraband may be found in a stopped vehicle. In every such case, a conflict is presented between the individual's constitutionally protected interest in privacy and the public interest in effective law enforcement. No single rule of law can resolve every conflict, but our conviction that clarification is feasible led us to grant the Government's petition for certiorari in this case and to invite the parties to address the question whether the decision in Robbins should be reconsidered. 454 U.S. 891. II We begin with a review of the decision in Carroll itself. In the fall of 1921, federal prohibition agents obtained evidence that George Carroll and John Kiro were "bootleggers" who frequently traveled between Grand Rapids and Detroit in an Oldsmobile Roadster. [ Footnote 5 ] On December 15, 1921, the agents unexpectedly encountered Carroll and Kiro driving west on that route in that car. The officers gave pursuit, stopped the roadster on the highway, and directed Carroll and Kiro to get out of the car. No contraband was visible in the front seat of the Oldsmobile, and the rear portion of the roadster was closed. One of the agents raised the rumble, seat but found no liquor. He raised the seat cushion and again found nothing. The officer then struck at the "lazyback" of the seat and noticed that it was "harder than upholstery ordinarily is in those backs." Page 456 U. S. 805 267 U.S. at 267 U. S. 174 . He tore open the seat cushion and discovered 68 bottles of gin and whiskey concealed inside. No warrant had been obtained for the search. Carroll and Kiro were convicted of transporting intoxicating liquor in violation of the National Prohibition Act. On review of those convictions, this Court ruled that the warrantless search of the roadster was reasonable within the meaning of the Fourth Amendment. In an extensive opinion written by Chief Justice Taft, the Court held: "On reason and authority, the true rule is that, if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests, as well as the interests and rights of individual citizens." Id. at 267 U. S. 149 . The Court explained at length the basis for this rule. The Court noted that, historically, warrantless searches of vessels, wagons, and carriages -- as opposed to fixed premises such as a home or other building -- had been considered reasonable by Congress. After reviewing legislation enacted by Congress between 1789 and 1799, [ Footnote 6 ] the Court stated: "Thus, contemporaneously with the adoption of the Fourth Amendment, we find in the first Congress, and in the following Second and Fourth Congresses, a difference made as to the necessity for a search warrant between Page 456 U. S. 806 goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant." Id. at 267 U. S. 151 . The Court reviewed additional legislation passed by Congress, [ Footnote 7 ] and again noted that "the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Id. at 267 U. S. 153 . Thus, since its earliest days Congress had recognized the impracticability of securing a warrant in cases involving the transportation of contraband goods. [ Footnote 8 ] It is this impracticability, viewed in historical perspective, that provided the basis for the Carroll decision. Given the nature of an automobile in transit, the Court recognized that an immediate intrusion is necessary if police officers are to secure the illicit Page 456 U. S. 807 substance. In this class of cases, the Court held that a warrantless search of an automobile is not unreasonable. [ Footnote 9 ] In defining the nature of this "exception" to the general rule that, "[i]n cases where the securing of a warrant is reasonably practicable, it must be used," id. at 267 U. S. 156 , the Court in Carroll emphasized the importance of the requirement that Page 456 U. S. 808 officers have probable cause to believe that the vehicle contains contraband. "Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise." Id. at 267 U. S. 153 -154. Moreover, the probable cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate, and not merely on the subjective good faith of the police officers. "'[A]s we have seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the [officer] which. in the judgment of the court. would make his faith reasonable.'" Id. at 267 U. S. 161 -162 (quoting Director General of Railroads v. Kastenbaum, 263 U. S. 25 , 263 U. S. 28 ). [ Footnote 10 ] Page 456 U. S. 809 In short, the exception to the warrant requirement established in Carroll -- the scope of which we consider in this case -- applies only to searches of vehicles that are supported by probable cause. [ Footnote 11 ] In this class of cases, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained. [ Footnote 12 ] III The rationale justifying a warrantless search of an automobile that is believed to be transporting contraband arguably applies with equal force to any movable container that is believed to be carrying an illicit substance. That argument, Page 456 U. S. 810 however, was squarely rejected in United States v. Chadwick, 433 U. S. 1 . Chadwick involved the warrantless search of a 200-pound footlocker secured with two padlocks. Federal railroad officials in San Diego became suspicious when they noticed that a brown footlocker loaded onto a train bound for Boston was unusually heavy and leaking talcum powder, a substance often used to mask the odor of marihuana. Narcotics agents met the train in Boston and a trained police dog signaled the presence of a controlled substance inside the footlocker. The agents did not seize the footlocker, however, at this time; they waited until respondent Chadwick arrived and the footlocker was placed in the trunk of Chadwick's automobile. Before the engine was started, the officers arrested Chadwick and his two companions. The agents then removed the footlocker to a secured place, opened it without a warrant, and discovered a large quantity of marihuana. In a subsequent criminal proceeding, Chadwick claimed that the warrantless search of the footlocker violated the Fourth Amendment. In the District Court, the Government argued that, as soon as the footlocker was placed in the automobile, a warrantless search was permissible under Carroll. The District Court rejected that argument, [ Footnote 13 ] and the Government did not pursue it on appeal. [ Footnote 14 ] Rather, the Government contended in this Court that the warrant requirement of the Fourth Amendment applied only to searches of homes and Page 456 U. S. 811 other "core" areas of privacy. The Court unanimously rejected that contention. [ Footnote 15 ] Writing for the Court, THE CHIEF JUSTICE stated: "[I]f there is little evidence that the Framers intended the Warrant Clause to operate outside the home, there is no evidence at all that they intended to exclude from protection of the Clause all searches occurring outside the home. The absence of a contemporary outcry against warrantless searches in public places was because, aside from searches incident to arrest, such warrantless searches were not a large issue in colonial America. Thus, silence in the historical record tells us little about the Framers' attitude toward application of the Warrant Clause to the search of respondents' footlocker. What we do know is that the Framers were men who focused on the wrongs of that day, but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth." 433 U.S. at 433 U. S. 8 -9 (footnote omitted). The Court in Chadwick specifically rejected the argument that the warrantless search was "reasonable" because a footlocker has some of the mobile characteristics that support warrantless searches of automobiles. The Court recognized that "a person's expectations of privacy in personal luggage are substantially greater than in an automobile," id. at 433 U. S. 13 , and noted that the practical problems associated with the temporary detention of a piece of luggage during the period of time necessary to obtain a warrant are significantly less than those associated with the detention of an automobile. Id. at 433 U. S. 13 , n. 7. In ruling that the warrantless search of the Page 456 U. S. 812 footlocker was unjustified, the Court reaffirmed the general principle that closed packages and containers may not be searched without a warrant. Cf. Ex parte Jackson, 96 U. S. 727 ; United States v. Van Leeuwen, 397 U. S. 249 . In sum, the Court in Chadwick declined to extend the rationale of the "automobile exception" to permit a warrantless search of any movable container found in a public place. [ Footnote 16 ] The facts in Arkansas v. Sanders, 442 U. S. 753 , were similar to those in Chadwick. In Sanders, a Little Rock police officer received information from a reliable informant that Sanders would arrive at the local airport on a specified flight that afternoon carrying a green suitcase containing marihuana. The officer went to the airport. Sanders arrived on schedule, and retrieved a green suitcase from the airline baggage service. Sanders gave the suitcase to a waiting companion, who placed it in the trunk of a taxi. Sanders and his companion drove off in the cab; police officers followed and stopped the taxi several blocks from the airport. The officers opened the trunk, seized the suitcase, and searched it on the scene without a warrant. As predicted, the suitcase contained marihuana. The Arkansas Supreme Court ruled that the warrantless search of the suitcase was impermissible under the Fourth Amendment, and this Court affirmed. As in Chadwick, the mere fact that the suitcase had been placed in the trunk of the vehicle did not render the automobile exception of Carroll applicable; the police had probable cause to seize the suitcase before it was placed in the trunk of the cab, and did not Page 456 U. S. 813 have probable cause to search the taxi itself. [ Footnote 17 ] Since the suitcase had been placed in the trunk, no danger existed that its contents could have been secreted elsewhere in the vehicle. [ Footnote 18 ] As THE CHIEF JUSTICE noted in his opinion concurring in the judgment: "Because the police officers had probable cause to believe that respondent's green suitcase contained marihuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, 433 U. S. 1 (1977). . . ." ". . . Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent's arrest does not turn this into an 'automobile' exception case. The Court need say no more." 442 U.S. at 442 U. S. 766 -767. The Court in Sanders did not, however, rest its decision solely on the authority of Chadwick. In rejecting the State's Page 456 U. S. 814 argument that the warrantless search of the suitcase was justified on the ground that it had been taken from an automobile lawfully stopped on the street, the Court broadly suggested that a warrantless search of a container found in an automobile could never be sustained as part of a warrantless search of the automobile itself. [ Footnote 19 ] The Court did not suggest that it mattered whether probable cause existed to search the entire vehicle. It is clear, however, that in neither Chadwick nor Sanders did the police have probable cause to search the vehicle or anything within it except the footlocker in the former case and the green suitcase in the latter. Robbins v. California, 453 U. S. 420 , however, was a case in which suspicion was not directed at a specific container. In that case, the Court for the first time was forced to consider whether police officers who are entitled to conduct a warrantless search of an automobile stopped on a public roadway may open a container found within the vehicle. In the early morning of January 5, 1975, police officers stopped Robbins' station wagon because he was driving erratically. Robbins got out of the car, but later returned to obtain the vehicle's registration papers. When he opened the car door, the officers smelled marihuana smoke. One of the officers searched Robbins and discovered a vial of liquid; in a search of the interior of the car the officer found marihuana. The police officers then opened the tailgate of the station wagon and raised the cover of a recessed luggage compartment. In Page 456 U. S. 815 the compartment, they found two packages wrapped in green opaque plastic. The police unwrapped the packages and discovered a large amount of marihuana in each. Robbins was charged with various drug offenses, and moved to suppress the contents of the plastic packages. The California Court of Appeal held that "[s]earch of the automobile was proper when the officers learned that appellant was smoking marijuana when they stopped him," [ Footnote 20 ] and that the warrantless search of the packages was justified because "the contents of the packages could have been inferred from their outward appearance, so that appellant could not have held a reasonable expectation of privacy with respect to the contents." People v. Robbins, 103 Cal. App. 3d 34 , 40, 162 Cal. Rptr. 780 , 783 (1980). This Court reversed. Writing for a plurality, Justice Stewart rejected the argument that the outward appearance of the packages precluded Robbins from having a reasonable expectation of privacy in their contents. He also squarely rejected the argument that there is a constitutional distinction between searches of luggage and searches of "less worthy" containers. Justice Stewart reasoned that all containers are equally protected by the Fourth Amendment unless their contents are in plain view. The plurality concluded that the warrantless search was impermissible because Chadwick and Sanders had established that "a closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else." 453 U.S. at 453 U. S. 425 . In an opinion concurring in the judgment, JUSTICE POWELL, the author of the Court's opinion in Sanders, stated that "[t]he plurality's approach strains the rationales of our prior cases, and imposes substantial burdens on law enforcement without vindicating any significant values of privacy." 453 Page 456 U. S. 816 U.S. at 453 U. S. 429 . [ Footnote 21 ] He noted that possibly "the controlling question should be the scope of the automobile exception to the warrant requirement," id. at 453 U. S. 435 , and explained that, under that view, "when the police have probable cause to search an automobile, rather than only to search a particular container that fortuitously is located in it, the exigencies that allow the police to search the entire automobile without a warrant support the warrantless search of every container found therein. See post at 453 U. S. 451 , and n. 13 (STEVENS, J., dissenting). This analysis is entirely consistent with the holdings in Chadwick and Sanders, neither of which is an 'automobile case,' because the police there had probable cause to search the double-locked footlocker and the suitcase respectively before either came near an automobile." Ibid. The parties in Robbins had not pressed that argument, however, Page 456 U. S. 817 and JUSTICE POWELL concluded that institutional constraints made it inappropriate to reexamine basic doctrine without full adversary presentation. He concurred in the judgment, since it was supported -- although not compelled -- by the Court's opinion in Sanders, and stated that a future case might present a better opportunity for thorough consideration of the basic principles in this troubled area. That case has arrived. Unlike Chadwick and Sanders, in this case, police officers had probable cause to search respondent's entire vehicle. [ Footnote 22 ] Unlike Robbins, in this case, the parties have squarely addressed the question whether, in the course of a legitimate warrantless search of an automobile, police are entitled to open containers found within the vehicle. We now address that question. Its answer is determined by the scope of the search that is authorized by the exception to the warrant requirement set forth in Carroll. IV In Carroll itself, the whiskey that the prohibition agents seized was not in plain view. It was discovered only after an officer opened the rumble seat and tore open the upholstery of the lazyback. The Court did not find the scope of the search unreasonable. Having stopped Carroll and Kiro on a public road and subjected them to the indignity of a vehicle Page 456 U. S. 818 search -- which the Court found to be a reasonable intrusion on their privacy because it was based on probable cause that their vehicle was transporting contraband -- prohibition agents were entitled to tear open a portion of the roadster itself. The scope of the search was no greater than a magistrate could have authorized by issuing a warrant based on the probable cause that justified the search. Since such a warrant could have authorized the agents to open the rear portion of the roadster and to rip the upholstery in their search for concealed whiskey, the search was constitutionally permissible. In Chambers v. Maroney, the police found weapons and stolen property "concealed in a compartment under the dashboard." 399 U.S. at 399 U. S. 44 . No suggestion was made that the scope of the search was impermissible. It would be illogical to assume that the outcome of Chambers -- or the outcome of Carroll itself -- would have been different if the police had found the secreted contraband enclosed within a secondary container and had opened that container without a warrant. If it was reasonable for prohibition agents to rip open the upholstery in Carroll, it certainly would have been reasonable for them to look into a burlap sack stashed inside; if it was reasonable to open the concealed compartment in Chambers, it would have been equally reasonable to open a paper bag crumpled within it. A contrary rule could produce absurd results inconsistent with the decision in Carroll itself. In its application of Carroll, this Court, in fact, has sustained warrantless searches of containers found during a lawful search of an automobile. In Husty v. United States, 282 U. S. 694 , the Court upheld a warrantless seizure of whiskey found during a search of an automobile, some of which was discovered in "whiskey bags" that could have contained other goods. [ Footnote 23 ] In Scher v. United States, 305 U. S. 251 , federal officers Page 456 U. S. 819 seized and searched packages of unstamped liquor found in the trunk of an automobile searched without a warrant. As described by a police officer who participated in the search: "I turned the handle and opened the trunk, and found the trunk completely filled with packages wrapped in brown paper and tied with twine; I think somewhere around thirty packages, each one containing six bottles. [ Footnote 24 ]" In these cases, it was not contended that police officers needed a warrant to open the whiskey bags or to unwrap the brown paper packages. These decisions nevertheless "have much weight, as they show that this point neither occurred to the bar or the bench." Bank of the United States v. Deveaux , 5 Cranch 61, 88 (Marshall, C.J.). The fact that no such argument was even made illuminates the profession's understanding of the scope of the search permitted under Carroll. Indeed, prior to the decisions in Chadwick and Sanders, courts routinely had held that containers and packages found during a legitimate warrantless search of an automobile also could be searched without a warrant. [ Footnote 25 ] Page 456 U. S. 820 As we have stated, the decision in Carroll was based on the Court's appraisal of practical considerations viewed in the perspective of history. It is therefore significant that the practical consequences of the Carroll decision would be largely nullified if the permissible scope of a warrantless search of an automobile did not include containers and packages found inside the vehicle. Contraband goods rarely are strewn across the trunk or floor of a car; since, by their very nature, such goods must be withheld from public view, they rarely can be placed in an automobile unless they are enclosed within some form of container. [ Footnote 26 ] The Court in Carroll held that "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant." 267 U.S. at 267 U. S. 153 (emphasis added). As we noted in Henry v. United States, 361 U. S. 98 , 361 U. S. 104 , the decision in Carroll "merely relaxed the requirements for a warrant on grounds of practicability." It neither broadened nor limited the scope of a lawful search based on probable cause. A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found, and is not limited by the possibility that separate acts of entry Page 456 U. S. 821 or opening may be required to complete the search. [ Footnote 27 ] Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand. [ Footnote 28 ] Page 456 U. S. 822 This rule applies equally to all containers, as indeed we believe it must. One point on which the Court was in virtually unanimous agreement in Robbins was that a constitutional distinction between "worthy" and "unworthy" containers would be improper. [ Footnote 29 ] Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, [ Footnote 30 ] the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, [ Footnote 31 ] so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case. As Justice Stewart stated in Robbins, the Fourth Amendment provides protection to the owner of every container Page 456 U. S. 823 that conceals its contents from plain view. 453 U.S. at 453 U. S. 427 (plurality opinion). But the protection afforded by the Amendment varies in different settings. The luggage carried by a traveler entering the country may be searched at random by a customs officer; the luggage may be searched no matter how great the traveler's desire to conceal the contents may be. A container carried at the time of arrest often may be searched without a warrant and even without any specific suspicion concerning its contents. A container that may conceal the object of a search authorized by a warrant may be opened immediately; the individual's interest in privacy must give way to the magistrate's official determination of probable cause. In the same manner, an individual's expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband. Certainly the privacy interests in a car's trunk or glove compartment may be no less than those in a movable container. An individual undoubtedly has a significant interest that the upholstery of his automobile will not be ripped or a hidden compartment within it opened. These interests must yield to the authority of a search, however, which -- in light of Carroll -- does not itself require the prior approval of a magistrate. The scope of a warrantless search based on probable cause is no narrower -- and no broader -- than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize. [ Footnote 32 ] Page 456 U. S. 824 The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab. V Our decision today is inconsistent with the disposition in Robbins v. California and with the portion of the opinion in Arkansas v. Sanders on which the plurality in Robbins relied. Nevertheless, the doctrine of stare decisis does not preclude this action. Although we have rejected some of the reasoning in Sanders, we adhere to our holding in that case; although we reject the precise holding in Robbins, there was no Court opinion supporting a single rationale for its judgment, and the reasoning we adopt today was not presented by the parties in that case. Moreover, it is clear that no legitimate reliance interest can be frustrated by our decision today. [ Footnote 33 ] Of greatest importance, we are convinced that the rule we apply in this case is faithful to the interpretation of the Fourth Amendment that the Court has followed with substantial consistency throughout our history. We reaffirm the basic rule of Fourth Amendment jurisprudence stated by Justice Stewart for a unanimous Court in Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 390 : Page 456 U. S. 825 "The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that" "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." " Katz v. United States, 389 U. S. 347 , 389 U. S. 357 (footnotes omitted)." The exception recognized in Carroll is unquestionably one that is "specifically established and well delineated." We hold that the scope of the warrantless search authorized by that exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. The judgment of the Court of Appeals is reversed. The case is remanded for further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ] "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S.Const., Amdt. 4. [ Footnote 2 ] The court rejected the Government's argument that the warrantless search of the leather pouch was justified as incident to respondent's arrest. App. to Pet. for Cert. 137a. The Government has not challenged this holding. [ Footnote 3 ] Judge Tamm, the author of the original panel opinion, reiterated the view that Sanders prohibited the warrantless search of the leather pouch. but not the search of the paper bag. Judge Robb agreed that this result was compelled by Sanders, although he stated that, in his opinion, "the right to search an automobile should include the right to open any container found within the automobile, just as the right to search a lawfully arrested prisoner carries with it the right to examine the contents of his wallet and any envelope found in his pocket, and the right to search a room includes authority to open and search all the drawers and containers found within the room." 210 U.S.App.D.C. at 363, 655 F.2d at 1180. Judge MacKinnon concurred with Judge Tamm that Sanders did not prohibit the warrantless search of the paper bag. Concerning the leather pouch, he agreed with Judge Wilkey, who dissented on the ground that Sanders should not be applied retroactively. [ Footnote 4 ] Many courts have held that Sanders requires that a warrant be obtained only for personal luggage and other "luggage-type" containers. See, e.g., United States v. Brown, 635 F.2d 1207 (CA6 1980); United States v. Jimenez, 626 F.2d 39 (CA7 1980). One court has held that Sanders does not apply if the police have probable cause to search an entire vehicle, and not merely an isolated container within it. Cf. State v. Bible, 389 So. 2d 42 (La.1980), vacated and remanded, 453 U.S. 918; State v. Hernandez, 408 So. 2d 911 (La.1981); see also 210 U.S.App.D.C. at 363, 655 F.2d at 1180 (Robb, J., dissenting). [ Footnote 5 ] On September 29, 1921, Carroll and Kiro met the agents in Grand Rapids and agreed to sell them three cases of whiskey. The sale was not consummated, however, possibly because Carroll learned the agents' true identity. In October, the agents discovered Carroll and Kiro driving the Oldsmobile Roadster on the road to Detroit, which was known as an active center for the introduction of illegal liquor into this country. The agents followed the roadster as far as East Lansing, but there abandoned the chase. [ Footnote 6 ] The legislation authorized customs officials to search any ship or vessel without a warrant if they had probable cause to believe that it concealed goods subject to duty. The same legislation required a warrant for searches of dwelling places. 267 U.S. at 267 U. S. 150 -151. [ Footnote 7 ] In particular, the Court noted an 1815 statute that permitted customs officers not only to board and search vessels without a warrant, "but also to stop, search and examine any vehicle, beast or person on which or whom they should suspect there was merchandise which was subject to duty or had been introduced into the United States in any manner contrary to law." Id. at 267 U. S. 151 . [ Footnote 8 ] In light of this established history, individuals always had been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts. [ Footnote 9 ] Subsequent cases make clear that the decision in Carroll was not based on the fact that the only course available to the police was an immediate search. As Justice Harlan later recognized, although a failure to seize a moving automobile believed to contain contraband might deprive officers of the illicit goods, once a vehicle itself has been stopped, the exigency does not necessarily justify a warrantless search. Chambers v. Maroney, 399 U. S. 42 , 399 U. S. 62 -64 (opinion of Harlan, J.). The Court in Chambers, however -- with only Justice Harlan dissenting -- refused to adopt a rule that would permit a warrantless seizure but prohibit a warrantless search. The Court held that, if police officers have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct an immediate search of the contents of that vehicle. "For constitutional purposes, we see no difference between, on the one hand, seizing and holding a car before presenting the probable cause issue to a magistrate, and, on the other hand, carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment." Id. at 399 U. S. 52 . The Court also has held that, if an immediate search on the street is permissible without a warrant, a search soon thereafter at the police station is permissible if the vehicle is impounded. Chambers, supra; Texas v. White, 423 U. S. 67 . These decisions are based on the practicalities of the situations presented and a realistic appraisal of the relatively minor protection that a contrary rule would provide for privacy interests. Given the scope of the initial intrusion caused by a seizure of an automobile -- which often could leave the occupants stranded on the highway -- the Court rejected an inflexible rule that would force police officers in every case either to post guard at the vehicle while a warrant is obtained or to tow the vehicle itself to the station. Similarly, if an immediate search on the scene could be conducted, but not one at the station if the vehicle is impounded, police often simply would search the vehicle on the street -- at no advantage to the occupants, yet possibly at certain cost to the police. The rules as applied in particular cases may appear unsatisfactory. They reflect, however, a reasoned application of the more general rule that, if an individual gives the police probable cause to believe a vehicle is transporting contraband, he loses the right to proceed on his way without official interference. [ Footnote 10 ] After reviewing the relevant authorities at some length, the Court concluded that the probable cause requirement was satisfied in the case before it. The Court held that "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched." 267 U.S. at 267 U. S. 162 . Cf. Brinegar v. United States, 338 U. S. 160 , 338 U. S. 176 -177; Henry v. United States, 361 U. S. 98 , 361 U. S. 102 . [ Footnote 11 ] See Husty v. United States, 282 U. S. 694 ; Scher v. United States, 305 U. S. 251 ; Brinegar v. United States, supra; Henry v. United States, supra; Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 ; Chambers v. Maroney, supra; Texas v. White, supra; Colorado v. Bannister, 449 U. S. 1 . Warrantless searches of automobiles have been upheld in a variety of factual contexts quite different from that presented in Carroll. Cf. Cooper v. California, 386 U. S. 58 ; Cady v. Dombrowski, 413 U. S. 433 ; South Dakota v. Opperman, 428 U. S. 364 . Many of these searches do not require a showing of probable cause that the vehicle contains contraband. We are not called upon to -- and do not -- consider in this case the scope of the warrantless search that is permitted in those cases. [ Footnote 12 ] As the Court in Carroll concluded: "We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction. It gives the owner of an automobile or other vehicle seized under Section 26, in absence of probable cause, a right to have restored to him the automobile, it protects him under the Weeks [ Weeks v. United States, 232 U. S. 383 ] and Amos [ Amos v. United States, 255 U. S. 313 ] cases from use of the liquor as evidence against him, and it subjects the officer making the seizures to damages. On the other hand, in a case showing probable cause, the Government and its officials are given the opportunity, which they should have, to make the investigation necessary to trace reasonably suspected contraband goods and to seize them." 267 U.S. at 267 U. S. 156 . [ Footnote 13 ] The District Court noted: "In this case, there was no nexus between the search and the automobile, merely a coincidence. The challenged search in this case was one of a footlocker, not an automobile. The search took place not in an automobile, but in [the federal building]. The only connection that the automobile had to this search was that, prior to its seizure, the footlocker was placed on the floor of an automobile's open trunk." United State v. Chadwick, 393 F. Supp. 763 , 772 (Mass.1975). [ Footnote 14 ] This Court specifically noted: "The Government does not contend that the footlocker's brief contact with Chadwick's car makes this an automobile search, but it is argued that the rationale of our automobile search cases demonstrates the reasonableness of permitting warrantless searches of luggage; the Government views such luggage as analogous to motor vehicles for Fourth Amendment purposes." 433 U.S. at 433 U. S. 11 -12. [ Footnote 15 ] See id. at 433 U. S. 17 (BLACKMUN, J., dissenting). [ Footnote 16 ] The Court concluded that there is a significant difference between the seizure of a sealed package and a subsequent search of its contents; the search of the container in that case was "a far greater intrusion into Fourth Amendment values than the impoundment of the footlocker." Id. at 433 U. S. 14 , n. 8. A temporary seizure of a package or piece of luggage often may be accomplished without as significant an intrusion upon the individual -- and without as great a burden on the police as in the case of the seizure of an automobile. See n 9, supra. [ Footnote 17 ] The Arkansas Supreme Court carefully reviewed the facts of the case and concluded: "The information supplied to the police by the confidential informant is adequate to support the State's claim that the police had probable cause to believe that appellant's green suitcase contained a controlled substance when the police confiscated the suitcase and opened it." Sanders v. State, 262 Ark. 595, 599, 559 S.W.2d 70, 706 (1977). The court also noted: "The evidence in this case supports the conclusion that the relationship between the suitcase and the taxicab is coincidental." Id. at 600, n. 2, 559 S.W.2d at 706, n. 2. [ Footnote 18 ] Moreover, none of the practical difficulties associated with the detention of a vehicle on a public highway that made the immediate search in Carroll reasonable could justify an immediate search of the suitcase, since the officers had no interest in detaining the taxi or its driver. [ Footnote 19 ] The Court stated that "the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile." 442 U.S. at 442 U. S. 764 , n. 13. This general rule was limited only by the observation that "[n]ot all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example, a kit of burglar tools or a gun case), by their very nature, cannot support any reasonable expectation of privacy, because their content can be inferred from their outward appearance. Similarly, in some cases, the contents of a package will be open to 'plain view,' thereby obviating the need for a warrant." Ibid. [ Footnote 20 ] People v. Robbins, 103 Cal. App. 3d 34 , 39, 162 Cal. Rptr. 780 , 782 (1980). [ Footnote 21 ] "While the plurality's blanket warrant requirement does not even purport to protect any privacy interest, it would impose substantial new burdens on law enforcement. Confronted with a cigar box or a Dixie cup in the course of a probable cause search of an automobile for narcotics, the conscientious policeman would be required to take the object to a magistrate, fill out the appropriate forms, await the decision, and finally obtain the warrant. Suspects or vehicles normally will be detained while the warrant is sought. This process may take hours, removing the officer from his normal police duties. Expenditure of such time and effort, drawn from the public's limited resources for detecting or preventing crimes, is justified when it protects an individual's reasonable privacy interests. In my view, the plurality's requirement cannot be so justified. The aggregate burden of procuring warrants whenever an officer has probable cause to search the most trivial container may be heavy, and will not be compensated by the advancement of important Fourth Amendment values." 453 U.S. at 453 U. S. 433 -434 (POWELL, J., concurring in judgment). The substantial burdens on law enforcement identified by JUSTICE POWELL would, of course, not be affected by the character of the container found during an automobile search. No comparable practical problems arise when the official suspicion is confined to a particular piece of luggage, as in Chadwick and Sanders. Cf. n 19, supra. [ Footnote 22 ] The en banc Court of Appeals stated that, "[b]ased on the tip the police received, Ross's car was properly stopped and searched, and the pouch and bag were properly seized." 210 U.S.App.D.C. at 361, 655 F.2d at 1168 (footnote omitted). The court explained: "[W]e believe it clear that the police had ample and reasonable cause to stop Ross and to search his car. The informer had supplied accurate information on prior occasions, and he was an eyewitness to sales of narcotics by Ross. He said he had just seen Ross take narcotics from the trunk of his car in making a sale, and heard him say he possessed additional narcotics." Id. at 361, n. 22, 655 F.2d at 1168, n. 22. The court further noted: "In this case, the informant told the police that Ross had narcotics in the trunk of his car. No specific container was identified." Id. at 359, 655 F.2d at 1166. [ Footnote 23 ] At the suppression hearing, defense counsel asked the police officer who had conducted the search: "Isn't it possible to put other goods in a bag that has the resemblance of a whiskey bag?" The officer responded: "I suppose it is. I did not think of that at that time. I knew it was whiskey, I was sure it was." App. O.T. 1930, No. 477, p. 27. [ Footnote 24 ] App. O.T. 1938, No. 49, p. 33. The brief of then Solicitor General Robert Jackson noted that the items searched "were wrapped in very heavy brown wrapping paper with at least two wrappings and with a heavy cord around them cross-wise, so that they could readily be lifted." Brief for United States, O.T. 1938, No. 49, p. 6. [ Footnote 25 ] See, e.g., United States v. Soriano, 497 F.2d 147, 149-150 (CA5 1974) (en banc); United States v. Vento, 533 F.2d 838, 867, n. 101 (CA3 1976); United States v. Tramunti, 513 F.2d 1087, 1104 (CA2 1975); United States v. Issod, 508 F.2d 990, 993 (CA7 1974); United States v. Evans, 481 F.2d 990, 994 (CA9 1973); United States v. Bowman, 487 F.2d 1229 (CA10 1973). Many courts continued to apply this rule following the decision in Chadwick. Cf. United States v. Milhollan, 599 F.2d 518, 526-527 (CA3 1979); United States v. Gaultney, 581 F.2d 1137, 1144-1145 (CA5 1978); United States v. Finnegan, 568 F.2d 637, 640-641 (CA9 1977). In ruling that police could search luggage and other containers found during a legitimate warrantless search of an automobile, courts often assumed that the "automobile exception" of Carroll applied whenever a container in an automobile was believed to contain contraband. That view, of course, has since been qualified by Chadwick and Sanders. [ Footnote 26 ] It is noteworthy that the early legislation on which the Court relied in Carroll concerned the enforcement of laws imposing duties on imported merchandise. See nn. 6 and | 6 and S. 798fn7|>7, supra. Presumably, such merchandise was shipped then in containers of various kinds, just as it is today. Since Congress had authorized warrantless searches of vessels and beasts for imported merchandise, it is inconceivable that it intended a customs officer to obtain a warrant for every package discovered during the search; certainly Congress intended customs officers to open shipping containers when necessary, and not merely to examine the exterior of cartons or boxes in which smuggled goods might be concealed. During virtually the entire history of our country -- whether contraband was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile -- it has been assumed that a lawful search of a vehicle would include a search of any container that might conceal the object of the search. [ Footnote 27 ] In describing the permissible scope of a search of a home pursuant to a warrant, Professor LaFave notes: "Places within the described premises are not excluded merely because some additional act of entry or opening may be required." "In countless cases in which warrants described only the land and the buildings, a search of desks, cabinets, closets and similar items has been permitted." 2 W. LaFave, Search and Seizure 152 (1978) (quoting Massey v. Commonwealth, 305 S.W.2d 755 , 756 (Ky.1957)). [ Footnote 28 ] The practical considerations that justify a warrantless search of an automobile continue to apply until the entire search of the automobile and its contents has been completed. Arguably, the entire vehicle itself (including its upholstery) could be searched without a warrant, with all wrapped articles and containers found during that search then taken to a magistrate. But prohibiting police from opening immediately a container in which the object of the search is most likely to be found, and instead forcing them first to comb the entire vehicle, would actually exacerbate the intrusion on privacy interests. Moreover, until the container itself was opened, the police could never be certain that the contraband was not secreted in a yet undiscovered portion of the vehicle; thus, in every case in which a container was found, the vehicle would need to be secured while a warrant was obtained. Such a requirement would be directly inconsistent with the rationale supporting the decisions in Carroll and Chambers. Cf. nn. 19 and | 19 and S. 798fn22|>22, supra. [ Footnote 29 ] Cf. 453 U.S. at 453 U. S. 426 -427 (plurality opinion); id. at 453 U. S. 436 (BLACKMUN, J., dissenting); id. at 453 U. S. 443 (REHNQUIST, J., dissenting); id. at 453 U. S. 447 (STEVENS, J., dissenting). [ Footnote 30 ] If the distinction is based on the proposition that the Fourth Amendment protects only those containers that objectively manifest an individual's reasonable expectation of privacy, however, the propriety of a warrantless search necessarily would turn on much more than the fabric of the container. A paper bag stapled shut and marked "private" might be found to manifest a reasonable expectation of privacy, as could a cardboard box stacked on top of two pieces of heavy luggage. The propriety of the warrantless search seemingly would turn on an objective appraisal of all the surrounding circumstances. [ Footnote 31 ] "'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!'" Miller v. United States, 357 U. S. 301 , 357 U. S. 307 (quoting remarks attributed to William Pitt); cf. Payton v. New York, 445 U. S. 573 , 445 U. S. 601 , n. 54. [ Footnote 32 ] In choosing to search without a warrant on their own assessment of probable cause, police officers, of course, lose the protection that a warrant would provide to them in an action for damages brought by an individual claiming that the search was unconstitutional. Cf. Monroe v. Pape, 365 U. S. 167 . Although an officer may establish that he acted in good faith in conducting the search by other evidence, a warrant issued by a magistrate normally suffices to establish it. [ Footnote 33 ] Any interest in maintaining the status quo that might be asserted by persons who may have structured their business of distributing narcotics or other illicit substances on the basis of judicial precedents clearly would not be legitimate. JUSTICE BLACKMUN, concurring. My dissents in prior cases have indicated my continuing dissatisfaction and discomfort with the Court's vacillation in what is rightly described as "this troubled area." Ante at 456 U. S. 817 . See United States v. Chadwick, 433 U. S. 1 , 433 U. S. 17 (1977); Arkansas v. Sanders, 442 U. S. 753 , 442 U. S. 768 (1979); Robbins v. California, 453 U. S. 420 , 453 U. S. 436 (1981). I adhere to the views expressed in those dissents. It is important, however, not only for the Court as an institution, but also for law enforcement officials and defendants, that the applicable legal rules be clearly established. JUSTICE STEVENS' opinion for the Court now accomplishes much in this respect, and it should clarify a good bit of the confusion that has existed. In order to have an authoritative ruling, I join the Court's opinion and judgment. Page 456 U. S. 826 JUSTICE POWELL, concurring. In my opinion in Robbins v. California, 453 U. S. 420 , 453 U. S. 429 (1981), concurring in the judgment, I stated that the judgment was justified, though not compelled, by the Court's opinion in Arkansas v. Sanders, 442 U. S. 753 (1979). I did not agree, however, with the "bright line" rule articulated by the plurality opinion. Rather, I repeated the view I long have held that one's "reasonable expectation of privacy" is a particularly relevant factor in determining the validity of a warrantless search. I have recognized that, with respect to automobiles in general, this expectation can be only a limited one. See Arkansas v. Sanders, supra, at 442 U. S. 761 ; Almeida-Sanchez v. United States, 413 U. S. 266 , 413 U. S. 279 (1973) (POWELL, J., concurring). I continue to think that, in many situations, one's reasonable expectation of privacy may be a decisive factor in a search case. It became evident last Term, however, from the five opinions written in Robbins -- in none of which THE CHIEF JUSTICE joined -- that it is essential to have a Court opinion in automobile search cases that provides "specific guidance to police and courts in this recurring situation." Robbins v. California, supra, at 453 U. S. 435 (POWELL, J., concurring in judgment). The Court's opinion today, written by JUSTICE STEVENS and now joined by THE CHIEF JUSTICE and four other Justices, will afford this needed guidance. It is fair also to say that, given Carroll v. United States, 267 U. S. 132 (1925), and Chambers v. Maroney, 399 U. S. 42 (1970), the Court's decision does not depart substantially from Fourth Amendment doctrine in automobile cases. Moreover, in enunciating a readily understood and applied rule, today's decision is consistent with the similar step taken last Term in New York v. Belton, 453 U. S. 454 (1981). I join the Court's opinion. JUSTICE WHITE, dissenting. I would not overrule Robbins v. California, 453 U. S. 420 (1981). For the reasons stated by Justice Stewart in that Page 456 U. S. 827 case, I would affirm the judgment of the Court of Appeals. I also agree with much of JUSTICE MARSHALL's dissent in this case. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting. The majority today not only repeals all realistic limits on warrantless automobile searches, it repeals the Fourth Amendment warrant requirement itself. By equating a police officer's estimation of probable cause with a magistrate's, the Court utterly disregards the value of a neutral and detached magistrate. For, as we recently, and unanimously, reaffirmed: "The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed, and that the person or place named in the warrant is involved in the crime. Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search. This Court long has insisted that inferences of probable cause be drawn by" "a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Shadwick v. City of Tampa, 407 U. S. 345 , 407 U. S. 350 (1972), quoting Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948). A police officer on the beat hardly satisfies these standards. In adopting today's new rule, the majority opinion shows contempt for these Fourth Amendment values, ignores this Court's precedents, is internally inconsistent, and produces anomalous and unjust consequences. I therefore dissent. I According to the majority, whenever police have probable cause to believe that contraband may be found within an Page 456 U. S. 828 automobile that they have stopped on the highway, [ Footnote 2/1 ] they may search not only the automobile but also any container found inside it, without obtaining a warrant. The scope of the search, we are told, is as broad as a magistrate could authorize in a warrant to search the automobile. The majority makes little attempt to justify this rule in terms of recognized Fourth Amendment values. The Court simply ignores the critical function that a magistrate serves. And although the Court purports to rely on the mobility of an automobile and the impracticability of obtaining a warrant, it never explains why these concerns permit the warrantless search of a container, which can easily be seized and immobilized while police are obtaining a warrant. The new rule adopted by the Court today is completely incompatible with established Fourth Amendment principles, and takes a first step toward an unprecedented "probable cause" exception to the warrant requirement. In my view, under accepted standards, the warrantless search of the containers in this case clearly violates the Fourth Amendment. A "[I]t is a cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well delineated exceptions.'" Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 390 (1978), quoting Katz v. United States, 389 U. S. 347 , 389 U. S. 357 (1967). The warrant requirement is crucial to protecting Fourth Amendment rights because of the importance of having the probable cause determination made in the first instance by a neutral and detached magistrate. Time and Page 456 U. S. 829 again, we have emphasized that the warrant requirement provides a number of protections that a post hoc judicial evaluation of a policeman's probable cause does not. The requirement of prior review by a detached and neutral magistrate limits the concentration of power held by executive officers over the individual, and prevents some overbroad or unjustified searches from occurring at all. See United States v. United States District Court, 407 U. S. 297 , 407 U. S. 317 (1972); Abel v. United States, 362 U. S. 217 , 362 U. S. 252 (1960) (BRENNAN, J., joined by Warren, C.J., and Black and Douglas, JJ., dissenting). Prior review may also "prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure." United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 565 (1976); see also Beck v. Ohio, 379 U. S. 89 , 379 U. S. 96 (1964). Furthermore, even if a magistrate would have authorized the search that the police conducted, the interposition of a magistrate's neutral judgment reassures the public that the orderly process of law has been respected: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, supra, at 333 U. S. 13 -14. See also Marshall v. Barlow's, Inc., 436 U. S. 307 , 436 U. S. 323 (1978); United States v. United States District Court, supra, at 407 U. S. 321 . The safeguards embodied in the warrant requirement apply as forcefully to automobile searches as to any others. Our cases do recognize a narrow exception to the warrant requirement for certain automobile searches. Throughout our decisions, two major considerations have been advanced to justify the automobile exception to the warrant requirement. Page 456 U. S. 830 We have upheld only those searches that are actually justified by those considerations. First, these searches have been justified on the basis of the exigency of the mobility of the automobile. See, e.g., Chambers v. Maroney, 399 U. S. 42 (1970); Carroll v. United States, 267 U. S. 132 (1925). This "mobility" rationale is something of a misnomer, cf. Cady v. Dombrowski, 413 U. S. 433 , 413 U. S. 442 -443 (1973), since the police ordinarily can remove the car's occupants and secure the vehicle on the spot. However, the inherent mobility of the vehicle often creates situations in which the police's only alternative to an immediate search may be to release the automobile from their possession. [ Footnote 2/2 ] This alternative creates an unacceptably high risk of losing the contents of the vehicle, and is a principal basis for the Court's automobile exception to the warrant requirement. See Chambers, supra, at 399 U. S. 51 , n. 9. In many cases, however, the police will, prior to searching the car, have cause to arrest the occupants and bring them to the station for booking. In this situation, the police can ordinarily seize the automobile and bring it to the station. Because the vehicle is now in the exclusive control of the authorities, any subsequent search cannot be justified by the mobility of the car. Rather, an immediate warrantless search of the vehicle is permitted because of the second major justification for the automobile exception: the diminished expectation of privacy in an automobile. Because an automobile presents much of its contents in open view to police officers who legitimately stop it on a public way, is used for travel, and is subject to significant government Page 456 U. S. 831 regulation, this Court has determined that the intrusion of a warrantless search of an automobile is constitutionally less significant than a warrantless search of more private areas. See Arkansas v. Sanders, 442 U. S. 753 , 442 U. S. 761 (1979) (collecting cases). This justification has been invoked for warrantless automobile searches in circumstances where the exigency of mobility was clearly not present. See, e.g., South Dakota v. Opperman, 428 U. S. 364 , 428 U. S. 367 -368 (1976); Cady v. Dombrowski, supra, at 413 U. S. 441 -442. By focusing on the defendant's reasonable expectation of privacy, this Court has refused to require a warrant in situations where the process of obtaining such a warrant would be more intrusive than the actual search itself. Cf. Katz v. United States, supra. A defendant may consider the seizure of the car a greater intrusion than an immediate search. See Chambers, supra, at 399 U. S. 51 -52. Therefore, even where police can bring both the defendant and the automobile to the station safely and can house the car while they seek a warrant, the police are permitted to decide whether instead to conduct an immediate search of the car. In effect, the warrantless search is permissible because a warrant requirement would not provide significant protection of the defendant's Fourth Amendment interests. B The majority's rule is flatly inconsistent with these established Fourth Amendment principles concerning the scope of the automobile exception and the importance of the warrant requirement. Historically, the automobile exception has been limited to those situations where its application is compelled by the justifications described above. Today, the majority makes no attempt to base its decision on these justifications. This failure is not surprising, since the traditional rationales for the automobile exception plainly do not support extending it to the search of a container found inside a vehicle. Page 456 U. S. 832 The practical mobility problem -- deciding what to do with both the car and the occupants if an immediate search is not conducted -- is simply not present in the case of movable containers, which can easily be seized and brought to the magistrate. See Sanders, 442 U.S. at 442 U. S. 762 -766, and nn. 10, 14. The "lesser expectation of privacy" rationale also has little force. A container, as opposed to the car itself, does not reflect diminished privacy interests. See id. at 442 U. S. 762 , 442 U. S. 764 -765. Moreover, the practical corollary that this Court has recognized -- that depriving occupants of the use of a car may be a greater intrusion than an immediate search -- is of doubtful relevance here, since the owner of a container will rarely suffer significant inconvenience by being deprived of its use while a warrant is being obtained. Ultimately, the majority, unable to rely on the justifications underlying the automobile exception, simply creates a new "probable cause" exception to the warrant requirement for automobiles. We have soundly rejected attempts to create such an exception in the past, see Coolidge v. New Hampshire, 403 U. S. 443 (1971), and we should do so again today. In purported reliance on Carroll v. United States, supra, the Court defines the permissible scope of a search by reference to the scope of a probable cause search that a magistrate could authorize. Under Carroll, however, the mobility of an automobile is what is critical to the egality of a warrantless search. Of course, Carroll properly confined the search to the probable cause limits that would also limit a magistrate, but it did not suggest that the search could be as broad as a magistrate could authorize upon a warrant. A magistrate could authorize a search encompassing containers, even though the mobility rationale does not justify such a broad search. Indeed, the Court's reasoning might have justified the search of the entire car in Coolidge despite the fact that the car was not "mobile" at all. Thus, in blithely suggesting that Carroll "neither broadened nor limited the scope of a lawful search based on probable cause," Page 456 U. S. 833 ante at 456 U. S. 820 , the majority assumes what has never been the law: that the scope of the automobile mobility exception to the warrant requirement is as broad as the scope of a "lawful" probable cause search of an automobile, i.e., one authorized by a magistrate. The majority's sleight of hand ignores the obvious differences between the function served by a magistrate in making a determination of probable cause and the function of the automobile exception. It is irrelevant to a magistrate's function whether the items subject to search are mobile, may be in danger of destruction, or are impractical to store, or whether an immediate search would be less intrusive than a seizure without a warrant. A magistrate's only concern is whether there is probable cause to search them. Where suspicion has focused not on a particular item, but only on a vehicle, home, or office, the magistrate might reasonably authorize a search of closed containers at the location as well. But an officer on the beat who searches an automobile without a warrant is not entitled to conduct a broader search than the exigency obviating the warrant justifies. After all, what justifies the warrantless search is not probable cause alone, but probable cause coupled with the mobility of the automobile. Because the scope of a warrantless search should depend on the scope of the justification for dispensing with a warrant, the entire premise of the majority's opinion fails to support its conclusion. The majority's rule masks the startling assumption that a policeman's determination of probable cause is the functional equivalent of the determination of a neutral and detached magistrate. This assumption ignores a major premise of the warrant requirement -- the importance of having a neutral and detached magistrate determine whether probable cause exists. See supra at 456 U. S. 828 -829. The majority's explanation that the scope of the warrantless automobile search will be "limited" to what a magistrate could authorize is thus inconsistent with our cases, which firmly establish that an on-the-spot Page 456 U. S. 834 determination of probable cause is never the same as a decision by a neutral and detached magistrate. C Our recent decisions in United States v. Chadwick,\ 433 U. S. 1 (1977), Arkansas v. Sanders, supra, and Robbins v. California, 453 U. S. 420 (1981), clearly affirm that movable containers are different from automobiles for Fourth Amendment purposes. In Chadwick, the Court drew a constitutional distinction between luggage and automobiles in terms of substantial differences in expectations of privacy. 433 U.S. at 433 U. S. 12 . Moreover, the Court held that the mobility of such containers does not justify dispensing with a warrant, since federal agents had seized the luggage and safely transferred it to their custody under their exclusive control. Sanders explicitly held that "the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations." 442 U.S. at 442 U. S. 766 . And Robbins reaffirmed the Sanders rationale as applied to wrapped packages found in the unlocked luggage compartment of a vehicle. 453 U.S. at 453 U. S. 425 . [ Footnote 2/3 ] In light of these considerations, I conclude that any movable container found within an automobile deserves precisely the same degree of Fourth Amendment warrant protection that it would deserve if found at a location outside the automobile. See Sanders, 442 U.S. at 442 U. S. 763 -765, and n. 13; Chadwick, supra, at 433 U. S. 17 , n. 1 (BRENNAN, J., concurring). Chadwick , as the majority notes, "reaffirmed the general principle that closed packages and containers may not be Page 456 U. S. 835 searched without a warrant." Ante at 456 U. S. 812 . Although there is no need to describe the exact contours of that protection in this dissenting opinion, it is clear enough that closed, opaque containers -- regardless of whether they are "worthy" or are always used to store personal items -- are ordinarily fully protected. Cf. Sanders, supra, at 442 U. S. 764 , n. 13. [ Footnote 2/4 ] Here, because respondent Ross had placed the evidence in question in a closed paper bag, the container could be seized, but not searched, without a warrant. No practical exigencies required the warrantless searches on the street or at the station: Ross had been arrested and was in custody when both searches occurred, and the police succeeded in transporting the bag to the station without inadvertently spilling its contents. [ Footnote 2/5 ] II In announcing its new rule, the Court purports to rely on earlier automobile search cases, especially Carroll v. United States. The Court's approach, however, far from being "faithful to the interpretation of the Fourth Amendment that the Court has followed with substantial consistency throughout our history," ante at 456 U. S. 824 , is plainly contrary to the letter and the spirit of our prior automobile search cases. Moreover, the new rule produces anomalous and unacceptable consequences. Page 456 U. S. 836 A The majority's argument that its decision is supported by our decisions in Carroll and Chambers is misplaced. The Court in Carroll upheld a warrantless search of an automobile for contraband on the basis of the impracticability of securing a warrant in cases involving the transportation of contraband goods. The Court did not, however, suggest that obtaining a warrant for the search of an automobile is always impracticable. [ Footnote 2/6 ] "In cases where the securing of a warrant is reasonably practicable, it must be used. . . . In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause." 267 U.S. at 267 U. S. 156 (emphasis added). [ Footnote 2/7 ] As this Court reaffirmed in Chambers, 399 U.S. Page 456 U. S. 837 at 399 U. S. 50 , "[n]either Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords." Notwithstanding the reasoning of these cases, the majority argues that Carroll and Chambers support its decisions because integral compartments of a car are functionally equivalent to containers found within a car, and because the practical advantages to the police of the Carroll doctrine "would be largely nullified if the permissible scope of a warrantless search of an automobile did not include containers and packages found inside the vehicle." Ante at 456 U. S. 820 . Neither of these arguments is persuasive. First, the Court's argument that allowing warrantless searches of certain integral compartments of the car in Carroll and Chambers, while protecting movable containers within the car, would be "illogical" and "absurd," ante at 456 U. S. 818 , ignores the reason why this Court has allowed warrantless searches of automobile compartments. Surely an integral compartment within a car is just as mobile, and presents the same practical problems of safekeeping, as the car itself. This cannot be said of movable containers located within the car. The fact that there may be a high expectation of privacy in both containers and compartments is irrelevant, since the privacy rationale is not, and cannot be, the justification for the warrantless search of compartments. The Court's second argument, which focuses on the practical advantages to police of the Carroll doctrine, fares no better. The practical considerations which concerned the Carroll Court involved the difficulty of immobilizing a vehicle while a warrant must be obtained. The Court had no occasion to address whether containers present the same practical difficulties as the car itself or integral compartments of the car. They do not. See supra at 456 U. S. 832 . Carroll hardly suggested, as the Court implies, ante at 456 U. S. 820 , that a warrantless Page 456 U. S. 838 search is justified simply because it assists police in obtaining more evidence. Although it can find no support for its rule in this Court's precedents or in the traditional justifications for the automobile exception, the majority offers another justification. In a footnote, the majority suggests that "practical considerations" militate against securing containers found during an automobile search and taking them to the magistrate. Ante at 456 U. S. 821 , n. 28. The Court confidently remarks: "[P]rohibiting police from opening immediately a container in which the object of the search is most likely to be found, and instead forcing them first to comb the entire vehicle, would actually exacerbate the intrusion on privacy interests. Moreover, until the container itself was opened, the police could never be certain that the contraband was not secreted in a yet undiscovered portion of the vehicle." Ibid. The vehicle would have to be seized while a warrant was obtained, a requirement inconsistent with Carroll and Chambers. Ante at 456 U. S. 821 , n. 28. This explanation is unpersuasive. As this Court explained in Sanders, and as the majority today implicitly concedes, the burden to police departments of seizing a package or personal luggage simply does not compare to the burden of seizing and safeguarding automobiles. Sanders, 442 U.S. at 442 U. S. 765 , n. 14; ante at 456 U. S. 811 , and n. 16. Other aspects of the Court's explanation are also implausible. The search will not always require a "combing" of the entire vehicle, since police may be looking for a particular item, and may discover it promptly. If, instead, they are looking more generally for evidence of a crime, the immediate opening of the container will not protect the defendant's privacy; whether or not it contains contraband, the police will continue to search for new evidence. Finally, the defendant, not the police, should be afforded the choice whether he prefers the immediate opening of his suitcase or other container to the delay incident to seeking a warrant. Cf. Sanders, supra, at 442 U. S. 764 , n. 12. The more reasonable Page 456 U. S. 839 presumption, if a presumption is to replace the defendant's consent, is surely that the immediate search of a closed container will be a greater invasion of the defendant's privacy interests than a mere temporary seizure of the container. [ Footnote 2/8 ] B Finally, the majority's new rule is theoretically unsound, and will create anomalous and unwarranted results. These consequences are readily apparent from the Court's attempt to reconcile its new rule with the holdings of Chadwick and Sanders. [ Footnote 2/9 ] The Court suggests that probable cause to search only a container does not justify a warrantless search of an automobile in which it is placed, absent reason to believe that the contents could be secreted elsewhere in the vehicle. This, the majority asserts, is an indication that the new rule is carefully limited to its justification, and is not inconsistent with Chadwick and Sanders. But why is such a container more private, less difficult for police to seize and store, or in any other relevant respect more properly subject to the warrant Page 456 U. S. 840 requirement, than a container that police discover in a probable cause search of an entire automobile? [ Footnote 2/10 ] This rule plainly has peculiar and unworkable consequences: the Government "must show that the investigating officer knew enough, but not too much, that he had sufficient knowledge to establish probable cause, but insufficient knowledge to know exactly where the contraband was located." 210 U.S.App.D.C. 342, 384, 655 F.2d 1159, 1201 (1981) (en banc) (Wilkey, J., dissenting). Alternatively, the majority may be suggesting that Chadwick and Sanders may be explained because the connection of the container to the vehicle was incidental in these two cases. That is, because police had preexisting probable cause to seize and search the containers, they were not entitled to wait until the item was placed in a vehicle to take advantage of the automobile exception. Cf. Coolidge v. New Hampshire, 403 U. S. 443 (1971); 2 W. LaFave, Search and Seizure 519-525 (1978). I wholeheartedly agree that police cannot employ a pretext to escape Fourth Amendment prohibitions, and cannot rely on an exigency that they could easily have avoided. This interpretation, however, might well be an exception that swallows up the majority's rule. In neither Chadwick nor Sanders did the Court suggest that the delay of the police was a pretext for taking advantage of the automobile exception. For all that appears, the Government may have had legitimate reasons for not searching as soon as they had probable cause. In any event, asking police to rely Page 456 U. S. 841 on such an uncertain line in distinguishing between legitimate and illegitimate searches for containers in automobiles hardly indicates that the majority's approach has brought clarification to this area of the law. Ante at 456 U. S. 804 ; see Robbins, 453 U.S. at 453 U. S. 435 (POWELL, J., concurring in judgment). [ Footnote 2/11 ] III The Court today ignores the clear distinction that Chadwick established between movable containers and automobiles. It also rejects all of the relevant reasoning of Sanders [ Footnote 2/12 ] and offers a substitute rationale that appears inconsistent with the result. See supra at 456 U. S. 832 . Sanders is therefore effectively overruled. And the Court unambiguously overrules "the disposition" of Robbins, ante at 456 U. S. 824 , though it gingerly avoids stating that it is overruling the case itself. The only convincing explanation I discern for the majority's broad rule is expediency: it assists police in conducting Page 456 U. S. 842 automobile searches, ensuring that the private containers into which criminal suspects often place goods will no longer be a Fourth Amendment shield. See ante at 456 U. S. 820 . "When a legitimate search is under way," the Court instructs us, "nice distinctions between . . . glove compartments, upholstered seats, trunks, and wrapped packages . . . must give way to the interest in the prompt and efficient completion of the task at hand." Ante at 456 U. S. 821 . No "nice distinctions" are necessary, however, to comprehend the well recognized differences between movable containers (which, even after today's decision, would be subject to the warrant requirement if located outside an automobile), and the automobile itself, together with its integral parts. Nor can I pass by the majority's glib assertion that the "prompt and efficient completion of the task at hand" is paramount to the Fourth Amendment interests of our citizens. I had thought it well established that "the mere fact that law enforcement may be made more efficient can never, by itself, justify disregard of the Fourth Amendment." Mincey v. Arizona, 437 U.S. at 437 U. S. 393 . [ Footnote 2/13 ] This case will have profound implications for the privacy of citizens traveling in automobiles, as the Court well understands. "For countless vehicles are stopped on highways and public streets every day, and our cases demonstrate that it is not uncommon for police officers to have probable cause to believe that contraband may be found in a stopped vehicle." Ante at 456 U. S. 803 -804. A closed paper bag, a toolbox, a knapsack, a suitcase, and an attache case can alike be searched without the protection of the judgment of a neutral magistrate, based only on the rarely disturbed decision of a police officer that he has probable cause to search for contraband in the vehicle. [ Footnote 2/14 ] The Court derives satisfaction from Page 456 U. S. 843 the fact that its rule does not exalt the rights of the wealthy over the rights of the poor. Ante at 456 U. S. 822 . A rule so broad that all citizens lose vital Fourth Amendment protection is no cause for celebration. I dissent. [ Footnote 2/1 ] The Court confines its holding today to automobiles stopped on the highway which police have probable cause to believe contain contraband. I do not understand the Court to address the applicability of the automobile exception rule announced today to parked cars. Cf. Coolidge v. New Hampshire, 403 U. S. 443 (1971). [ Footnote 2/2 ] The fact that the police are able initially to remove the occupants from the car does not remove the justification for an immediate search. If police could not conduct an immediate search of a stopped automobile, they would often be left with the difficult task of deciding what to do with the occupants while a warrant is obtained. In the case of a parked automobile, by contrast, if the automobile is unoccupied, this problem is not presented. See, e.g., Coolidge v. New Hampshire, supra. [ Footnote 2/3 ] The plurality stated: "[ Chadwick and Sanders ] made clear, if it was not clear before, that a closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else." Robbins v. California, 453 U.S. at 453 U. S. 425 . [ Footnote 2/4 ] This rule may present some linedrawing problems, but no greater than those presented when a movable container is in the arms of a citizen walking down the street. There is no justification for relying on marginal difficulties of definition to reject a warrant requirement in one situation but not the other. [ Footnote 2/5 ] The Government argues that less secure containers such as paper bags can easily spill their contents; thus, no privacy interest of the defendant is protected if police are required to seize the container and bring it to the station. Whatever the force of this argument in other contexts, here police succeeded in reclosing the bag after the initial search and transporting it to the station without incident. [ Footnote 2/6 ] The Court in Carroll v. United States, 267 U. S. 132 (1925), seems to have assumed that the police could not arrest the occupants of the automobile, since the offense was a misdemeanor and was not deemed to have been committed in the officers' presence. See 2 W. LaFave, Search and Seizure 511 (1978). Accordingly, police were faced with an exigency often not encountered today in searches of stopped automobiles: in order to seize the car pending the securing of a warrant, they would have to leave the occupants stranded. [ Footnote 2/7 ] In Carroll, of course, no movable container was searched. Although in other early cases, containers may, in fact, have been searched, see ante at 456 U. S. 818 -819, the parties did not litigate in this Court the question whether containers deserve separate protection. The Court's suggestion that the absence of such an argument "illuminates the profession's understanding of the scope of the search permitted under Carroll, " ante at 456 U. S. 819 , is an unusual approach to constitutional interpretation. I would hesitate to rely upon the "profession's understanding" of the Fourteenth Amendment or of Plessy v. Ferguson, 163 U. S. 537 (1896), in the early part of this century as justification for not granting Negroes constitutional protection. See Brown v. Board of Education, 347 U. S. 483 (1954). Moreover, for a number of reasons, including the broad scope of the permitted search incident to arrest prior to Chimel v. California, 395 U. S. 752 (1969), and the uncertain meaning of a "search" prior to Katz v. United States, 389 U. S. 347 (1967), the profession formerly advanced different arguments against automobile searches than it advances today. [ Footnote 2/8 ] Seizures of automobiles can be distinguished because of the greater interest of defendants in continuing possession of their means of transportation; in the case of automobiles, a seizure is more likely to be a greater intrusion than an immediate search. See Chambers v. Maroney, 399 U. S. 42 , 399 U. S. 51 -52 (1970). [ Footnote 2/9 ] Both cases would appear to fall within the majority's new rule. In United States v. Chadwick, 433 U. S. 1 (1977), federal agents had probable cause to search a footlocker. Although the footlocker had been placed in the trunk of a car and the occupants were about to depart, the Court refused to rely on the automobile exception to uphold the search. (It is true that the United States did not argue in this Court that the search was justified pursuant to that exception, but the theory was hardly so novel that this Court could not have responsibly relied upon it.) In Arkansas v. Sanders, 442 U. S. 753 (1979), too, the suitcase was mobile, and police had probable cause to search it; it was carried in an automobile for several blocks before the automobile was stopped and the suitcase was seized and searched. Again, however, this Court invalidated the search. [ Footnote 2/10 ] In a footnote, the Court appears to suggest a more pragmatic rationale for distinguishing Chadwick and Sanders -- that no practical problems comparable to those engendered by a general search of a vehicle would arise if the official suspicion is confined to a particular piece of luggage. Ante at 456 U. S. 816 , n. 21. This suggestion is illogical. A general search might disclose only a single item worth searching; conversely, preexisting suspicion might attach to a number of items later placed in a car. Surely the protection of the warrant requirement cannot depend on a numerical count of the items subject to search. [ Footnote 2/11 ] Unless one of these alternative explanations is adopted, the Court's attempt to distinguish the holdings in Chadwick and Sanders is not only unpersuasive, but appears to contradict the Court's own theory. The Court suggests that, in each case, the connection of the container to the vehicle was simply coincidental, and notes that the police did not have probable cause to search the entire vehicle. But the police assuredly did have probable cause to search the vehicle for the container. The Court states that the scope of the permitted warrantless search is determined only by what a magistrate could authorize. Ante at 456 U. S. 823 . Once police found that container, according to the Court's own rule, they should have been entitled to search at least the container without a warrant. There was probable cause to search, and the car was mobile in each case. [ Footnote 2/12 ] The Court suggests that it rejects "some of the reasoning in Sanders. " Ante at 456 U. S. 824 . But the Court in Sanders unambiguously stated: "[W]e hold that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations." 442 U.S. at 442 U. S. 766 . The Court today instead adopts the reasoning of the opinion of THE CHIEF JUSTICE, joined by JUSTICE STEVENS, who refused to join the majority opinion because of the breadth of it. rationale. Ibid. [ Footnote 2/13 ] Of course, efficiency and promptness can never be substituted for due process and adherence to the Constitution. Is not a dictatorship the most "efficient" form of government? [ Footnote 2/14 ] The Court purports to restrict its rule to areas that the police have probable cause to search, as "defined by the object of the search and the places in which there is probable cause to believe that it may be found." Ante at 456 U. S. 824 . I agree, of course, that the probable cause component of the automobile exception must be strictly construed. I fear, however, that the restriction that the Court emphasizes may have little practical value. See 210 U.S.App.D.C. 342, 351, n. 21, 655 F.2d 1159, 1168, n. 21 (1981) (en banc). If police open a container within a car and find contraband, they may acquire probable cause to believe that other portions of the car, and other containers within it, will contain contraband. In practice, the Court's rule may amount to a wholesale authorization for police to search any car from top to bottom when they have suspicion, whether localized or general, that it contains contraband.

Police officers who have lawfully stopped a vehicle and have probable cause to believe it contains contraband may conduct a warrantless search of the entire vehicle, including all containers and packages that may conceal the contraband. This "automobile exception" to the Fourth Amendment's warrant requirement applies when there is probable cause to search the entire vehicle, not just a specific container within it.

Search & Seizure

Illinois v. Lafayette

https://supreme.justia.com/cases/federal/us/462/640/

U.S. Supreme Court Illinois v. Lafayette, 462 U.S. 640 (1983) Illinois v. Lafayette No. 81-1859 Argued April 20, 1983 Decided June 20, 1983 462 U.S. 640 CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, THIRD DISTRICT Syllabus After respondent was arrested for disturbing the peace, he was taken to the police station. There, without obtaining a warrant and in the process of booking him and inventorying his possessions, the police removed the contents of a shoulder bag respondent had been carrying, and found amphetamine pills. Respondent was subsequently charged with violating the Illinois Controlled Substances Act, and, at a pretrial hearing, the trial court ordered suppression of the pills. The Illinois Appellate Court affirmed, holding that the shoulder bag search did not constitute a valid search incident to a lawful arrest or a valid inventory search of respondent's belongings. Held: The search of respondent's shoulder bag was a valid inventory search. Pp. 462 U. S. 643 -648. (a) Consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Here, every consideration of orderly police administration -- protection of a suspect's property, deterrence of false claims of theft against the police, security, and identification of the suspect -- benefiting both the police and the public points toward the appropriateness of the examination of respondent's shoulder bag. Pp. 462 U. S. 643 -647. (b) The fact that the protection of the public and of respondent's property might have been achieved by less intrusive means does not, in itself, render the search unreasonable. Even if some less intrusive means existed, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched, and which must be sealed without examination as a unit. Pp. 462 U. S. 647 -648. 99 Ill.App.3d 830, 425 N.E.2d 1383, reversed and remanded. BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 462 U. S. 649 Page 462 U. S. 641 CHIEF JUSTICE BURGER delivered the opinion of the Court. The question presented is whether, at the time an arrested person arrives at a police station, the police may, without obtaining a warrant, search a shoulder bag carried by that person. I On September 1, 1980, at about 10 p.m., Officer Maurice Mietzner of the Kankakee City Police arrived at the Town Cinema in Kankakee, Ill., in response to a call about a disturbance. There he found respondent involved in an altercation with the theater manager. He arrested respondent for disturbing the peace, handcuffed him, and took him to the police station. Respondent carried a purse-type shoulder bag on the trip to the station. At the police station, respondent was taken to the booking room; there, Officer Mietzner removed the handcuffs from respondent and ordered him to empty his pockets and place Page 462 U. S. 642 the contents on the counter. After doing so, respondent took a package of cigarettes from his shoulder bag and placed the bag on the counter. Mietzner then removed the contents of the bag, and found 10 amphetamine pills inside the plastic wrap of a cigarette package. Respondent was subsequently charged with violating § 402(b) of the Illinois Controlled Substances Act, Ill.Rev.Stat., ch. 56 1/2, � 1402(b) (1981), on the basis of the controlled substances found in his shoulder bag. A pretrial suppression hearing was held at which the State argued that the search of the shoulder bag was a valid inventory search under South Dakota v. Opperman, 428 U. S. 364 (1976). Officer Mietzner testified that he examined the bag's contents because it was standard procedure to inventory "everything" in the possession of an arrested person. App. 15, 16. He testified that he was not seeking and did not expect to find drugs or weapons when he searched the bag, and he conceded that the shoulder bag was small enough that it could have been placed and sealed in a bag, container, or locker for protective purposes. Id. at 15. After the hearing, but before any ruling, the State submitted a brief in which it argued for the first time that the search was valid as a delayed search incident to arrest. Thereafter, the trial court ordered the suppression of the amphetamine pills. Id. at 22. On appeal, the Illinois Appellate Court affirmed. 99 Ill.App.3d 830, 425 N.E.2d 1383 (3d Dist.1981). It first held that the State had waived the argument that the search was incident to a valid arrest by failing to raise that argument at the suppression hearing. Id. at 832, 425 N.E.2d at 1385. However, the court went on to discuss and reject the State's argument: "[E]ven assuming, arguendo, that the State has not waived this argument, the stationhouse search of the shoulder bag did not constitute a valid search incident to a lawful arrest." Id. at 833, 425 N.E.2d at 1385. The state court also held that the search was not a valid inventory of respondent's belongings. It purported to distinguish Page 462 U. S. 643 South Dakota v. Opperman, supra, on the basis that there is a greater privacy interest in a purse-type shoulder bag than in an automobile, and that the State's legitimate interests could have been met in a less intrusive manner, by "sealing [the shoulder bag] within a plastic bag or box and placing it in a secured locker." 99 Ill.App.3d at 834-835, 425 N.E.2d at 1386. The Illinois court concluded: "Therefore, the postponed warrantless search of the [respondent's] shoulder bag was neither incident to his lawful arrest nor a valid inventory of his belongings, and thus, violated the fourth amendment." Id. at 835, 425 N.E.2d at 1386. The Illinois Supreme Court denied discretionary review. App. to Pet. for Cert. lb. We granted certiorari, 459 U.S. 986 (1982), because of the frequency with which this question confronts police and courts, and we reverse. II The question here is whether, consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Indeed, we have previously established that the inventory search constitutes a well-defined exception to the warrant requirement. See South Dakota v. Opperman, supra. The Illinois court and respondent rely on United States v. Chadwick, 433 U. S. 1 (1977), and Arkansas v. Sanders, 442 U. S. 753 (1979); in the former, we noted that "probable cause to search is irrelevant" in inventory searches, and went on to state: "This is so because the salutary functions of a warrant simply have no application in that context; the constitutional Page 462 U. S. 644 reasonableness of inventory searches must be determined on other bases." 433 U.S. at 433 U. S. 10 , n. 5. [ Footnote 1 ] A so-called inventory search is not an independent legal concept, but rather an incidental administrative step following arrest and preceding incarceration. To determine whether the search of respondent's shoulder bag was unreasonable, we must "balanc[e] its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 654 (1979). In order to see an inventory search in proper perspective, it is necessary to study the evolution of interests along the continuum from arrest to incarceration. We have held that, immediately upon arrest, an officer may lawfully search the person of an arrestee, United States v. Robinson, 414 U. S. 218 (1973); he may also search the area within the arrestee's immediate control, Chimel v. California, 395 U. S. 752 (1969). We explained the basis for this doctrine in United States v. Robinson, supra, where we said: "A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest Page 462 U. S. 645 situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that, in the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment. " 414 U.S. at 414 U. S. 235 (emphasis added). An arrested person is not invariably taken to a police station or confined; if an arrestee is taken to the police station, that is no more than a continuation of the custody inherent in the arrest status. Nonetheless, the factors justifying a search of the person and personal effects of an arrestee upon reaching a police station but prior to being placed in confinement are somewhat different from the factors justifying an immediate search at the time and place of arrest. The governmental interests underlying a station-house search of the arrestee's person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest. Consequently, the scope of a station-house search will often vary from that made at the time of arrest. Police conduct that would be impractical or unreasonable -- or embarrassingly intrusive -- on the street can more readily -- and privately -- be performed at the station. For example, the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street, but the practical necessities of routine jail administration may even justify taking a prisoner's clothes before confining him, although that step would be rare. This was made clear in United States v. Edwards, 415 U. S. 800 , 415 U. S. 804 (1974): "With or without probable cause, the authorities were entitled [at the station house] not only to search [the Page 462 U. S. 646 arrestee's] clothing but also to take it from him and keep it in official custody. [ Footnote 2 ]" At the station house, it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. A range of governmental interests supports an inventory process. It is not unheard of for persons employed in police activities to steal property taken from arrested persons; similarly, arrested persons have been known to make false claims regarding what was taken from their possession at the station house. A standardized procedure for making a list or inventory as soon as reasonable after reaching the station house not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves -- or others -- with belts, knives, drugs, or other items on their person while being detained. Dangerous instrumentalities -- such as razor blades, bombs, or weapons -- can be concealed in innocent-looking articles taken from the arrestee's possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks either while the items are in police possession or at the time they are returned to the arrestee upon his release. Examining all the items removed from the arrestee's person or possession and listing or inventorying them is an entirely reasonable administrative procedure. It is immaterial whether the police actually fear any particular package or container; the need to protect against such risks arises independently of a particular officer's subjective concerns. See United States v. Robinson, supra, at 414 U. S. 235 . Finally, inspection of an arrestee's personal property may assist the police in ascertaining or verifying his identity. See 2 W. LaFave, Search and Seizure § 5.3, pp. 306-307 (1978). In short, Page 462 U. S. 647 every consideration of orderly police administration benefiting both police and the public points toward the appropriateness of the examination of respondent's shoulder bag prior to his incarceration. Our prior cases amply support this conclusion. In South Dakota v. Opperman, 428 U. S. 364 (1976), we upheld a search of the contents of the glove compartment of an abandoned automobile lawfully impounded by the police. We held that the search was reasonable because it served legitimate governmental interests that outweighed the individual's privacy interests in the contents of his car. Those measures protected the owner's property while it was in the custody of the police, and protected police against possible false claims of theft. We found no need to consider the existence of less intrusive means of protecting the police and the property in their custody -- such as locking the car and impounding it in safe storage under guard. Similarly, standardized inventory procedures are appropriate to serve legitimate governmental interests at stake here. The Illinois court held that the search of respondent's shoulder bag was unreasonable because "preservation of the defendant's property and protection of police from claims of lost or stolen property 'could have been achieved in a less intrusive manner.' For example, . . . the defendant's shoulder bag could easily have been secured by sealing it within a plastic bag or box and placing it in a secured locker." 99 Ill.App.3d at 835, 425 N.E.2d at 1386 (citation omitted). Perhaps so, but the real question is not what "could have been achieved," but whether the Fourth Amendment requires such steps; it is not our function to write a manual on administering routine, neutral procedures of the station house. Our role is to assure against violations of the Constitution. The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative "less intrusive" means. In Cady v. Dombrowski, 413 U. S. 433 (1973), for example, we upheld the search of Page 462 U. S. 648 the trunk of a car to find a revolver suspected of being there. We rejected the contention that the public could equally well have been protected by the posting of a guard over the automobile. In language equally applicable to this case, we held, "[t]he fact that the protection of the public might, in the abstract, have been accomplished by 'less intrusive' means does not, by itself, render the search unreasonable." Id. at 413 U. S. 447 . See also United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 557 , n. 12 (1976). We are hardly in a position to second-guess police departments as to what practical administrative method will best deter theft by, and false claims against, its employees and preserve the security of the station house. It is evident that a station-house search of every item carried on or by a person who has lawfully been taken into custody by the police will amply serve the important and legitimate governmental interests involved. Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit. Only recently, in New York v. Belton, 453 U. S. 454 (1981), we stated that "'[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.'" Id. at 453 U. S. 458 , quoting Dunaway v. New York, 442 U. S. 200 , 442 U. S. 213 -214 (1979). See also United States v. Ross, 456 U. S. 798 , 456 U. S. 821 (1982). Applying these principles, we hold that it is not "unreasonable" for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures. [ Footnote 3 ] Page 462 U. S. 649 The judgment of the Illinois Appellate Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] See also United States v. Edwards, 415 U. S. 800 (1974). In that case, we addressed Cooper v. California, 386 U. S. 58 (1967), where the Court sustained a warrantless search of an automobile that occurred a week after its owner had been arrested. We explained Cooper in the following manner: "It was no answer to say that the police could have obtained a search warrant, for the Court held the test to be not whether it was reasonable to procure a search warrant, but whether the search itself was reasonable, which it was." 415 U.S. at 415 U. S. 807 (emphasis added). [ Footnote 2 ] We were not addressing in Edwards, and do not discuss here, the circumstances in which a strip search of an arrestee may or may not be appropriate. [ Footnote 3 ] The record is unclear as to whether respondent was to have been incarcerated after being booked for disturbing the peace. That is an appropriate inquiry on remand. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in the judgment. I agree that the police do not need a warrant or probable cause to conduct an inventory search prior to incarcerating a suspect, and I therefore concur in the judgment. The practical necessities of securing persons and property in a jailhouse setting justify an inventory search as part of the standard procedure incident to incarceration. A very different case would be presented if the State had relied solely on the fact of arrest to justify the search of respondent's shoulder bag. A warrantless search incident to arrest must be justified by a need to remove weapons or prevent the destruction of evidence. See United States v. Robinson, 414 U. S. 218 , 414 U. S. 251 (1973) (MARSHALL, J., dissenting); Chimel v. California, 395 U. S. 752 , 395 U. S. 763 (1969); United States v. Rabinowitz, 339 U. S. 56 , 339 U. S. 72 (1950) (Frankfurter, J., dissenting). Officer Mietzner did not in fact deem it necessary to search the bag when he arrested respondent, and I seriously doubt that such a search would have been lawful. A search at the time of respondent's arrest could not have been justified by a need to prevent the destruction of evidence, for there is no evidence or fruits of the offense -- disturbing the peace -- of which respondent was suspected. Moreover, although a concern about weapons might have justified seizure of the bag, such a concern could not have justified the further step of searching the bag following its seizure. Cf. United States v. Chadwick, 433 U. S. 1 , 433 U. S. 15 (1977); id. at 433 U. S. 17 , and n. 2 (BRENNAN, J., concurring).

The Supreme Court ruled that police may conduct a warrantless search of an arrested person's belongings as part of the routine administrative procedure at a police station, known as an inventory search. This search is reasonable under the Fourth Amendment to protect the individual's property, deter false claims of theft, and ensure security and identification. The Court reversed the Illinois Appellate Court's decision, which held that the search of the respondent's shoulder bag was not a valid search incident to arrest or a valid inventory search.

Search & Seizure

Michigan v. Long

https://supreme.justia.com/cases/federal/us/463/1032/

U.S. Supreme Court Michigan v. Long, 463 U.S. 1032 (1983) Michigan v. Long No. 82-256 Argued February 23, 1983 Decided July 6, 1983 463 U.S. 1032 CERTIORARI TO THE SUPREME COURT OF MICHIGAN Syllabus Two police officers, patrolling in a rural area at night, observed a car traveling erratically and at excessive speed. When the car swerved into a ditch, the officers stopped to investigate and were met by respondent, the only occupant of the car, at the rear of the car. Respondent, who "appeared to be under the influence of something," did not respond to initial requests to produce his license and registration, and when he began walking toward the open door of the car, apparently to obtain the registration, the officers followed him and saw a hunting knife on the floorboard of the driver's side of the car. The officers then stopped respondent and subjected him to a patdown search, which revealed no weapons. One of the officers shined his flashlight into the car, saw something protruding from under the armrest on the front seat, and, upon lifting the armrest, saw an open pouch that contained what appeared to be marihuana. Respondent was then arrested for possession of marihuana. A further search of the car's interior revealed no more contraband, but the officers decided to impound the vehicle, and more marihuana was found in the trunk. The Michigan state trial court denied respondent's motion to suppress the marihuana taken from both the car's interior and its trunk, and he was convicted of possession of marihuana. The Michigan Court of Appeals affirmed, holding that the search of the passenger compartment was valid as a protective search under Terry v. Ohio, 392 U. S. 1 , and that the search of the trunk was valid as an inventory search under South Dakota v. Opperman, 428 U. S. 364 . However, the Michigan Supreme Court reversed, holding that Terry did not justify the passenger compartment search, and that the marihuana found in the trunk was the "fruit" of the illegal search of the car's interior. Held: 1. This Court does not lack jurisdiction to decide the case on the asserted ground that the decision below rests on an adequate and independent state ground. Because of respect for the independence of state courts and the need to avoid rendering advisory opinions, this Court, in determining whether state court references to state law constitute adequate and independent state grounds, will no longer look beyond the opinion under review, or require state courts to reconsider cases to clarify the grounds of their decisions. Accordingly, when a state court decision fairly appears to rest primarily on federal law, or to be interwoven Page 463 U. S. 1033 with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, this Court will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent state grounds, this Court will not undertake to review the decision. In this case, apart from two citations to the State Constitution, the court below relied exclusively on its understanding of Terry and other federal cases. Even if it is accepted that the Michigan Constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fairly appears that the Michigan Supreme Court rested its decision primarily on federal law. Pp. 463 U. S. 1037 -1044. 2. The protective search of the passenger compartment of respondent's car was reasonable under the principles articulated in Terry and other decisions of this Court. Although Terry involved the stop and subsequent patdown search for weapons of a person suspected of criminal activity, it did not restrict the preventive search to the person of the detained suspect. Protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger. Roadside encounters between police and suspects are especially hazardous, and danger may arise from the possible presence of weapons in the area surrounding a suspect. Thus, the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and the suspect may gain immediate control of weapons. If, while conducting a legitimate Terry search of an automobile's interior, the officer discovers contraband other than weapons, he cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. The circumstances of this case justified the officers in their reasonable belief that respondent posed a danger if he were permitted to reenter his vehicle. Nor did they act unreasonably in taking preventive measures to ensure that there were no other weapons within respondent's immediate grasp before permitting him to reenter his automobile. The fact that respondent was under the officers' control during the investigative stop does not render unreasonable their belief that he could injure them. Pp. 463 U. S. 1045 -1052. 3. Because the Michigan Supreme Court suppressed the marihuana taken from the trunk as a fruit of what it erroneously held was an illegal Page 463 U. S. 1034 search of the car's interior, the case is remanded to enable it to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court. P. 463 U. S. 1053 . 413 Mich. 461, 320 N.W.2d 866 , reversed and remanded. O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined, and in Parts I, III, IV, and V of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 463 U. S. 1054 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 463 U. S. 1054 . STEVENS, J., filed a dissenting opinion, post, p. 463 U. S. 1065 . JUSTICE O'CONNOR delivered the opinion of the Court. In Terry v. Ohio, 392 U. S. 1 (1968), we upheld the validity of a protective search for weapons in the absence of probable cause to arrest because it is unreasonable to deny a police officer the right "to neutralize the threat of physical harm," id. at 392 U. S. 24 , when he possesses an articulable suspicion that an individual is armed and dangerous. We did not, however, expressly address whether such a protective search for weapons could extend to an area beyond the person in the absence of probable cause to arrest. In the present case, respondent David Long was convicted for possession of marihuana found by police in the passenger compartment and trunk of the Page 463 U. S. 1035 automobile that he was driving. The police searched the passenger compartment because they had reason to believe that the vehicle contained weapons potentially dangerous to the officers. We hold that the protective search of the passenger compartment was reasonable under the principles articulated in Terry and other decisions of this Court. We also examine Long's argument that the decision below rests upon an adequate and independent state ground, and we decide in favor of our jurisdiction. I Deputies Howell and Lewis were on patrol in a rural area one evening when, shortly after midnight, they observed a car traveling erratically and at excessive speed. [ Footnote 1 ] The officers observed the car turning down a side road, where it swerved off into a shallow ditch. The officers stopped to investigate. Long, the only occupant of the automobile, met the deputies at the rear of the car, which was protruding Page 463 U. S. 1036 from the ditch onto the road. The door on the driver's side of the vehicle was left open. Deputy Howell requested Long to produce his operator's license, but he did not respond. After the request was repeated, Long produced his license. Long again failed to respond when Howell requested him to produce the vehicle registration. After another repeated request, Long, who Howell thought "appeared to be under the influence of something," 413 Mich. 461, 469, 320 N.W.2d 866 , 868 (1982), turned from the officers and began walking toward the open door of the vehicle. The officers followed Long, and both observed a large hunting knife on the floorboard of the driver's side of the car. The officers then stopped Long's progress and subjected him to a Terry protective patdown, which revealed no weapons. Long and Deputy Lewis then stood by the rear of the vehicle while Deputy Howell shined his flashlight into the interior of the vehicle, but did not actually enter it. The purpose of Howell's action was "to search for other weapons." 413 Mich., at 469, 320 N.W.2d at 868. The officer noticed that something was protruding from under the armrest on the front seat. He knelt in the vehicle and lifted the armrest. He saw an open pouch on the front seat, and upon flashing his light on the pouch, determined that it contained what appeared to be marihuana. After Deputy Howell showed the pouch and its contents to Deputy Lewis, Long was arrested for possession of marihuana. A further search of the interior of the vehicle, including the glovebox, revealed neither more contraband nor the vehicle registration. The officers decided to impound the vehicle. Deputy Howell opened the trunk, which did not have a lock, and discovered inside it approximately 75 pounds of marihuana. The Barry County Circuit Court denied Long's motion to suppress the marihuana taken from both the interior of the car and its trunk. He was subsequently convicted of possession of marihuana. The Michigan Court of Appeals affirmed Long's conviction, holding that the search of the passenger Page 463 U. S. 1037 compartment was valid as a protective search under Terry, supra, and that the search of the trunk was valid as an inventory search under South Dakota v. Opperman, 428 U. S. 364 (1976). See 94 Mich.App. 338, 288 N.W.2d 629 (1979). The Michigan Supreme Court reversed. The court held that "the sole justification of the Terry search, protection of the police officers and others nearby, cannot justify the search in this case." 413 Mich. at 472, 320 N.W.2d at 869. The marihuana found in Long's trunk was considered by the court below to be the "fruit" of the illegal search of the interior, and was also suppressed. [ Footnote 2 ] We granted certiorari in this case to consider the important question of the authority of a police officer to protect himself by conducting a Terry -type search of the passenger compartment of a motor vehicle during the lawful investigatory stop of the occupant of the vehicle. 459 U.S. 904 (1982). II Before reaching the merits, we must consider Long's argument that we are without jurisdiction to decide this case because the decision below rests on an adequate and independent state ground. The court below referred twice to the State Constitution in its opinion, but otherwise relied exclusively on federal law. [ Footnote 3 ] Long argues that the Michigan Page 463 U. S. 1038 courts have provided greater protection from searches and seizures under the State Constitution than is afforded under the Fourth Amendment, and the references to the State Constitution therefore establish an adequate and independent ground for the decision below. It is, of course, "incumbent upon this Court . . . to ascertain for itself . . . whether the asserted nonfederal ground independently and adequately supports the judgment." Abie State Bank v. Bryan, 282 U. S. 765 , 282 U. S. 773 (1931). Although we have announced a number of principles in order to help us determine whether various forms of references to state law constitute adequate and independent state grounds, [ Footnote 4 ] we openly admit that we have thus far not developed a satisfying and consistent approach for resolving this vexing issue. In some instances, we have taken the strict view that, if the ground of decision was at all unclear, we would dismiss the case. See, e.g., Lynch v. New York ex rel. Pierson, 293 U. S. 52 (1934). In other instances, we have vacated, Page 463 U. S. 1039 see, e.g., Minnesota v. National Tea Co., 309 U. S. 551 (1940), or continued a case, see, e.g., Herb v. Pitcairn, 324 U. S. 117 (1945), in order to obtain clarification about the nature of a state court decision. See also California v. Krivda, 409 U. S. 33 (1972). In more recent cases, we have ourselves examined state law to determine whether state courts have used federal law to guide their application of state law or to provide the actual basis for the decision that was reached. See Texas v. Brown, 460 U. S. 730 , 460 U. S. 732 -733, n. 1 (1983) (plurality opinion). Cf. South Dakota v. Neville, 459 U. S. 553 , 459 U. S. 569 (1983) (STEVENS, J., dissenting). In Oregon v. Kennedy, 456 U. S. 667 , 456 U. S. 670 -671 (1982), we rejected an invitation to remand to the state court for clarification even when the decision rested in part on a case from the state court, because we determined that the state case itself rested upon federal grounds. We added that, "[e]ven if the case admitted of more doubt as to whether federal and state grounds for decision were intermixed, the fact that the state court relied to the extent it did on federal grounds requires us to reach the merits." Id. at 456 U. S. 671 . This ad hoc method of dealing with cases that involve possible adequate and independent state grounds is antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved. Moreover, none of the various methods of disposition that we have employed thus far recommends itself as the preferred method that we should apply to the exclusion of others, and we therefore determine that it is appropriate to reexamine our treatment of this jurisdictional issue in order to achieve the consistency that is necessary. The process of examining state law is unsatisfactory because it requires us to interpret state laws with which we are generally unfamiliar, and which often, as in this case, have not been discussed at length by the parties. Vacation and continuance for clarification have also been unsatisfactory, both because of the delay and decrease in efficiency of judicial Page 463 U. S. 1040 administration, see Dixon v. Duffy, 344 U. S. 143 (1952), [ Footnote 5 ] and, more important, because these methods of disposition place significant burdens on state courts to demonstrate the presence or absence of our jurisdiction. See Philadelphia Newspapers, Inc. v. Jerome, 434 U. S. 241 , 434 U. S. 244 (1978) (REHNQUIST, J., dissenting); Department of Motor Vehicles v. Rios, 410 U. S. 425 , 410 U. S. 427 (973) (Douglas, J., dissenting). Finally, outright dismissal of cases is clearly not a panacea, because it cannot be doubted that there is an important need for uniformity in federal law, and that this need goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where the independence of an alleged state ground is not apparent from the four corners of the opinion. We have long recognized that dismissal is inappropriate "where there is strong indication . . . that the federal constitution as judicially construed controlled the decision below." National Tea Co., supra, at 309 U. S. 556 . Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court's refusal to decide cases where there is an adequate and independent state ground. It is precisely because of this respect for state courts, and this desire to avoid advisory opinions, that we do not wish to continue to decide issues of state law that go beyond the opinion that we review, or to require state courts to reconsider cases to clarify the grounds of their decisions. Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible Page 463 U. S. 1041 state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision. This approach obviates in most instances the need to examine state law in order to decide the nature of the state court decision, and will at the same time avoid the danger of our rendering advisory opinions. [ Footnote 6 ] It also avoids the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law. "It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action." National Tea Co., supra, at 309 U. S. 557 . The principle that we will not review judgments of state courts that rest on adequate and independent state grounds Page 463 U. S. 1042 is based, in part, on "the limitations of our own jurisdiction." Herb v. Pitcairn, 324 U. S. 117 , 324 U. S. 125 (1945). [ Footnote 7 ] The jurisdictional concern is that we not "render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." Id. at 324 U. S. 126 . Our requirement of a "plain statement" that a decision rests upon adequate and independent state grounds does not in any way authorize the rendering of advisory opinions. Rather, in determining, as we must, whether we have jurisdiction to review a case that is alleged to rest on adequate and independent state grounds, see Abie State Bank v. Bryan, 282 U.S. at 282 U. S. 773 , we merely assume that there are no such grounds when it is not clear from the opinion itself that the state court relied upon an adequate and independent state ground and when it fairly appears that the state court rested its decision primarily on federal law. [ Footnote 8 ] Page 463 U. S. 1043 Our review of the decision below under this framework leaves us unconvinced that it rests upon an independent state ground. Apart from its two citations to the State Constitution, the court below relied exclusively on its understanding of Terry and other federal cases. Not a single state case was cited to support the state court's holding that the search of the passenger compartment was unconstitutional. [ Footnote 9 ] Indeed, Page 463 U. S. 1044 the court declared that the search in this case was unconstitutional because "[t]he Court of Appeals erroneously applied the principles of Terry v. Ohio . . . to the search of the interior of the vehicle in this case." 413 Mich. at 471, 320 N.W.2d at 869. The references to the State Constitution in no way indicate that the decision below rested on grounds in any way independent from the state court's interpretation of federal law. Even if we accept that the Michigan Constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fairly appears in this case that the Michigan Supreme Court rested its decision primarily on federal law. Rather than dismissing the case, or requiring that the state court reconsider its decision on our behalf solely because of a mere possibility that an adequate and independent ground supports the judgment, we find that we have jurisdiction in the absence of a plain statement that the decision below rested on an adequate and independent state ground. It appears to us that the state court "felt compelled by what it understood to be federal constitutional considerations to construe . . . its own law in the manner it did." Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 , 433 U. S. 568 (1977). [ Footnote 10 ] Page 463 U. S. 1045 III The court below held, and respondent Long contends, that Deputy Howell's entry into the vehicle cannot be justified under the principles set forth in Terry, because " Terry authorized only a limited pat-down search of a person suspected of criminal activity," rather than a search of an area. 413 Page 463 U. S. 1046 Mich. at 472, 320 N.W.2d at 869 (footnote omitted). Brief for Respondent 10. Although Terry did involve the protective frisk of a person, we believe that the police action in this case is justified by the principles that we have already established in Terry and other cases. In Terry, the Court examined the validity of a "stop and frisk" in the absence of probable cause and a warrant. The police officer in Terry detained several suspects to ascertain their identities after the officer had observed the suspects for a brief period of time and formed the conclusion that they were about to engage in criminal activity. Because the officer feared that the suspects were armed, he patted down the outside of the suspects' clothing and discovered two revolvers. Examining the reasonableness of the officer's conduct in Terry, [ Footnote 11 ] we held that there is "'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'" 392 U.S. at 392 U. S. 21 (quoting Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 536 -537 (1967)). Although the conduct of the officer in Terry involved a "severe, though brief, intrusion upon cherished personal security," 392 U.S. at 392 U. S. 24 -25, Page 463 U. S. 1047 we found that the conduct was reasonable when we weighed the interest of the individual against the legitimate interest in "crime prevention and detection," id. at 392 U. S. 22 , and the "need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest." Id. at 392 U. S. 24 . When the officer has a reasonable belief "that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Ibid. Although Terry itself involved the stop and subsequent patdown search of a person, we were careful to note that "[w]e need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective search and seizure for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases." Id. at 392 U. S. 29 . Contrary to Long's view, Terry need not be read as restricting the preventative search to the person of the detained suspect. [ Footnote 12 ] In two cases in which we applied Terry to specific factual situations, we recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers. In Pennsylvania v. Mimms, 434 U. S. 106 (1977), we held that police may order persons out of Page 463 U. S. 1048 an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous. Our decision rested in part on the "inordinate risk confronting an officer as he approaches a person seated in an automobile." Id. at 434 U. S. 110 . In Adams v. Williams, 407 U. S. 143 (1972), we held that the police, acting on an informant's tip, may reach into the passenger compartment of an automobile to remove a gun from a driver's waistband even where the gun was not apparent to police from outside the car and the police knew of its existence only because of the tip. Again, our decision rested in part on our view of the danger presented to police officers in "traffic stop" and automobile situations. [ Footnote 13 ] Finally, we have also expressly recognized that suspects may injure police officers and others by virtue of their access to weapons, even though they may not themselves be armed. In the Term following Terry, we decided Chimel v. California, 395 U. S. 752 (1969), which involved the limitations imposed on police authority to conduct a search incident to a valid arrest. Relying explicitly on Terry, we held that, when an arrest is made, it is reasonable for the arresting officer to search "the arrestee's person and the area 'within his immediate control' -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." 395 U.S. at 395 U. S. 763 . We reasoned that "[a] gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested." Ibid. In New York v. Belton, 453 U. S. 454 (1981), we determined that the lower courts "have found no workable definition of 'the area within the immediate control of the arrestee' when Page 463 U. S. 1049 that area arguably includes the interior of an automobile and the arrestee is its recent occupant." Id. at 453 U. S. 460 . In order to provide a "workable rule," ibid., we held that "articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon.' . . ." Ibid. (quoting Chimel, supra, at 395 U. S. 763 ). We also held that the police may examine the contents of any open or closed container found within the passenger compartment, "for if the passenger compartment is within the reach of the arrestee, so will containers in it be within his reach." 453 U.S. at 453 U. S. 460 (footnote omitted). See also Michigan v. Summers, 452 U. S. 692 , 452 U. S. 702 (1981). Our past cases indicate, then, that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. [ Footnote 14 ] See Terry, 392 Page 463 U. S. 1050 U.S. at 392 U. S. 21 . "[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 392 U. S. 27 . If a suspect is "dangerous," he is no less dangerous simply because he is not arrested. If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 465 (1971); Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 509 (1978); Texas v. Brown, 460 U.S. at 460 U. S. 739 (plurality opinion by REHNQUIST, J.); id. at 460 U. S. 746 (POWELL, J., concurring in judgment). The circumstances of this case clearly justified Deputies Howell and Lewis in their reasonable belief that Long posed a danger if he were permitted to reenter his vehicle. The hour was late, and the area rural. Long was driving his automobile at excessive speed, and his car swerved into a ditch. The officers had to repeat their questions to Long, who appeared to be "under the influence" of some intoxicant. Long was not frisked until the officers observed that there was a large knife in the interior of the car into which Long was about to reenter. The subsequent search of the car was restricted to those areas to which Long would generally have immediate control, and that could contain a weapon. The trial court determined that the leather pouch containing Page 463 U. S. 1051 marihuana could have contained a weapon. App. 64a. [ Footnote 15 ] It is clear that the intrusion was "strictly circumscribed by the exigencies which justifi[ed] its initiation." Terry, supra, at 392 U. S. 26 . In evaluating the validity of an officer's investigative or protective conduct under Terry, the "[t]ouchstone of our analysis . . . is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" Pennsylvania v. Mimms, 434 U.S. at 434 U. S. 108 -109 (quoting Terry, supra, at 392 U. S. 19 ). In this case, the officers did not act unreasonably in taking preventive measures to ensure that there were no other weapons within Long's immediate grasp before permitting him to reenter his automobile. Therefore, the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous. The Michigan Supreme Court appeared to believe that it was not reasonable for the officers to fear that Long could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile. See 413 Mich. at 472, 320 N.W.2d at 869. This reasoning is mistaken in several respects. During any investigative detention, the suspect is "in the control" of the officers in the sense that he "may be briefly detained against his will. . . ." Terry, supra, at 392 U. S. 34 (WHITE, J., concurring). Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long's position break away from police control and retrieve a weapon from his automobile. See United State v. Rainone, 586 F.2d 1132 1134 (CA7 1978), cert. denied, 440 U.S. 980 (1979). In addition, Page 463 U. S. 1052 if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside. United States v. Powless, 546 F.2d 792, 795-796 (CA8), cert. denied, 430 U.S. 910 (1977). Or, as here, the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons. In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation "at close range," Terry, 392 U.S. at 392 U. S. 24 , when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a "quick decision as to how to protect himself and others from possible danger. . . ." Id. at 392 U. S. 28 . In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter. [ Footnote 16 ] Page 463 U. S. 1053 IV The trial court and the Court of Appeals upheld the search of the trunk as a valid inventory search under this Court's decision in South Dakota v. Opperman, 428 U. S. 364 (1976). The Michigan Supreme Court did not address this holding, and instead suppressed the marihuana taken from the trunk as a fruit of the illegal search of the interior of the automobile. Our holding that the initial search was justified under Terry makes it necessary to determine whether the trunk search was permissible under the Fourth Amendment. However, we decline to address this question, because it was not passed upon by the Michigan Supreme Court, whose decision we review in this case. See Cardinale v. Louisiana, 394 U. S. 437 , 394 U. S. 438 (1969). We remand this issue to the court below, to enable it to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court. See, e.g., United States v. Ross, 456 U. S. 798 (1982). [ Footnote 17 ] The judgment of the Michigan Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Page 463 U. S. 1054 [ Footnote 1 ] It is clear, and the respondent concedes, that if the officers had arrested Long for speeding or for driving while intoxicated, they could have searched the passenger compartment under New York v. Belton, 453 U. S. 454 (1981), and the trunk under United States v. Ross, 456 U. S. 798 (1982), if they had probable cause to believe that the trunk contained contraband. See Tr. of Oral Arg. 41. However, at oral argument, the State informed us that, while Long could have been arrested for a speeding violation under Michigan law, he was not arrested, because, "[a]s a matter of practice," police in Michigan do not arrest for speeding violations unless "more" is involved. See is. at 6. The officers did issue Long an appearance ticket. The petitioner also confirmed that the officers could have arrested Long for driving while intoxicated, but they "would have to go through a process to make a determination as to whether the party is intoxicated, and then go from that point." Ibid. The court below treated this case as involving a protective search, and not a search justified by probable cause to arrest for speeding, driving while intoxicated, or any other offense. Further, the petitioner does not argue that, if probable cause to arrest exists, but the officers do not actually effect the arrest, the police may nevertheless conduct a search as broad as those authorized by Belton and Ross. Accordingly, we do not address that issue. [ Footnote 2 ] Chief Justice Coleman dissented, arguing that Terry v. Ohio, 392 U. S. 1 (1968), authorized the area search, and that the trunk search was a valid inventory search. See 413 Mich. at 473-480, 320 N.W.2d at 870-873. Justice Moody concurred in the result on the ground that the trunk search was improper. He agreed with Chief Justice Coleman that the interior search was proper under Terry. See 413 Mich. at 480-486, 320 N.W.2d at 873-875. [ Footnote 3 ] On the first occasion, the court merely cited in a footnote both the State and Federal Constitutions. See id. at 471, n. 4, 320 N.W.2d at 869, n. 4. On the second occasion, at the conclusion of the opinion, the court stated: "We hold, therefore, that the deputies' search of the vehicle was proscribed by the Fourth Amendment to the United States Constitution and art. 1, § 11 of the Michigan Constitution." Id. at 472-473, 320 N.W.2d at 870. [ Footnote 4 ] For example, we have long recognized that, "where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, our jurisdiction fails if the nonfederal ground is independent of the federal ground and adequate to support the judgment." Fox Film Corp. v. Muller, 296 U. S. 207 , 296 U. S. 210 (1935). We may review a state case decided on a federal ground even if it is clear that there was an available state ground for decision on which the state court could properly have relied. Beecher v. Alabama, 389 U. S. 35 , 389 U. S. 37 , n. 3 (1967). Also, if, in our view, the state court "'felt compelled by what it understood to be federal constitutional considerations to construe . . . its own law in the manner it did,'" then we will not treat a normally adequate state ground as independent, and there will be no question about our jurisdiction. Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 653 (1979) (quoting Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 , 433 U. S. 568 (1977)). See also South Dakota v. Neville, 459 U. S. 553 , 459 U. S. 556 -557, n. 3 (1983). Finally, "where the nonfederal ground is so interwoven with the [federal ground] as not to be an independent matter, or is not of sufficient breadth to sustain the judgment without any decision of the other, our jurisdiction is plain." Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U. S. 157 , 243 U. S. 164 (1917). [ Footnote 5 ] Indeed, Dixon v. Duffy is also illustrative of another difficulty involved in our requiring state courts to reconsider their decisions for purposes of clarification. In Dixon, we continued the case on two occasions in order to obtain clarification, but none was forthcoming: "[T]he California court advised petitioner's counsel informally that it doubted its jurisdiction to render such a determination." 344 U.S. at 344 U. S. 145 . We then vacated the judgment of the state court, and remanded. [ Footnote 6 ] There may be certain circumstances in which clarification is necessary or desirable, and we will not be foreclosed from taking the appropriate action. [ Footnote 7 ] In Herb v. Pitcairn, 324 U.S. at 324 U. S. 128 , the Court also wrote that it was desirable that state courts "be asked, rather than told, what they have intended." It is clear that we have already departed from that view in those cases in which we have examined state law to determine whether a particular result was guided or compelled by federal law. Our decision today departs further from Herb insofar as we disfavor further requests to state courts for clarification, and we require a clear and express statement that a decision rests on adequate and independent state grounds. However, the "plain statement" rule protects the integrity of state courts for the reasons discussed above. The preference for clarification expressed in Herb has failed to be a completely satisfactory means of protecting the state and federal interests that are involved. [ Footnote 8 ] It is not unusual for us to employ certain presumptions in deciding jurisdictional issues. For instance, although the petitioner bears the burden of establishing our jurisdiction, Durley v. Mayo, 351 U. S. 277 , 351 U. S. 285 (1956), we have held that the party who alleges that a controversy before us has become moot has the "heavy burden" of establishing that we lack jurisdiction. County of Los Angeles v. Davis, 440 U. S. 625 , 440 U. S. 631 (1979). That is, we presume in those circumstances that we have jurisdiction until some party establishes that we do not for reasons of mootness. We also note that the rule that we announce today was foreshadowed by our opinions in Delaware v. Prouse, 440 U. S. 648 (1979), and Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977). In these cases, the state courts relied on both state and federal law. We determined that we had jurisdiction to decide the cases because our reading of the opinions led us to conclude that each court "felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did." Zacchini, supra, at 433 U. S. 568 ; Delaware, supra, at 440 U. S. 653 . In Delaware, we referred to prior state decisions that confirmed our understanding of the opinion in that case, but our primary focus was on the face of the opinion. In Zacchini, we relied entirely on the syllabus and opinion of the state court. In dissent, JUSTICE STEVENS proposes the novel view that this Court should never review a state court decision unless the Court wishes to vindicate a federal right that has been endangered. The rationale of the dissent is not restricted to cases where the decision is arguably supported by adequate and independent state grounds. Rather, JUSTICE STEVENS appears to believe that even if the decision below rests exclusively on federal grounds, this Court should not review the decision as long as there is no federal right that is endangered. The state courts handle the vast bulk of all criminal litigation in this country. In 1982, more than 12 million criminal actions (excluding juvenile and traffic charges) were filed in the 50 state court systems and the District of Columbia. See 7 State Court Journal, No. 1, p. 18 (1983). By comparison, approximately 32,700 criminal suits were filed in federal courts during that same year. See Annual Report of the Director of the Administrative Office of the United States Courts 6 (1982). The state courts are required to apply federal constitutional standards, and they necessarily create a considerable body of "federal law" in the process. It is not surprising that this Court has become more interested in the application and development of federal law by state courts in the light of the recent significant expansion of federally created standards that we have imposed on the States. [ Footnote 9 ] At oral argument, Long argued that the state court relied on its decision in People v. Reed, 393 Mich. 342, 224 N.W.2d 867 , cert. denied, 422 U.S. 1044 (1975). See Tr. of Oral Arg. 29. However, the court cited that case only in the context of a statement that the State did not seek to justify the search in this case "by reference to other exceptions to the warrant requirement." 413 Mich. at 472, 320 N.W.2d at 869-870 (footnote omitted). The court then noted that Reed held that "'[a] warrantless search and seizure is unreasonable per se, and violates the Fourth Amendment of the United States Constitution and Art. 1, § 11 of the state constitution unless shown to be within one of the exceptions to the rule.'" 413 Mich. at 472-473, n. 8, 320 N.W.2d at 870, n. 8. [ Footnote 10 ] There is nothing unfair about requiring a plain statement of an independent state ground in this case. Even if we were to rest our decision on an evaluation of the state law relevant to Long's claim, as we have sometimes done in the past, our understanding of Michigan law would also result in our finding that we have jurisdiction to decide this case. Under state search and seizure law, a "higher standard" is imposed under Art. 1, § 11, of the 1963 Michigan Constitution. See People v. Secrest, 413 Mich. 521, 525, 321 N.W.2d 368 , 369 (1982). If, however, the item seized is, inter alia, a "narcotic drug . . . seized by a peace officer outside the curtilage of any dwelling house in this state," Art. 1, § 11, of the 1963 Michigan Constitution, then the seizure is governed by a standard identical to that imposed by the Fourth Amendment. See People v. Moore, 391 Mich. 426, 435, 216 N.W.2d 770 , 775 (1974). Long argues that, under the current Michigan Comp.Laws § 333.7107 (1979), the definition of a "narcotic" does not include marihuana. The difficulty with this argument is that Long fails to cite any authority for the proposition that the term "narcotic," as used in the Michigan Constitution, is dependent on current statutory definitions of that term. Indeed, it appears that just the opposite is true. The Michigan Supreme Court has held that constitutional provisions are presumed "to be interpreted in accordance with existing laws and legal usages of the time" of the passage of the provision. Bacon v. Kent-Ottawa Authority, 354 Mich. 159, 169, 92 N.W.2d 492 , 497 (1958). If the state legislature were able to change the interpretation of a constitutional provision by statute, then the legislature would have "the power of outright repeal of a duly voted constitutional provision." Ibid. Applying these principles, the Michigan courts have held that a statute passed subsequent to the applicable state constitutional provision is not relevant for interpreting its Constitution, and that a definition in a legislative Act pertains only to that Act. Jones v. City of Ypsilanti, 26 Mich.App. 574, 182 N.W.2d 795 (1970). See also Walber v. Piggins, 2 Mich.App. 145, 138 N.W.2d 772 (1966), aff'd, 381 Mich. 138, 160 N.W.2d 876 (1968). At the time that the 1963 Michigan Constitution was enacted, it is clear that marihuana was considered a narcotic drug. See 1961 Mich.Pub.Acts, No. 206, § 1(f). Indeed, it appears that marihuana was considered a narcotic drug in Michigan until 1978, when it was removed from the narcotic classification. We would conclude that the seizure of marihuana in Michigan is not subject to analysis under any "higher standard" than may be imposed on the seizure of other items. In the light of our holding in Delaware v. Prouse, 440 U. S. 648 (1979), that an interpretation of state law in our view compelled by federal constitutional considerations is not an independent state ground, we would have jurisdiction to decide the case. [ Footnote 11 ] Although we did not in any way weaken the warrant requirement, we acknowledged that the typical "stop and frisk" situation involves "an entire rubric of police conduct -- necessarily swift action predicated upon the on-the-spot observations of the officer on the beat -- which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizure." Terry, 392 U.S. at 392 U. S. 20 (footnote omitted). We have emphasized that the propriety of a Terry stop and frisk is to be judged according to whether the officer acted as a "reasonably prudent man" in deciding that the intrusion was justified. Id. at 392 U. S. 27 . "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U. S. 143 , 407 U. S. 146 (1972). [ Footnote 12 ] As Chief Justice Coleman noted in her dissenting opinion in the present case: "The opinion in Terry authorized the frisking of an overcoat worn by defendant because that was the issue presented by the facts. One could reasonably conclude that a different result would not have been constitutionally required if the overcoat had been carried, folded over the forearm, rather than worn. The constitutional principles stated in Terry would still control." 413 Mich. at 475-476, 320 N.W.2d at 871 (footnote omitted). [ Footnote 13 ] According to one study, "approximately 30% of police shooting occurred when a police officer approached a suspect seated in an automobile. Britow, Police Officer Shooting -- A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963)." Adams v. Williams, supra, at 407 U. S. 148 , n. 3. [ Footnote 14 ] We stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop, although the "bright line" that we drew in Belton clearly authorizes such a search whenever officers effect a custodial arrest. An additional interest exists in the arrest context, i.e., preservation of evidence, and this justifies an "automatic" search. However, that additional interest does not exist in the Terry context. A Terry search, "unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. . . . The sole justification of the search . . . is the protection of the police officer and others nearby. . . ." 392 U.S. at 392 U. S. 29 . What we borrow now from Chimel v. California, 395 U. S. 752 (1969), and Belton is merely the recognition that part of the reason to allow area searches incident to an arrest is that the arrestee, who may not himself be armed, may be able to gain access to weapons to injure officers or others nearby, or otherwise to hinder legitimate police activity. This recognition applies as well in the Terry context. However, because the interest in collecting and preserving evidence is not present in the Terry context, we require that officers who conduct area searches during investigative detentions must do so only when they have the level of suspicion identified in Terry. [ Footnote 15 ] Of course, our analysis would apply to justify the search of Long's person that was conducted by the officers after the discovery of the knife. [ Footnote 16 ] Long makes a number of arguments concerning the invalidity of the search of the passenger compartment. The thrust of these arguments is that Terry searches are limited in scope, and that an area search is fundamentally inconsistent with this limited scope. We have recognized that Terry searches are limited insofar as they may not be conducted in the absence of an articulable suspicion that the intrusion is justified, see, e.g., Sibron v. New York, 392 U. S. 40 , 392 U. S. 65 (1968), and that they are protective in nature and limited to weapons, see Ybarra v. Illinois, 444 U. S. 85 , 444 U. S. 93 -94 (1979). However, neither of these concerns is violated by our decision. To engage in an area search, which is limited to seeking weapons, the officer must have an articulable suspicion that the suspect is potentially dangerous. Long also argues that there cannot be a legitimate Terry search based on the discovery of the hunting knife because Long possessed that weapon legally. See Brief for Respondent 17. Assuming, arguendo, that Long possessed the knife lawfully, we have expressly rejected the view that the validity of a Terry search depends on whether the weapon is possessed in accordance with state law. See Adam v. Williams, 407 U.S. at 407 U. S. 146 . Contrary to JUSTICE BRENNAN's suggestion in dissent, the reasoning of Terry, Chimel, and Belton points clearly to the direction that we have taken today. Although Chimel involved a full custodial arrest, the rationale for Chimel rested on the recognition in Terry that it is unreasonable to prevent the police from taking reasonable steps to protect their safety. JUSTICE BRENNAN suggests that we are expanding the scope of a Terry -type search to include a search incident to a valid arrest. However, our opinion clearly indicates that the area search that we approve is limited to a search for weapons in circumstances where the officers have a reasonable belief that the suspect is potentially dangerous to them. JUSTICE BRENNAN quotes at length from Sibron, but fails to recognize that the search in that case was a search for narcotics, and not a search for weapons. JUSTICE BRENNAN concedes that "police should not be exposed to unnecessary danger in the performance of their duties," post at 463 U. S. 1064 , but then would require that police officers, faced with having to make quick determinations about self-protection and the defense of innocent citizens in the area, must also decide instantaneously what "less intrusive" alternative exists to ensure that any threat presented by the suspect will be neutralized. Post at 463 U. S. 1065 . For the practical reasons explained in Terry, 392 U.S. at 392 U. S. 24 , 28, we have never required police to adopt alternative measures to avoid a legitimate Terry -type intrusion. [ Footnote 17 ] Long suggests that the trunk search is invalid under state law. See Tr. of Oral Arg. 41, 43-44. The Michigan Supreme Court is, of course, free to determine the validity of that search under state law. JUSTICE BLACKMUN, concurring in part and concurring in the judgment. I join Parts I, III, IV, and V of the Court's opinion. While I am satisfied that the Court has jurisdiction in this particular case, I do not join the Court, in 463 U. S. in fashioning a new presumption of jurisdiction over cases coming here from state courts. Although I agree with the Court that uniformity in federal criminal law is desirable, I see little efficiency and an increased danger of advisory opinions in the Court's new approach. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. The Court today holds that "the protective search of the passenger compartment" of the automobile involved in this case "was reasonable under the principles articulated in Terry and other decisions of this Court." Ante at 463 U. S. 1035 . I disagree. Terry v. Ohio, 392 U. S. 1 (1968), does not support the Court's conclusion, and the reliance on "other decisions" is patently misplaced. Plainly, the Court is simply continuing the process of distorting Terry beyond recognition and forcing it into service as an unlikely weapon against the Fourth Amendment's fundamental requirement that searches and seizures be based on probable cause. See United State v. Place, 462 U. S. 696 , 462 U. S. 714 -717 (1983) (BRENNAN, J., concurring in result). I, therefore, dissent. [ Footnote 2/1 ] Page 463 U. S. 1055 On three occasions this Term, I have discussed the limited scope of the exception to the probable cause requirement created by Terry and its progeny. See Florida v. Royer, 460 U. S. 491 , 460 U. S. 509 -511 (1983) (BRENNAN, J., concurring in result); Kolender v. Lawson, 461 U. S. 352 , 461 U. S. 364 -365 (1983) (BRENNAN, J., concurring); United States v. Place, supra, at 462 U. S. 711 -717 (BRENNAN, J., concurring in result). I will not repeat those discussions here, and note only that " Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable suspicion." 462 U.S. at 462 U. S. 714 . However, the Court's opinion compels a detailed review of Terry itself. In Terry, the Court confronted the "quite narrow question" of "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." 392 U.S. at 392 U. S. 15 (emphasis supplied). Because the Court was dealing "with an entire rubric of police conduct . . . which historically [had] not been, and as a practical matter could not be, subjected to the warrant procedure," id. at 392 U. S. 20 , the Court tested the conduct at issue "by the Fourth Amendment's general proscription against unreasonable searches and seizures." Ibid. (footnote omitted). In considering the "reasonableness" of the conduct, the Court balanced " the need to search [or seize] against the invasion which the search [or seizure] entails.'" Id. at 392 U. S. 21 , quoting Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 534 -535, 387 U. S. 536 -537 (1967). It deserves emphasis that, in discussing the "invasion" at issue, the Court stated that "[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security. . . ." 392 U.S. at 392 U. S. 24 -25 (emphasis supplied). Ultimately, the Court concluded that "there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable Page 463 U. S. 1056 cause to arrest the individual for a crime." Id. at 392 U. S. 27 (emphasis supplied). The Court expressed its holding as follows: "We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Id. at 392 U. S. 30 (emphasis supplied). It is clear that Terry authorized only limited searches of the person for weapons. In light of what Terry said, relevant portions of which the Court neglects to quote, the Court's suggestion that " Terry need not be read as restricting the preventive search to the person of the detained suspect," ante at 463 U. S. 1047 (footnote omitted), can only be described as disingenuous. Nothing in Terry authorized police officers to search a suspect's car based on reasonable suspicion. The Court confirmed this this very Term in United States v. Place, supra, where it described the search authorized by Terry as a "limited search for weapons, or frisk'. . . ." 462 U.S. at 462 U. S. 702 . The search at issue in this case is a far cry from a "frisk" and certainly was not "limited." [ Footnote 2/2 ] Page 463 U. S. 1057 The Court's reliance on Chimel v. California, 395 U. S. 752 (1969), and New York v. Belton, 453 U. S. 454 (1981), as support for its new "area search" rule within the context of a Terry stop is misplaced. In Chimel, the Court addressed the scope of a search incident to a lawful arrest, 395 U.S. at 395 U. S. 753 , and held invalid the search at issue there because it "went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him." Id. at 395 U. S. 768 . Chimel stressed the need to limit the scope of searches incident to arrest and overruled two prior decisions of this Court validating overly broad searches. Ibid. In Belton, the Court considered the scope of a search incident to the lawful custodial arrest of an occupant of an automobile. 453 U.S. at 453 U. S. 455 . In this "particular and problematic context," id. at 453 U. S. 460 , n. 3, the Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. at 453 U. S. 460 (footnote omitted). [ Footnote 2/3 ] The critical distinction between this case and Terry on the one hand, and Chimel and Belton, on the other, is that the latter two cases arose within the context of lawful custodial arrests supported by probable cause. [ Footnote 2/4 ] The Court in Terry expressly recognized the difference between a search incident to arrest and the "limited search for weapons," 392 U.S. at 392 U. S. 25 , involved in that case. The Court stated: Page 463 U. S. 1058 "A search [incident to arrest], although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, . . . is also justified on other grounds, . . . and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. . . . Thus, it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a 'full' search, even though it remains a serious intrusion." ". . . An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person." Id. at 392 U. S. 25 -26 (footnote omitted). In United States v. Robinson, 414 U. S. 218 (1973), the Court relied on the differences between searches incident to lawful custodial arrests and Terry "stop-and-frisk" searches to reject an argument that the limitations established in Terry should be applied to a search incident to arrest. 414 U.S. at 414 U. S. 228 . The Court noted that " Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other," id. at 414 U. S. 233 , and described Terry as involving "stricter . . . standards," 414 U.S. at 414 U. S. 234 , than those governing searches incident to arrest. The Court went on to state: Page 463 U. S. 1059 "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that, in the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." Id. at 414 U. S. 235 . See also id. at 414 U. S. 237 -238 (POWELL, J., concurring) ("The search incident to arrest is reasonable under the Fourth Amendment because the privacy interest protected by that constitutional guarantee is legitimately abated by the fact of arrest" (footnote omitted)); Gustafson v. Florida, 414 U. S. 260 , 414 U. S. 264 (1973). As these cases recognize, there is a vital difference between searches incident to lawful custodial arrests and Terry protective searches. The Court deliberately ignores that difference in relying on principles developed within the context of intrusions supported by probable cause to arrest to construct an "area search" rule within the context of a Terry stop. The Court denies that an "area search" is fundamentally inconsistent with Terry, see ante at 463 U. S. 1052 , n. 16, stating: "We have recognized that Terry searches are limited insofar as they may not be conducted in the absence of an articulable suspicion that the intrusion is justified, see e.g., Sibron v. New York, 392 U. S. 40 , 392 U. S. 65 (1968), and that they are protective in nature and limited to weapons, see Ybarra v. Illinois, 444 U. S. 85 , 444 U. S. 93 -94 (1979). However, neither of these concerns is violated by our decision. To engage in an area search, which is limited to seeking weapons, the officer must have an articulable suspicion that the suspect is potentially dangerous." Ibid. Page 463 U. S. 1060 This patently is no answer: respondent's argument relates to the scope of the search, not to the standard that justifies it. The Court flouts Terry 's holding that Terry searches must be carefully limited in scope. See supra at 463 U. S. 1056 . Indeed, the page in Sibron v. New York, 392 U. S. 40 (1968), cited by the Court states: "Even assuming arguendo that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron's pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception -- the protection of the officer by disarming a potentially dangerous man." Id. at 392 U. S. 65 (emphasis supplied). [ Footnote 2/5 ] As this passage makes clear, the scope of a search is determined not only by reference to its purpose, but also by reference to its intrusiveness. Yet the Court today holds that a search of a car (and the containers within it) that is not even occupied by the suspect is only as intrusive as, or perhaps less intrusive than, thrusting a hand into a pocket after an Page 463 U. S. 1061 initial patdown has suggested the presence of concealed objects that might be used as weapons. The Court suggests no limit on the "area search" it now authorizes. The Court states that a "search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Ante at 463 U. S. 1049 (footnote omitted). Presumably a weapon "may be placed or hidden" anywhere in a car. A weapon also might be hidden in a container in the car. In this case, the Court upholds the officer's search of a leather pouch because it "could have contained a weapon." Ante at 463 U. S. 1050 -1051 (footnote omitted). In addition, the Court's requirement that an officer have a reasonable suspicion that a suspect is armed and dangerous does little to check the initiation of an area search. In this case, the officers saw a hunting knife in the car, see ante at 463 U. S. 1036 , 463 U. S. 1050 , but the Court does not base its holding that the subsequent search was permissible on the ground that possession of the knife may have been illegal under state law. See ante at 463 U. S. 1052 -1053, n. 16. An individual can lawfully possess many things that can be used as weapons. A hammer, or a baseball bat, can be used as a very effective weapon. Finally, the Court relies on the following facts to conclude that the officers had a reasonable suspicion that respondent was presently dangerous: the hour was late; the area was rural; respondent had been driving at an excessive speed; he had been involved in an accident; he was not immediately responsive to the officers' questions; and he appeared to be under the influence of some intoxicant. Ante at 463 U. S. 1050 . Based on these facts, one might reasonably conclude that respondent was drunk. A drunken driver is indeed dangerous while driving, but not while stopped on the roadside by Page 463 U. S. 1062 the police. Even when an intoxicated person lawfully has in his car an object that could be used as a weapon, it requires imagination to conclude that he is presently dangerous. Even assuming that the facts in this case justified the officers' initial "frisk" of respondent, see ante at 463 U. S. 1035 -1036, 463 U. S. 1050 -1051, and n. 15, they hardly provide adequate justification for a search of a suspect's car and the containers within it. This represents an intrusion not just different in degree, but in kind, from the intrusion sanctioned by Terry. In short, the implications of the Court's decision are frightening. The Court also rejects the Michigan Supreme Court's view that it "was not reasonable for the officers to fear that [respondent] could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile." Ante at 463 U. S. 1051 . In this regard, the Court states: "[W]e stress that a Terry investigation, such as the one that occurred here, involves a police investigation 'at close range,' . . . when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a 'quick decision as to how to protect himself and others from possible danger.' . . . In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." Ante at 463 U. S. 1052 (footnote omitted; emphasis in original). Putting aside the fact that the search at issue here involved a far more serious intrusion than that "involved in a Terry encounter," see ibid., and as such might suggest the need for resort to "alternative means," the Court's reasoning is perverse. The Court's argument in essence is that the absence of probable cause to arrest compels the conclusion that a broad search, traditionally associated in scope with a search incident to arrest, must be permitted based on reasonable suspicion. But United State v. Robinson stated: "It is Page 463 U. S. 1063 scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry -type stop." 414 U.S. at 414 U. S. 234 -235. In light of Robinson's observation, today's holding leaves in grave doubt the question of whether the Court's assessment of the relative dangers posed by given confrontations is based on any principled standard. Moreover, the Court's reliance on a "balancing" of the relevant interests to justify its decision, see ante at 463 U. S. 1051 , is certainly inappropriate. In Dunaway v. New York, 442 U. S. 200 (1979), the Court stated that "[t]he narrow intrusions involved in [ Terry y and its progeny] were judged by a balancing test, rather than by the general principle that Fourth Amendment seizures must be supported by the 'long-prevailing standards' of probable cause, . . . only because these intrusions fell far short of the kind of intrusion associated with an arrest." Id. at 442 U. S. 212 . The intrusion involved in this case is precisely "the kind of intrusion associated with an arrest." There is no justification, therefore, for "balancing" the relevant interests. In sum, today's decision reflects once again the threat to Fourth Amendment values posed by "balancing." See United States v. Place, 462 U.S. at 462 U. S. 717 -719 (BRENNAN, J., concurring in result). As Justice Frankfurter stated in United States v. Rabinowitz, 339 U. S. 56 (1950): "To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an 'unreasonable search' is forbidden -- that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response." Id. at 339 U. S. 83 (dissenting opinion). Page 463 U. S. 1064 Hornbook law has been that "the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so." New York v. Belton, 453 U.S. at 453 U. S. 457 . While, under some circumstances, the police may search a car without a warrant, see, e.g., Carroll v. United States, 267 U. S. 132 (1925), "the exception to the warrant requirement established in Carroll . . . applies only to searches of vehicles that are supported by probable cause." United States v. Ross, 456 U. S. 798 , 456 U. S. 809 (1982) (footnote omitted). "[T]he Court in Carroll emphasized the importance of the requirement that officers have probable cause to believe that the vehicle contains contraband." Id. at 456 U. S. 807 -808. See also Almeida-Sanchez v. United States, 413 U. S. 266 , 413 U. S. 269 (1973) ("Automobile or no automobile, there must be probable cause for the search" (footnote omitted)). Today the Court discards these basic principles and employs the very narrow exception established by Terry "to swallow the general rule that Fourth Amendment [searches of cars] are reasonable' only if based on probable cause." [ Footnote 2/6 ] Dunaway v. New York, supra, at 442 U. S. 213 . See also United States v. Place, supra, at 462 U. S. 718 -719 (BRENNAN, J., concurring in result). Today's decision disregards the Court's warning in Almeida-Sanchez: "The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards." 413 U.S. at 413 U. S. 273 . Of course, police should not be exposed to unnecessary danger in the performance of their duties. But a search of a car and the containers within it based on nothing more than reasonable suspicion, even under the circumstances present Page 463 U. S. 1065 here, cannot be sustained without doing violence to the requirements of the Fourth Amendment. There is no reason in this case why the officers could not have pursued less intrusive, but equally effective, means of insuring their safety. [ Footnote 2/7 ] Cf. United States v. Place, supra, at 462 U. S. 715 -716; Florida v. Royer, 460 U.S. at 460 U. S. 511 , n. (BRENNAN, J., concurring in result). The Court takes a long step today toward "balancing" into oblivion the protections the Fourth Amendment affords. I dissent, for as Justice Jackson said in Brinegar v. United States, 338 U. S. 160 (1949): "[Fourth Amendment rights] are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government." Id. at 338 U. S. 180 (dissenting opinion). [ Footnote 2/1 ] I agree that the Court has jurisdiction to decide this case. See ante at 463 U. S. 1044 -1045, n. 10. [ Footnote 2/2 ] Neither Pennsylvania v. Mimms, 434 U. S. 106 (1977), nor Adams v. Williams, 407 U. S. 143 (1972), provides any support for the Court's conclusion in this case. The Terry searches in Mimms and Adams were both limited, and involved only searches of the person. See 434 U.S. at 434 U. S. 111 -112; 407 U.S. at 407 U. S. 146 , 407 U. S. 148 . [ Footnote 2/3 ] The court went on to state that "the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach." 453 U.S. 453 U. S. 460 (footnote omitted). [ Footnote 2/4 ] There was no arrest before the search in this case, see ante at 463 U. S. 1035 , n. 1, and the Court does not address whether the police may conduct a search as broad as those authorized by Belton and United States v. Ross, 456 U. S. 798 (1982), if they have probable cause to arrest, but do not actually effect the arrest. See ante at 463 U. S. 1035 , n. 1. [ Footnote 2/5 ] See also Ybarra v. Illinois, 444 U. S. 85 , 444 U. S. 93 (1979) ("Under [Terry], a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted" (emphasis supplied)). [ Footnote 2/6 ] Of course, the Court's decision also swallows the general rule that searches of containers must be based on probable cause. Without probable cause to search the car, United States v. Ross does not apply. See 456 U.S. at 456 U. S. 825 . Moreover, in the absence of a lawful custodial arrest, see 463 U.S. 1032 fn2/4|>n. 4, supra, New York v. Belton does not apply. See 453 U.S. at 453 U. S. 460 ; supra at 463 U. S. 1057 -1058. [ Footnote 2/7 ] The police, for example, could have continued to detain respondent outside the car and asked him to tell them where his registration was. The police then could have retrieved the registration themselves. This would have resulted in an intrusion substantially less severe than the one at issue here. JUSTICE STEVENS, dissenting. The jurisprudential questions presented in this case are far more important than the question whether the Michigan police officer's search of respondent's car violated the Fourth Amendment. The case raises profoundly significant questions concerning the relationship between two sovereigns -- the State of Michigan and the United States of America. The Supreme Court of the State of Michigan expressly held "that the deputies' search of the vehicle was proscribed by the Fourth Amendment to the United States Constitution and art 1, § 11 of the Michigan Constitution. " 413 Mich. 461, 472-473, 320 N.W.2d 866 , 870 (1982) (emphasis added). Page 463 U. S. 1066 The state law ground is clearly adequate to support the judgment, but the question whether it is independent of the Michigan Supreme Court's understanding of federal law is more difficult. Four possible ways of resolving that question present themselves: (1) asking the Michigan Supreme Court directly, (2) attempting to infer from all possible sources of state law what the Michigan Supreme Court meant, (3) presuming that adequate state grounds are independent unless it clearly appears otherwise, or (4) presuming that adequate state grounds are not independent unless it clearly appears otherwise. This Court has, on different occasions, employed each of the first three approaches; never until today has it even hinted at the fourth. In order to "achieve the consistency that is necessary," the Court today undertakes a reexamination of all the possibilities. Ante at 463 U. S. 1039 . It rejects the first approach as inefficient and unduly burdensome for state courts, and rejects the second approach as an inappropriate expenditure of our resources. Ante at 463 U. S. 1039 -1040. Although I find both of those decisions defensible in themselves, I cannot accept the Court's decision to choose the fourth approach over the third -- to presume that adequate state grounds are intended to be dependent on federal law unless the record plainly shows otherwise. I must therefore dissent. If we reject the intermediate approaches, we are left with a choice between two presumptions: one in favor of our taking jurisdiction, and one against it. Historically, the latter presumption has always prevailed. See, e.g., Durley v. Mayo, 351 U. S. 277 , 351 U. S. 285 (1956); Stembridge v. Georgia, 343 U. S. 541 , 343 U. S. 547 (1952); Lynch v. New York ex rel. Pierson, 293 U. S. 52 (1934). The rule, as succinctly stated in Lynch, was as follows: "Where the judgment of the state court rests on two grounds, one involving a federal question and the other not, or if it does not appear upon which of two grounds the judgment was based, and the ground independent of a federal question is sufficient in itself to sustain it, this Page 463 U. S. 1067 Court will not take jurisdiction. Allen v. Arguimbau, 198 U. S. 149 , 198 U. S. 154 , 198 U. S. 155 ; Johnson v. Rusk , [ 137 U.S. 300 , 137 U. S. 306 , 137 U. S. 307 ]; Wood Mowing & Reaping Machine Co. v. Skinner , [ 139 U.S. 293 , 139 U. S. 295 , 139 U. S. 297 ]; Consolidated Turnpike Co. v. Norfolk & Ocean View Ry. Co., 228 U. S. 596 , 228 U. S. 599 ; Cuyahoga River Power Co. v. Northern Realty Co., 244 U. S. 300 , 244 U. S. 302 , 244 U. S. 304 ." Id. at 293 U. S. 54 -55. The Court today points out that, in several cases, we have weakened the traditional presumption by using the other two intermediate approaches identified above. Since those two approaches are now to be rejected, however, I would think that stare decisis would call for a return to historical principle. Instead, the Court seems to conclude that, because some precedents are to be rejected, we must overrule them all. [ Footnote 3/1 ] Even if I agreed with the Court that we are free to consider as a fresh proposition whether we may take presumptive jurisdiction over the decisions of sovereign States, I could not agree that an expansive attitude makes good sense. It appears to be common ground that any rule we adopt should show "respect for state courts, and [a] desire to avoid advisory opinions." Ante at 463 U. S. 1040 . And I am confident that all Members of this Court agree that there is a vital interest in the sound management of scarce federal judicial resources. All of those policies counsel against the exercise of federal jurisdiction. They are fortified by my belief that a policy of judicial restraint -- one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene -- enables this Court to make its most effective contribution to our federal system of government. The nature of the case before us hardly compels a departure from tradition. These are not cases in which an American citizen has been deprived of a right secured by the United Page 463 U. S. 1068 States Constitution or a federal statute. Rather, they are cases in which a state court has upheld a citizen's assertion of a right, finding the citizen to be protected under both federal and state law. The attorney for the complaining party is an officer of the State itself, who asks us to rule that the state court interpreted federal rights too broadly and "overprotected" the citizen. Such cases should not be of inherent concern to this Court. The reason may be illuminated by assuming that the events underlying this case had arisen in another country, perhaps the Republic of Finland. If the Finnish police had arrested a Finnish citizen for possession of marihuana, and the Finnish courts had turned him loose, no American would have standing to object. If instead they had arrested an American citizen and acquitted him, we might have been concerned about the arrest, but we surely could not have complained about the acquittal, even if the Finnish court had based its decision on its understanding of the United States Constitution. That would be true even if we had a treaty with Finland requiring it to respect the rights of American citizens under the United States Constitution. We would only be motivated to intervene if an American citizen were unfairly arrested, tried, and convicted by the foreign tribunal. In this case, the State of Michigan has arrested one of its citizens and the Michigan Supreme Court has decided to turn him loose. The respondent is a United States citizen as well as a Michigan citizen, but since there is no claim that he has been mistreated by the State of Michigan, the final outcome of the state processes offended no federal interest whatever. Michigan simply provided greater protection to one of its citizens than some other State might provide or, indeed, than this Court might require throughout the country. I believe that, in reviewing the decisions of state courts, the primary role of this Court is to make sure that persons who seek to vindicate federal rights have been fairly heard. That belief resonates with statements in many of our prior cases. Page 463 U. S. 1069 In Abie State Bank v. Bryan, 282 U. S. 765 (1931), the Supreme Court of Nebraska had rejected a federal constitutional claim, relying in part on the state law doctrine of laches. Writing for the Court in response to the Nebraska Governor's argument that the Court should not accept jurisdiction because laches provided an independent ground for decision, Chief Justice Hughes concluded that this Court must ascertain for itself whether the asserted nonfederal ground independently and adequately supported the judgment "in order that constitutional guaranties may appropriately be enforced." Id. at 282 U. S. 773 . He relied on our earlier opinion in Union Pacific R. Co. v. Public Service Comm'n of Missouri, 248 U. S. 67 (1918), in which Justice Holmes had made it clear that the Court engaged in such an inquiry so that it would not "be possible for a State to impose an unconstitutional burden" on a private party. Id. at 248 U. S. 70 . And both Abie and Union Pacific rely on Creswill v. Knights of Pythias, 225 U. S. 246 , 225 U. S. 261 (1912), in which the Court explained its duty to review the findings of fact of a state court "where a Federal right has been denied." Until recently, we had virtually no interest in cases of this type. Thirty years ago, this Court reviewed only one. Nevada v. Stacher, 346 U.S. 906 (1953). Indeed, that appears to have been the only case during the entire 1953 Term in which a State even sought review of a decision by its own judiciary. Fifteen years ago, we did not review any such cases, although the total number of requests had mounted to three. [ Footnote 3/2 ] Sometime during the past decade, perhaps about Page 463 U. S. 1070 the time of the 5-to-4 decision in Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977), our priorities shifted. The result is a docket swollen with requests by States to reverse judgments that their courts have rendered in favor of their citizens. [ Footnote 3/3 ] I am confident that a future Court will recognize the error of this allocation of resources. When that day comes, I think it likely that the Court will also reconsider the propriety of today's expansion of our jurisdiction. The Court offers only one reason for asserting authority over cases such as the one presented today: "an important need for uniformity in federal law [that] goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where the independence of an alleged state ground is not apparent from the four corners of the opinion." Ante at 463 U. S. 1040 (emphasis omitted). Of course, the supposed need to "review an opinion" clashes directly with our oft-repeated reminder that "our power is to correct wrong judgments, not to revise opinions." Herb v. Pitcairn, 324 U. S. 117 , 324 U. S. 126 (1945). The clash is not merely one of form: the "need for uniformity in federal law" is truly an ungovernable engine. That same need is no less present when Page 463 U. S. 1071 it is perfectly clear that a state ground is both independent and adequate. In fact, it is equally present if a state prosecutor announces that he believes a certain policy of nonenforcement is commanded by federal law. Yet we have never claimed jurisdiction to correct such errors, no matter how egregious they may be, and no matter how much they may thwart the desires of the state electorate. We do not sit to expound our understanding of the Constitution to interested listeners in the legal community; we sit to resolve disputes. If it is not apparent that our views would affect the outcome of a particular case, we cannot presume to interfere. [ Footnote 3/4 ] Page 463 U. S. 1072 Finally, I am thoroughly baffled by the Court's suggestion that it must stretch its jurisdiction and reverse the judgment of the Michigan Supreme Court in order to show "[r]espect for the independence of state courts." Ante at 463 U. S. 1040 . Would we show respect for the Republic of Finland by convening a special sitting for the sole purpose of declaring that its decision to release an American citizen was based upon a misunderstanding of American law? I respectfully dissent. [ Footnote 3/1 ] A sampling of the cases may be found in the footnotes to my dissenting opinion in South Dakota v. Neville, 459 U. S. 553 , 459 U. S. 566 (1983). See also 463 U.S. 1032 fn3/4|>n. 4, infra. [ Footnote 3/2 ] In Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A.2d 840 (1967), the Supreme Court of Pennsylvania held that the First and Fourteenth Amendments protected the defendant's right to publish and distribute the book "Candy." The Commonwealth petitioned to this Court, and we denied certiorari. 390 U.S. 948 (1968). In People v. Noroff, 67 Cal. 2d 791 , 433 P.2d 479 (1967), the Supreme Court of California held that the First and Fourteenth Amendments protected the defendant's right to distribute a magazine called "International Nudist Sun." The State petitioned to this Court, and we denied certiorari. 390 U.S. 1012 (1968). In State v. Franc, 165 Colo. 69, 437 P.2d 48 (1968), the Supreme Court of Colorado held that, under Colorado law, title in a certain piece of property should be quieted in a citizen. The State petitioned to this Court, and we denied certiorari. 392 U.S. 928 (1968). [ Footnote 3/3 ] This Term, we devoted argument time to Florida v. Royer, 460 U. S. 491 (1983); Illinois v. Gates, 462 U. S. 213 (1983) (argued twice); Connecticut v. Johnson, 460 U. S. 73 (1983); Missouri v. Hunter, 459 U. S. 359 (1983); South Dakota v. Neville, 459 U. S. 553 (1983); Texas v. Brown, 460 U. S. 73 0 (1983); California v. Ramos, ante p. 463 U. S. 992 ; Florida v. Casal, 462 U. S. 637 (1983); City of Revere v. Massachusetts General Hospital, ante p. 463 U. S. 239 ; Oregon v. Bradshaw, 462 U. S. 1039 (1983); Illinois v. Andreas, ante p. 463 U. S. 765 ; Illinois v. Lafayette, 462 U. S. 640 (1983), as well as this case. And a cursory survey of the United States Law Week index reveal that, so far this Term, at least 80 petitions for certiorari to state courts were filed by the States themselves. [ Footnote 3/4 ] In this regard, one of the cases overruled today deserves comment. In Minnesota v. National Tea Co., 309 U. S. 551 (1940), the Court considered a case much like this one -- the Minnesota Supreme Court had concluded that both the Fourteenth Amendment to the United States Constitution and Art. 9, § 1, of the Minnesota Constitution prohibited a graduated income tax on chainstore income. The state court stated that "th[e] provisions of the Federal and State Constitutions impose identical restrictions upon the legislative power of the state in respect to classification for purposes of taxation," and "then adverted briefly to three of its former decisions which had interpreted" the state provision. 309 U.S. at 309 U. S. 552 -553. It then proceeded to conduct a careful analysis of the Federal Constitution. It could justly be said that the decision rested primarily on federal law. Cf. ante at 463 U. S. 1042 . The majority of the Court reasoned as follows: "Enough has been said to demonstrate that there is considerable uncertainty as to the precise grounds for the decision. That is sufficient reason for us to decline at this time to review the federal question asserted to be present, Honeyman v. Hanan, 300 U. S. 14 , consistently with the policy of not passing upon questions of a constitutional nature which are not clearly necessary to a decision of the case." 309 U.S. at 309 U. S. 556 . The Court therefore remanded to the state court for clarification. Today's Court rejects that approach as intruding unduly on the state judicial process. One might therefore expect it to turn to Chief Justice Hughes' dissenting opinion in National Tea. In a careful statement of the applicable principles, he made an observation that I find unanswerable: "The fact that provisions of the state and federal constitutions may be similar or even identical does not justify us in disturbing a judgment of a state court which adequately rests upon its application of the provisions of its own constitution. That the state court may be influenced by the reasoning of our opinions makes no difference. The state court may be persuaded by majority opinions in this Court or it may prefer the reasoning of dissenting judges, but the judgment of the state court upon the application of its own constitution remains a judgment which we are without jurisdiction to review. Whether in this case we thought that the state tax was repugnant to the federal constitution or consistent with it, the judgment of the state court that the tax violated the state constitution would still stand. It cannot be supposed that the Supreme Court of Minnesota is not fully conscious of its independent authority to construe the constitution of the State, whatever reasons it may adduce in so doing." Id. at 309 U. S. 558 -559.

Here is a summary of the case: The United States Supreme Court decided whether it had jurisdiction to hear the case, Michigan v. Long, which involved a state court's decision that appeared to rest on federal law but also referenced state law. The Court held that it had jurisdiction and clarified the approach for determining whether state court decisions based on federal law are reviewable. The Court concluded that when a state court decision primarily discusses federal law or is interwoven with federal law, and the role of state law is unclear, the assumption is that the state court based its decision on federal law. This approach respects state court independence and avoids advisory opinions. The Court overruled previous cases that required reconsideration by state courts for clarification of their decisions.

Search & Seizure

Oliver v. U.S.

https://supreme.justia.com/cases/federal/us/466/170/

U.S. Supreme Court Oliver v. United States, 466 U.S. 170 (1984) Oliver v. United States No. 82-15 Argued November 9, 1983 Decided April 17, 1984 466 U.S. 170 ast|>* 466 U.S. 170 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus In No. 82-15, acting on reports that marihuana was being raised on petitioner's farm, narcotics agents of the Kentucky State Police went to the farm to investigate. Arriving at the farm, they drove past petitioner's house to a locked gate with a "No Trespassing" sign, but with a footpath around one side. The agents then walked around the gate and along the road and found a field of marihuana over a mile from petitioner's house. Petitioner was arrested and indicted for "manufactur[ing]" a "controlled substance" in violation of a federal statute. After a pretrial hearing, the District Court suppressed evidence of the discovery of the marihuana field, applying Katz v. United States, 389 U. S. 347 , and holding that petitioner had a reasonable expectation that the field would remain private and that it was not an "open" field that invited casual intrusion. The Court of Appeals reversed, holding that Katz had not impaired the vitality of the open fields doctrine of Hester v. United States, 265 U. S. 57 , which permits police officers to enter and search a field without a warrant. In No. 82-1273, after receiving a tip that marihuana was being grown in the woods behind respondent's residence, police officers entered the woods by a path between the residence and a neighboring house, and followed a path through the woods until they reached two marihuana patches fenced with chicken wire and having "No Trespassing" signs. Later, the officers, upon determining that the patches were on respondent's property, obtained a search warrant and seized the marihuana. Respondent was then arrested and indicted. The Maine trial court granted respondent's motion to suppress the fruits of the second search, holding that the initial warrantless search was unreasonable, that the "No Trespassing" signs and secluded location of the marihuana patches evinced a reasonable expectation of privacy, and that therefore the open fields doctrine did not apply. The Maine Supreme Judicial Court affirmed. Held: The open fields doctrine should be applied in both cases to determine whether the discovery or seizure of the marihuana in question was valid. Pp. 466 U. S. 176 -184. Page 466 U. S. 171 (a) That doctrine was founded upon the explicit language of the Fourth Amendment, whose special protection accorded to "persons houses, papers, and effects" does "not exten[d] to the open fields." Hester v. United States, supra, at 265 U. S. 59 . Open fields are not "effects" within the meaning of the Amendment, the term "effects" being less inclusive than "property," and not encompassing open fields. The government's intrusion upon open fields is not one of those "unreasonable searches" proscribed by the Amendment. Pp. 466 U. S. 176 -177. (b) Since Katz v. United States, supra, the touchstone of Fourth Amendment analysis has been whether a person has a "constitutionally protected reasonable expectation of privacy." Id. at 389 U. S. 360 . The Amendment does not protect the merely subjective expectation of privacy, but only those "expectation[s] that society is prepared to recognize as reasonable.'" Id. at 389 U. S. 361 . Because open fields are accessible to the public and the police in ways that a home, office, or commercial structure would not be, and because fences or "No Trespassing" signs do not effectively bar the public from viewing open fields, the asserted expectation of privacy in open fields is not one that society recognizes as reasonable. Moreover, the common law, by implying that only the land immediately surrounding and associated with the home warrants the Fourth Amendment protections that attach to the home, conversely implies that no expectation of privacy legitimately attaches to open fields. Pp. 466 U. S. 177 -181. (c) Analysis of the circumstances of the search of an open field on a case-by-case basis to determine whether reasonable expectations of privacy were violated would not provide a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment. Such an ad hoc approach not only would make it difficult for the policeman to discern the scope of his authority, but also would create the danger that constitutional rights would be arbitrarily and inequitably enforced. Pp. 466 U. S. 181 -182. (d) Steps taken to protect privacy, such as planting the marihuana on secluded land and erecting fences and "No Trespassing" signs around the property, do not establish that expectations of privacy in an open field are legitimate in the sense required by the Fourth Amendment. The test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity, but whether the government's intrusion infringes upon the personal and societal values protected by the Amendment. The fact that the government's intrusion upon an open field is a trespass at common law does not make it a "search" in the constitutional sense. In the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment. Pp. 466 U. S. 182 -184. 686 F.2d 356, affirmed; 453 A.2d 489 , reversed and remanded. Page 466 U. S. 172 POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined, and in Parts I and II of which WHITE, J., joined. WHITE, J., filed an opinion concurring in part and concurring in the judgment, post, p. 466 U. S. 184 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post p. 466 U. S. 184 . Page 466 U. S. 173 JUSTICE POWELL delivered the opinion of the Court. The "open fields" doctrine, first enunciated by this Court in Hester v. United States, 265 U. S. 57 (1924), permits police officers to enter and search a field without a warrant. We granted certiorari in these cases to clarify confusion that has arisen as to the continued vitality of the doctrine. I No. 8215. Acting on reports that marihuana was being raised on the farm of petitioner Oliver, two narcotics agents of the Kentucky State Police went to the farm to investigate. [ Footnote 1 ] Arriving at the farm, they drove past petitioner's house to a locked gate with a "No Trespassing" sign. A footpath led around one side of the gate. The agents walked around the gate and along the road for several hundred yards, passing a barn and a parked camper. At that point, someone standing in front of the camper shouted: "No hunting is allowed, come back up here." The officers shouted back that they were Kentucky State Police officers, but found no one when they returned to the camper. The officers resumed their investigation of the farm and found a field of marihuana over a mile from petitioner's home. Petitioner was arrested and indicted for "manufactur[ing]" a "controlled substance." 21 U.S.C. § 841(a)(1). After a pretrial hearing, the District Court suppressed evidence of the discovery of the marihuana field. Applying Katz v. United States, 389 U. S. 347 , 389 U. S. 357 (1967), the court found that petitioner had a reasonable expectation that the field would remain private because petitioner "had done all that could be expected of him to assert his privacy in the area of farm that was searched." He had posted "No Trespassing" signs at regular intervals and had locked the gate at the entrance to the center of the farm. App. to Pet. for Cert. in No. 82-15, Page 466 U. S. 174 pp. 23-24. Further, the court noted that the field itself is highly secluded: it is bounded on all sides by woods, fences, and embankments, and cannot be seen from any point of public access. The court concluded that this was not an "open" field that invited casual intrusion. The Court of Appeals for the Sixth Circuit, sitting en banc, reversed the District Court. 686 F.2d 356 (1982). [ Footnote 2 ] The court concluded that Katz, upon which the District Court relied, had not impaired the vitality of the open fields doctrine of Hester. Rather, the open fields doctrine was entirely compatible with Katz' emphasis on privacy. The court reasoned that the "human relations that create the need for privacy do not ordinarily take place" in open fields, and that the property owner's common law right to exclude trespassers is insufficiently linked to privacy to warrant the Fourth Amendment's protection. 686 F.2d at 360. [ Footnote 3 ] We granted certiorari. 459 U.S. 1168 (1983). No. 82-1273. After receiving an anonymous tip that marihuana was being grown in the woods behind respondent Thornton's residence, two police officers entered the woods by a path between this residence and a neighboring house. They followed a footpath through the woods until they reached two marihuana patches fenced with chicken wire. Later, the officers determined that the patches were on the property of respondent, obtained a warrant to search the property, and seized the marihuana. On the basis of this evidence, respondent was arrested and indicted. Page 466 U. S. 175 The trial court granted respondent's motion to suppress the fruits of the second search. The warrant for this search was premised on information that the police had obtained during their previous warrantless search, that the court found to be unreasonable. [ Footnote 4 ] "No Trespassing" signs and the secluded location of the marihuana patches evinced a reasonable expectation of privacy. Therefore, the court held, the open fields doctrine did not apply. The Maine Supreme Judicial Court affirmed. 453 A.2d 489 (1982). It agreed with the trial court that the correct question was whether the search "is a violation of privacy on which the individual justifiably relied," id. at 493, and that the search violated respondent's privacy. The court also agreed that the open fields doctrine did not justify the search. That doctrine applies, according to the court, only when officers are lawfully present on property and observe "open and patent" activity. Id. at 495. In this case, the officers had trespassed upon defendant's property, and the respondent had made every effort to conceal his activity. We granted certiorari. 460 U.S. 1068 (1983). [ Footnote 5 ] Page 466 U. S. 176 II The rule announced in Hester v. United States was founded upon the explicit language of the Fourth Amendment. That Amendment indicates with some precision the places and things encompassed by its protections. As Justice Holmes explained for the Court in his characteristically laconic style: "[T]he special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects' is not extended to the open fields. The distinction between the latter and the house is as old as the common law." Hester v. United States, 265 U.S. at 265 U. S. 59 . [ Footnote 6 ] Nor are the open fields "effects" within the meaning of the Fourth Amendment. In this respect, it is suggestive that James Madison's proposed draft of what became the Fourth Page 466 U. S. 177 Amendment preserves "[t]he rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures. . . ." See N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 100, n. 77 (1937). Although Congress' revisions of Madison's proposal broadened the scope of the Amendment in some respects, id. at 100-103, the term "effects" is less inclusive than "property," and cannot be said to encompass open fields. [ Footnote 7 ] We conclude, as did the Court in deciding Hester v. United States, that the government's intrusion upon the open fields is not one of those "unreasonable searches" proscribed by the text of the Fourth Amendment. III This interpretation of the Fourth Amendment's language is consistent with the understanding of the right to privacy expressed in our Fourth Amendment jurisprudence. Since Katz v. United States, 389 U. S. 347 (1967), the touchstone of Amendment analysis has been the question whether a person has a "constitutionally protected reasonable expectation of privacy." Id. at 389 U. S. 360 (Harlan, J., concurring). The Amendment does not protect the merely subjective expectation of privacy, but only those "expectation[s] that society is prepared to recognize as reasonable.'" Id. at 389 U. S. 361 . See also Smith v. Maryland, 442 U. S. 735 , 442 U. S. 740 -741 (1979). A No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. See Rakas v. Illinois, 439 U. S. 128 , 439 U. S. 152 -153 Page 466 U. S. 178 (1978) (POWELL, J., concurring). In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, e.g., United States v. Chadwick, 433 U. S. 1 , 433 U. S. 7 -8 (1977), the uses to which the individual has put a location, e.g., Jones v. United States, 362 U. S. 257 , 362 U. S. 265 (1960), and our societal understanding that certain areas deserve the most scrupulous protection from government invasion, e.g., Payton v. New York, 445 U. S. 573 (1980). These factors are equally relevant to determining whether the government's intrusion upon open fields without a warrant or probable cause violates reasonable expectations of privacy, and is therefore a search proscribed by the Amendment. In this light, the rule of Hester v. United States, supra, that we reaffirm today, may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. See also Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U. S. 861 , 416 U. S. 865 (1974). This rule is true to the conception of the right to privacy embodied in the Fourth Amendment. The Amendment reflects the recognition of the Framers that certain enclaves should be free from arbitrary government interference. For example, the Court, since the enactment of the Fourth Amendment, has stressed "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic." Payton v. New York, supra, at 445 U. S. 601 . [ Footnote 8 ] See also Silverman v. United States, 365 U. S. 505 , 365 U. S. 511 (1961); United States v. United States District Court, 407 U. S. 297 , 407 U. S. 313 (1972). Page 466 U. S. 179 In contrast, open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter, these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be. It is not generally true that fences or "No Trespassing" signs effectively bar the public from viewing open fields in rural areas. And both petitioner Oliver and respondent Thornton concede that the public and police lawfully may survey lands from the air. [ Footnote 9 ] For these reasons, the asserted expectation of privacy in open fields is not an expectation that "society recognizes as reasonable." [ Footnote 10 ] Page 466 U. S. 180 The historical underpinnings of the open fields doctrine also demonstrate that the doctrine is consistent with respect for "reasonable expectations of privacy." As Justice Holmes, writing for the Court, observed in Hester, 265 U.S. at 265 U. S. 59 , the common law distinguished "open fields" from the "curtilage," the land immediately surrounding and associated with the home. See 4 W. Blackstone, Commentaries *225. The distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life," Boyd v. United States, 116 U. S. 616 , 116 U. S. 630 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. See, e.g., United States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981); United States v. Williams, 581 F.2d 451, 453 (CA5 1978); Care v. United States, 231 F.2d 22, 25 (CA10), cert. denied, 351 U.S. 932 (1956). Conversely, the common law implies, as we reaffirm today, that no expectation of privacy legitimately attaches to open fields. [ Footnote 11 ] Page 466 U. S. 181 We conclude, from the text of the Fourth Amendment and from the historical and contemporary understanding of its purposes, that an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers. B Petitioner Oliver and respondent Thornton contend, to the contrary, that the circumstances of a search sometimes may indicate that reasonable expectations of privacy were violated, and that courts therefore should analyze these circumstances on a case-by-case basis. The language of the Fourth Amendment itself answers their contention. Nor would a case-by-case approach provide a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment. Under this approach, police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy. The lawfulness of a search would turn on "'[a] highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts, and requiring the drawing of subtle nuances and hairline distinctions. . . .'" New York v. Belton, 453 U. S. 454 , 453 U. S. 458 (1981) (quoting LaFave, "Case-By-Case Adjudication" versus "Standardized Procedures": The Robinson Dilemma, 1974 S.Ct.Rev. 127, 142). This Court repeatedly has acknowledged the difficulties created for courts, police, and citizens by an ad hoc, case-by-case definition of Fourth Amendment standards to be applied in differing factual circumstances. See Belton, supra, at 453 U. S. 458 -460; Robbins v. California, 453 U. S. 420 , 453 U. S. 430 (1981) (POWELL, J., concurring in judgment); Dunaway v. New York, 442 U. S. 200 , 442 U. S. 213 -214 (1979); United States v. Robinson, 414 U. S. 218 , 414 U. S. 235 (1973). The ad hoc approach not only makes it difficult for the policeman to discern the scope of his authority, Belton, supra, at 453 U. S. 460 ; it also creates a danger that constitutional Page 466 U. S. 182 rights will be arbitrarily and inequitably enforced. Cf. Smith v. Goguen, 415 U. S. 566 , 415 U. S. 572 -573 (1974). [ Footnote 12 ] IV In any event, while the factors that petitioner Oliver and respondent Thornton urge the courts to consider may be relevant to Fourth Amendment analysis in some contexts, these factors cannot be decisive on the question whether the search of an open field is subject to the Amendment. Initially, we reject the suggestion that steps taken to protect privacy establish that expectations of privacy in an open field are legitimate. It is true, of course, that petitioner Oliver and respondent Thornton, in order to conceal their criminal activities, planted the marihuana upon secluded land and erected fences and "No Trespassing" signs around the property. And it may be that, because of such precautions, few members of the public stumbled upon the marihuana crops seized by the police. Neither of these suppositions demonstrates, however, that the expectation of privacy was legitimate in the sense required by the Fourth Amendment. The test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity. [ Footnote 13 ] Rather, the correct inquiry is whether the government's intrusion infringes upon the personal Page 466 U. S. 183 and societal values protected by the Fourth Amendment. As we have explained, we find no basis for concluding that a police inspection of open fields accomplishes such an infringement. Nor is the government's intrusion upon an open field a "search" in the constitutional sense because that intrusion is a trespass at common law. The existence of a property right is but one element in determining whether expectations of privacy are legitimate. " The premise that property interests control the right of the Government to search and seize has been discredited.'" Katz, 389 U.S. at 389 U. S. 353 (quoting Warden v. Hayden, 387 U. S. 294 , 387 U. S. 304 (1967)). "[E]ven a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon." Rakas v. Illinois, 439 U.S. at 439 U. S. 144 , n. 12. The common law may guide consideration of what areas are protected by the Fourth Amendment by defining areas whose invasion by others is wrongful. Id. at 430 U. S. 153 (POWELL, J., concurring). [ Footnote 14 ] The law of trespass, however, forbids intrusions upon land that the Fourth Amendment would not proscribe. For trespass law extends to instances where the exercise of the right to exclude vindicates no legitimate privacy interest. [ Footnote 15 ] Thus, in the case of open fields, the general Page 466 U. S. 184 rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment. V We conclude that the open fields doctrine, as enunciated in Hester, is consistent with the plain language of the Fourth Amendment and its historical purposes. Moreover, Justice Holmes' interpretation of the Amendment in Hester accords with the "reasonable expectation of privacy" analysis developed in subsequent decisions of this Court. We therefore affirm Oliver v. United States; Maine v. Thornton is reversed and remanded for further proceedings not inconsistent with this opinion. It is so ordered. * Together with No. 82-1273, Maine v. Thornton, on certiorari to the Supreme Judicial Court of Maine. [ Footnote 1 ] It is conceded that the police did not have a warrant authorizing the search, that there was no probable cause for the search, and that no exception to the warrant requirement is applicable. [ Footnote 2 ] A panel of the Sixth Circuit had affirmed the suppression order. 657 F.2d 85 (1981). [ Footnote 3 ] The four dissenting judges contended that the open fields doctrine did not apply where, as in this case, "reasonable effort[s] [have] been made to exclude the public." 686 F.2d at 372. To that extent, the dissent considered that Katz v. United States implicitly had overruled previous holdings of this Court. The dissent then concluded that petitioner had established a "reasonable expectation of privacy" under the Katz standard. Judge Lively also wrote separately to argue that the open fields doctrine applied only to lands that could be viewed by the public. [ Footnote 4 ] The court also discredited other information, supplied by a confidential informant, upon which the police had based their warrant application. [ Footnote 5 ] Respondent contends that the decision below rests upon adequate and independent state law grounds. We do not read that decision, however, as excluding the evidence because the search violated the State Constitution. The Maine Supreme Judicial Court referred only to the Fourth Amendment of the Federal Constitution, and purported to apply the Katz test; the prior state cases that the court cited also construed the Federal Constitution. In any case, the Maine Supreme Judicial Court did not articulate an independent state ground with the clarity required by Michigan v. Long, 463 U. S. 1032 (1983). Contrary to respondent's assertion, we do not review here the state courts' finding as a matter of "fact" that the area searched was not an "open field." Rather, the question before us is the appropriate legal standard for determining whether search of that area without a warrant was lawful under the Federal Constitution. The conflict between the two cases that we review here is illustrative of the confusion the open fields doctrine has generated among the state and federal courts. Compare, e.g., State v. Byers, 359 So. 2d 84 (La.1978) (refusing to apply open fields doctrine); State v. Brady, 406 So. 2d 1093 (Fla.1981) (same), with United States v. Lace, 669 F.2d 46, 50-51 (CA2 1982); United States v. Freie, 545 F.2d 1217 (CA9 1976); United States v. Brown, 473 F.2d 952, 954 (CA5 1973); Atwell v. United States, 414 F.2d 136, 138 (CA5 1969). [ Footnote 6 ] The dissent offers no basis for its suggestion that Hester rests upon some narrow, unarticulated principle, rather than upon the reasoning enunciated by the Court's opinion in that case. Nor have subsequent cases discredited Hester's reasoning. This Court frequently has relied on the explicit language of the Fourth Amendment as delineating the scope of its affirmative protections. See, e.g., Robbins v. California, 453 U. S. 420 , 453 U. S. 426 (1981) (opinion of Stewart, J.); Payton v. New York, 445 U. S. 573 , 445 U. S. 589 -590 (1980); Alderman v. United States, 394 U. S. 165 , 394 U. S. 178 -180 (1969). As these cases, decided after Katz, indicate, Katz' "reasonable expectation of privacy" standard did not sever Fourth Amendment doctrine from the Amendment's language. Katz itself construed the Amendment's protection of the person against unreasonable searches to encompass electronic eavesdropping of telephone conversations sought to be kept private; and Katz' fundamental recognition that "the Fourth Amendment protects people -- and not simply areas' -- against unreasonable searches and seizures," see 389 U.S. at 389 U. S. 353 , is faithful to the Amendment's language. As Katz demonstrates, the Court fairly may respect the constraints of the Constitution's language without wedding itself to an unreasoning literalism. In contrast, the dissent's approach would ignore the language of the Constitution itself, as well as overturn this Court's governing precedent. [ Footnote 7 ] The Framers would have understood the term "effects" to be limited to personal, rather than real, property. See generally Doe v. Dring, 2 M. & S. 448, 454, 105 Eng.Rep. 447, 449 (K. B. 1814) (discussing prior cases); 2 W. Blackstone, Commentaries *16, *384-*385. [ Footnote 8 ] The Fourth Amendment's protection of offices and commercial buildings, in which there may be legitimate expectations of privacy, is also based upon societal expectations that have deep roots in the history of the Amendment. See Marshall v. Barlow's, Inc., 436 U. S. 307 , 436 U. S. 311 (1978); G. M. Leasing Corp. v. United States, 429 U. S. 338 , 429 U. S. 355 (1977). [ Footnote 9 ] Tr. of Oral Arg. 14-15, 58. See, e.g., United States v. Allen, 675 F.2d 1373, 1380-1381 (CA9 1980); United States v. DeBacker, 493 F. Supp. 1078 , 1081 (WD Mich.1980). In practical terms, petitioner Oliver's and respondent Thornton's analysis merely would require law enforcement officers, in most situations, to use aerial surveillance to gather the information necessary to obtain a warrant or to justify warrantless entry onto the property. It is not easy to see how such a requirement would advance legitimate privacy interests. [ Footnote 10 ] The dissent conceives of open fields as bustling with private activity as diverse as lovers' trysts and worship services. Post at 466 U. S. 191 -193. But in most instances, police will disturb no one when they enter upon open fields. These fields, by their very character as open and unoccupied, are unlikely to provide the setting for activities whose privacy is sought to be protected by the Fourth Amendment. One need think only of the vast expanse of some western ranches or of the undeveloped woods of the Northwest to see the unreality of the dissent's conception. Further, the Fourth Amendment provides ample protection to activities in the open fields that might implicate an individual's privacy. An individual who enters a place defined to be "public" for Fourth Amendment analysis does not lose all claims to privacy or personal security. Cf. Arkansas v. Sanders, 442 U. S. 753 , 442 U. S. 766 -767 (1979) (BURGER, C.J., concurring in judgment). For example, the Fourth Amendment's protections against unreasonable arrest or unreasonable seizure of effects upon the person remain fully applicable. See, e.g., United States v. Watson, 423 U. S. 411 (1976). [ Footnote 11 ] Neither petitioner Oliver nor respondent Thornton has contended that the property searched was within the curtilage. Nor is it necessary in these cases to consider the scope of the curtilage exception to the open fields doctrine or the degree of Fourth Amendment protection afforded the curtilage, as opposed to the home itself. It is clear, however, that the term "open fields" may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither "open" nor a "field" as those terms are used in common speech. For example, contrary to respondent Thornton's suggestion, Tr. of Oral Arg. 21-22, a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment. See, e.g., United States v. Pruitt, 464 F.2d 494 (CA9 1972); Bedell v. State, 257 Ark. 895, 521 S.W.2d 200 (1975). [ Footnote 12 ] The clarity of the open fields doctrine that we reaffirm today is not sacrificed, as the dissent suggests, by our recognition that the curtilage remains within the protections of the Fourth Amendment. Most of the many millions of acres that are "open fields" are not close to any structure, and so not arguably within the curtilage. And, for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage -- as the area around the home to which the activity of home life extends -- is a familiar one easily understood from our daily experience. The occasional difficulties that courts might have in applying this, like other, legal concepts do not argue for the unprecedented expansion of the Fourth Amendment advocated by the dissent. [ Footnote 13 ] Certainly the Framers did not intend that the Fourth Amendment should shelter criminal activity wherever persons with criminal intent choose to erect barriers and post "No Trespassing" signs. [ Footnote 14 ] As noted above, the common law conception of the "curtilage" has served this function. [ Footnote 15 ] The law of trespass recognizes the interest in possession and control of one's property, and for that reason permits exclusion of unwanted intruders. But it does not follow that the right to exclude conferred by trespass law embodies a privacy interest also protected by the Fourth Amendment. To the contrary, the common law of trespass furthers a range of interests that have nothing to do with privacy, and that would not be served by applying the strictures of trespass law to public officers. Criminal laws against trespass are prophylactic: they protect against intruders who poach, steal livestock and crops, or vandalize property. And the civil action of trespass serves the important function of authorizing an owner to defeat claims of prescription by asserting his own title. See, e.g., O. Holmes, The Common Law 98-100, 244-246 (1881). In any event, unlicensed use of property by others is presumptively unjustified, as anyone who wishes to use the property is free to bargain for the right to do so with the property owner, cf. R. Posner, Economic Analysis of Law 10-13, 21 (1973). For these reasons, the law of trespass confers protections from intrusion by others far broader than those required by Fourth Amendment interests. JUSTICE WHITE, concurring in part and concurring in the judgment. I concur in the judgment and join Parts 466 U. S. S. 176|>II of the Court's opinion. These Parts dispose of the issue before us; there is no need to go further and deal with the expectation of privacy matter. However reasonable a landowner's expectations of privacy may be, those expectations cannot convert a field into a "house" or an "effect." JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting. In each of these consolidated cases, police officers, ignoring clearly visible "No Trespassing" signs, entered upon private land in search of evidence of a crime. At a spot that could Page 466 U. S. 185 not be seen from any vantage point accessible to the public, the police discovered contraband, which was subsequently used to incriminate the owner of the land. In neither case did the police have a warrant authorizing their activities. The Court holds that police conduct of this sort does not constitute an "unreasonable search" within the meaning of the Fourth Amendment. The Court reaches that startling conclusion by two independent analytical routes. First, the Court argues that, because the Fourth Amendment, by its terms, renders people secure in their "persons, houses, papers, and effects," it is inapplicable to trespasses upon land not lying within the curtilage of a dwelling. Ante at 466 U. S. 176 -177. Second, the Court contends that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Ante at 466 U. S. 178 . Because I cannot agree with either of these propositions, I dissent. I The first ground on which the Court rests its decision is that the Fourth Amendment "indicates with some precision the places and things encompassed by its protections," and that real property is not included in the list of protected spaces and possessions. Ante at 466 U. S. 176 . This line of argument has several flaws. Most obviously, it is inconsistent with the results of many of our previous decisions, none of which the Court purports to overrule. For example, neither a public telephone booth nor a conversation conducted therein can fairly be described as a person, house, paper, or effect, [ Footnote 2/1 ] yet we have held that the Fourth Amendment forbids the police without a warrant to eavesdrop on such a conversation. Katz v. United States, 389 U. S. 347 (1967). Nor can it plausibly Page 466 U. S. 186 be argued that an office or commercial establishment is covered by the plain language of the Amendment; yet we have held that such premises are entitled to constitutional protection if they are marked in a fashion that alerts the public to the fact that they are private. Marshall v. Barlow's, Inc., 436 U. S. 307 , 436 U. S. 311 (1978); G. M. Leasing Corp. v. United States, 429 U. S. 338 , 429 U. S. 358 -359 (1977). [ Footnote 2/2 ] Indeed, the Court's reading of the plain language of the Fourth Amendment is incapable of explaining even its own holding in this case. The Court rules that the curtilage, a zone of real property surrounding a dwelling, is entitled to constitutional protection. Ante at 466 U. S. 180 . We are not told, however, whether the curtilage is a "house" or an "effect" -- or why, if the curtilage can be incorporated into the list of things and spaces shielded by the Amendment, a field cannot. The Court's inability to reconcile its parsimonious reading of the phrase "persons, houses, papers, and effects" with our prior decisions, or even its own holding, is a symptom of a more fundamental infirmity in the Court's reasoning. The Fourth Amendment, like the other central provisions of the Bill of Rights that loom large in our modern jurisprudence, was designed not to prescribe with "precision" permissible and impermissible activities, but to identify a fundamental human liberty that should be shielded forever from government intrusion. [ Footnote 2/3 ] We do not construe constitutional provisions Page 466 U. S. 187 of this sort the way we do statutes, whose drafters can be expected to indicate with some comprehensiveness and exactitude the conduct they wish to forbid or control and to change those prescriptions when they become obsolete. [ Footnote 2/4 ] Rather, we strive, when interpreting these seminal constitutional provisions, to effectuate their purposes -- to lend them meanings that ensure that the liberties the Framers sought to protect are not undermined by the changing activities of government officials. [ Footnote 2/5 ] The liberty shielded by the Fourth Amendment, as we have often acknowledged, is freedom "from unreasonable government intrusions into . . . legitimate expectations of privacy." United States v. Chaduck, 433 U. S. 1 , 433 U. S. 7 (1977). That freedom would be incompletely protected if only government conduct that impinged upon a person, house, paper, or effect were subject to constitutional scrutiny. Accordingly, we have repudiated the proposition that the Fourth Amendment applies only to a limited set of locales or kinds of property. In Katz v. United States, we expressly rejected a proffered locational theory of the coverage of the Amendment, holding that it "protects people, not places." 389 U.S. at 389 U. S. 351 . Since that time, we have consistently adhered Page 466 U. S. 188 to the view that the applicability of the provision depends solely upon "whether the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by government action." Smith v. Maryland, 442 U. S. 735 , 442 U. S. 740 (1979). [ Footnote 2/6 ] The Court's contention that, because a field is not a house or effect, it is not covered by the Fourth Amendment is inconsistent with this line of cases, and with the understanding of the nature of constitutional adjudication from which it derives. [ Footnote 2/7 ] II The second ground for the Court's decision is its contention that any interest a landowner might have in the privacy of his woods and fields is not one that "society is prepared to recognize as reasonable.'" Ante at 466 U. S. 177 (quoting Katz v. United States, 389 U.S. at 389 U. S. 361 (Harlan, J., concurring)). Page 466 U. S. 189 The mode of analysis that underlies this assertion is certainly more consistent with our prior decisions than that discussed above. But the Court's conclusion cannot withstand scrutiny. As the Court acknowledges, we have traditionally looked to a variety of factors in determining whether an expectation of privacy asserted in a physical space is "reasonable." Ante at 466 U. S. 177 -178. Though those factors do not lend themselves to precise taxonomy, they may be roughly grouped into three categories. First, we consider whether the expectation at issue is rooted in entitlements defined by positive law. Second, we consider the nature of the uses to which spaces of the sort in question can be put. Third, we consider whether the person claiming a privacy interest manifested that interest to the public in a way that most people would understand and respect. [ Footnote 2/8 ] When the expectations of privacy asserted by petitioner Oliver and respondent Thornton [ Footnote 2/9 ] are examined through these lenses, it becomes clear that those expectations are entitled to constitutional protection. A We have frequently acknowledged that privacy interests are not coterminous with property rights. E.g., United States v. Salvucci, 448 U. S. 83 , 448 U. S. 91 (1980). However, because "property rights reflect society's explicit recognition Page 466 U. S. 190 of a person's authority to act as he wishes in certain areas, [they] should be considered in determining whether an individual's expectations of privacy are reasonable." Rakas v. Illinois, 439 U. S. 128 , 439 U. S. 153 (1978) (POWELL, J., concurring). [ Footnote 2/10 ] Indeed, the Court has suggested that, insofar as "[o]ne of the main rights attaching to property is the right to exclude others, . . . one who owns or lawfully possesses or controls property will, in all likelihood, have a legitimate expectation of privacy by virtue of this right to exclude." Id. at 439 U. S. 144 , n. 12 (opinion of the Court). [ Footnote 2/11 ] It is undisputed that Oliver and Thornton each owned the land into which the police intruded. That fact alone provides considerable support for their assertion of legitimate privacy interests in their woods and fields. But even more telling is the nature of the sanctions that Oliver and Thornton could invoke, under local law, for violation of their property rights. In Kentucky, a knowing entry upon fenced or otherwise enclosed land, or upon unenclosed land conspicuously posted with signs excluding the public, constitutes criminal trespass. Ky.Rev.Stat. §§ 511.070(1), 511.080, 511.090(4) (1975). The law in Maine is similar. An intrusion into "any place from Page 466 U. S. 191 which [the intruder] may lawfully be excluded and which is posted in a manner prescribed by law or in a manner reasonably likely to come to the attention of intruders or which is fenced or otherwise enclosed" is a crime. Me.Rev.Stat.Ann., Tit. 17A, § 402(1)(C) (1964). [ Footnote 2/12 ] Thus, positive law not only recognizes the legitimacy of Oliver's and Thornton's insistence that strangers keep off their land, but subjects those who refuse to respect their wishes to the most severe of penalties -- criminal liability. Under these circumstances, it is hard to credit the Court's assertion that Oliver's and Thornton's expectations of privacy were not of a sort that society is prepared to recognize as reasonable. B The uses to which a place is put are highly relevant to the assessment of a privacy interest asserted therein. Rakas v. Illinois, supra, at 439 U. S. 153 (POWELL, J., concurring). If, in light of our shared sensibilities, those activities are of a kind in which people should be able to engage without fear of intrusion by private persons or government officials, we extend the protection of the Fourth Amendment to the space in question, even in the absence of any entitlement derived from positive law. E.g., Katz v. United States, 389 U.S. at 389 U. S. 352 -353. [ Footnote 2/13 ] Page 466 U. S. 192 Privately owned woods and fields that are not exposed to public view regularly are employed in a variety of ways that society acknowledges deserve privacy. Many landowners like to take solitary walks on their property, confident that they will not be confronted in their rambles by strangers or policemen. Others conduct agricultural businesses on their property. [ Footnote 2/14 ] Some landowners use their secluded spaces to meet lovers, others to gather together with fellow worshippers, still others to engage in sustained creative endeavor. Private land is sometimes used as a refuge for wildlife, where flora and fauna are protected from human intervention of any kind. [ Footnote 2/15 ] Our respect for the freedom of landowners to use Page 466 U. S. 193 their posted "open fields" in ways such as these partially explains the seriousness with which the positive law regards deliberate invasions of such spaces, see supra at 466 U. S. 190 -191, and substantially reinforces the landowners' contention that their expectations of privacy are "reasonable." C Whether a person "took normal precautions to maintain his privacy" in a given space affects whether his interest is one protected by the Fourth Amendment. Rawlings v. Kentucky, 448 U. S. 98 , 448 U. S. 105 (1980). [ Footnote 2/16 ] The reason why such precautions are relevant is that we do not insist that a person who has a right to exclude others exercise that right. A claim to privacy is therefore strengthened by the fact that the claimant somehow manifested to other people his desire that they keep their distance. Certain spaces are so presumptively private that signals of this sort are unnecessary; a homeowner need not post a "Do Not Enter" sign on his door in order to deny entrance to uninvited guests. [ Footnote 2/17 ] Privacy interests in other spaces are more ambiguous, and the taking of precautions is consequently more important; placing a lock on one's footlocker strengthens one's claim that an examination of its contents is impermissible. See United States v. Chaduck, 433 U.S. at 433 U. S. 11 . Still other spaces are, by positive law and social convention, presumed accessible to members of the public unless the owner manifests his intention to exclude them. Undeveloped land falls into the last-mentioned category. If a person has not marked the boundaries of his fields or woods in a way that informs passersby that they are not welcome, Page 466 U. S. 194 he cannot object if members of the public enter onto the property. There is no reason why he should have any greater rights as against government officials. Accordingly, we have held that an official may, without a warrant, enter private land from which the public is not excluded and make observations from that vantage point. Air Pollution Variance Board v. Western Alfalfa Corp., 416 U. S. 861 , 416 U. S. 865 (1974). Fairly read, the case on which the majority so heavily relies, Hester v. United States, 265 U. S. 57 (1924), affirms little more than the foregoing unremarkable proposition. From aught that appears in the opinion in that case, the defendants, fleeing from revenue agents who had observed them committing a crime, abandoned incriminating evidence on private land from which the public had not been excluded. Under such circumstances, it is not surprising that the Court was unpersuaded by the defendants' argument that the entry onto their fields by the agents violated the Fourth Amendment. [ Footnote 2/18 ] A very different case is presented when the owner of undeveloped land has taken precautions to exclude the public. As indicated above, a deliberate entry by a private citizen onto private property marked with "No Trespassing" signs will expose him to criminal liability. I see no reason why a government official should not be obliged to respect such Page 466 U. S. 195 unequivocal and universally understood manifestations of a landowner's desire for privacy. [ Footnote 2/19 ] In sum, examination of the three principal criteria we have traditionally used for assessing the reasonableness of a person's expectation that a given space would remain private indicates that interests of the sort asserted by Oliver and Thornton are entitled to constitutional protection. An owner's right to insist that others stay off his posted land is firmly grounded in positive law. Many of the uses to which such land may be put deserve privacy. And, by marking the boundaries of the land with warnings that the public should not intrude, the owner has dispelled any ambiguity as to his desires. The police in these cases proffered no justification for their invasions of Oliver's and Thornton's privacy interests; in neither case was the entry legitimated by a warrant or by one of the established exceptions to the warrant requirement. I conclude, therefore, that the searches of their land violated the Fourth Amendment, and the evidence obtained in the course of those searches should have been suppressed. III A clear, easily administrable rule emerges from the analysis set forth above: private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the State in which the land lies is protected by the Fourth Amendment's proscription of unreasonable searches and seizures. One of the advantages of the foregoing rule is that Page 466 U. S. 196 it draws upon a doctrine already familiar to both citizens and government officials. In each jurisdiction, a substantial body of statutory and case law defines the precautions a landowner must take in order to avail himself of the sanctions of the criminal law. The police know that body of law, because they are entrusted with responsibility for enforcing it against the public; it therefore would not be difficult for the police to abide by it themselves. By contrast, the doctrine announced by the Court today is incapable of determinate application. Police officers, making warrantless entries upon private land, will be obliged in the future to make on-the-spot judgments as to how far the curtilage extends, and to stay outside that zone. [ Footnote 2/20 ] In addition, we may expect to see a spate of litigation over the question of how much improvement is necessary to remove private land from the category of "unoccupied or undeveloped area" to which the "open fields exception" is now deemed applicable. See ante at 466 U. S. 180 , n. 11. The Court's holding not only ill-serves the need to make constitutional doctrine "workable for application by rank-and-file, trained police officers," Illinois v. Andreas, 463 U. S. 765 , 463 U. S. 772 (1983), it withdraws the shield of the Fourth Amendment from privacy interests that clearly deserve protection. By exempting from the coverage of the Amendment large areas of private land, the Court opens the way to investigative activities we would all find repugnant. Cf., e.g., United States v. Lace, 669 F.2d 46, 54 (CA2 1982) (Newman, J., concurring in result) ("[W]hen police officers execute military maneuvers on residential property for three weeks of round-the-clock surveillance, can that be called reasonable'?"); Page 466 U. S. 197 State v. Brady, 406 So. 2d 1093 , 1094-1095 (Fla. 1981) ("In order to position surveillance groups around the ranch's airfield, deputies were forced to cross a dike, ram through one gate and cut the chain lock on another, cut or cross posted fences, and proceed several hundred yards to their hiding places"), cert. granted, 456 U.S. 988, supplemental memoranda ordered and oral argument postponed, 459 U.S. 986 (1982). [ Footnote 2/21 ] The Fourth Amendment, properly construed, embodies and gives effect to our collective sense of the degree to which men and women, in civilized society, are entitled "to be let alone" by their governments. Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting); cf. Smith v. Maryland, 442 U.S. at 442 U. S. 750 (MARSHALL, J., dissenting). The Court's opinion bespeaks and will help to promote an impoverished vision of that fundamental right. I dissent. [ Footnote 2/1 ] The Court informs us that the Framers would have understood the term "effects" to encompass only personal property. Ante at 466 U. S. 177 , n. 7. Such a construction of the term would exclude both a public phone booth and spoken words. [ Footnote 2/2 ] On the other hand, an automobile surely does constitute an "effect." Under the Court's theory, cars should therefore stand on the same constitutional footing as houses. Our cases establish, however, that car owners' diminished expectations that their cars will remain free from prying eyes warrants a corresponding reduction in the constitutional protection accorded cars. E.g., United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 561 (1976). [ Footnote 2/3 ] By their terms, the provisions of the Bill of Rights curtail only activities by the Federal Government, See Barron v. Mayor and City Council of Baltimore , 7 Pet. 243 (1833), but the Fourteenth Amendment subjects state and local governments to the most important of those restrictions, see, e.g., Cantwell v. Connecticut, 310 U. S. 296 (1940) (First Amendment); Wolf v. Colorado, 338 U. S. 25 (1949) (Fourth Amendment). [ Footnote 2/4 ] Cf. 17 U. S. Maryland, 4 Wheat. 316, 17 U. S. 407 (1819) ("[W]e must never forget, that it is a constitution we are expounding." Such a document cannot be as detailed as a "legal code"; "[i]ts nature . . . requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves") (emphasis in original). [ Footnote 2/5 ] Our rejection of the mode of interpretation appropriate for statutes is perhaps clearest in our treatment of the First Amendment. That Amendment provides, in pertinent part, that "Congress shall make no law . . . abridging the freedom of speech, or of the press," but says nothing, for example, about restrictions on expressive behavior or about access to the courts. Yet, to give effect to the purpose of the Amendment, we have applied it to regulations of conduct designed to convey a message, e.g., Edwards v. South Carolina, 372 U. S. 229 (1963), and have accorded constitutional protection to the public's "right of access to criminal trials," Globe Newspaper Co. v. Superior Court, 457 U. S. 596 , 457 U. S. 604 -605 (1982). [ Footnote 2/6 ] See also United States v. Chadwick, 433 U. S. 1 , 433 U. S. 7 , 11 (1977) (disagreeing with the suggestion that the Fourth Amendment "protects only dwellings and other specifically designated locales"; asserting instead that the purpose of the Amendment "is to safeguard individuals from unreasonable government invasions of legitimate privacy interests"); Rakas v. Illinois, 439 U. S. 128 , 439 U. S. 143 (1978) (holding that the determinative question is "whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place"). Our most recent decisions continue to rely on the conception of the purpose and scope of the Fourth Amendment that we enunciated in Katz. See, e.g., United States v. Jacobsen, ante at 466 U. S. 113 -118; Michigan v. Clifford, 464 U. S. 287 , 464 U. S. 292 -293 (1984); Illinois v. Andreas, 463 U. S. 765 , 463 U. S. 771 (1983); United States v. Place, 462 U. S. 696 , 462 U. S. 706 -707 (1983); Texas v. Brown, 460 U. S. 730 , 460 U. S. 738 -740 (1983) (plurality opinion); United States v. Knotts, 460 U. S. 276 , 460 U. S. 280 -281 (1983). [ Footnote 2/7 ] Sensitive to the weakness of its argument that the "persons or things" mentioned in the Fourth Amendment exhaust the coverage of the provision, the Court goes on to analyze at length the privacy interests that might legitimately be asserted in "open fields." The inclusion of Parts 466 U. S. S. 182|>IV in the opinion, coupled with the Court's reaffirmation of Katz and its progeny, ante at 466 U. S. 177 , strongly suggests that the plain language theory sketched in 466 U. S. [ Footnote 2/8 ] The privacy interests protected by the Fourth Amendment are not limited to expectations that physical areas will remain free from public and government intrusion. See supra at 466 U. S. 187 -188. The factors relevant to the assessment of the reasonableness of a nonspatial privacy interest may well be different from the three considerations discussed here. See, e.g., Smith v. Maryland, 442 U. S. 735 , 442 U. S. 747 -748 (1979) (Stewart, J., dissenting); id. at 442 U. S. 750 -752 (MARSHALL, J., dissenting). [ Footnote 2/9 ] The Court does not dispute that Oliver and Thornton had subjective expectations of privacy, nor could it in view of the lower courts' findings on that issue. See United States v. Oliver, No. CR80-00005-01-BG (WD Ky., Nov. 14, 1980), App. to Pet. for Cert. in No. 82-15, pp.19-20; Maine v. Thornton, No. CR82-10 (Me.Super.Ct., Apr. 16, 1982), App. to Pet. for Cert. in No. 82-1273, pp. B-4 - B-5. [ Footnote 2/10 ] The Court today seeks to evade the force of this principle by contending that the law of property is designed to serve various "prophylactic" and "economic" purposes unrelated to the protection of privacy. Ante at 466 U. S. 183 -184, and n. 15. Such efforts to rationalize the distribution of entitlements under state law are interesting and may have some explanatory power, but cannot support the weight the Court seeks to place upon them. The Court surely must concede that one of the purposes of the law of real property (and specifically the law of criminal trespass, see infra, this page and 466 U. S. 191 , and n. 12) is to define and enforce privacy interests -- to empower some people to make whatever use they wish of certain tracts of land without fear that other people will intrude upon their activities. The views of commentators, old and new, as to other functions served by positive law are thus insufficient to support the Court's sweeping assertion that, "in the case of open fields, the general rights of property . . . have little or no relevance to the applicability of the Fourth Amendment," ante at 466 U. S. 183 -184. [ Footnote 2/11 ] See also Rawlings v. Kentucky, 448 U. S. 98 , 448 U. S. 112 (1980) (BLACKMUN, J., concurring). [ Footnote 2/12 ] Cf. Comment to ALI, Model Penal Code § 221.2, p. 87 (1980) ("The common thread running through these provisions [a sample of state criminal trespass laws] is the element of unwanted intrusion, usually coupled with some sort of notice to would-be intruders that they may not enter. Most people do not object to strangers tramping through woodland or over pasture or open range. On the other hand, intrusions into buildings, onto property fenced in a manner manifestly designed to exclude intruders, or onto any private property in defiance of actual notice to keep away is generally considered objectionable, and under some circumstances frightening"). [ Footnote 2/13 ] In most circumstances, this inquiry requires analysis of the sorts of uses to which a given space is susceptible, not the manner in which the person asserting an expectation of privacy in the space was in fact employing it. See, e.g., United States v. Chadwick, 433 U.S. at 433 U. S. 13 . We make exceptions to this principle and evaluate uses on a case-by-case basis in only two contexts: when called upon to assess (what formerly was called) the "standing" of a particular person to challenge an intrusion by government officials into a area over which that person lacked primary control, see, e.g., Rakas v. Illinois, 439 U.S. at 439 U. S. 148 -149; Jones v. United States, 362 U. S. 257 , 362 U. S. 265 -266 (1960), and when it is possible to ascertain how a person is using a particular space without violating the very privacy interest he is asserting, see, e.g., Katz v. United States, 389 U.S. at 389 U. S. 352 . (In cases of the latter sort, the inquiries described in this Part and in 466 U. S. infra, are coextensive). Neither of these exceptions is applicable here. Thus, the majority's contention that, because the cultivation of marihuana is not an activity that society wishes to protect, Oliver and Thornton had no legitimate privacy interest in their fields, ante at 466 U. S. 182 -183, and n. 13, reflects a misunderstanding of the level of generality on which the constitutional analysis must proceed. [ Footnote 2/14 ] We accord constitutional protection to businesses conducted in office buildings, see supra at 466 U. S. 185 -186; it is not apparent why businesses conducted in fields that are not open to the public are less deserving of the benefit of the Fourth Amendment. [ Footnote 2/15 ] This last-mentioned use implicates a kind of privacy interest somewhat different from those to which we are accustomed. It involves neither a person's interest in immunity from observation nor a person's interest in shielding from scrutiny the residues and manifestations of his personal life. Cf. Weinreb, Generalities of the Fourth Amendment, 42 U.Chi.L.Rev. 47, 52-54 (1974). It derives, rather, from a person's desire to preserve inviolate a portion of his world. The idiosyncracy of this interest does not, however, render it less deserving of constitutional protection. [ Footnote 2/16 ] See also Rakas v. Illinois, supra, at 439 U. S. 152 (POWELL, J., concurring); United States v. Chadwick, supra, at 433 U. S. 11 ; Katz v. United States, supra, at 389 U. S. 352 . [ Footnote 2/17 ] However, if the homeowner acts affirmatively to invite someone into his abode, he cannot later insist that his privacy interests have been violated. Lewis v. United States, 385 U. S. 206 (1966). [ Footnote 2/18 ] An argument supportive of the position taken by the Court today might be constructed on the basis of an examination of the record in Hester. It appears that, in his approach to the house, one of the agents crossed a pasture fence. See Tr. of Record in Hester v. United States, O.T. 1923, No. 243, p. 16. However, the Court, in its opinion, placed no weight upon -- indeed, did not even mention -- that circumstance. In any event, to the extent that Hester may be read to support a rule any broader than that stated in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U. S. 861 (1974), it is undercut by our decision in Katz, which repudiated the locational theory of the coverage of the Fourth Amendment enunciated in Olmstead v. United States, 277 U. S. 438 (1928), and by the line of decisions originating in Katz, see supra at 466 U. S. 187 -188, and n. 6. [ Footnote 2/19 ] Indeed, important practical considerations suggest that the police should not be empowered to invade land closed to the public. In many parts of the country, landowners feel entitled to use self-help in expelling trespassers from their posted property. There is thus a serious risk that police officers, making unannounced, warrantless searches of "open fields," will become involved in violent confrontations with irate landowners, with potentially tragic results. Cf. McDonald v. United States, 335 U. S. 451 , 335 U. S. 460 -461 (1948) (Jackson, J., concurring). [ Footnote 2/20 ] The likelihood that the police will err in making such judgments is suggested by the difficulty experienced by courts when trying to define the curtilage of dwellings. See, e.g., United States v. Berrong, 712 F.2d 1370, 1374, and n. 7 (CA11 1983), cert. pending, No. 83-988, United States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981). [ Footnote 2/21 ] Perhaps the most serious danger in the decision today is that, if the police are permitted routinely to engage in such behavior, it will gradually become less offensive to us all. As Justice Brandeis once observed: "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law. . . ." Olmstead v. United States, 277 U.S. at 277 U. S. 485 (dissenting opinion). See also Solem v. Stumes, 465 U. S. 638 , 465 U. S. 667 (1984) (STEVENS, J., dissenting).

In these two cases, the Supreme Court applied the "open fields doctrine," which allows police officers to enter and search fields without a warrant if they are open to the public, even if they are posted with "No Trespassing" signs. The Court held that the discovery of marijuana fields in both cases was valid under this doctrine, as the fields were not considered "effects" under the Fourth Amendment, which protects against unreasonable searches and seizures.

Search & Seizure

Illinois v. Gates

https://supreme.justia.com/cases/federal/us/462/213/

U.S. Supreme Court Illinois v. Gates, 462 U.S. 213 (1983) Illinois v. Gates No. 81-430 Argued October 13, 1982 Reargued March 1, 1983 Decided June 8, 1983 462 U.S. 213 CERTIORARI TO THE SUPREME COURT OF ILLINOIS Syllabus On May 3, 1978, the Police Department of Bloomingdale, Ill., received an anonymous letter which included statements that respondents, husband and wife, were engaged in selling drugs; that the wife would drive their car to Florida on May 3 to be loaded with drugs, and the husband would fly down in a few days to drive the car back; that the car's trunk would be loaded with drugs; and that respondents presently had over $100,000 worth of drugs in their basement. Acting on the tip, a police officer determined respondents' address and learned that the husband made a reservation on a May 5 flight to Florida. Arrangements for surveillance of the flight were made with an agent of the Drug Enforcement Administration (DEA), and the surveillance disclosed that the husband took the flight, stayed overnight in a motel room registered in the wife's name, and left the following morning with a woman in a car bearing an Illinois license plate issued to the husband, heading north on an interstate highway used by travelers to the Bloomingdale area. A search warrant for respondents' residence and automobile was then obtained from an Illinois state court judge, based on the Bloomingdale police officer's affidavit setting forth the foregoing facts and a copy of the anonymous letter. When respondents arrived at their home, the police were waiting, and discovered marihuana and other contraband in respondents' car trunk and home. Prior to respondents' trial on charges of violating state drug laws, the trial court ordered suppression of all the items seized, and the Illinois Appellate Court affirmed. The Illinois Supreme Court also affirmed, holding that the letter and affidavit were inadequate to sustain a determination of probable cause for issuance of the search warrant under Aguilar v. Texas, 378 U. S. 108 , and Spinelli v. United States, 393 U. S. 410 , since they failed to satisfy the "two-pronged test" of (1) revealing the informant's "basis of knowledge" and (2) providing sufficient facts to establish either the informant's "veracity" or the "reliability" of the informant's report. Held: 1. The question -- which this Court requested the parties to address -- whether the rule requiring the exclusion at a criminal trial of evidence obtained in violation of the Fourth Amendment should be modified so as, for example, not to require exclusion of evidence obtained in the reasonable Page 462 U. S. 214 belief that the search and seizure at issue was consistent with the Fourth Amendment, will not be decided in this case, since it was not presented to or decided by the Illinois courts. Although prior decisions interpreting the "not pressed or passed on below" rule have not involved a State's failure to raise a defense to a federal right or remedy asserted below, the purposes underlying the rule are, for the most part, as applicable in such a case as in one where a party fails to assert a federal right. The fact that the Illinois courts affirmatively applied the federal exclusionary rule does not affect the application of the "not pressed or passed on below" rule. Nor does the State's repeated opposition to respondents' substantive Fourth Amendment claims suffice to have raised the separate question whether the exclusionary rule should be modified. The extent of the continued vitality of the rule is an issue of unusual significance, and adhering scrupulously to the customary limitations on this Court's discretion promotes respect for its adjudicatory process and the stability of its decisions, and lessens the threat of untoward practical ramifications not foreseen at the time of decision. Pp. 462 U. S. 217 -224. 2. The rigid "two-pronged test" under Aguilar and Spinelli for determining whether an informant's tip establishes probable cause for issuance of a warrant is abandoned, and the "totality of the circumstances" approach that traditionally has informed probable cause determinations is substituted in its place. The elements under the "two-pronged test" concerning the informant's "veracity," "reliability," and "basis of knowledge" should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. This flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. Pp. 462 U. S. 230 -241. 3. The judge issuing the warrant had a substantial basis for concluding that probable cause to search respondents' home and car existed. Under the "totality of the circumstances" analysis, corroboration of details of an informant's tip by independent police work is of significant value. Cf. Draper v. United States, 358 U. S. 307 . Here, even standing alone, the facts obtained through the independent investigation of the Bloomingdale police officer and the DEA at least suggested that Page 462 U. S. 215 respondents were involved in drug trafficking. In addition, the judge could rely on the anonymous letter, which had been corroborated in major part by the police officer's efforts. Pp. 462 U. S. 241 -246. 85 Ill. 2d 376 , 423 N.E.2d 887 , reversed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and O'CONNOR, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 462 U. S. 246 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 462 U. S. 274 . STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 462 U. S. 291 . Page 462 U. S. 216 JUSTICE REHNQUIST delivered the opinion of the Court. Respondents Lance and Susan Gates were indicted for violation of state drug laws after police officers, executing a search warrant, discovered marihuana and other contraband in their automobile and home. Prior to trial, the Gateses moved to suppress evidence seized during this search. The Illinois Supreme Court affirmed the decisions of lower state courts granting the motion. 85 Ill. 2d 376 , 423 N.E.2d 887 (1981). It held that the affidavit submitted in support of the State's application for a warrant to search the Gateses' property Page 462 U. S. 217 was inadequate under this Court's decisions in Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969). We granted certiorari to consider the application of the Fourth Amendment to a magistrate's issuance of a search warrant on the basis of a partially corroborated anonymous informant's tip. 454 U.S. 1140 (1982). After receiving briefs and hearing oral argument on this question, however, we requested the parties to address an additional question: "[W]hether the rule requiring the exclusion at a criminal trial of evidence obtained in violation of the Fourth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961); Weeks v. United States, 232 U. S. 383 (1914), should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment." 459 U.S. 1028 (1982). We decide today, with apologies to all, that the issue we framed for the parties was not presented to the Illinois courts and, accordingly, do not address it. Rather, we consider the question originally presented in the petition for certiorari, and conclude that the Illinois Supreme Court read the requirements of our Fourth Amendment decisions too restrictively. Initially, however, we set forth our reasons for not addressing the question regarding modification of the exclusionary rule framed in our order of November 29, 1982. Ibid. I Our certiorari jurisdiction over decisions from state courts derives from 28 U.S.C. § 1257, which provides that "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: . . . (3) By writ of certiorari, . . . where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes Page 462 U. S. 218 of . . . the United States." The provision derives, albeit with important alterations, see, e.g., Act of Dec. 23, 1914, ch. 2, 38 Stat. 790; Act of June 25, 1948, § 1257, 62 Stat. 929, from the Judiciary Act of 1789, § 25, 1 Stat. 85. Although we have spoken frequently on the meaning of § 1257 and its predecessors, our decisions are in some respects not entirely clear. We held early on that § 25 of the Judiciary Act of 1789 furnished us with no jurisdiction unless a federal question had been both raised and decided in the state court below. As Justice Story wrote in Crowell v. Randell , 10 Pet. 368, 35 U. S. 392 (1836): "If both of these requirements do not appear on the record, the appellate jurisdiction fails." See also Owings v. Norwood's Lessee , 5 Cranch 344 (1809). [ Footnote 1 ] More recently, in McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430 , 309 U. S. 434 -435 (1940), the Court observed: "But it is also the settled practice of this Court, in the exercise of its appellate jurisdiction, that it is only in exceptional cases, and then only in cases coming from the federal courts, that it considers questions urged by a petitioner or appellant not pressed or passed upon in the courts below. . . . In cases coming here from state courts in which a state statute is assailed as unconstitutional, there are reasons of peculiar force which should lead us to refrain from deciding questions not presented or decided in the highest court of the state whose judicial action we are called upon to review. Apart from the Page 462 U. S. 219 reluctance with which every court should proceed to set aside legislation as unconstitutional on grounds not properly presented, due regard for the appropriate relationship of this Court to state courts requires us to decline to consider and decide questions affecting the validity of state statutes not urged or considered there. It is for these reasons that this Court, where the constitutionality of a statute has been upheld in the state court, consistently refuses to consider any grounds of attack not raised or decided in that court." Finally, the Court seemed to reaffirm the jurisdictional character of the rule against our deciding claims "not pressed nor passed upon" in state court in State Farm Mutual Automobile Ins. Co. v. Duel, 324 U. S. 154 , 324 U. S. 160 (1945), where we explained that, "[s]ince the [State] Supreme Court did not pass on the question, we may not do so." See also Hill v. California, 401 U. S. 797 , 401 U. S. 805 -806 (1971). Notwithstanding these decisions, however, several of our more recent cases have treated the so-called "not pressed or passed upon below" rule as merely a prudential restriction. In Terminiello v. Chicago, 337 U. S. 1 (1949), the Court reversed a state criminal conviction on a ground not urged in state court, nor even in this Court. Likewise, in Vachon v. New Hampshire, 414 U. S. 478 (1974), the Court summarily reversed a state criminal conviction on the ground, not raised in state court, or here, that it had been obtained in violation of the Due Process Clause of the Fourteenth Amendment. The Court indicated in a footnote, id. at 414 U. S. 479 , n. 3, that it possessed discretion to ignore the failure to raise in state court the question on which it decided the case. In addition to this lack of clarity as to the character of the "not pressed or passed upon below" rule, we have recognized that it often may be unclear whether the particular federal question presented in this Court was raised or passed upon below. In Dewey v. Des Moines, 173 U. S. 193 , 173 U. S. 197 -198 (1899), the fullest treatment of the subject, the Court said Page 462 U. S. 220 that, "[i]f the question were only an enlargement of the one mentioned in the assignment of errors, or if it were so connected with it in substance as to form but another ground or reason for alleging the invalidity of the [lower court's] judgment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued. Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed. [ Footnote 2 ]" We have not attempted, and likely would not have been able, to draw a clear-cut line between cases involving only an "enlargement" of questions presented below and those involving entirely new questions. The application of these principles in the instant case is not entirely straightforward. It is clear in this case that respondents expressly raised, at every level of the Illinois judicial system, the claim that the Fourth Amendment had been violated by the actions of the Illinois police and that the evidence seized by the officers should be excluded from their trial. It also is clear that the State challenged, at every level of the Illinois court system, respondents' claim that the substantive requirements of the Fourth Amendment had been violated. The State never, however, raised or addressed the question whether the federal exclusionary rule should be modified in any respect, and none of the opinions of the Page 462 U. S. 221 Illinois courts give any indication that the question was considered. The case, of course, is before us on the State's petition for a writ of certiorari. Since the Act of Dec. 23, 1914, ch. 2, 38 Stat. 790, jurisdiction has been vested in this Court to review state court decisions even when a claimed federal right has been upheld. Our prior decisions interpreting the "not pressed or passed on below" rule have not, however, involved a State's failure to raise a defense to a federal right or remedy asserted below. As explained below, however, we can see no reason to treat the State's failure to have challenged an asserted federal claim differently from the failure of the proponent of a federal claim to have raised that claim. We have identified several purposes underlying the "not pressed or passed upon" rule: for the most part, these are as applicable to the State's failure to have opposed the assertion of a particular federal right as to a party's failure to have asserted the claim. First, "[q]uestions not raised below are those on which the record is very likely to be inadequate, since it certainly was not compiled with those questions in mind." Cardinale v. Louisiana, 394 U. S. 437 , 394 U. S. 439 (1969). Exactly the same difficulty exists when the State urges modification of an existing constitutional right or accompanying remedy. Here, for example, the record contains little, if anything, regarding the subjective good faith of the police officers that searched the Gateses' property -- which might well be an important consideration in determining whether to fashion a good faith exception to the exclusionary rule. Our consideration of whether to modify the exclusionary rule plainly would benefit from a record containing such facts. Likewise, "due regard for the appropriate relationship of this Court to state courts," McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. at 309 U. S. 434 -435, demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials, and, equally important, proposed changes in existing remedies for unconstitutional Page 462 U. S. 222 actions. Finally, by requiring that the State first argue to the state courts that the federal exclusionary rule should be modified, we permit a state court, even if it agrees with the State as a matter of federal law, to rest its decision on an adequate and independent state ground. See Cardinale, supra, at 394 U. S. 439 . Illinois, for example, adopted an exclusionary rule as early as 1923, see People v. Brocamp, 307 Ill. 448, 138 N.E. 728 (1923), and might adhere to its view even if it thought we would conclude that the federal rule should be modified. In short, the reasons supporting our refusal to hear federal claims not raised in state court apply with equal force to the State's failure to challenge the availability of a well-settled federal remedy. Whether the "not pressed or passed upon below" rule is jurisdictional, as our earlier decisions indicate, see supra at 462 U. S. 217 -219, or prudential, as several of our later decisions assume, or whether its character might be different in cases like this from its character elsewhere, we need not decide. Whatever the character of the rule may be, consideration of the question presented in our order of November 29, 1982, would be contrary to the sound justifications for the "not pressed or passed upon below" rule, and we thus decide not to pass on the issue. The fact that the Illinois courts affirmatively applied the federal exclusionary rule -- suppressing evidence against respondents -- does not affect our conclusion. In Morrison v. Watson, 154 U. S. 111 (1894), the Court was asked to consider whether a state statute impaired the plaintiff in error's contract with the defendant in error. It declined to hear the case because the question presented here had not been pressed or passed on below. The Court acknowledged that the lower court's opinion had restated the conclusion, set forth in an earlier decision of that court, that the state statute did not impermissibly impair contractual obligations. Nonetheless, it held that there was no showing that "there was any real contest at any stage of this case upon the point," id. at 154 U. S. 115 , and that without such a contest, the routine restatement Page 462 U. S. 223 and application of settled law by an appellate court did not satisfy the "not pressed or passed upon below" rule. Similarly, in the present case, although the Illinois courts applied the federal exclusionary rule, there was never "any real contest" upon the point. The application of the exclusionary rule was merely a routine act, once a violation of the Fourth Amendment had been found, and not the considered judgment of the Illinois courts on the question whether application of a modified rule would be warranted on the facts of this case. In such circumstances, absent the adversarial dispute necessary to apprise the state court of the arguments for not applying the exclusionary rule, we will not consider the question whether the exclusionary rule should be modified. Likewise, we do not believe that the State's repeated opposition to respondents' substantive Fourth Amendment claims suffices to have raised the question whether the exclusionary rule should be modified. The exclusionary rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally," and not "a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U. S. 338 , 414 U. S. 348 (1974). The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. See, e.g., United States v. Havens, 446 U. S. 620 (1980); United States v. Ceccolini, 435 U. S. 268 (1978); United States v. Calandra, supra; Stone v. Powell, 428 U. S. 465 (1976). Because of this distinction, we cannot say that modification or abolition of the exclusionary rule is "so connected with [the substantive Fourth Amendment right at issue] as to form but another ground or reason for alleging the invalidity" of the judgment. Dewey v. Des Moines, 173 U.S. at 173 U. S. 197 -198. Rather, the rule's modification was, for purposes of the "not pressed or passed upon below" rule, a separate claim that had to be specifically presented to the state courts. Page 462 U. S. 224 Finally, weighty prudential considerations militate against our considering the question presented in our order of November 29, 1982. The extent of the continued vitality of the rules that have developed from our decisions in Weeks v. United States, 232 U. S. 383 (1914), and Mapp v. Ohio, 367 U. S. 643 (1961), is an issue of unusual significance. Sufficient evidence of this lies just in the comments on the issue that Members of this Court recently have made, e.g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , 403 U. S. 415 (1971) (BURGER, C.J., dissenting); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 490 (1971) (Harlan, J., concurring); id. at 403 U. S. 502 (Black, J., dissenting); Stone v. Powell, supra, at 428 U. S. 537 -539 (WHITE, J., dissenting); Brewer v. Williams, 430 U. S. 387 , 430 U. S. 413 -414 (1977) (POWELL, J., concurring); Robbins v. California, 453 U. S. 420 , 453 U. S. 437 , 453 U. S. 443 -444 (1981) (REHNQUIST, J., dissenting). Where difficult issues of great public importance are involved, there are strong reasons to adhere scrupulously to the customary limitations on our discretion. By doing so, we "promote respect . . . for the Court's adjudicatory process [and] the stability of [our] decisions." Mapp v. Ohio, 367 U.S. at 367 U. S. 677 (Harlan, J., dissenting). Moreover, fidelity to the rule guarantees that a factual record will be available to us, thereby discouraging the framing of broad rules, seemingly sensible on one set of facts, which may prove ill-considered in other circumstances. In Justice Harlan's words, adherence to the rule lessens the threat of "untoward practical ramifications," id. at 367 U. S. 676 (dissenting opinion), not foreseen at the time of decision. The public importance of our decisions in Weeks and Mapp and the emotions engendered by the debate surrounding these decisions counsel that we meticulously observe our customary procedural rules. By following this course, we promote respect for the procedures by which our decisions are rendered, as well as confidence in the stability of prior decisions. A wise exercise of the powers confided in this Court dictates that we reserve for another day the question whether the exclusionary rule should be modified. Page 462 U. S. 225 II We now turn to the question presented in the State's original petition for certiorari, which requires us to decide whether respondents' rights under the Fourth and Fourteenth Amendments were violated by the search of their car and house. A chronological statement of events usefully introduces the issues at stake. Bloomingdale, Ill., is a suburb of Chicago located in Du Page County. On May 3, 1978, the Bloomingdale Police Department received by mail an anonymous handwritten letter which read as follows: "This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement." "They brag about the fact they never have to work, and make their entire living on pushers." "I guarantee if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often." "Lance & Susan Gates" "Greenway" "in Condominiums" The letter was referred by the Chief of Police of the Bloomingdale Police Department to Detective Mader, who decided to pursue the tip. Mader learned, from the office of the Illinois Secretary of State, that an Illinois driver's license had Page 462 U. S. 226 been issued to one Lance Gates, residing at a stated address in Bloomingdale. He contacted a confidential informant, whose examination of certain financial records revealed a more recent address for the Gateses, and he also learned from a police officer assigned to O'Hare Airport that "L. Gates" had made a reservation on Eastern Airlines Flight 245 to West Palm Beach, Fla., scheduled to depart from Chicago on May 5 at 4:15 p. m. Mader then made arrangements with an agent of the Drug Enforcement Administration for surveillance of the May 5 Eastern Airlines flight. The agent later reported to Mader that Gates had boarded the flight, and that federal agents in Florida had observed him arrive in West Palm Beach and take a taxi to the nearby Holiday Inn. They also reported that Gates went to a room registered to one Susan Gates and that, at 7 o'clock the next morning, Gates and an unidentified woman left the motel in a Mercury bearing Illinois license plates and drove north-bound on an interstate highway frequently used by travelers to the Chicago area. In addition, the DEA agent informed Mader that the license plate number on the Mercury was registered to a Hornet station wagon owned by Gates. The agent also advised Mader that the driving time between West Palm Beach and Bloomingdale was approximately 22 to 24 hours. Mader signed an affidavit setting forth the foregoing facts, and submitted it to a judge of the Circuit Court of Du Page County, together with a copy of the anonymous letter. The judge of that court thereupon issued a search warrant for the Gateses' residence and for their automobile. The judge, in deciding to issue the warrant, could have determined that the modus operandi of the Gateses had been substantially corroborated. As the anonymous letter predicted, Lance Gates had flown from Chicago to West Palm Beach late in the afternoon of May 5th, had checked into a hotel room registered in the name of his wife, and, at 7 o'clock the following morning, had headed north, accompanied by an unidentified woman, Page 462 U. S. 227 out of West Palm Beach on an interstate highway used by travelers from South Florida to Chicago in an automobile bearing a license plate issued to him. At 5:15 a.m. on March 7, only 36 hours after he had flown out of Chicago, Lance Gates, and his wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm Beach some 22 hours earlier. The Bloomingdale police were awaiting them, searched the trunk of the Mercury, and uncovered approximately 350 pounds of marihuana. A search of the Gateses' home revealed marihuana, weapons, and other contraband. The Illinois Circuit Court ordered suppression of all these items, on the ground that the affidavit submitted to the Circuit Judge failed to support the necessary determination of probable cause to believe that the Gateses' automobile and home contained the contraband in question. This decision was affirmed in turn by the Illinois Appellate Court, 82 Ill.App.3d 749, 403 N.E.2d 77 (1980), and by a divided vote of the Supreme Court of Illinois. 85 Ill. 2d 376 , 423 N.E.2d 887 (1981). The Illinois Supreme Court concluded -- and we are inclined to agree -- that, standing alone, the anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a magistrate's determination that there was probable cause to believe contraband would be found in the Gateses' car and home. The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer's predictions regarding the Gateses' criminal activities. Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses' home and car. See Aguilar v. Texas, 378 U.S. at 378 U. S. 109 , n. 1; Nathanson v. United States, 290 U. S. 41 (1933). The Illinois Supreme Court also properly recognized that Detective Mader's affidavit might be capable of supplementing Page 462 U. S. 228 the anonymous letter with information sufficient to permit a determination of probable cause. See Whiteley v. Warden, 401 U. S. 560 , 401 U. S. 567 (1971). In holding that the affidavit in fact did not contain sufficient additional information to sustain a determination of probable cause, the Illinois court applied a "two-pronged test," derived from our decision in Spinelli v. United States, 393 U. S. 410 (1969). [ Footnote 3 ] The Illinois Supreme Court, like some others, apparently understood Spinelli as requiring that the anonymous letter satisfy each of two independent requirements before it could be relied on. 85 Ill. 2d at 383, 423 N.E.2d at 890. According to this view, the letter, as supplemented by Mader's affidavit, first had to adequately reveal the "basis of knowledge" of the letterwriter -- the particular means by which he came by the information given in his report. Second, it had to provide Page 462 U. S. 229 facts sufficiently establishing either the "veracity" of the affiant's informant, or, alternatively, the "reliability" of the informant's report in this particular case. The Illinois court, alluding to an elaborate set of legal rules that have developed among various lower courts to enforce the "two-pronged test," [ Footnote 4 ] found that the test had not been satisfied. First, the "veracity" prong was not satisfied because "[t]here was simply no basis [for] conclud[ing] that the anonymous person [who wrote the letter to the Bloomingdale Police Department] was credible." Id. at 385, 423 N.E.2d at 891. The court indicated that corroboration by police of details contained in the letter might never satisfy the "veracity" prong, and in any event, could not do so if, as in the present case, only "innocent" details are corroborated. Id. at 390, 423 N.E.2d at 893. In addition, the letter gave no indication of the basis of its writer's knowledge of the Page 462 U. S. 230 Gateses' activities. The Illinois court understood Spinelli as permitting the detail contained in a tip to be used to infer that the informant had a reliable basis for his statements, but it thought that the anonymous letter failed to provide sufficient detail to permit such an inference. Thus, it concluded that no showing of probable cause had been made. We agree with the Illinois Supreme Court that an informant's "veracity," "reliability," and "basis of knowledge" are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case, [ Footnote 5 ] which the opinion of the Supreme Court of Illinois would imply. Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. III This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause [ Footnote 6 ] than Page 462 U. S. 231 is any rigid demand that specific "tests" be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a "practical, nontechnical conception." Brinegar v. United States, 338 U. S. 160 , 338 U. S. 176 (1949). "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. at 338 U. S. 175 . Our observation in United States v. Cortez, 449 U. S. 411 , 449 U. S. 418 (1981), regarding "particularized suspicion," is also applicable to the probable cause standard: "The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same -- and Page 462 U. S. 232 so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." As these comments illustrate, probable cause is a fluid concept -- turning on the assessment of probabilities in particular factual contexts -- not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U. S. 143 , 407 U. S. 147 (1972): "Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situation." Ibid. [ Footnote 7 ] Page 462 U. S. 233 Moreover, the "two-pronged test" directs analysis into two largely independent channels -- the informant's "veracity" or "reliability" and his "basis of knowledge." See nn. 4 and | 4 and S. 213fn5|>5, supra. There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. See, e.g., Adams v. Williams, supra, at 407 U. S. 146 -147; United States v. Harris, 403 U. S. 573 (1971). If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. See United States v. Sellers, 483 F.2d 37 (CA5 1973). [ Footnote 8 ] Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity -- which, if fabricated, would subject him to criminal liability -- we have found Page 462 U. S. 234 rigorous scrutiny of the basis of his knowledge unnecessary. Adams v. Williams, supra. Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case. Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip, the "two-pronged test" has encouraged an excessively technical dissection of informants' tips, [ Footnote 9 ] with undue attention's Page 462 U. S. 235 being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate. As early as Locke v. United States , 7 Cranch 339, 11 U. S. 348 (1813), Chief Justice Marshall observed, in a closely related context: "[T]he term 'probable cause,' according to its usual acceptation, means less than evidence which would justify condemnation. . . . It imports a seizure made under circumstances which warrant suspicion." More recently, we said that "the quanta . . . of proof" appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Brinegar, 338 U.S. at 338 U. S. 173 . Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision. While an effort to fix some general, numerically precise degree of certainty corresponding to "probable cause" may not be helpful, it is clear that "only the probability, and not a prima facie showing, of criminal activity, is the standard of probable cause." Spinelli, 393 U.S. at 393 U. S. 419 . See Model Code of Pre-Arraignment Procedure § 210.1(7) (Prop.Off.Draft 1972); 1 W. LaFave, Search and Seizure § 3.2(e) (1978). We also have recognized that affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area." United States v. Ventresca, 380 U. S. 102 , 380 U. S. 108 (1965). Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of "probable cause." See Shadwick v. City of Tampa, 407 U. S. 345 , 407 U. S. 348 -350 (1972). The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are -- quite properly, 407 U.S. at 407 U. S. 348 -350 -- issued on the basis of nontechnical, Page 462 U. S. 236 common sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried context in which it must be applied, the "built-in subtleties," Stanley v. State, 19 Md.App. 507, 528, 313 A.2d 847 , 860 (1974), of the "two-pronged test" are particularly unlikely to assist magistrates in determining probable cause. Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." Spinelli, supra, at 393 U. S. 419 . "A grudging or negative attitude by reviewing courts toward warrants," Ventresca, 380 U.S. at 380 U. S. 108 , is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a common sense, manner." Id. at 380 U. S. 109 . If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring "the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." United States v. Chadwick, 433 U. S. 1 , 433 U. S. 9 (1977). Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate's probable cause determination has been that, so long as the magistrate had a "substantial basis for . . . conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Jones v. United States, 362 U. S. 257 , 362 U. S. 271 (1960). See United States v. Page 462 U. S. 237 Harris, 403 U.S. at 403 U. S. 577 -583. [ Footnote 10 ] We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable cause determinations of magistrates than is the "two-pronged test." Finally, the direction taken by decisions following Spinelli poorly serves "[t]he most basic function of any government:" "to provide for the security of the individual and of his property." Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 539 (1966) (WHITE, J., dissenting). The strictures that inevitably accompany the "two-pronged test" cannot avoid seriously impeding the task of law enforcement, see, e.g., n 9, supra. If, as the Illinois Supreme Court apparently thought, that test must be rigorously applied in every case, anonymous tips would be of greatly diminished value in police work. Ordinary citizens, like ordinary witnesses, see Advisory Committee's Notes on Fed.Rule Evid. 701, 28 U.S.C.App. p. 570, generally do not provide extensive recitations of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in this case, the veracity of persons supplying anonymous tips is, by hypothesis, largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the Spinelli prongs. Yet such tips, particularly when supplemented by Page 462 U. S. 238 independent police investigation, frequently contribute to the solution of otherwise "perfect crimes." While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not. For all these reasons, we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and Spinelli. [ Footnote 11 ] In its place, we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations. See Jones v. United States, supra; United States v. Ventresca, 380 U. S. 102 (1965); Brinegar v. United States, 338 U. S. 160 (1949). The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause Page 462 U. S. 239 existed. Jones v. United States, 362 U.S. at 362 U. S. 271 . We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. Our earlier cases illustrate the limits beyond which a magistrate may not venture in issuing a warrant. A sworn statement of an affiant that "he has cause to suspect and does believe" that liquor illegally brought into the United States is located on certain premises will not do. Nathanson v. United States, 290 U. S. 41 (1933). An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and the wholly conclusory statement at issue in Nathanson failed to meet this requirement. An officer's statement that "[a]ffiants have received reliable information from a credible person and do believe" that heroin is stored in a home, is likewise inadequate. Aguilar v. Texas, 378 U. S. 108 (1964). As in Nathanson, this is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. But when we move beyond the "bare bones" affidavits present in cases such as Nathanson and Aguilar, this area simply does not lend itself to a prescribed set of rules, like that which had developed from Spinelli. Instead, the flexible, common sense standard articulated in Jones, Ventresca, and Brinegar better serves the purposes of the Fourth Amendment's probable cause requirement. JUSTICE BRENNAN's dissent suggests in several places that the approach we take today somehow downgrades the Page 462 U. S. 240 role of the neutral magistrate, because Aguilar and Spinelli "preserve the role of magistrates as independent arbiters of probable cause. . . ." Post at 462 U. S. 287 . Quite the contrary, we believe, is the case. The essential protection of the warrant requirement of the Fourth Amendment, as stated in Johnson v. United States, 333 U. S. 10 (1948), is in "requiring that [the usual inferences which reasonable men draw from evidence] be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Id. at 333 U. S. 13 -14. Nothing in our opinion in any way lessens the authority of the magistrate to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant; indeed, he is freer than under the regime of Aguilar and Spinelli to draw such inferences, or to refuse to draw them if he is so minded. The real gist of JUSTICE BRENNAN's criticism seems to be a second argument, somewhat at odds with the first, that magistrates should be restricted in their authority to make probable cause determinations by the standards laid down in Aguilar and Spinelli, and that such findings "should not be authorized unless there is some assurance that the information on which they are based has been obtained in a reliable way by an honest or credible person." Post at 462 U. S. 283 . However, under our opinion, magistrates remain perfectly free to exact such assurances as they deem necessary, as well as those required by this opinion, in making probable cause determinations. JUSTICE BRENNAN would apparently prefer that magistrates be restricted in their findings of probable cause by the development of an elaborate body of case law dealing with the "veracity" prong of the Spinelli test, which in turn is broken down into two "spurs" -- the informant's "credibility" and the "reliability" of his information, together with the "basis of knowledge" prong of the Spinelli test. See n 4, supra. That such a labyrinthine body of judicial refinement bears any relationship to familiar definitions of Page 462 U. S. 241 probable cause is hard to imagine. As previously noted, probable cause deals "with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act," Brinegar v. United States, 338 U.S. at 338 U. S. 175 . JUSTICE BRENNAN's dissent also suggests that "[w]ords such as 'practical,' 'nontechnical,' and 'common sense,' as used in the Court's opinion, are but code words for an overly permissive attitude towards police practices in derogation of the rights secured by the Fourth Amendment." Post at 462 U. S. 290 . An easy, but not a complete, answer to this rather florid statement would be that nothing we know about Justice Rutledge suggests that he would have used the words he chose in Brinegar in such a manner. More fundamentally, no one doubts that, "under our Constitution, only measures consistent with the Fourth Amendment may be employed by government to cure [the horrors of drug trafficking]," post at 462 U. S. 290 ; but this agreement does not advance the inquiry as to which measures are, and which measures are not, consistent with the Fourth Amendment. "Fidelity" to the commands of the Constitution suggests balanced judgment, rather than exhortation. The highest "fidelity" is not achieved by the judge who instinctively goes furthest in upholding even the most bizarre claim of individual constitutional rights, any more than it is achieved by a judge who instinctively goes furthest in accepting the most restrictive claims of governmental authorities. The task of this Court, as of other courts, is to "hold the balance true," and we think we have done that in this case. IV Our decisions applying the totality-of-the-circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant's tip by independent police work. In Jones v. United States, 362 U.S. at 362 U. S. 269 , we held that an affidavit relying on hearsay "is not to Page 462 U. S. 242 be deemed insufficient on that score so long as a substantial basis for crediting the hearsay is presented." We went on to say that, even in making a warrantless arrest, an officer "may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Ibid. Likewise, we recognized the probative value of corroborative efforts of police officials in Aguilar -- the source of the "two-pronged test" -- by observing that, if the police had made some effort to corroborate the informant's report at issue, "an entirely different case" would have been presented. Aguilar, 378 U.S. at 378 U. S. 109 , n. 1. Our decision in Draper v. United States, 358 U. S. 307 (1959), however, is the classic case on the value of corroborative efforts of police officials. There, an informant named Hereford reported that Draper would arrive in Denver on a train from Chicago on one of two days, and that he would be carrying a quantity of heroin. The informant also supplied a fairly detailed physical description of Draper, and predicted that he would be wearing a light colored raincoat, brown slacks, and black shoes, and would be walking "real fast." Id. at 358 U. S. 309 . Hereford gave no indication of the basis for his information. [ Footnote 12 ] On one of the stated dates, police officers observed a man matching this description exit a train arriving from Chicago; his attire and luggage matched Hereford's report, and he was Page 462 U. S. 243 walking rapidly. We explained in Draper that, by this point in his investigation, the arresting officer "had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission, and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, [the officer] had 'reasonable grounds' to believe that the remaining unverified bit of Hereford's information -- that Draper would have the heroin with him -- was likewise true," id. at 358 U. S. 313 . The showing of probable cause in the present case was fully as compelling as that in Draper. Even standing alone, the facts obtained through the independent investigation of Mader and the DEA at least suggested that the Gateses were involved in drug trafficking. In addition to being a popular vacation site, Florida is well known as a source of narcotics and other illegal drugs. See United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 562 (1980) (POWELL, J., concurring in part and concurring in judgment); DEA, Narcotics Intelligence Estimate, The Supply of Drugs to the U.S. Illicit Market From Foreign and Domestic Sources in 1980, pp. 8-9. Lance Gates' flight to West Palm Beach, his brief, overnight stay in a motel, and apparent immediate return north to Chicago in the family car, conveniently awaiting him in West Palm Beach, is as suggestive of a prearranged drug run, as it is of an ordinary vacation trip. In addition, the judge could rely on the anonymous letter, which had been corroborated in major part by Mader's efforts -- just as had occurred in Draper. [ Footnote 13 ] The Supreme Court Page 462 U. S. 244 of Illinois reasoned that Draper involved an informant who had given reliable information on previous occasions, while the honesty and reliability of the anonymous informant in this case were unknown to the Bloomingdale police. While this distinction might be an apt one at the time the Police Department received the anonymous letter, it became far less significant after Mader's independent investigative work occurred. The corroboration of the letter's predictions that the Gateses' car would be in Florida, that Lance Gates would fly to Florida in the next day or so, and that he would drive the car north toward Bloomingdale all indicated, albeit not with certainty, that the informant's other assertions also were true. "[B]ecause an informant is right about some things, he is more probably right about other facts," Spinelli, 393 U.S. at 393 U. S. 427 (WHITE, J., concurring) -- including the claim regarding the Gateses' illegal activity. This may well not be the type of "reliability" or "veracity" necessary to satisfy some views of the "veracity prong" of Spinelli, but we think it suffices for the practical, common sense judgment called for in making a probable cause determination. It is enough, for purposes of assessing probable cause, that "[c]orroboration through other sources of information reduced the Page 462 U. S. 245 chances of a reckless or prevaricating tale," thus providing "a substantial basis for crediting the hearsay." Jones v. United States, 362 U.S. at 362 U. S. 269 , 362 U. S. 271 . Finally, the anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. The letterwriter's accurate information as to the travel plans of each of the Gateses was of a character likely obtained only from the Gateses themselves, or from someone familiar with their not entirely ordinary travel plans. If the informant had access to accurate information of this type a magistrate could properly conclude that it was not unlikely that he also had access to reliable information of the Gateses' alleged illegal activities. [ Footnote 14 ] Of Page 462 U. S. 246 course, the Gateses' travel plans might have been learned from a talkative neighbor or travel agent; under the "two-pronged test" developed from Spinelli, the character of the details in the anonymous letter might well not permit a sufficiently clear inference regarding the letterwriter's "basis of knowledge." But, as discussed previously, supra, at 462 U. S. 235 , probable cause does not demand the certainty we associate with formal trials. It is enough that there was a fair probability that the writer of the anonymous letter had obtained his entire story either from the Gateses or someone they trusted. And corroboration of major portions of the letter's predictions provides just this probability. It is apparent, therefore, that the judge issuing the warrant had a "substantial basis for . . . conclud[ing]" that probable cause to search the Gateses' home and car existed. The judgment of the Supreme Court of Illinois therefore must be Reversed. [ Footnote 1 ] The apparent rule of Crowell v. Randell that a federal claim have been both raised and addressed in state court was generally not understood in the literal fashion in which it was phrased. See R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 60 (1951). Instead, the Court developed the rule that a claim would not be considered here unless it had been either raised or squarely considered and resolved in state court. See, e.g., McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430 , 309 U. S. 434 -435 (1940); State Farm Mutual Ins. Co. v. Duel, 324 U. S. 154 , 324 U. S. 160 (1945). [ Footnote 2 ] In Dewey, certain assessments had been levied against the owner of property abutting a street paved by the city; a state trial court ordered that the property be forfeited when the assessments were not paid, and in addition, held the plaintiff in error personally liable for the amount by which the assessments exceeded the value of the lots. In state court, the plaintiff in error argued that the imposition of personal liability against him violated the Due Process Clause of the Fourteenth Amendment, because he had not received personal notice of the assessment proceedings. In this Court, he also attempted to argue that the assessment itself constituted a taking under the Fourteenth Amendment. The Court held that, beyond arising from a single factual occurrence, the two claims "are not in anywise necessarily connected," 173 U.S. at 173 U. S. 198 . Because of this, we concluded that the plaintiff in error's taking claim could not be considered. [ Footnote 3 ] In Spinelli, police officers observed Mr. Spinelli going to and from a particular apartment, which the telephone company said contained two telephones with stated numbers. The officers also were "informed by a confidential reliable informant that William Spinelli [was engaging in illegal gambling activities]" at the apartment, and that he used two phones, with numbers corresponding to those possessed by the police. 393 U.S. at 393 U. S. 414 . The officers submitted an affidavit with this information to a magistrate and obtained a warrant to search Spinelli's apartment. We held that the magistrate could have made his determination of probable cause only by "abdicating his constitutional function," id. at 393 U. S. 416 . The Government's affidavit contained absolutely no information regarding the informant's reliability. Thus, it did not satisfy Aguilar's requirement that such affidavits contain "some of the underlying circumstances" indicating that "the informant . . . was credible'" or that "his information [was] `reliable.'" Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 114 (1964). In addition, the tip failed to satisfy Aguilar's requirement that it detail "some of the underlying circumstances from which the informant concluded that . . . narcotics were where he claimed they were." Ibid. We also held that, if the tip concerning Spinelli had contained "sufficient detail" to permit the magistrate to conclude "that he [was] relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation," 393 U.S. at 393 U. S. 416 , then he properly could have relied on it; we thought, however, that the tip lacked the requisite detail to permit this "self-verifying detail" analysis. [ Footnote 4 ] See, e.g., Stanley v. State, 19 Md.App. 507, 313 A.2d 847 (1974). In summary, these rules posit that the "veracity" prong of the Spinelli test has two "spurs" -- the informant's "credibility" and the "reliability" of his information. Various interpretations are advanced for the meaning of the "reliability" spur of the "veracity" prong. Both the "basis of knowledge" prong and the "veracity" prong are treated as entirely separate requirements, which must be independently satisfied in every case in order to sustain a determination of probable cause. See n 5, infra. Some ancillary doctrines are relied on to satisfy certain of the foregoing requirements. For example, the "self-verifying detail" of a tip may satisfy the "basis of knowledge" requirement, although not the "credibility" spur of the "veracity" prong. See 85 Ill. 2d at 388, 423 N.E.2d at 892. Conversely, corroboration would seem not capable of supporting the "basis of knowledge" prong, but only the "veracity" prong. Id. at 390, 423 N.E.2d at 893. The decision in Stanley, while expressly approving and conscientiously attempting to apply the "two-pronged test," observes that "[t]he built-in subtleties [of the test] are such, however, that a slipshod application calls down upon us the fury of Murphy's Law." 19 Md.App. at 528, 313 A.2d at 860 (footnote omitted). The decision also suggested that it is necessary to "evolve analogous guidelines [to hearsay rules employed in trial settings] for the reception of hearsay in a probable cause setting." Id. at 522, n. 12, 313 A.2d at 857, n. 12. [ Footnote 5 ] The entirely independent character that the Spinelli prongs have assumed is indicated both by the opinion of the Illinois Supreme Court in this case, and by decisions of other courts. One frequently cited decision Stanley v. State, supra, at 530, 313 A.2d at 861 (footnote omitted), remarks that "the dual requirements represented by the 'two-pronged test' are 'analytically severable,' and an 'overkill' on one prong will not carry over to make up for a deficit on the other prong." See also n 9, infra. [ Footnote 6 ] Our original phrasing of the so-called "two-pronged test" in Aguilar v. Texas, supra, suggests that the two prongs were intended simply as guides to a magistrate's determination of probable cause, not as inflexible, independent requirements applicable in every case. In Aguilar, we required only that "the magistrate must be informed of some of the underlying circumstances from which the informant concluded that . . . narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was 'credible' or his information 'reliable.'" Id. at 378 U. S. 114 (emphasis added). As our language indicates, we intended neither a rigid compartmentalization of the inquiries into an informant's "veracity," "reliability," and "basis of knowledge," nor that these inquiries be elaborate exegeses of an informant's tip. Rather, we required only that some facts bearing on two particular issues be provided to the magistrate. Our decision in Jaben v. United States, 381 U. S. 214 (1965), demonstrated this latter point. We held there that a criminal complaint showed probable cause to believe the defendant had attempted to evade the payment of income taxes. We commented: "Obviously, any reliance upon factual allegations necessarily entails some degree of reliability upon the credibility of the source. . . . Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint. . . . It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process. " Id. at 378 U. S. 224 -225 (emphasis added). [ Footnote 7 ] The diversity of informants' tips, as well as the usefulness of the totality-of-the-circumstances approach to probable cause, is reflected in our prior decisions on the subject. In Jones v. United States, 362 U. S. 257 , 362 U. S. 271 (1960), we held that probable cause to search petitioners' apartment was established by an affidavit based principally on an informant's tip. The unnamed informant claimed to have purchased narcotics from petitioners at their apartment; the affiant stated that he had been given correct information from the informant on a prior occasion. This, and the fact that petitioners had admitted to police officers on another occasion that they were narcotics users, sufficed to support the magistrate's determination of probable cause. Likewise, in Rugendorf v. United States, 376 U. S. 528 (1964), the Court upheld a magistrate's determination that there was probable cause to believe that certain stolen property would be found in petitioner's apartment. The affidavit submitted to the magistrate stated that certain furs had been stolen, and that a confidential informant, who previously had furnished confidential information, said that he saw the furs in petitioner's home. Moreover, another confidential informant, also claimed to be reliable, stated that one Schweihs had stolen the furs. Police reports indicated that petitioner had been seen in Schweihs' company, and a third informant stated that petitioner was a fence for Schweihs. Finally, in Ker v. California, 374 U. S. 23 (1963), we held that information within the knowledge of officers who searched the Kers' apartment provided them with probable cause to believe drugs would be found there. The officers were aware that one Murphy had previously sold marihuana to a police officer; the transaction had occurred in an isolated area, to which Murphy had led the police. The night after this transaction, police observed Mr. Ker and Murphy meet in the same location. Murphy approached Ker's car, and, although police could see nothing change hands, Murphy's modus operandi was identical to what it had been the night before. Moreover, when police followed Ker from the scene of the meeting with Murphy, he managed to lose them after performing an abrupt U-turn. Finally, the police had a statement from an informant who had provided reliable information previously, that Ker was engaged in selling marihuana, and that his source was Murphy. We concluded that "[t]o say that this coincidence of information was sufficient to support a reasonable belief of the officers that Ker was illegally in possession of marijuana is to indulge in understatement." Id. at 374 U. S. 36 . [ Footnote 8 ] Compare Stanley v. State, 19 Md.App. at 530, 313 A.2d at 861, reasoning that, "[e]ven assuming 'credibility' amounting to sainthood, the judge still may not accept the bare conclusion . . . of a sworn and known and trusted police affiant." [ Footnote 9 ] Some lower court decisions, brought to our attention by the State, reflect a rigid application of such rules. In Bridger v. State, 503 S.W.2d 801 (Tex.Crim.App.1974), the affiant had received a confession of armed robbery from one of two suspects in the robbery; in addition, the suspect had given the officer $800 in cash stolen during the robbery. The suspect also told the officer that the gun used in the robbery was hidden in the other suspect's apartment. A warrant issued on the basis of this was invalidated on the ground that the affidavit did not satisfactorily describe how the accomplice had obtained his information regarding the gun. Likewise, in People v. Palanza, 55 Ill.App.3d 1028, 371 N.E.2d 687 (1978), the affidavit submitted in support of an application for a search warrant stated that an informant of proven and uncontested reliability had seen, in specifically described premises, "a quantity of a white crystalline substance which was represented to the informant by a white male occupant of the premises to be cocaine. Informant has observed cocaine on numerous occasions in the past and is thoroughly familiar with its appearance. The informant states that the white crystalline powder he observed in the above described premises appeared to him to be cocaine." Id. at 1029, 371 N.E.2d at 688. The warrant issued on the basis of the affidavit was invalidated because "[t]here is no indication as to how the informant or for that matter any other person could tell whether a white substance was cocaine and not some other substance such as sugar or salt." Id. at 1030, 371 N.E.2d at 689. Finally, in People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971), an informant, stated to have supplied reliable information in the past, claimed that L.S.D. and marihuana were located on certain premises. The informant supplied police with drugs, which were tested by police and confirmed to be illegal substances. The affidavit setting forth these, and other, facts was found defective under both prongs of Spinelli. [ Footnote 10 ] We also have said that, "[a]lthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants," United States v. Ventresca, 380 U. S. 102 , 380 U. S. 109 (1965). This reflects both a desire to encourage use of the warrant process by police officers and a recognition that, once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. Even if we were to accept the premise that the accurate assessment of probable cause would be furthered by the "two-pronged test," which we do not, these Fourth Amendment policies would require a less rigorous standard than that which appears to have been read into Aguilar and Spinelli. [ Footnote 11 ] The Court's decision in Spinelli has been the subject of considerable criticism, both by Members of this Court and others. JUSTICE BLACKMUN, concurring in United States v. Harris, 403 U. S. 573 , 403 U. S. 585 -586 (1971), noted his long-held view "that Spinelli . . . was wrongly decided" by this Court. Justice Black similarly would have overruled that decision. Id. at 403 U. S. 585 . Likewise, a noted commentator has observed that "[t]he Aguilar-Spinelli formulation has provoked apparently ceaseless litigation." 8A J. Moore, Moore's Federal Practice � 41.04, p. 41-43 (1982). Whether the allegations submitted to the magistrate in Spinelli would, under the view we now take, have supported a finding of probable cause, we think it would not be profitable to decide. There are so many variables in the probable cause equation that one determination will seldom be a useful "precedent" for another. Suffice it to say that, while we in no way abandon Spinelli's concern for the trustworthiness of informers and for the principle that it is the magistrate who must ultimately make a finding of probable cause, we reject the rigid categorization suggested by some of its language. [ Footnote 12 ] The tip in Draper might well not have survived the rigid application of the "two-pronged test" that developed following Spinelli. The only reference to Hereford's reliability was that he had "been engaged as a 'special employee' of the Bureau of Narcotics at Denver for about six months, and from time to time gave information to [the police for] small sums of money, and that [the officer] had always found the information given by Hereford to be accurate and reliable." 358 U.S. at 358 U. S. 309 . Likewise, the tip gave no indication of how Hereford came by his information. At most, the detailed and accurate predictions in the tip indicated that, however Hereford obtained his information, it was reliable. [ Footnote 13 ] The Illinois Supreme Court thought that the verification of details contained in the anonymous letter in this case amounted only to "[t]he corroboration of innocent activity," 85 Ill. 2d 376 , 390, 423 N.E.2d 887 , 893 (1981), and that this was insufficient to support a finding of probable cause. We are inclined to agree, however, with the observation of Justice Moran in his dissenting opinion that "[i]n this case, just as in Draper, seemingly innocent activity became suspicious in light of the initial tip." Id. at 396, 423 N.E.2d at 896. And it bears noting that all of the corroborating detail established in Draper was of entirely innocent activity -- a fact later pointed out by the Court in both Jones v. United States, 362 U.S. at 362 U. S. 269 -270, and Ker v. California, 374 U.S. at 374 U. S. 36 . This is perfectly reasonable. As discussed previously, probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens' demands. We think the Illinois court attempted a too rigid classification of the types of conduct that may be relied upon in seeking to demonstrate probable cause. See Brown v. Texas, 443 U. S. 47 , 443 U. S. 52 , n. 2 (1979). In making a determination of probable cause, the relevant inquiry is not whether particular conduct is "innocent" or "guilty," but the degree of suspicion that attaches to particular types of noncriminal acts. [ Footnote 14 ] JUSTICE STEVENS' dissent seizes on one inaccuracy in the anonymous informant's letter -- its statement that Sue Gates would fly from Florida to Illinois, when in fact she drove -- and argues that the probative value of the entire tip was undermined by this allegedly "material mistake." We have never required that informants used by the police be infallible, and can see no reason to impose such a requirement in this case. Probable cause, particularly when police have obtained a warrant, simply does not require the perfection the dissent finds necessary. Likewise, there is no force to the dissent's argument that the Gateses' action in leaving their home unguarded undercut the informant's claim that drugs were hidden there. Indeed, the line-by-line scrutiny that the dissent applies to the anonymous letter is akin to that which we find inappropriate in reviewing magistrates' decisions. The dissent apparently attributes to the judge who issued the warrant in this case the rather implausible notion that persons dealing in drugs always stay at home, apparently out of fear that to leave might risk intrusion by criminals. If accurate, one could not help sympathizing with the self-imposed isolation of people so situated. In reality, however, it is scarcely likely that the judge ever thought that the anonymous tip "kept one spouse" at home, much less that he relied on the theory advanced by the dissent. The letter simply says that Sue would fly from Florida to Illinois, without indicating whether the Gateses made the bitter choice of leaving the drugs in their house, or those in their car, unguarded. The judge's determination that there might be drugs or evidence of criminal activity in the Gateses' home was well supported by the less speculative theory, noted in text, that, if the informant could predict with considerable accuracy the somewhat unusual travel plans of the Gateses, he probably also had a reliable basis for his statements that the Gateses kept a large quantity of drugs in their home and frequently were visited by other drug traffickers there. JUSTICE WHITE, concurring in the judgment. In my view, the question regarding modification of the exclusionary rule framed in our order of November 29, 1982, 459 U. S. 1028 (1982), is properly before us, and should be addressed. I continue to believe that the exclusionary rule is an inappropriate remedy where law enforcement officials act in the reasonable belief that a search and seizure was consistent with the Fourth Amendment -- a position I set forth in Stone v. Powell, 428 U. S. 465 , 428 U. S. 537 -539 (1976). In this case, it was fully reasonable for the Bloomingdale, Ill., police to believe that their search of respondents' house and automobile comported with the Fourth Amendment, as the search was conducted pursuant to a judicially issued warrant. The Page 462 U. S. 247 exclusion of probative evidence where the constable has not blundered not only sets the criminal free, but also fails to serve any constitutional interest in securing compliance with the important requirements of the Fourth Amendment. On this basis, I concur in the Court's judgment that the decision of the Illinois Supreme Court must be reversed. I The Court declines to address the exclusionary rule question because the Illinois courts were not invited to modify the rule in the first instance. The Court's refusal to face this important question cannot be ascribed to jurisdictional limitations. I fully agree that the statute which gives us jurisdiction in this cause, 28 U.S.C. § 1257(3), prevents us from deciding federal constitutional claims raised here for the first time on review of state court decisions. Cardinale v. Louisiana, 394 U. S. 437 , 394 U. S. 438 -439 (1969). But it is equally well established that "'[n]o particular form of words or phrases is essential, but only that the claim of invalidity and the ground therefor be brought to the attention of the state court with fair precision and in due time.'" Street v. New York, 394 U. S. 576 , 394 U. S. 584 (1969) (quoting New York ex rel. Bryant v. Zimmerman, 278 U. S. 63 , 278 U. S. 67 (1928)). Notwithstanding the select and controversial instances in which the Court has reversed a state court decision for "plain error," [ Footnote 2/1 ] we have consistently dismissed for want of jurisdiction where the federal claim asserted in this Court was not raised below. But this obviously is not such a case. As the Court points out, "[i]t is clear in this case that respondents expressly raised, at every level of the Illinois judicial system, the claim that the Fourth Amendment had been violated by the actions of the Illinois Page 462 U. S. 248 police, and that the evidence seized by the officers should be excluded from their trial." Ante at 462 U. S. 220 . Until today, we have not required more. We have never suggested that the jurisdictional stipulations of § 1257 require that all arguments on behalf of, let alone in opposition to, a federal claim be raised and decided below. [ Footnote 2/2 ] See R. Stern & E. Gressman, Supreme Court Practice 230 (6th ed.1978). Dewey v. Des Moines, 173 U. S. 193 (1899), distinguished the raising of constitutional claims and the making of arguments in support of or in opposition to those claims. "If the question were only an enlargement of the one mentioned in the assignment of errors, or if it were so connected with it in substance as to form but another ground or reason for alleging the invalidity of the personal judgment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued." " Parties are not conned here to the same arguments which were advanced in the courts below upon a Federal question there discussed. " Id. at 173 U. S. 197 -198 (emphasis added). [ Footnote 2/3 ] Page 462 U. S. 249 Under Dewey, which the Court hails as the "fullest treatment of the subject," ante at 462 U. S. 219 , the exclusionary rule issue is but another argument pertaining to the Fourth Amendment question squarely presented in the Illinois courts. The presentation and decision of respondents' Fourth Amendment claim fully embraces the argument that due to the nature of the alleged Fourth Amendment violation, the seized evidence should not be excluded. Our decisions concerning the scope of the exclusionary rule cannot be divorced from the Fourth Amendment; they rest on the relationship of Fourth Amendment interests to the objectives of the criminal justice system. See, e.g., United States v. Ceccolini, 435 U. S. 268 (1978); Stone v. Powell, 428 U. S. 465 (1976). [ Footnote 2/4 ] Similarly, the issues surrounding a proposed good faith modification are intricately and inseverably tied to the nature of the Fourth Amendment violation: the degree of probable cause, the presence of a warrant, and the clarity of previously announced Fourth Amendment principles all inform the Page 462 U. S. 250 good faith issue. The Court's own holding that the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis" for concluding that probable cause existed, ante at 462 U. S. 244 -245, is itself but a variation on the good faith theme. See Brief for Petitioner on Reargument 4-26. As a jurisdictional requirement, I have no doubt that the exclusionary rule question is before us as an indivisible element of the claim that the Constitution requires exclusion of certain evidence seized in violation of the Fourth Amendment. As a prudential matter, I am unmoved by the Court's lengthy discourse as to why it must avoid the question. First, the Court turns on its head the axiom that "'due regard for the appropriate relationship of this Court to state courts,' McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. at 309 U. S. 434 -435, demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials," ante at 462 U. S. 221 . This statement, written to explain why a state statute should not be struck down on federal grounds not raised in the state courts, [ Footnote 2/5 ] hardly applies when the question is whether a rule of federal law articulated by this Court should now be narrowed to reduce the scope of federal intrusion into the State's administration of criminal justice. Insofar as modifications of the federal exclusionary Page 462 U. S. 251 rule are concerned, the Illinois courts are bound by this Court's pronouncements. Cf. Oregon v. Hass, 420 U. S. 714 , 420 U. S. 719 (1975). I see little point in requiring a litigant to request a state court to overrule or modify one of this Court's precedents. Far from encouraging the stability of our precedents, the Court's proposed practice could well undercut stare decisis. Either the presentation of such issues to the lower courts will be a completely futile gesture or the lower courts are now invited to depart from this Court's decisions whenever they conclude such a modification is in order. [ Footnote 2/6 ] The Court correctly notes that Illinois may choose to pursue a different course with respect to the state exclusionary rule. If this Court were to formulate a "good faith" exception to the federal exclusionary rule, the Illinois Supreme Court would be free to consider on remand whether the state exclusionary rule should be modified accordingly. The possibility that it might have relied upon the state exclusionary rule had the "good faith" question been posed does not constitute independent and adequate state grounds. "The possibility that the state court might have reached the same conclusion if it had decided the question purely as a matter of state law does not create an adequate and independent state ground that relieves this Court of the necessity of considering the federal question." United Air Lines, Inc. v. Mahin, 410 U. S. 623 , 410 U. S. 630 -631 (1973); Beecher v. Alabama, 389 U. S. 35 , 389 U. S. 37 , n. 3 (1967); C. Wright, The Law of Federal Courts § 107, pp. 747-748 (4th ed.1983). Nor does having the state court first decide whether the federal exclusionary rule should be modified -- and presentation of the federal question does not insure that the equivalent state law issue will be Page 462 U. S. 252 raised or decided [ Footnote 2/7 ] -- avoid the unnecessary decision of a federal question. The Court still must reach a federal question to decide the instant case. Thus, in today's opinion, the Court eschews modification of the exclusionary rule in favor of interring the test established by Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969). Nor is the exclusionary rule question avoided -- it is simply deferred until "another day." It also appears that the Court, in disposing of the case, does not strictly follow its own prudential advice. The Illinois Supreme Court found not only a violation of the Fourth Amendment, but also of Article I, § 6, of the Illinois Constitution, which also provides assurance against unreasonable searches and seizures. Taking the Court's new prudential standards on their own terms, the Illinois courts should be given the opportunity to consider in the first instance whether a "totality of the circumstances" test should replace the more precise rules of Aguilar and Spinelli. The Illinois Supreme Court may decide to retain the established test for purposes of the State Constitution just as easily as it could decide to retain an unmodified exclusionary rule. [ Footnote 2/8 ] Finally, the Court correctly notes that a fully developed record is helpful, if not indispensable, for the decision of many issues. I too resist the decision of a constitutional question Page 462 U. S. 253 when such guidance is necessary, but the question of whether the exclusionary rule should be modified is an issue of law which obviously goes far beyond, and depends little on, the subjective good faith of the police officers that searched the Gateses' property. Moreover, the case comes here with a fully developed record as to the actions of the Bloomingdale, Ill., police. If further factual development of whether the officers in this case acted in good faith were important, that issue should logically be considered on remand, following this Court's statement of the proper legal standards. [ Footnote 2/9 ] The Court's straining to avoid coming to grips with the exclusionary rule issue today may be hard for the country to understand -- particularly given earlier statements by some Members of the Court. [ Footnote 2/10 ] The question has been fully briefed and argued by the parties and amici curiae, including the United States. [ Footnote 2/11 ] The issue is central to the enforcement of law and the administration of justice throughout the Nation. The Court of Appeals for the second largest Federal Circuit Page 462 U. S. 254 has already adopted such an exception, United States v. Williams, 622 F.2d 830 (CA5 1980) (en banc), cert. denied, 449 U.S. 1127 (1981), and the new Eleventh Circuit is presumably bound by its decision. Several Members of this Court have for some time expressed the need to consider modifying the exclusionary rule, ante at 462 U. S. 224 , and Congress as well has been active in exploring the question. See The Exclusionary Rule Bills, Hearings on S. 101, S. 751, and S.1995 before the Subcommittee on Criminal Law of the Senate Committee on the Judiciary, 97th Cong., 1st and 2d Sess. (1981-1982). At least one State has already enacted a good faith exception. Colo.Rev.Stat. § 16-3-308 (Supp.1982). Of course, if there is a jurisdictional barrier to deciding the issue, none of these considerations is relevant. But if no such procedural obstacle exists, I see it as our responsibility to end the uncertainty and decide whether the rule will be modified. The question of whether probable cause existed for the issuance of a warrant and whether the evidence seized must be excluded in this case should follow our reconsideration of the framework by which such issues, as they arise from the Fourth Amendment, are to be handled. II A The exclusionary rule is a remedy adopted by this Court to effectuate the Fourth Amendment right of citizens "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." Although early opinions suggested that the Constitution required exclusion of all illegally obtained evidence, the exclusionary rule "has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons." Stone v. Powell, 428 U.S. at 428 U. S. 486 . Because of the inherent trustworthiness of seized tangible evidence and the resulting social costs from its loss through suppression, application Page 462 U. S. 255 of the exclusionary rule has been carefully "restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, 414 U. S. 338 , 414 U. S. 348 (1974). Even at criminal trials the exclusionary rule has not been applied indiscriminately to ban all illegally obtained evidence without regard to the costs and benefits of doing so. Infra at 462 U. S. 256 -257. These developments, born of years of experience with the exclusionary rule in operation, forcefully suggest that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good faith belief that a search or seizure was in accord with the Fourth Amendment. This evolvement in the understanding of the proper scope of the exclusionary rule embraces several lines of cases. First, standing to invoke the exclusionary rule has been limited to situations where the government seeks to use such evidence against the victim of the unlawful search. Brown v. United States, 411 U. S. 223 (1973); Alderman v. United States, 394 U. S. 165 (1969); Wong Sun v. United States, 371 U. S. 471 , 371 U. S. 491 -492 (1963); Rakas v. Illinois, 439 U. S. 128 (1978). Second, the rule has not been applied in proceedings other than the trial itself. In United States v. Calandra, supra, the Court refused to extend the rule to grand jury proceedings. "Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. . . . We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury." 414 U.S. at 414 U. S. 351 -352. Similarly, in United States v. Janis, 428 U. S. 433 (1976), the exclusionary rule was not extended to forbid the use in federal civil proceedings of evidence illegally seized by state officials, since the likelihood of deterring unlawful police conduct was not sufficient to outweigh the social costs imposed by the exclusion. Page 462 U. S. 256 Third, even at a criminal trial, the same analysis has led us to conclude that the costs of excluding probative evidence outweighed the deterrence benefits in several circumstances. We have refused to prohibit the use of illegally seized evidence for the purpose of impeaching a defendant who testifies in his own behalf. United States v. Havens, 446 U. S. 620 (1980); Walder v. United States, 347 U. S. 62 (1954). We have also declined to adopt a " per se or but for' rule" that would make inadmissible any evidence which comes to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U. S. 590 , 422 U. S. 603 (1975). And we have held that testimony of a live witness may be admitted, notwithstanding that the testimony was derived from a concededly unconstitutional search. United States v. Ceccolini, 435 U. S. 268 (1978). Nor is exclusion required when law enforcement agents act in good faith reliance upon a statute or ordinance that is subsequently held to be unconstitutional. United States v. Peltier, 422 U. S. 531 (1975); Michigan v. DeFillippo, 443 U. S. 31 (1979). [ Footnote 2/12 ] Cf. United States v. Caceres, 440 U. S. 741 , 440 U. S. 754 -757 (1979) (exclusion not Page 462 U. S. 257 required of evidence tainted by violation of an executive department's rules concerning electronic eavesdropping). A similar balancing approach is employed in our decisions limiting the scope of the exclusionary remedy for Fifth Amendment violations, Oregon v. Hass, 420 U. S. 714 (1975); Harris v. New York, 401 U. S. 222 (1971); Michigan v. Tucker, 417 U. S. 433 (1974), and our cases considering whether Fourth Amendment decisions should be applied retroactively, United States v. Peltier, supra, at 422 U. S. 538 -539; Williams v. United States, 401 U. S. 646 , 401 U. S. 654 -655 (1971) (plurality opinion); Dest v. United States, 394 U. S. 244 , 394 U. S. 249 -250 (1969); Linkletter v. Walker, 381 U. S. 618 , 381 U. S. 636 -639 (1965). But see United States v. Johnson, 457 U. S. 537 (1982). These cases reflect that the exclusion of evidence is not a personal constitutional right, but a remedy, which, like all remedies, must be sensitive to the costs and benefits of its imposition. The trend and direction of our exclusionary rule decisions indicate not a lesser concern with safeguarding the Fourth Amendment but a fuller appreciation of the high costs incurred when probative, reliable evidence is barred because of investigative error. The primary cost, of course, is that the exclusionary rule interferes with the truth-seeking function of a criminal trial by barring relevant and trustworthy evidence. [ Footnote 2/13 ] We will never know how many guilty defendants go free as a result of the rule's operation. But any rule of evidence that denies the jury access to clearly probative and reliable evidence must bear a heavy burden of justification, Page 462 U. S. 258 and must be carefully limited to the circumstances in which it will pay its way by deterring official lawlessness. I do not presume that modification of the exclusionary rule will, by itself, significantly reduce the crime rate -- but that is no excuse for indiscriminate application of the rule. The suppression doctrine entails other costs as well. It would be surprising if the suppression of evidence garnered in good faith, but by means later found to violate the Fourth Amendment, did not deter legitimate as well as unlawful police activities. To the extent the rule operates to discourage police from reasonable and proper investigative actions, it hinders the solution and even the prevention of crime. A tremendous burden is also placed on the state and federal judicial systems. One study reveals that one-third of federal defendants going to trial file Fourth Amendment suppression motions, and 70% to 90% of these involve formal hearings. General Accounting Office, Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 10 (1979). The rule also exacts a heavy price in undermining public confidence in the reasonableness of the standards that govern the criminal justice system. "[A]lthough the [exclusionary] rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately, it may well have the opposite effect of generating disrespect for the law and the administration of justice." Stone v. Powell, 428 U.S. at 428 U. S. 490 -491. As JUSTICE POWELL observed in Stone v. Powell, supra, at 428 U. S. 490 : "The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice." For these reasons, "application of the [exclusionary] rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States Page 462 U. S. 259 v. Calandra, 414 U.S. at 414 U. S. 348 . [ Footnote 2/14 ] The reasoning of our recent cases strongly suggests that there is insufficient justification to suppress evidence at a criminal trial which was seized in the reasonable belief that the Fourth Amendment was not violated. The deterrent effect of the exclusionary rule has never been established by empirical evidence, despite Page 462 U. S. 260 repeated attempts. United States v. Janis, 428 U.S. at 428 U. S. 449 -453; Irvine v. California, 347 U. S. 128 , 347 U. S. 136 (1954). But accepting that the rule deters some police misconduct, it is apparent as a matter of logic that there is little if any deterrence when the rule is invoked to suppress evidence obtained by a police officer acting in the reasonable belief that his conduct did not violate the Fourth Amendment. As we initially observed in Michigan v. Tucker, 417 U.S. at 417 U. S. 447 , and reiterated in United States v. Peltier, 422 U.S. at 422 U. S. 539 : "'The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.'" The Court in Peltier continued, id. at 422 U. S. 542 : "If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." See also United States v. Janis, supra, at 428 U. S. 459 , n. 35 ("[T]he officers here were clearly acting in good faith . . . a factor that the Court has recognized reduces significantly the potential deterrent effect of exclusion"). The deterrent value of the exclusionary sanction is most effective when officers engage in searches and seizures under circumstances "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Brown v. Illinois, 422 U.S. at 422 U. S. 610 -611 (POWELL, J., concurring in part). On the Page 462 U. S. 261 other hand, when officers perform their tasks in the good faith belief that their action comported with constitutional requirements, the deterrent function of the exclusionary rule is so minimal, if not nonexistent, that the balance clearly favors the rule's modification. [ Footnote 2/15 ] Page 462 U. S. 262 B There are several types of Fourth Amendment violations that may be said to fall under the rubric of "good faith." "[T]here will be those occasions where the trial or appellate court will disagree on the issue of probable cause, no matter how reasonable the grounds for arrest appeared to the officer and though reasonable men could easily differ on the question. It also happens that after the events at issue have occurred, the law may change, dramatically or ever so slightly, but in any event sufficiently to require the trial judge to hold that there was not probable cause to make the arrest and to seize the evidence offered by the prosecution. . . ." Stone v. Powell, 428 U.S. at 428 U. S. 539 -540 (WHITE, J., dissenting). The argument for a good faith exception is strongest, however, when law enforcement officers have reasonably relied on a judicially issued search warrant. This Court has never set forth a rationale for applying the exclusionary rule to suppress evidence obtained pursuant to a search warrant; it has simply done so without considering whether Fourth Amendment interests will be advanced. It is my view that they generally will not be. When officers have dutifully obtained a search warrant from a judge or magistrate, and execute the warrant as directed by its terms, exclusion of the evidence thus obtained cannot be expected to deter future reliance on such warrants. The warrant is prima facie proof that the officers acted reasonably in conducting the search or seizure; "[o]nce the warrant issues, there is literally nothing more that the policeman can do in seeking to comply with the law." Stone v. Powell, supra, at 428 U. S. 498 (BURGER, C.J., concurring). [ Footnote 2/16 ] As JUSTICE STEVENS Page 462 U. S. 263 put it in writing for the Court in United States v. Ross, 456 U. S. 798 , 456 U. S. 823 , n. 32 (1982): "[A] warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." Nevertheless, the warrant may be invalidated because of a technical defect or because, as in this case, the judge issued a warrant on information later determined to fall short of probable cause. Excluding evidence for these reasons can have no possible deterrent effect on future police conduct, unless it is to make officers less willing to do their duty. Indeed, applying the exclusionary rule to warrant searches may well reduce incentives for police to utilize the preferred warrant procedure when a warrantless search may be permissible under one of the established exceptions to the warrant requirement. See ante at 462 U. S. 236 ; Brown v. Illinois, 422 U.S. at 422 U. S. 611 , and n. 3 (POWELL, J., concurring in part); P. Johnson, New Approaches to Enforcing the Fourth Amendment 11 (unpublished paper, 1978). See also United States v. United States District Court, 407 U. S. 297 , 407 U. S. 316 -317 (1972); United States v. Ventresca, 380 U. S. 102 , 380 U. S. 106 -107 (1965). Opponents of the proposed "reasonable belief" exception suggest that such a modification would allow magistrates and judges to flout the probable cause requirements in issuing warrants. This is a novel concept: the exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges. Magistrates must be neutral and detached from law enforcement operations, and I would not presume that a modification of the exclusionary rule will lead magistrates to abdicate their responsibility to apply the law. [ Footnote 2/17 ] In any event, I would apply the exclusionary Page 462 U. S. 264 rule when it is plainly evident that a magistrate or judge had no business issuing a warrant. See, e.g., Aguilar v. Texas, 378 U. S. 108 (1964); Nathanson v. United States, 290 U. S. 41 (1933). Similarly, the good faith exception would not apply if the material presented to the magistrate or judge is false or misleading, Franks v. Delaware, 438 U. S. 154 (1978), or so clearly lacking in probable cause that no well-trained officer could reasonably have thought that a warrant should issue. Another objection is that a reasonable belief exception will encompass all searches and seizures on the frontier of the Fourth Amendment and that such cases will escape review on the question of whether the officer's action was permissible, denying needed guidance from the courts and freezing Fourth Amendment law in its present state. These fears are unjustified. The premise of the argument is that a court must first decide the reasonable belief issue before turning to the question of whether a Fourth Amendment violation has occurred. I see no need for such an inflexible practice. When a Fourth Amendment case presents a novel question of law whose resolution is necessary to guide future action by law enforcement officers and magistrates, there is sufficient reason for the Court to decide the violation issue before turning to the good faith question. Indeed, it may be difficult to Page 462 U. S. 265 determine whether the officers acted reasonably until the Fourth Amendment issue is resolved. [ Footnote 2/18 ] In other circumstances, however, a suppression motion poses no Fourth Amendment question of broad import -- the issue is simply whether the facts in a given case amounted to probable cause in these cases, it would be prudent for a reviewing court to immediately turn to the question of whether the officers acted in good faith. Upon finding that they had, there would generally be no need to consider the probable cause question. I doubt that our Fourth Amendment jurisprudence would suffer thereby. It is not entirely clear to me that the law in this area has benefited from the constant pressure of fully litigated suppression motions. The result usually has been that initially bright-line rules have disappeared in a sea of ever-finer distinctions. Moreover, there is much to be said for having Fourth Amendment jurisprudence Page 462 U. S. 266 evolve in part, albeit perhaps at a slower pace, in other settings. [ Footnote 2/19 ] Finally, it is contended that a good faith exception will be difficult to apply in practice. This concern appears grounded in the assumption that courts would inquire into the subjective belief of the law enforcement officers involved. I would eschew such investigations. "[S]ending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources." Massachusetts v. Painten, 389 U. S. 560 , 389 U. S. 565 (1968) (WHITE, J., dissenting). Moreover, "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." Scott v. United States, 436 U. S. 128 , 436 U. S. 136 (1978). Just last Term, we modified the qualified immunity public officials enjoy in suits seeking damages against federal officials for alleged deprivations of constitutional rights, eliminating the subjective component of the standard. See Harlow v. Fitzgerald, 457 U. S. 800 (1982). Although Page 462 U. S. 267 searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, I would measure the reasonableness of a particular search or seizure only by objective standards. Even for warrantless searches, the requirement should be no more difficult to apply than the closely related good faith test which governs civil suits under 42 U.S.C. § 1983. In addition, the burden will likely be offset by the reduction in the number of cases which will require elongated considerations of the probable cause question, and will be greatly outweighed by the advantages in limiting the bite of the exclusionary rule to the field in which it is most likely to have its intended effects. III Since a majority of the Court deems it inappropriate to address the good faith issue, I briefly address the question that the Court does reach -- whether the warrant authorizing the search and seizure of respondents' car and home was constitutionally valid. Abandoning the "two-pronged test" of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), the Court upholds the validity of the warrant under a new "totality of the circumstances" approach. Although I agree that the warrant should be upheld, I reach this conclusion in accordance with the Aguilar-Spinelli framework. A For present purposes, the Aguilar-Spinelli rules can be summed up as follows. First, an affidavit based on an informant's tip, standing alone, cannot provide probable cause for issuance of a warrant unless the tip includes information that apprises the magistrate of the informant's basis for concluding that the contraband is where he claims it is (the "basis of knowledge" prong), and the affiant informs the magistrate of his basis for believing that the informant is credible (the "veracity" prong). Aguilar, supra, at 378 U. S. 114 ; Page 462 U. S. 268 Spinelli, supra, at 393 U. S. 412 -413, 416. [ Footnote 2/20 ] Second, if a tip fails under either or both of the two prongs, probable cause may yet be established by independent police investigatory work that corroborates the tip to such an extent that it supports "both the inference that the informer was generally trustworthy and that he made his charge . . . on the basis of information obtained in a reliable way." Spinelli, supra, at 393 U. S. 417 . In instances where the officers rely on corroboration, the ultimate question is whether the corroborated tip "is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration." 393 U.S. at 393 U. S. 415 . In the present case, it is undisputed that the anonymous tip, by itself, did not furnish probable cause. The question is whether those portions of the affidavit describing the results of the police investigation of the respondents, when considered in light of the tip, "would permit the suspicions engendered by the informant's report to ripen into a judgment that a crime was probably being committed." Spinelli, supra, at 393 U. S. 418 . The Illinois Supreme Court concluded that the corroboration was insufficient to permit such a ripening. 85 Ill. 2d 376 , 387, 423 N.E.2d 887 , 892 (1981). The court reasoned as follows: "[T]he nature of the corroborating evidence in this case would satisfy neither the 'basis of knowledge' nor the Page 462 U. S. 269 'veracity' prong of Aguilar. Looking to the affidavit submitted as support for Detective Mader's request that a search warrant issue, we note that the corroborative evidence here was only of clearly innocent activity. Mader's independent investigation revealed only that Lance and Sue Gates lived on Greenway Drive; that Lance Gates booked passage on a flight to Florida; that upon arriving he entered a room registered to his wife; and that he and his wife left the hotel together by car. The corroboration of innocent activity is insufficient to support a finding of probable cause." Id. at 390, 423 N.E.2d at 893. In my view, the lower court's characterization of the Gateses' activity here as totally "innocent" is dubious. In fact, the behavior was quite suspicious. I agree with the Court, ante at 462 U. S. 243 , that Lance Gates' flight to West Palm Beach, an area known to be a source of narcotics, the brief overnight stay in a motel, and apparent immediate return north, suggest a pattern that trained law enforcement officers have recognized as indicative of illicit drug-dealing activity. [ Footnote 2/21 ] Even, however, had the corroboration related only to completely innocuous activities, this fact alone would not preclude the issuance of a valid warrant. The critical issue is not whether the activities observed by the police are innocent or suspicious. Instead, the proper focus should be on whether the actions of the suspects, whatever their nature, give rise to an inference that the informant is credible and that he obtained his information in a reliable manner. Thus, in Draper v. United States, 358 U. S. 307 (1959), an informant stated on September 7 that Draper would be carrying narcotics when he arrived by train in Denver on the morning of September 8 or September 9. The informant also provided the police with a detailed physical description Page 462 U. S. 270 of the clothes Draper would be wearing when he alighted from the train. The police observed Draper leaving a train on the morning of September 9, and he was wearing the precise clothing described by the informant. The Court held that the police had probable cause to arrest Draper at this point, even though the police had seen nothing more than the totally innocent act of a man getting off a train carrying a briefcase. As we later explained in Spinelli, the important point was that the corroboration showed both that the informant was credible, i.e., that he "had not been fabricating his report out of whole cloth," Spinelli, 393 U.S. at 393 U. S. 417 , and that he had an adequate basis of knowledge for his allegations, "since the report was of the sort which, in common experience, may be recognized as having been obtained in a reliable way." Id. at 393 U. S. 417 -418. The fact that the informant was able to predict, two days in advance, the exact clothing Draper would be wearing dispelled the possibility that his tip was just based on rumor or "an offhand remark heard at a neighborhood bar." Id. at 393 U. S. 417 . Probably Draper had planned in advance to wear these specific clothes so that an accomplice could identify him. A clear inference could therefore be drawn that the informant was either involved in the criminal scheme himself or that he otherwise had access to reliable, inside information. [ Footnote 2/22 ] Page 462 U. S. 271 As in Draper, the police investigation in the present case satisfactorily demonstrated that the informant's tip was as trustworthy as one that would, alone, satisfy the Aguilar tests. The tip predicted that Sue Gates would drive to Florida, that Lance Gates would fly there a few days after May 3, and that Lance would then drive the car back. After the police corroborated these facts, [ Footnote 2/23 ] the judge could reasonably have inferred, as he apparently did, that the informant, who had specific knowledge of these unusual travel plans, did not make up his story, and that he obtained his information in a reliable way. It is theoretically possible, as respondents insist, that the tip could have been supplied by a "vindictive travel agent" and that the Gateses' activities, although unusual, might not have been unlawful. [ Footnote 2/24 ] But Aguilar and Spinelli, like our other cases, do not require that certain guilt be established before a warrant may properly be issued. "[O]nly the probability, and not a prima facie showing, Page 462 U. S. 272 of criminal activity is the standard of probable cause." Spinelli, supra, at 393 U. S. 419 (citing Beck v. Ohio, 379 U. S. 89 , 379 U. S. 96 (1964)). I therefore conclude that the judgment of the Illinois Supreme Court invalidating the warrant must be reversed. B The Court agrees that the warrant was valid, but, in the process of reaching this conclusion, it overrules the Aguilar-Spinelli tests and replaces them with a "totality of the circumstances" standard. As shown above, it is not at all necessary to overrule Aguilar-Spinelli in order to reverse the judgment below. Therefore, because I am inclined to believe that, when applied properly, the Aguilar-Spinelli rules play an appropriate role in probable cause determinations, and because the Court's holding may foretell an evisceration of the probable cause standard, I do not join the Court's holding. The Court reasons, ante at 462 U. S. 233 , that the "veracity" and "basis of knowledge" tests are not independent, and that a deficiency as to one can be compensated for by a strong showing as to the other. Thus, a finding of probable cause may be based on a tip from an informant "known for the unusual reliability of his predictions" or from "an unquestionably honest citizen," even if the report fails thoroughly to set forth the basis upon which the information was obtained. Ibid. If this is so, then it must follow a fortiori that "the affidavit of an officer, known by the magistrate to be honest and experienced, stating that [contraband] is located in a certain building" must be acceptable. Spinelli, 393 U.S. at 393 U. S. 424 (WHITE, J., concurring). It would be "quixotic" if a similar statement from an honest informant, but not one from an honest officer, could furnish probable cause. Ibid. But we have repeatedly held that the unsupported assertion or belief of an officer does not satisfy the probable cause requirement. See, e.g., Whiteley v. Warden, 401 U. S. 560 , 401 U. S. 564 -565 Page 462 U. S. 273 (1971); Jones v. United States, 362 U. S. 257 , 362 U. S. 269 (1960); Nathanson v. United States, 290 U. S. 41 (1933). [ Footnote 2/25 ] Thus, this portion of today's holding can be read as implicitly rejecting the teachings of these prior holdings. The Court may not intend so drastic a result. Indeed, the Court expressly reaffirms, ante at 462 U. S. 239 , the validity of cases such as Nathanson that have held that, no matter how reliable the affiant-officer may be, a warrant should not be issued unless the affidavit discloses supporting facts and circumstances. The Court limits these cases to situations involving affidavits containing only "bare conclusions," and holds that, if an affidavit contains anything more, it should be left to the issuing magistrate to decide, based solely on "practical[ity]" and "common sense," whether there is a fair probability that contraband will be found in a particular place. Ante at 462 U. S. 238 -239. Thus, as I read the majority opinion, it appears that the question whether the probable cause standard is to be diluted is left to the common sense judgments of issuing magistrates. I am reluctant to approve any standard that does not expressly require, as a prerequisite to issuance of a warrant, some showing of facts from which an inference may be drawn that the informant is credible and that his information was obtained in a reliable way. The Court is correctly concerned with the fact that some lower courts have been applying Aguilar-Spinelli in an unduly rigid manner. [ Footnote 2/26 ] I believe, however, that with clarification of the rule of corroborating Page 462 U. S. 274 information, the lower courts are fully able to properly interpret Aguilar-Spinelli and avoid such unduly rigid applications. I may be wrong; it ultimately may prove to be the case that the only profitable instruction we can provide to magistrates is to rely on common sense. But the question whether a particular anonymous tip provides the basis for issuance of a warrant will often be a difficult one, and I would at least attempt to provide more precise guidance by clarifying Aguilar-Spinelli and the relationship of those cases with Draper before totally abdicating our responsibility in this area. Hence, I do not join the Court's opinion rejecting the Aguilar-Spinelli rules. [ Footnote 2/1 ] See, e.g., Eddings v. Oklahoma, 455 U. S. 104 (1982); Wood v. Georgia, 450 U. S. 261 (1981); Vachon v. New Hampshire, 414 U. S. 478 (1974) (per curiam). Of course, to the extent these cases were correctly decided, they indicate a fortiori that the exclusionary rule issue in this case is properly before us. [ Footnote 2/2 ] The Court has previously relied on issues and arguments not raised in the state court below in order to dispose of a federal question that was properly raised. In Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 658 (1972), the Court held that unmarried fathers could not be denied a hearing on parental fitness that was afforded other Illinois parents. Although this issue was not presented in the Illinois courts, the Court found that it could properly be considered: "we dispose of the case on the constitutional premise raised below, reaching the result by a method of analysis readily available to the state court. For the same reason, the strictures of Cardinale v. Louisiana, 394 U. S. 437 (1969), and Hill v. California, 401 U. S. 797 (1971), have been fully observed." Id. at 405 U. S. 658 , n. 10. The dissent argued that the Court was deciding a due process claim, instead of an equal protection one, but there was no suggestion that it mattered at all that the Court had relied on a different type of equal protection argument. [ Footnote 2/3 ] As the Court explains, ante at 462 U. S. 220 , n. 2, in Dewey, the plaintiff in error argued only that the imposition of personal liability against him violated the Due Process Clause of the Fourteenth Amendment, because he had not received personal notice of the assessment proceedings. In this Court, the plaintiff in error sought to raise a takings argument for the first time. The Court declined to pass on the issue because, although arising from a single factual occurrence, the two claims "are not in anywise necessarily connected." 173 U.S. at 173 U. S. 198 . [ Footnote 2/4 ] The Court relies on these cases for the surprising assertion that the Fourth Amendment and exclusionary rule questions are "distinct." I had understood the very essence of Rakas v. Illinois, 439 U. S. 128 (1978), to be that standing to seek exclusion of evidence could not be divorced from substantive Fourth Amendment rights. Past decisions finding that the remedy of exclusion is not always appropriate upon the finding of a Fourth Amendment violation acknowledge the close relationship of the issues. For example, in United States v. Ceccolini, it was said: "The constitutional question under the Fourth Amendment was phrased in Wong Sun v. United States, 371 U. S. 471 (1963), as whether" "the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.'" 435 U.S. at 435 U. S. 273 -274. It is also surprising to learn that the issues in Stone v. Powell are "distinct" from the Fourth Amendment. [ Footnote 2/5 ] Consider the full context of the statement in McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430 , 309 U. S. 434 (1940): "In cases coming here from state courts in which a state statute is assailed as unconstitutional, there are reasons of peculiar force which should lead us to refrain from deciding questions not presented or decided in the highest court of the state whose judicial action we are called upon to review. Apart from the reluctance with which every court should proceed to set aside legislation as unconstitutional on grounds not properly presented, due regard for the appropriate relationship of this Court to state courts requires us to decline to consider and decide questions affecting the validity of state statutes not urged or considered there. It is for these reasons that this Court, where the constitutionality of a statute has been upheld in the state court, consistently refuses to consider any grounds of attack not raised or decided in that court." [ Footnote 2/6 ] The Court observes that, "although the Illinois courts applied the federal exclusionary rule, there was never any real contest' upon the point." Ante at 462 U. S. 223 . But the proper forum for a "real contest" on the continued vitality of the exclusionary rule that has developed from our decisions in Weeks v. United States, 232 U. S. 383 (1914), and Mapp v. Ohio, 367 U. S. 643 (1961), is this Court. [ Footnote 2/7 ] Nor is there any reason for the Illinois courts to decide that question in advance of this Court's decision on the federal exclusionary rule. Until the federal rule is modified, the state law question is entirely academic. The state courts should not be expected to render such purely advisory decisions. [ Footnote 2/8 ] Respondents press this very argument. Brief for Respondents 24-27; Brief for Respondents on Reargument 6. Of course, under traditional principles, the possibility that the state court might reach a different conclusion in interpreting the State Constitution does not make it improper for us to decide the federal issue. Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 651 -653 (1979); Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 , 433 U. S. 568 (1977). [ Footnote 2/9 ] It also should be noted that the requirement that the good faith issue be presented to the Illinois courts has little to do with whether the record is complete. I doubt that the raising of the good faith issue below would have been accompanied by any different record. And this Court may dismiss a writ of certiorari as improvidently granted when the record makes decision of a federal question unwise. See, e.g., Minnick v. California Dept. of Corrections, 452 U. S. 105 (1981). [ Footnote 2/10 ] In California v. Minjares, 443 U. S. 916 , 928 (1979) (REHNQUIST, J., joined by BURGER, C.J., dissenting from the denial of stay), the author of today's opinion for the Court urged that the parties be directed to brief whether the exclusionary rule should be retained. In Minjares, like this case, respondents had raised a Fourth Amendment claim, but petitioners had not attacked the validity of the exclusionary rule in the state court. See also Robbins v. California, 453 U. S. 420 , 453 U. S. 437 (1981) (REHNQUIST, J., dissenting) (advocating overruling of Mapp v. Ohio, supra ). [ Footnote 2/11 ] Ironically, in Mapp v. Ohio, supra, petitioners did not ask the Court to partially overrule Wolf v. Colorado, 338 U. S. 25 (1949). The sole argument to apply the exclusionary rule to the States is found in a single paragraph in an amicus brief filed by the American Civil Liberties Union. [ Footnote 2/12 ] To be sure, Peltier and DeFillippo did not modify the exclusionary rule itself. Peltier held that Almeida-Sanchez v. United States, 413 U. S. 266 (1973), was not to be given retroactive effect; DeFillippo upheld the validity of an arrest made in good faith reliance on an ordinance subsequently declared unconstitutional. The effect of these decisions, of course, was that evidence was not excluded because of the officer's reasonable belief that he was acting lawfully, and the Court's reasoning, as I discuss infra, at 462 U. S. 260 -261, leads inexorably to the more general modification of the exclusionary rule I favor. Indeed, JUSTICE BRENNAN recognized this in his dissent in Peltier, 422 U.S. at 422 U. S. 551 -552. I recognize that we have held that the exclusionary rule required suppression of evidence obtained in searches carried out pursuant to statutes, not previously declared unconstitutional, which purported to authorize the searches in question without probable cause and without a valid warrant. See, e.g., Torres v. Puerto Rico, 442 U. S. 465 (1979); Almeida-Sanchez v. United States, supra; Sibron v. New York, 392 U. S. 40 (1968); Berger v. New York, 388 U. S. 41 (1967). The results in these cases may well be different under a "good faith" exception to the exclusionary rule. [ Footnote 2/13 ] The effects of the exclusionary rule are often felt before a case reaches trial. A recent study by the National Institute of Justice of felony arrests in California during the years 1976-1979 "found a major impact of the exclusionary rule on state prosecutions." National Institute of Justice, The Effects of the Exclusionary Rule: A Study in California 2 (1982). The study found that 4.8% of the more than 4,000 felony cases declined for prosecution were rejected because of search and seizure problems. The exclusionary rule was found to have a particularly pronounced effect in drug cases; prosecutors rejected approximately 30% of all felony drug arrests because of search and seizure problems. [ Footnote 2/14 ] Our decisions applying the exclusionary rule have referred to the "imperative of judicial integrity," Elkins v. United States, 364 U. S. 206 , 364 U. S. 222 (1960), although recent opinions of the Court make clear that the primary function of the exclusionary rule is to deter violations of the Fourth Amendment, Stone v. Powell, 428 U.S. at 428 U. S. 486 ; United States v. Janis, 428 U. S. 433 , 428 U. S. 446 (1976); United States v. Calandra, 414 U.S. at 414 U. S. 348 . I do not dismiss the idea that the integrity of the courts may be compromised when illegally seized evidence is admitted, but I am convinced that the force of the argument depends entirely on the type of search or seizure involved. At one extreme, there are lawless invasions of personal privacy that shock the conscience, and the admission of evidence so obtained must be suppressed as a matter of due process, entirely aside from the Fourth Amendment. See, e.g., Rochin v. California, 342 U. S. 165 (1952). Also deserving of exclusionary treatment are searches and seizures perpetrated in intentional and flagrant disregard of Fourth Amendment principles. But the question of exclusion must be viewed through a different lens when a Fourth Amendment violation occurs because the police have reasonably erred in assessing the facts, mistakenly conducted a search authorized under a presumably valid statute, or relied in good faith upon a warrant not supported by probable cause. In these circumstances, the integrity of the courts is not implicated. The violation of the Fourth Amendment is complete before the evidence is admitted. Thus, "[t]he primary meaning of 'judicial integrity' in the context of evidentiary rules is that the courts must not commit or encourage violations of the Constitution." United States v. Janis, supra, at 428 U. S. 458 , n. 35. Cf. United States v. Peltier, 422 U. S. 531 , 422 U. S. 537 (1975) ("The teaching of these retroactivity cases is that, if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the imperative of judicial integrity' is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner"). I am content that the interests in judicial integrity run along with, rather than counter to, the deterrence concept, and that to focus upon the latter is to promote, not denigrate, the former. [ Footnote 2/15 ] It has been suggested that the deterrence function of the exclusionary rule has been understated by viewing the rule as aimed at special deterrence, when, in fact, the exclusionary rule is directed at "affecting the wider audience of law enforcement officials and society at large." 1 W. LaFave, Search and Seizure 6 (1983 Supp.). See also Mertens & Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo.L.J. 365, 399-401 (1981). I agree that the exclusionary rule's purpose is not only, or even primarily, to deter the individual police officer involved in the instant case. It appears that this objection assumes that the proposed modification of the exclusionary rule will turn only on the subjective "good faith" of the officer. Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment. Dunaway v. New York, 442 U. S. 200 , 442 U. S. 221 (1979) (STEVENS, J., concurring). Indeed, the present indiscriminate application of the exclusionary rule may hinder the educative and deterrent function of the suppression remedy. "Instead of disciplining their employees, police departments generally have adopted the attitude that the courts cannot be satisfied, that the rules are hopelessly complicated and subject to change, and that the suppression of evidence is the court's problem, and not the departments'." Kaplan, The Limits of the Exclusionary Rule, 26 Stan.L.Rev. 1027, 1050 (1974). If evidence is suppressed only when a law enforcement officer should have known that he was violating the Fourth Amendment, police departments may look more seriously at the officer's misconduct when suppression is invoked. Moreover, by providing that evidence gathered in good faith reliance on a reasonable rule will not be excluded, a good faith exception creates an incentive for police departments to formulate rules governing activities of officers in the search and seizure area. Many commentators, including proponents of the exclusionary sanction, recognize that the formulation of such rules by police departments, and the training necessary to implement these guidelines in practice, are perhaps the most effective means of protecting Fourth Amendment rights. See K. Davis, Discretionary Justice (1969); McGowan, Rule-Making and the Police, 70 Mich.L.Rev. 659 (1972); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 416-431 (1974). [ Footnote 2/16 ] The Attorney General's Task Force on Violent Crime concluded that the situation in which an officer relies on a duly authorized warrant "is a particularly compelling example of good faith. A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions. Accordingly, we believe that there should be a rule which states that evidence obtained pursuant to and within the scope of a warrant is prima facie the result of good faith on the part of the officer seizing the evidence." U.S. Dept. of Justice, Attorney General's Task Force on Violent Crime, Final Report 55 (1981). [ Footnote 2/17 ] Much is made of Shadwick v. City of Tampa, 407 U. S. 345 (1972), where we held that magistrates need not be legally trained. Shadwick's holding was quite narrow. First, the Court insisted that "an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search." Id. at 407 U. S. 350 . Second, in Shadwick, the Court Clerk's authority extended only to the relatively straightforward task of issuing arrest warrants for breach of municipal ordinances. To issue search warrants, an individual must be capable of making the probable cause judgments involved. In this regard, I reject the Court's insinuation that it is too much to expect that persons who issue warrants remain abreast of judicial refinements of probable cause. Ante at 462 U. S. 235 . Finally, as indicated in text, I do not propose that a warrant clearly lacking a basis in probable cause can support a "good faith" defense to invocation of the exclusionary rule. [ Footnote 2/18 ] Respondents and some amici contend that this practice would be inconsistent with the Art. III requirement of an actual case or controversy. I have no doubt that a defendant who claims that he has been subjected to an unlawful search or seizure and seeks suppression of the evidentiary fruits thereof raises a live controversy within the Art. III authority of federal courts to adjudicate. It is fully appropriate for a court to decide whether there has been a wrong before deciding what remedy to impose. When questions of good faith immunity have arisen under 42 U.S.C. § 1983, we have not been constrained to reach invariably the immunity question before the violation issue. Compare O'Connor v. Donaldson, 422 U. S. 563 (1975) (finding constitutional violation and remanding for consideration of good faith defense), with Procunier v. Navarette, 434 U. S. 555 , 434 U. S. 566 , n. 14 (1978) (finding good faith defense first). Similarly, we have exercised discretion at times in deciding the merits of a claim even though the error was harmless, while on other occasions resolving the case solely by reliance on the harmless error doctrine. Compare Milton v. Wainwright, 407 U. S. 371 , 407 U. S. 372 (1972) (declining to decide whether admission of confession was constitutional violation because error, if any, was harmless beyond a reasonable doubt), with Coleman v. Alabama, 399 U. S. 1 (1970) (upholding right to counsel at preliminary hearing and remanding for harmless error determination). [ Footnote 2/19 ] For example, a pattern or practice of official conduct that is alleged to violate Fourth Amendment rights may be challenged by an aggrieved individual in a suit for declaratory or injunctive relief. See, e.g., Zurcher v. Stanford Daily, 436 U. S. 547 (1978). (Of course, there are limits on the circumstances in which such actions will lie. Rizzo v. Goode, 423 U. S. 362 (1976); Los Angeles v. Lyons, 461 U. S. 95 (1983).) Although a municipality is not liable under 42 U.S.C. § 1983 on a theory of respondeat superior, local governing bodies are subject to suit for constitutional torts resulting from implementation of local ordinances, regulations, policies, or even customary practices. Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). Such entities enjoy no immunity defense that might impede resolution of the substantive constitutional issue. Owen v. City of Independence, 445 U. S. 622 (1980). In addition, certain state courts may continue to suppress, as a matter of state law, evidence in state trials for any Fourth Amendment violation. These cases would likely provide a sufficient supply of state criminal cases in which to resolve unsettled questions of Fourth Amendment law. As a final alternative, I would entertain the possibility of according the benefits of a new Fourth Amendment rule to the party in whose case the rule is first announced. See Stovall v. Denno, 388 U. S. 293 , 388 U. S. 301 (1967). [ Footnote 2/20 ] The "veracity" prong is satisfied by a recitation in the affidavit that the informant previously supplied accurate information to the police, see McCray v. Illinois, 386 U. S. 300 , 386 U. S. 303 -304 (1967), or by proof that the informant gave his information against his penal interest, see United States v. Harris, 403 U. S. 573 , 403 U. S. 583 -584 (1971) (plurality opinion). The "basis of knowledge" prong is satisfied by a statement from the informant that he personally observed the criminal activity, or, if he came by the information indirectly, by a satisfactory explanation of why his sources were reliable, or, in the absence of a statement detailing the manner in which the information was gathered, by a description of the accused's criminal activity in sufficient detail that the magistrate may infer that the informant is relying on something more substantial than casual rumor or an individual's general reputation. Spinelli v. United States, 393 U.S. at 393 U. S. 416 . [ Footnote 2/21 ] See United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 562 (1980) (POWELL, J., concurring in part and concurring in judgment). [ Footnote 2/22 ] Thus, as interpreted in Spinelli, the Court in Drape r held that there was probable cause because "the kind of information related by the informant [was] not generally sent ahead of a person's arrival in a city except to those who are intimately connected with making careful arrangements for meeting him." Spinelli, supra, at 393 U. S. 426 (WHITE, J., concurring). As I said in Spinelli, the conclusion that Drape r itself was based on this fact is far from inescapable. Prior to Spinelli, Draper was susceptible to the interpretation that it stood for the proposition that "the existence of the tenth and critical fact is made sufficiently probable to justify the issuance of a warrant by verifying nine other facts coming from the same source." Spinelli, supra, at 393 U. S. 426 -427 (WHITE, J., concurring). But it now seems clear that the Court in Spinelli rejected this reading of Draper . JUSTICE BRENNAN, post at 462 U. S. 280 , n. 3, 462 U. S. 281 -282, erroneously interprets my Spinelli concurrence as espousing the view that "corroboration of certain details in a tip may be sufficient to satisfy the veracity, but not the basis of knowledge, prong of Aguilar. " Others have made the same mistake. See, e.g., Comment, 20 Am.Crim.L.Rev. 99, 105 (1982). I did not say that corroboration could never satisfy the "basis of knowledge" prong. My concern was, and still is, that the prong might be deemed satisfied on the basis of corroboration of information that does not in any way suggest that the informant had an adequate basis of knowledge for his report. If, however, as in Draper, the police corroborate information from which it can be inferred that the informant's tip was grounded on inside information, this corroboration is sufficient to satisfy the "basis of knowledge" prong. Spinelli, 393 U.S. at 393 U. S. 426 (WHITE, J., concurring). The rules would indeed be strange if, as JUSTICE BRENNAN suggests, post at 462 U.S. 284 , the "basis of knowledge" prong could be satisfied by detail in the tip alone, but not by independent police work. [ Footnote 2/23 ] JUSTICE STEVENS is correct, post at 462 U. S. 291 , that one of the informant's predictions proved to be inaccurate. However, I agree with the Court, ante at 462 U. S. 245 , n. 14, that an informant need not be infallible. [ Footnote 2/24 ] It is also true, as JUSTICE STEVENS points out, post at 462 U. S. 292 , n. 3, that the fact that respondents were last seen leaving West Palm Beach on a north-bound interstate highway is far from conclusive proof that they were heading directly to Bloomingdale. [ Footnote 2/25 ] I have already indicated my view, supra at 462 U. S. 263 -264, that such a "barebones" affidavit could not be the basis for a good faith issuance of a warrant. [ Footnote 2/26 ] Bridger v. State, 503 S.W.2d 801 (Tex.Crim.App.1974), and People v. Palanza, 55 Ill.App.3d 1028, 371 N.E.2d 687 (1978), which the Court describes ante at 462 U. S. 234 , n. 9, appear to me to be excellent examples of overly technical applications of the Aguilar-Spinelli standard. The holdings in these cases could easily be disapproved without reliance on a "totality of the circumstances" analysis. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. Although I join JUSTICE STEVENS' dissenting opinion and agree with him that the warrant is invalid even under the Court's newly announced "totality of the circumstances" test, see post at 462 U. S. 294 -295, and n. 8, I write separately to dissent from the Court's unjustified and ill-advised rejection of the two-prong test for evaluating the validity of a warrant based on hearsay announced in Aguilar v. Texas, 378 U. S. 108 (1964), and refined in Spinelli v. United States, 393 U. S. 410 (1969). I The Court's current Fourth Amendment jurisprudence, as reflected by today's unfortunate decision, patently disregards Justice Jackson's admonition in Brinegar v. United States, 338 U. S. 160 (1949): "[Fourth Amendment rights] are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Page 462 U. S. 275 Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. . . ." "But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court." Id. at 338 U. S. 180 -181 (dissenting opinion). In recognition of the judiciary's role as the only effective guardian of Fourth Amendment rights, this Court has developed over the last half century a set of coherent rules governing a magistrate's consideration of a warrant application and the showings that are necessary to support a finding of probable cause. We start with the proposition that a neutral and detached magistrate, and not the police, should determine whether there is probable cause to support the issuance of a warrant. In Johnson v. United States, 333 U. S. 10 (1948), the Court stated: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." Id. at 333 U. S. 13 -14 (footnote omitted). See also Whiteley v. Warden, 401 U. S. 560 , 401 U. S. 564 (1971); Spinelli v. United States, supra, at 393 U. S. 415 ; United States v. Ventresca, 380 U. S. 102 , 380 U. S. 109 (1965); Aguilar v. Texas, supra, at 378 U. S. 111 ; Jones v. United States, 362 U. S. 257 , 362 U. S. 270 -271 Page 462 U. S. 276 (1960); Giordenello v. United States, 357 U. S. 480 , 357 U. S. 486 (1968); United States v. Lefkowitz, 285 U. S. 452 , 285 U. S. 464 (1932). In order to emphasize the magistrate's role as an independent arbiter of probable cause and to insure that searches or seizures are not effected on less than probable cause, the Court has insisted that police officers provide magistrates with the underlying facts and circumstances that support the officers' conclusions. In Nathanson v. United States, 290 U. S. 41 (1933), the Court held invalid a search warrant that was based on a customs agent's "mere affirmation of suspicion and belief without any statement of adequate supporting facts." Id. at 290 U. S. 46 . The Court stated: "Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough." Id. at 290 U. S. 47 . In Giordenello v. United States, supra, the Court reviewed an arrest warrant issued under the Federal Rules of Criminal Procedure based on a complaint sworn to by a Federal Bureau of Narcotics agent. Id. at 357 U. S. 481 . [ Footnote 3/1 ] Based on the agent's testimony at the suppression hearing, the Court noted that, "until the warrant was issued . . . , [the agent's] suspicions of petitioner's guilt derived entirely from information given him by law enforcement officers and other persons in Houston, none of whom either appeared before the Commissioner or submitted affidavits." Id. at 357 U. S. 485 . The Court found it unnecessary to decide whether a warrant could be based solely on hearsay information, for the complaint was "defective in not providing a sufficient basis upon which a Page 462 U. S. 277 finding of probable cause could be made." Ibid. In particular, the complaint contained no affirmative allegation that the agent spoke with personal knowledge, nor did it indicate any sources for the agent's conclusion. Id. at 357 U. S. 486 . The Court expressly rejected the argument that these deficiencies could be cured by "the Commissioner's reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer." Ibid. As noted, the Court did not decide the hearsay question lurking in Giordenello. The use of hearsay to support the issuance of a warrant presents special problems, because informants, unlike police officers, are not regarded as presumptively reliable or honest. Moreover, the basis for an informant's conclusions is not always clear from an affidavit that merely reports those conclusions. If the conclusory allegations of a police officer are insufficient to support a finding of probable cause, surely the conclusory allegations of an informant should a fortiori be insufficient. In Jones v. United States, supra, the Court considered "whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant's observations but those of another." Id. at 362 U. S. 269 . The Court held that hearsay information can support the issuance of a warrant "so long as a substantial basis for crediting the hearsay is presented." Ibid. The Court found that there was a substantial basis for crediting the hearsay involved in Jones. The informant's report was based on the informant's personal knowledge, and the informant previously had provided accurate information. Moreover, the informant's story was corroborated by other sources. Finally, the defendant was known to the police to be a narcotics user. Id. at 362 U. S. 271 . Aguilar v. Texas, 378 U. S. 108 (1964), merely made explicit what was implicit in Jones. In considering a search warrant based on hearsay, the Court reviewed Nathanson Page 462 U. S. 278 and Giordenello and noted the requirement established by those cases that an officer provide the magistrate with the underlying facts or circumstances that support the officer's conclusion that there is probable cause to justify the issuance of a warrant. The Court stated: "The vice in the present affidavit is at least as great as in Nathanson and Giordenello. Here, the 'mere conclusion' that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only 'contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an 'affirmative allegation' that the affiant's unidentified source 'spoke with personal knowledge.' For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession. The magistrate here certainly could not 'judge for himself the persuasiveness of the facts relied on . . . to show probable cause.' He necessarily accepted 'without question' the informant's 'suspicion,' 'belief' or 'mere conclusion.'" 378 U.S. at 378 U. S. 113 -114 (footnote omitted). [ Footnote 3/2 ] While recognizing that a warrant may be based on hearsay, the Court established the following standard: "[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded Page 462 U. S. 279 that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . . was 'credible' or his information 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime' . . . or, as in this case, by an unidentified informant." Id. at 378 U. S. 114 -115 (footnote omitted). The Aguilar standard was refined in Spinelli v. United States, 393 U. S. 410 (1969). In Spinelli, the Court reviewed a search warrant based on an affidavit that was "more ample," id. at 393 U. S. 413 , than the one in Aguilar. The affidavit in Spinelli contained not only a tip from an informant, but also a report of an independent police investigation that allegedly corroborated the informant's tip. 393 U.S. at 393 U. S. 413 . Under these circumstances, the Court stated that it was "required to delineate the manner in which Aguilar's two-pronged test should be applied. . . ." Ibid. The Court held that the Aguilar test should be applied to the tip, and approved two additional ways of satisfying that test. First, the Court suggested that, if the tip contained sufficient detail describing the accused's criminal activity, it might satisfy Aguilar's basis of knowledge prong. 393 U.S. at 393 U. S. 416 . Such detail might assure the magistrate that he is "relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Ibid. Although the tip in the case before it did not meet this standard, "[t]he detail provided by the informant in Draper v. United States, 358 U. S. 307 (1959), provide[d] a suitable benchmark," ibid., because "[a] magistrate, when confronted with such detail, could reasonably infer that the informant Page 462 U. S. 280 had gained his information in a reliable way." Id. at 393 U. S. 417 (footnote omitted). [ Footnote 3/3 ] Second, the Court stated that police corroboration of the details of a tip could provide a basis for satisfying Aguilar. Page 462 U. S. 281 393 U.S. at 393 U. S. 417 . The Court's opinion is not a model of clarity on this issue, since it appears to suggest that corroboration can satisfy both the basis of knowledge and veracity prongs of Aguilar. 393 U.S. at 393 U. S. 417 -418. [ Footnote 3/4 ] JUSTICE WHITE's concurring opinion, however, points the way to a proper reading of the Court's opinion. After reviewing the Court's decision in Draper v. United States, 358 U. S. 307 (1959), JUSTICE WHITE concluded that "[t]he thrust of Draper is not that the verified facts have independent significance with respect to proof of [another unverified fact]." 393 U.S. at 393 U. S. 427 . In his view, "[t]he argument instead relates to the reliability of the source: because an informant is right about some things, he is more probably right about other facts, usually the critical, unverified facts." Ibid. JUSTICE WHITE then pointed out that prior cases had rejected "the notion that the past Page 462 U. S. 282 reliability of an officer is sufficient reason for believing his current assertions." Ibid. JUSTICE WHITE went on to state: "Nor would it suffice, I suppose, if a reliable informant states there is gambling equipment in Apartment 607 and then proceeds to describe in detail Apartment 201, a description which is verified before applying for the warrant. He was right about 201, but that hardly makes him more believable about the equipment in 607. But what if he states that there are narcotics locked in a safe in Apartment 300, which is described in detail, and the apartment manager verifies everything but the contents of the safe? I doubt that the report about the narcotics is made appreciably more believable by the verification. The informant could still have gotten his information concerning the safe from others about whom nothing is known or could have inferred the presence of narcotics from circumstances which a magistrate would find unacceptable." Ibid. I find this reasoning persuasive. Properly understood, therefore, Spinelli stands for the proposition that corroboration of certain details in a tip may be sufficient to satisfy the veracity, but not the basis of knowledge, prong of Aguilar. As noted, Spinelli also suggests that, in some limited circumstances, considerable detail in an informant's tip may be adequate to satisfy the basis of knowledge prong of Aguilar. [ Footnote 3/5 ] Page 462 U. S. 283 Although the rules drawn from the cases discussed above are cast in procedural terms, they advance an important underlying substantive value: findings of probable cause, and attendant intrusions, should not be authorized unless there is some assurance that the information on which they are based has been obtained in a reliable way by an honest or credible person. As applied to police officers, the rules focus on the way in which the information was acquired. As applied to informants, the rules focus both on the honesty or credibility of the informant and on the reliability of the way in which the information was acquired. Insofar as it is more complicated, an evaluation of affidavits based on hearsay involves a more difficult inquiry. This suggests a need to structure the inquiry in an effort to insure greater accuracy. The standards announced in Aguilar, as refined by Spinelli, fulfill that need. The standards inform the police of what information they have to provide and magistrates of what information they should demand. The standards also inform magistrates of the subsidiary findings they must make in order to arrive at an ultimate finding of probable cause. Spinelli, properly understood, directs the magistrate's attention to the possibility that the presence of self-verifying detail might satisfy Aguilar's basis of knowledge prong, and that corroboration of the details of a tip might satisfy Aguilar's veracity prong. By requiring police to provide certain crucial information to magistrates and by structuring magistrates' probable cause inquiries, Aguilar and Spinelli assure the magistrate's role as an independent arbiter of probable cause, insure greater accuracy in probable cause determinations, and advance the substantive value identified above. Until today, the Court has never squarely addressed the application of the Aguilar and Spinelli standards to tips from anonymous informants. Both Aguilar and Spinelli dealt with tips from informants known at least to the police. See also e.g., Adams v. Williams, 407 U. S. 143 , 407 U. S. 146 (1972); United States v. Harris, 403 U. S. 573 , 403 U. S. 575 (1971); Whiteley v. Warden, 401 U.S. at 565; McCray v. Illinois , 386 U.S. Page 462 U. S. 284 300, 386 U. S. 302 (1967); Jones v. United States, 362 U.S. at 362 U. S. 268 -269. And surely there is even more reason to subject anonymous informants' tips to the tests established by Aguilar and Spinelli. By definition, nothing is known about an anonymous informant's identity, honesty, or reliability. One commentator has suggested that anonymous informants should be treated as presumptively unreliable. See Comment, Anonymous Tips, Corroboration, and Probable Cause: Reconciling the Spinelli/Draper Dichotomy in Illinois v. Gates, 20 Am.Crim.L.Rev. 99, 107 (1982). See also Adams v. Williams, supra, at 407 U. S. 146 (suggesting that an anonymous telephone tip provides a weaker case for a Terry v. Ohio, 392 U. S. 1 (1968), stop than a tip from an informant known to the police who had provided information in the past); United States v. Harris, supra, at 403 U. S. 599 (Harlan, J., dissenting) ("We cannot assume that the ordinary law-abiding citizen has qualms about [appearing before a magistrate]"). In any event, there certainly is no basis for treating anonymous informants as presumptively reliable. Nor is there any basis for assuming that the information provided by an anonymous informant has been obtained in a reliable way. If we are unwilling to accept conclusory allegations from the police, who are presumptively reliable, or from informants who are known, at least to the police, there cannot possibly be any rational basis for accepting conclusory allegations from anonymous informants. To suggest that anonymous informants' tips are subject to the tests established by Aguilar and Spinelli is not to suggest that they can never provide a basis for a finding of probable cause. It is conceivable that police corroboration of the details of the tip might establish the reliability of the informant under Aguilar's veracity prong, as refined in Spinelli, and that the details in the tip might be sufficient to qualify under the "self-verifying detail" test established by Spinelli as a means of satisfying Aguilar's basis of knowledge prong. The Aguilar and Spinelli tests must be applied to anonymous informants' tips, however, if we are to continue to insure Page 462 U. S. 285 that findings of probable cause, and attendant intrusions, are based on information provided by an honest or credible person who has acquired the information in a reliable way. [ Footnote 3/6 ] In light of the important purposes served by Aguilar and Spinelli, I would not reject the standards they establish. If anything, I simply would make more clear that Spinelli, properly understood, does not depart in any fundamental way from the test established by Aguilar. For reasons I shall next state, I do not find persuasive the Court's justifications for rejecting the test established by Aguilar and refined by Spinelli. Page 462 U. S. 286 II In rejecting the Aguilar-Spinelli standards, the Court suggests that a "totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific 'tests' be satisfied by every informant's tip." Ante at 462 U. S. 230 -231 (footnote omitted). In support of this proposition, the Court relies on several cases that purportedly reflect this approach, ante at 462 U. S. 230 -231, n. 6, 462 U. S. 232 -233, n. 7, and on the "practical, nontechnical," ante at 462 U. S. 231 , nature of probable cause. Only one of the cases cited by the Court in support of its "totality of the circumstances" approach, Jaben v. United States, 381 U. S. 214 (1965), was decided subsequent to Aguilar. It is by no means inconsistent with Aguilar. [ Footnote 3/7 ] The other three cases [ Footnote 3/8 ] cited by the Court as supporting its Page 462 U. S. 287 totality-of-the-circumstances approach were decided before Aguilar. In any event, it is apparent from the Court's discussion of them, see ante at 462 U. S. 232 -233, n. 7, that they are not inconsistent with Aguilar. In addition, one can concede that probable cause is a "practical, nontechnical" concept without betraying the values that Aguilar and Spinelli reflect. As noted, see supra at 462 U. S. 277 -282, Aguilar and Spinelli require the police to provide magistrates with certain crucial information. They also provide structure for magistrates' probable cause inquiries. In so doing, Aguilar and Spinelli preserve the role of magistrates as independent arbiters of probable cause, insure greater accuracy in probable cause determinations, and advance the substantive value of precluding findings of probable cause, and attendant intrusions, based on anything less than information from an honest or credible person who has acquired his information in a reliable way. Neither the standards nor their effects are inconsistent with a "practical, nontechnical" conception of probable cause. Once a magistrate has determined that he has information before him that he can reasonably say has been obtained in a reliable way by a credible person, he has ample room to use his common sense and to apply a practical, nontechnical conception of probable cause. It also should be emphasized that cases such as Nathanson v. United States, 290 U. S. 41 (1933), and Giordenello v. United States, 357 U. S. 480 (1958), discussed supra, at 462 U. S. 276 -277, directly contradict the Court's suggestion, ante at 462 U. S. 233 , that a strong showing on one prong of the Aguilar test should compensate for a deficient showing on the other. If the conclusory allegations of a presumptively reliable police officer are insufficient to establish probable cause, there is no conceivable reason why the conclusory allegations of an anonymous informant should not be insufficient as well. Moreover, contrary to the Court's implicit suggestion, Aguilar and Spinelli do not stand as an insuperable barrier to the use Page 462 U. S. 288 of even anonymous informants' tips to establish probable cause. See supra at 462 U. S. 277 -282. It is no justification for rejecting them outright that some courts may have employed an overly technical version of the Aguilar-Spinelli standards, see ante at 462 U. S. 234 -235, and n. 9. The Court also insists that the Aguilar-Spinelli standards must be abandoned because they are inconsistent with the fact that nonlawyers frequently serve as magistrates. Ante at 462 U. S. 235 -236. To the contrary, the standards help to structure probable cause inquiries and, properly interpreted, may actually help a nonlawyer magistrate in making a probable cause determination. Moreover, the Aguilar and Spinelli tests are not inconsistent with deference to magistrates' determinations of probable cause. Aguilar expressly acknowledged that reviewing courts "will pay substantial deference to judicial determinations of probable cause. . . ." 378 U.S. at 378 U. S. 111 . In Spinelli, the Court noted that it was not retreating from the proposition that magistrates' determinations of probable cause "should be paid great deference by reviewing courts. . . ." 393 U.S. at 393 U. S. 419 . It is also noteworthy that the language from United States v. Ventresca, 380 U.S. at 380 U. S. 108 -109, which the Court repeatedly quotes, see ante at 462 U. S. 235 , 462 U. S. 236 , and 462 U. S. 237 , n. 10, brackets the following passage, which the Court does not quote: "This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. See Aguilar v. Texas, supra. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not Page 462 U. S. 289 invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common sense, manner." 380 U.S. at 380 U. S. 108 -109. [ Footnote 3/9 ] At the heart of the Court's decision to abandon Aguilar and Spinelli appears to be its belief that "the direction taken by decisions following Spinelli poorly serves '[t]he most basic function of any government:' 'to provide for the security of the individual and of his property.'" Ante at 462 U. S. 237 . This conclusion rests on the judgment that Aguilar and Spinelli "seriously imped[e] the task of law enforcement," ante at 462 U. S. 237 , and render anonymous tips valueless in police work. Ibid. Surely, the Court overstates its case. See supra at 462 U. S. 287 -288. But of particular concern to all Americans must be that the Court gives virtually no consideration to the value of insuring that findings of probable cause are based on information that a magistrate can reasonably say has been obtained in a reliable Page 462 U. S. 290 way by an honest or credible person. I share JUSTICE WHITE's fear that the Court's rejection of Aguilar and Spinelli and its adoption of a new totality-of-the-circumstances test, ante at 462 U. S. 238 , "may foretell an evisceration of the probable cause standard. . . ." Ante at 462 U. S. 272 (WHITE, J., concurring in judgment). III The Court's complete failure to provide any persuasive reason for rejecting Aguilar and Spinelli doubtlessly reflects impatience with what it perceives to be "overly technical" rules governing searches and seizures under the Fourth Amendment. Words such as "practical," "nontechnical," and "common sense," as used in the Court's opinion, are but code words for an overly permissive attitude towards police practices in derogation of the rights secured by the Fourth Amendment. Everyone shares the Court's concern over the horrors of drug trafficking, but under our Constitution, only measures consistent with the Fourth Amendment may be employed by government to cure this evil. We must be ever mindful of Justice Stewart's admonition in Coolidge v. New Hampshire, 403 U. S. 443 (1971): "In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or 'extravagant' to some. But the values were those of the authors of our fundamental constitutional concepts." Id. at 403 U. S. 455 (plurality opinion). In the same vein, Glasser v. United States, 315 U. S. 60 (1942), warned that "[s]teps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties." Id. at 315 U. S. 86 . Rights secured by the Fourth Amendment are particularly difficult to protect, because their "advocates are usually criminals." Draper v. United States, 358 U.S. at 358 U. S. 314 (Douglas, J., dissenting). But the rules "we fashion [are] for the innocent and guilty alike." Ibid. See also Kolender v. Lawson, 461 U. S. 352 , 461 U. S. 362 , n. 1 (1983) (BRENNAN, J., concurring); Brinegar v. United States, 338 U.S. at 338 U. S. 181 (Jackson, J., dissenting). Page 462 U. S. 291 By replacing Aguilar and Spinelli with a test that provides no assurance that magistrates, rather than the police, or informants, will make determinations of probable cause; imposes no structure on magistrates' probable cause inquiries; and invites the possibility that intrusions may be justified on less than reliable information from an honest or credible person, today's decision threatens to "obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police state, where they are the law." Johnson v. United States, 333 U.S. at 333 U. S. 17 . [ Footnote 3/1 ] Although the warrant was issued under the Federal Rules of Criminal Procedure, the Court stated that "[t]he provisions of these Rules must be read in light of the constitutional requirements they implement." 357 U.S. at 357 U. S. 485 . See Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 112 , n. 3 (1964) ("The principles announced in Giordenello derived . . . from the Fourth Amendment, and not from our supervisory power"). [ Footnote 3/2 ] The Court noted that approval of the affidavit before it "would open the door to easy circumvention of the rule announced in Nathanson and Giordenello. " 378 U.S. at 378 U. S. 114 , n. 4. The Court stated: "A police officer who arrived at the 'suspicion,' 'belief' or 'mere conclusion' that narcotics were in someone's possession could not obtain a warrant. But he could convey this conclusion to another police officer, who could then secure the warrant by swearing that he had 'received reliable information from a credible person' that the narcotics were in someone's possession." Ibid. [ Footnote 3/3 ] There is some tension between Draper v. United States, 358 U. S. 307 (1959), and Aguilar. In Draper, the Court considered the validity of a warrantless arrest based on an informant's tip and police corroboration of certain details of the tip. The informant, who in the past had always given accurate and reliable information, told the police that Draper was peddling narcotics. The informant later told the police that Draper had left for Chicago by train to pick up some heroin and would return by train on the morning of one of two days. The informant gave the police a detailed physical description of Draper and of the clothing he was wearing. The informant also said that Draper would be carrying a tan zipper bag and that he walked very fast. 358 U.S. at 358 U. S. 309 . On the second morning specified by the informant, the police saw a man "having the exact physical attributes and wearing the precise clothing described by [the informant], alight from an incoming Chicago train and start walking 'fast' toward the exit." Id. at 358 U. S. 309 -310. The man was carrying a tan zipper bag. The police arrested him and searched him incident to the arrest. Id. at 358 U. S. 310 . The Court found that the arrest had been based on probable cause. Having verified every detail of the tip "except whether [Draper] had accomplished his mission and had the three ounces of heroin on his person or in his bag," id. at 358 U. S. 313 , the police "had reasonable grounds' to believe that the remaining unverified bit of [the informant's] information . . . was likewise true." Ibid. There is no doubt that the tip satisfied Aguilar's veracity prong. The informant had given accurate information in the past. Moreover, under Spinelli, the police corroborated most of the details of the informant's tip. See Spinelli v. United States, 393 U.S. at 393 U. S. 417 ; id. at 393 U. S. 426 -427 (WHITE, J., concurring); infra at 462 U. S. 281 , and n. 4. There is some question, however, about whether the tip satisfied Aguilar's basis of knowledge prong. The fact that an informant is right about most things may suggest that he is credible, but it does not establish that he has acquired his information in a reliable way. See Spinelli v. United States, supra, at 393 U. S. 426 -427 (WHITE, J., concurring). Spinelli's "self-verifying detail" element resolves this tension. As one commentator has suggested, "under Spinelli, the Draper decision is sound as applied to its facts." Note, The Informer's Tip As Probable Cause for Search or Arrest, 54 Cornell L.Rev. 958, 964, n. 34 (1969). [ Footnote 3/4 ] The Court stated that the Federal Bureau of Investigation's independent investigative efforts could not "support both the inference that the informer was generally trustworthy and that he had made his charge against Spinelli on the basis of information obtained in a reliable way." Spinelli v. United States, supra, at 393 U. S. 417 . The Court suggested that Draper again provided "a relevant comparison." 393 U.S. at 393 U. S. 417 . Once the police had corroborated most of the details of the tip in Draper, "[i]t was . . . apparent that the informant had not been fabricating his report out of whole cloth; since the report was of the sort which, in common experience, may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established." 393 U.S. at 393 U. S. 417 -418. It is the Court's citation of Draper which creates most of the confusion. The informant's credibility was not at issue in Draper irrespective of the corroboration of the details of his tip. See 462 U.S. 213 fn2/3|>n. 3, supra. The Court's opinion, therefore, might be read as suggesting that corroboration also could satisfy Aguilar's basis of knowledge test. I think it is more likely, however, especially in view of the discussion infra, this page and 462 U. S. 282 , that the Court simply was discussing an alternative means of satisfying Aguilar's veracity prong, using the facts of Draper as an example, and relying on its earlier determination that the detail of the tip in Draper was self-verifying. See 393 U.S. at 393 U. S. 416 -417. It is noteworthy that, although the affiant in Spinelli had sworn that the informer was reliable, "he [had] offered the magistrate no reason in support of this conclusion." Id. at 393 U. S. 416 . Aguilar's veracity prong, therefore, was not satisfied. 393 U.S. at 393 U. S. 416 . [ Footnote 3/5 ] After concluding that the tip was not sufficient to support a finding of probable cause, the Court stated: "This is not to say that the tip was so insubstantial that it could not properly have counted in the magistrate's determination. Rather, it needed some further support. When we look to the other parts of the application, however, we find nothing alleged which would permit the suspicions engendered by the informant's report to ripen into a judgment that a crime was probably being committed." Spinelli v. United States, 393 U.S. at 393 U. S. 418 . The Court went on to suggest that corroboration of incriminating facts would be needed. See ibid. [ Footnote 3/6 ] As noted supra at 462 U. S. 277 -282, Aguilar and Spinelli inform the police of what information they have to provide and magistrates of what information they should demand. This advances the important process value, which is intimately related to substantive Fourth Amendment concerns, of having magistrates, rather than police or informants, determine whether there is probable cause to support the issuance of a warrant. We want the police to provide magistrates with the information on which they base their conclusions so that magistrates can perform their important function. When the police rely on facts about which they have personal knowledge, requiring them to disclose those facts to magistrates imposes no significant burden on the police. When the police rely on information obtained from confidential informants, requiring the police to disclose the facts on which the informants based their conclusions imposes a more substantial burden on the police, but it is one that they can meet because they presumably have access to their confidential informants. In cases in which the police rely on information obtained from an anonymous informant, the police, by hypothesis, cannot obtain further information from the informant regarding the facts and circumstances on which the informant based his conclusion. When the police seek a warrant based solely on an anonymous informant's tip, therefore, they are providing the magistrate with all the information on which they have based their conclusion. In this respect, the command of Aguilar and Spinelli has been met and the process value identified above has been served. But Aguilar and Spinelli advance other values which argue for their application even to anonymous informants' tips. They structure the magistrate's probable cause inquiry and, more importantly, they guard against findings of probable cause, and attendant intrusions, based on anything other than information which magistrates reasonably can conclude has been obtained in a reliable way by an honest or credible person. [ Footnote 3/7 ] In Jaben v. United States, the Court considered whether there was probable cause to support a complaint charging petitioner with willfully filing a false tax return. 381 U.S. at 381 U. S. 221 . After reviewing the extensive detail contained in the complaint, id. at 381 U. S. 223 , the Court expressly distinguished tax offenses from other types of offenses: "Some offenses are subject to putative establishment by blunt and concise factual allegations, e.g., 'A saw narcotics in B's possession,' whereas 'A saw B file a false tax return' does not mean very much in a tax evasion case. Establishment of grounds for belief that the offense of tax evasion has been committed often requires a reconstruction of the taxpayer's income from many individually unrevealing facts which are not susceptible of a concise statement in a complaint. Furthermore, unlike narcotics informants, for example, whose credibility may often be suspect, the sources in this tax evasion case are much less likely to produce false or untrustworthy information. Thus, whereas some supporting information concerning the credibility of informants in narcotics cases or other common garden varieties of crime may be required, such information is not so necessary in the context of the case before us." Id. at 381 U. S. 223 -224. Obviously, Jaben is not inconsistent with Aguilar, and involved no general rejection of the Aguilar standards. [ Footnote 3/8 ] Rugendorf v. United States, 376 U. S. 528 (1964); Ker v. California, 374 U. S. 23 (1963); Jones v. United States, 362 U. S. 257 (1960). [ Footnote 3/9 ] The Court also argues that, "[i]f the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search." Ante at 462 U. S. 236 . If the Court is suggesting, as it appears to be, that the police will intentionally disregard the law, it need only be noted in response that the courts are not helpless to deal with such conduct. Moreover, as was noted in Coolidge v. New Hampshire, 403 U. S. 443 (1971): "[T]he most basic constitutional rule in this area is that" "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineted exceptions." "The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' '[T]he burden is on those seeking the exemption to show the need for it.'" Id. at 403 U. S. 454 -455 (plurality opinion) (footnotes omitted). It therefore would appear to be not only inadvisable, but also unavailing, for the police to conduct warrantless searches in "the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search." Ante at 462 U. S. 236 . JUSTICE STEVENS, with whom JUSTICE BRENNAN joins, dissenting. The fact that Lance and Sue Gates made a 22-hour nonstop drive from West Palm Beach, Florida, to Bloomingdale, Illinois, only a few hours after Lance had flown to Florida provided persuasive evidence that they were engaged in illicit activity. That fact, however, was not known to the judge when he issued the warrant to search their home. What the judge did know at that time was that the anonymous informant had not been completely accurate in his or her predictions. The informant had indicated that " sue . . . drives their car to Florida where she leaves it to be loaded up with drugs. . . . Sue fl[ies] back after she drops the car off in Florida. '" 85 Ill. 2d 376 , 379, 423 N.E.2d 887 , 888 (1981) (emphasis added). Yet Detective Mader's affidavit reported that she "`left the West Palm Beach area driving the Mercury north-bound.'" 82 Ill.App.3d 749, 757, 403 N.E.2d 77, 82 (1980). The discrepancy between the informant's predictions and the facts known to Detective Mader is significant for three reasons. First, it cast doubt on the informant's hypothesis that the Gates already had " over [$100,000] worth of drugs in their basement,'" 85 Ill. 2d at 379, 423 N.E.2d at 888. The informant had predicted an itinerary that always kept one Page 462 U. S. 292 spouse in Bloomingdale, suggesting that the Gates did not want to leave their home unguarded because something valuable was hidden within. That inference obviously could not be drawn when it was known that the pair was actually together over a thousand miles from home. Second, the discrepancy made the Gates' conduct seem substantially less unusual than the informant had predicted it would be. It would have been odd if, as predicted, Sue had driven down to Florida on Wednesday, left the car, and flown right back to Illinois. But the mere facts that Sue was in West Palm Beach with the car, [ Footnote 4/1 ] that she was joined by her husband at the Holiday Inn on Friday, [ Footnote 4/2 ] and that the couple drove north together the next morning [ Footnote 4/3 ] are neither unusual nor probative of criminal activity. Page 462 U. S. 293 Third, the fact that the anonymous letter contained a material mistake undermines the reasonableness of relying on it as a basis for making a forcible entry into a private home. [ Footnote 4/4 ] Of course, the activities in this case did not stop when the judge issued the warrant. The Gates drove all night to Bloomingdale, the officers searched the car and found 400 pounds of marihuana, and then they searched the house. [ Footnote 4/5 ] However, none of these subsequent events may be considered in evaluating the warrant, [ Footnote 4/6 ] and the search of the house was legal only if the warrant was valid. Vale v. Louisiana, 399 U. S. 30 , 399 U. S. 33 -35 (1970). I cannot accept the Court's casual conclusion that, before the Gates arrived in Bloomindale, there was probable cause to justify a valid entry and search of a private home. No one knows who the informant in this case was, or what motivated him or her to write the note. Given that the note's predictions were faulty in one Page 462 U. S. 294 significant respect, and were corroborated by nothing except ordinary innocent activity, I must surmise that the Court's evaluation of the warrant's validity has been colored by subsequent events. [ Footnote 4/7 ] Although the foregoing analysis is determinative as to the house search, the car search raises additional issues, because "there is a constitutional difference between houses and cars." Chambers v. Maroney, 399 U. S. 42 , 399 U. S. 52 (1970). Cf. Payton v. New York, 445 U. S. 573 , 445 U. S. 589 -590 (1980). An officer who has probable cause to suspect that a highly movable automobile contains contraband does not need a valid warrant in order to search it. This point was developed in our opinion in United States v. Ross, 456 U. S. 798 (1982), which was not decided until after the Illinois Supreme Court rendered its decision in this case. Under Ross, the car search may have been valid if the officers had probable cause after the Gates arrived. In apologizing for its belated realization that we should not have ordered reargument in this case, the Court today shows high regard for the appropriate relationship of this Court to state courts. Ante at 462 U. S. 221 -222. When the Court discusses the merits, however, it attaches no weight to the conclusions of the Circuit Judge of Du Page County, Illinois, of the three judges of the Second District of the Illinois Appellate Court, or of the five justices of the Illinois Supreme Court, all of whom concluded that the warrant was not based on probable cause. In a fact-bound inquiry of this sort, the judgment of three levels of state courts, all of which are better able to evaluate the probable reliability of anonymous informants in Page 462 U. S. 295 Bloomingdale, Illinois, than we are, should be entitled to at least a presumption of accuracy. [ Footnote 4/8 ] I would simply vacate the judgment of the Illinois Supreme Court and remand the case for reconsideration in the light of our intervening decision in United States v. Ross. [ Footnote 4/1 ] The anonymous note suggested that she was going down on Wednesday, 85 Ill. 2d at 379, 423 N.E.2d at 888, but for all the officers knew, she had been in Florida for a month. 82 Ill.App.3d at 755-757, 403 N.E.2d at 82-83. [ Footnote 4/2 ] Lance does not appear to have behaved suspiciously in flying down to Florida. He made a reservation in his own name and gave an accurate home phone number to the airlines. Cf. Florida v. Royer, 460 U. S. 491 , 460 U. S. 493 , n. 2 (1983); United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 548 (1980) (Stewart, J., announcing the judgment). And Detective Mader's affidavit does not report that he did any of the other things drug couriers are notorious for doing, such as paying for the ticket in cash, Royer, 460 U.S. at 460 U. S. 493 , n. 2, dressing casually, ibid., looking pale and nervous, ibid.; Mendenhall, supra, at 446 U. S. 548 , improperly filling out baggage tags, Royer, 460 U.S. at 460 U. S. 493 , n. 2, carrying American Tourister luggage, ibid., not carrying any luggage, Mendenhall, 446 U.S. at 446 U. S. 564 -565 (POWELL, J., concurring in part and concurring in judgment), or changing airlines en route, ibid. [ Footnote 4/3 ] Detective Mader's affidavit hinted darkly that the couple had set out upon "that interstate highway commonly used by travelers to the Chicago area." But the same highway is also commonly used by travelers to Disney World, Sea World, and Ringling Brothers and Barnum and Bailey Circus World. It is also the road to Cocoa Beach, Cape Canaveral, and Washington, D.C. I would venture that, each year, dozens of perfectly innocent people fly to Florida, meet a waiting spouse, and drive off together in the family car. [ Footnote 4/4 ] The Court purports to rely on the proposition that, "if the [anonymous] informant could predict with considerable accuracy the somewhat unusual travel plans of the Gateses, he probably also had a reliable basis for his statements that the Gateses kept a large quantity of drugs in their home." Ante at 462 U. S. 245 -246, n. 14 (emphasis added). Even if this syllogism were sound, but see Spinelli v. United States, 393 U. S. 410 , 393 U. S. 427 (1969) (WHITE, J., concurring), its premises are not met in this case. [ Footnote 4/5 ] The officers did not enter the unoccupied house as soon as the warrant issued; instead, they waited until the Gates returned. It is unclear whether they waited because they wanted to execute the warrant without unnecessary property damage or because they had doubts about whether the informant's tip was really valid. In either event their judgment is to be commended. [ Footnote 4/6 ] It is a truism that "a search warrant is valid only if probable cause has been shown to the magistrate, and that an inadequate showing may not be rescued by post-search testimony on information known to the searching officers at the time of the search." Rice v. Wolff, 513 F.2d 1280, 1287 (CA8 1975). See Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 450 -451 (1971); Whiteley v. Warden, 401 U. S. 560 , 401 U. S. 565 , n. 8 (1971); Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 109 , n. 1 (1964); Jones v. United States, 357 U. S. 493 , 357 U. S. 497 -498 (1958); Giordenello v. United States, 357 U. S. 480 , 357 U. S. 486 (1958); Taylor v. United States, 286 U. S. 1 , 286 U. S. 6 (1932); Agnello v. United States, 269 U. S. 20 , 269 U. S. 33 (1925). [ Footnote 4/7 ] Draper v. United States, 358 U. S. 307 (1959), affords no support for today's holding. That case did not involve an anonymous informant. On the contrary, as the Court twice noted, Mr. Hereford was "employed for that purpose, and [his] information had always been found accurate and reliable." Id. at 358 U. S. 313 ; see id. at 358 U. S. 309 . In this case, the police had no prior experience with the informant, and some of his or her information in this case was unreliable and inaccurate. [ Footnote 4/8 ] The Court holds that what were heretofore considered two independent "prongs" -- "veracity" and "basis of knowledge" -- are now to be considered together as circumstances whose totality must be appraised. Ante at 462 U. S. 233 . "[A] deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Ibid. Yet in this case, the lower courts found neither factor present. 85 Ill. 2d at 390, 423 N.E.2d at 893. And the supposed "other indicia" in the affidavit take the form of activity that is not particularly remarkable. I do not understand how the Court can find that the "totality" so far exceeds the sum of its "circumstances."

The Supreme Court ruled that a search warrant can be issued based on an anonymous tip if the information provided is detailed enough to indicate a reliable basis of knowledge and can be corroborated by the police. In this case, the anonymous letter provided specific details about the Gateses' travel plans and drug activities, which were verified by the police through their investigation and surveillance. However, Justice White, in his dissent, argued that the police's independent corroboration of innocent activity was not sufficient to establish probable cause.

Search & Seizure

Massachusetts v. Upton

https://supreme.justia.com/cases/federal/us/466/727/

U.S. Supreme Court Massachusetts v. Upton, 466 U.S. 727 (1984) Massachusetts v. Upton No. 83-1338 Decided May 14, 1984 466 U.S. 727 ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS Syllabus City police officers, executing a search warrant for a motel room reserved by Richard Kelleher, discovered several items of identification, including credit cards, belonging to two persons whose homes had recently been burglarized, but other items taken in the burglaries, such as jewelry, silver, and gold, were not found. About three hours later, one of the officers received a phone call from an unidentified female who told him that a motor home containing stolen items, including jewelry, silver, and gold, was parked behind respondent's home; that respondent had purchased the items from Kelleher; and that respondent was going to move the motor home because of the search of the motel room. The caller also stated that she had seen the stolen items, but refused to identify herself because "he'll [referring to respondent] kill me." When the officer told the caller that he knew her name because he had met her and she had been identified as respondent's girlfriend, the caller admitted her identity and told the officer that she had broken up with respondent and "wanted to burn him." Following the call, the officer verified that a motor home was parked on the property and, while other officers watched the premises, prepared an application for a search warrant, setting out the information noted above in an affidavit and also attaching police reports on the two prior burglaries and lists of the stolen property. A Magistrate issued the warrant, and a subsequent search of the motor home produced the items described by the caller and other incriminating evidence. The discovered evidence led to respondent's conviction on multiple counts of burglary, receiving stolen property, and related crimes. However, the Massachusetts Supreme Judicial Court held that the warrant violated the Fourth Amendment because it was not supported by a sufficient showing of probable cause, and reversed respondent's convictions. It interpreted Illinois v. Gates, 462 U. S. 213 , as merely refining the previous "two-pronged" test -- which related to an informant's "basis of knowledge" and its "reliability" -- by allowing corroboration of the informant's tip to make up for a failure to satisfy the two-pronged test. The court concluded that the two-pronged test was not met here, and that there was insufficient corroboration of the informant's tip. Page 466 U. S. 728 Held: The two-pronged test was rejected in Gates, which instead held that the Fourth Amendment's requirement of probable cause for the issuance of a warrant is to be applied, not according to a fixed and rigid formula, but rather in the light of the "totality of the circumstances" made known to the magistrate, and which emphasized that the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is sufficient evidence to provide a "substantial basis" for the magistrate's decision to issue the warrant. When properly examined in light of Gates, the officer's affidavit in this case provided a substantial basis for the Magistrate's issuance of the warrant. Certiorari granted; 390 Mass. 562, 458 N.E.2d 717 , reversed and remanded. PER CURIAM. Last Term, in Illinois v. Gates, 462 U. S. 213 (1983), we held that the Fourth Amendment's requirement of probable cause for the issuance of a warrant is to be applied, not according to a fixed and rigid formula, but rather in the light of the "totality of the circumstances" made known to the magistrate. We also emphasized that the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant. In this case, the Supreme Judicial Court of Massachusetts, interpreting the probable cause requirement of the Fourth Amendment to the United States Constitution, continued to rely on the approach set forth in cases such as Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969). 390 Mass. 562, 458 N.E.2d 717 (1983). Since this approach was rejected in Gates, we grant the petition for certiorari in this case and reverse the judgment of the Supreme Judicial Court. At noon on September 11, 1980, Lieutenant Beland of the Yarmouth Police Department assisted in the execution of a search warrant for a motel room reserved by one Richard Kelleher at the Snug Harbor Motel in West Yarmouth. The search produced several items of identification, including Page 466 U. S. 729 credit cards, belonging to two persons whose homes had recently been burglarized. Other items taken in the burglaries, such as jewelry, silver, and gold, were not found at the motel. At 3:20 p. m. on the same day, Lieutenant Beland received a call from an unidentified female who told him that there was "a motor home full of stolen stuff" parked behind #5 Jefferson Ave., the home of respondent George Upton and his mother. She stated that the stolen items included jewelry, silver, and gold. As set out in Lieutenant Beland's affidavit in support of a search warrant: "She further stated that George Upton was going to move the motor home any time now because of the fact that Ricky Kelleher's motel room was raided, and that George [Upton] had purchased these stolen items from Ricky Kelleher. This unidentified female stated that she had seen the stolen items, but refused to identify herself because 'he'll kill me,' referring to George Upton. I then told this unidentified female that I knew who she was, giving her the name of Lynn Alberico, who I had met on May 16, 1980, at George Upton's repair shop off Summer St., in Yarmouthport. She was identified to me by George Upton as being his girlfriend, Lynn Alberico. The unidentified female admitted that she was the girl that I had named, stating that she was surprised that I knew who she was. She then told me that she'd broken up with George Upton and wanted to burn him. She also told me that she wouldn't give me her address or phone number but that she would contact me in the future, if need be." See 390 Mass. at 564 n. 2, 458 N.E.2d at 718, n. 2. Following the phone call, Lieutenant Beland went to Upton's house to verify that a motor home was parked on the property. Then, while other officers watched the premises, Lieutenant Beland prepared the application for a search warrant, Page 466 U. S. 730 setting out all the information noted above in an accompanying affidavit. He also attached the police reports on the two prior burglaries, along with lists of the stolen property. A Magistrate issued the warrant, and a subsequent search of the motor home produced the items described by the caller and other incriminating evidence. The discovered evidence led to Upton's conviction on multiple counts of burglary, receiving stolen property, and related crimes. On appeal to the Supreme Judicial Court, respondent argued that the search warrant was not supported by a sufficient showing of "probable cause" under the Fourth Amendment. With respect to our Gates opinion, that court said: "It is not clear that the Gates opinion has announced a significant change in the appropriate Fourth Amendment treatment of applications for search warrants. Looking at what the Court did on the facts before it, and rejecting an expansive view of certain general statements not essential to the decision, we conclude that the Gates opinion deals principally with what corroboration of an informant's tip, not adequate by itself, will be sufficient to meet probable cause standards." 390 Mass. at 568, 458 N.E.2d at 720. Prior to Gates, the Fourth Amendment was understood by many courts to require strict satisfaction of a "two-pronged test" whenever an affidavit supporting the issuance of a search warrant relies on an informant's tip. It was thought that the affidavit, first, must establish the "basis of knowledge" of the informant -- the particular means by which he came by the information given in his report; and, second, that it must provide facts establishing either the general "veracity" of the informant or the specific "reliability" of his report in the particular case. The Massachusetts court apparently viewed Gates as merely adding a new wrinkle to this two-pronged test: where an informant's veracity and/or basis of knowledge are not sufficiently clear, substantial corroboration of the tip may save an otherwise invalid warrant. Page 466 U. S. 731 "We do not view the Gates opinion as decreeing a standardless 'totality of the circumstances' test. The informant's veracity and the basis of his knowledge are still important but, where the tip is adequately corroborated, they are not elements indispensible [ sic ] to a finding of probable cause. It seems that, in a given case, the corroboration may be so strong as to satisfy probable cause in the absence of any other showing of the informant's 'veracity' and any direct statement of the 'basis of [his] knowledge.'" 390 Mass. at 568, 458 N.E.2d at 721. Turning to the facts of this case, the Massachusetts court reasoned, first, that the basis of the informant's knowledge was not "forcefully apparent" in the affidavit. Id. at 569, 458 N.E.2d at 721. Although the caller stated that she had seen the stolen items and that they were in the motor home, she did not specifically state that she saw them in the motor home. Second, the court concluded that "[n]one of the common bases for determining the credibility of an informant or the reliability of her information is present here." Ibid. The caller was not a "tried and true" informant, her statement was not against penal interest, and she was not an "ordinary citizen" providing information as a witness to a crime. "She was an anonymous informant, and her unverified assent to the suggestion that she was Lynn Alberico does not take her out of that category." Id. at 570, 458 N.E.2d at 722. Finally, the court felt that there was insufficient corroboration of the informant's tip to make up for its failure to satisfy the two-pronged test. The facts that tended to corroborate the informant's story were that the motor home was where it was supposed to be, that the caller knew of the motel raid which took place only three hours earlier, and that the caller knew the name of Upton and his girlfriend. But, much as the Supreme Court of Illinois did in the opinion we reviewed in Gates, the Massachusetts court reasoned that each item of corroborative evidence either related to innocent, nonsuspicious conduct or related to an event that took place in Page 466 U. S. 732 public. To sustain the warrant, the court concluded, more substantial corroboration was needed. The court therefore held that the warrant violated the Fourth Amendment to the United States Constitution, and reversed respondent's convictions. We think that the Supreme Judicial Court of Massachusetts misunderstood our decision in Gates. We did not merely refine or qualify the "two-pronged test." We rejected it as hypertechnical and divorced from "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U. S. 160 , 338 U. S. 175 (1949). Our statement on that score was explicit. "[W]e conclude that it is wiser to abandon the 'two-pronged test' established by our decisions in Aguilar and Spinelli. In its place, we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations." Gates, 462 U.S. at 462 U. S. 238 . This "totality-of-the-circumstances" analysis is more in keeping with the "practical, common-sense decision" demanded of the magistrate. Ibid. We noted in Gates that "the 'two-pronged test' has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate." Id. at 462 U. S. 234 -235 (footnote omitted). This, we think, is the error of the Massachusetts court in this case. The court did not consider Lieutenant Beland's affidavit in its entirety, giving significance to each relevant piece of information and balancing the relative weights of all the various indicia of reliability (and unreliability) attending the tip. Instead, the court insisted on judging bits and pieces of information in isolation against the artificial standards provided by the two-pronged test. The Supreme Judicial Court also erred in failing to grant any deference to the decision of the Magistrate to issue a warrant. Instead of merely deciding whether the evidence, Page 466 U. S. 733 viewed as a whole, provided a "substantial basis" for the Magistrate's finding of probable cause, the court conducted a de novo probable cause determination. We rejected just such after-the-fact, de novo scrutiny in Gates. Id. at 462 U. S. 236 . "A grudging or negative attitude by reviewing courts toward warrants," United States v. Ventresca, 380 U. S. 102 , 380 U. S. 108 (1965), is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that, once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. Gates, supra, at 462 U. S. 237 , n. 10. * A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant. Examined in light of Gates, Lieutenant Beland's affidavit provides a substantial basis for the issuance of the warrant. No single piece of evidence in it is conclusive. But the pieces fit neatly together and, so viewed, support the Magistrate's determination that there was "a fair probability that contraband or evidence of a crime" would be found in Upton's motor home. 462 U.S. at 462 U. S. 238 . The informant claimed to have seen the stolen goods, and gave a description of them which tallied with the items taken in recent burglaries. She knew of the raid on the motel room -- which produced evidence connected to those burglaries -- and that the room had been reserved by Kelleher. She explained the connection between Page 466 U. S. 734 Kelleher's motel room and the stolen goods in Upton's motor home. And she provided a motive both for her attempt at anonymity -- fear of Upton's retaliation -- and for furnishing the information -- her recent breakup with Upton and her desire "to burn him." The Massachusetts court dismissed Lieutenant Beland's identification of the caller as a mere "unconfirmed guess." 390 Mass. at 569, n. 6, 458 N.E.2d at 721, n. 6. But "probable cause does not demand the certainty we associate with formal trials." Gates, supra, at 462 U. S. 246 . Lieutenant Beland noted that the caller "admitted that she was the girl I had named, stating that she was surprised that I knew who she was." It is, of course, possible that the caller merely adopted Lieutenant Beland's suggestion as "a convenient cover for her true identity." 390 Mass. at 570, 458 N.E.2d at 722. But given the caller's admission, her obvious knowledge of who Alberico was and how she was connected with Upton, and her explanation of her motive in calling, Lieutenant Beland's inference appears stronger than a mere uninformed and unconfirmed guess. It is enough that the inference was a reasonable one and conformed with the other pieces of evidence making up the total showing of probable cause. In concluding that there was probable cause for the issuance of this warrant, the Magistrate can hardly be accused of approving a mere "hunch" or a bare recital of legal conclusions. The informant's story and the surrounding facts possessed an internal coherence that gave weight to the whole. Accordingly, we conclude that the information contained in Lieutenant Beland's affidavit provided a sufficient basis for the "practical, common-sense decision" of the Magistrate. "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, supra, at 380 U. S. 109 . Page 466 U. S. 735 The judgment of the Supreme Judicial Court of Massachusetts is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE BRENNAN and JUSTICE MARSHALL dissent from the summary disposition of this case, and would deny the petition for certiorari. * "If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring" "the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." " United States v. Chadwick, 433 U. S. 1 , 433 U. S. 9 (1977)." Gates, 462 U.S. at 462 U. S. 236 . JUSTICE STEVENS, concurring in the judgment. In my opinion, the judgment of the Supreme Judicial Court of Massachusetts reflects an error of a more fundamental character than the one this Court corrects today. It rested its decision on the Fourth Amendment to the United States Constitution without telling us whether the warrant was valid as a matter of Massachusetts law. [ Footnote 1 ] It has thereby increased its own burdens, as well as ours. For when the case returns to that court, it must then review the probable cause issue once again and decide whether or not a violation of the state constitutional protection against unreasonable searches and seizures has occurred. If such a violation did take place, much of that court's first opinion, and all of this Court's opinion, are for naught. [ Footnote 2 ] If no such violation occurred, the second Page 466 U. S. 736 proceeding in that court could have been avoided by a ruling to that effect when the case was there a year ago. If the Magistrate had violated a state statute when he issued the warrant, surely the State Supreme Judicial Court would have so held, and thereby avoided the necessity of deciding a federal constitutional question. I see no reason why it should not have followed the same sequence of analysis when an arguable violation of the State Constitution is disclosed by the record. As the Oregon Supreme Court has stated: "The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim. This is required not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law." Sterling v. Cupp, 290 Ore. 611, 614, 625 P.2d 123 , 126 (1981). [ Footnote 3 ] The maintenance of the proper balance between the respective jurisdictions of state and federal courts is always a difficult task. In recent years, I have been concerned by what I have regarded as an encroachment by this Court into territory that should be reserved for state judges. See, e.g., Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1065 (1983) (STEVENS, J., dissenting); South Dakota v. Neville, 459 U. S. 553 , 459 U. S. 566 (1983) (STEVENS, J., dissenting); Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 , 449 U. S. 477 -489 (1981) (STEVENS, J., dissenting); Idaho Department of Employment v. Smith, 434 U. S. 100 , 434 U. S. 103 -105 (1977) (STEVENS, J., dissenting in part). The maintenance of this balance is, however, a two-way Page 466 U. S. 737 street. It is also important that state judges do not unnecessarily invite this Court to undertake review of state court judgments. I believe the Supreme Judicial Court of Massachusetts unwisely and unnecessarily invited just such review in this case. Its judgment in this regard reflects a misconception of our constitutional heritage and the respective jurisdictions of state and federal courts. The absence of a Bill of Rights in the Constitution proposed by the Federal Constitutional Convention of 1787 was a major objection to the Convention's proposal. See, e.g., 12 The Papers of Thomas Jefferson 438 (Boyd ed.1955). In defense of the Convention's plan Alexander Hamilton argued that the enumeration of certain rights was not only unnecessary, given that such rights had not been surrendered by the people in their grant of limited powers to the Federal Government, but "would even be dangerous" on the ground that enumerating certain rights could provide a "plausible pretense" for the Government to claim powers not granted in derogation of the people's rights. The Federalist No. 84, pp. 573, 574 (Ford ed. 1898) (A. Hamilton). The latter argument troubled the First Congress during deliberations on the Bill of Rights, and its solution became the Ninth Amendment. See 1 Annals of Congress 439 (1789) (remarks of Rep. Madison). The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." To the extent that the Bill of Rights is applicable to the States under the Fourteenth Amendment, the principle embodied in the Ninth Amendment is applicable as well. The Ninth Amendment, it has been said, states but a truism. But that truism goes to the very core of the constitutional relationship between the individual and governmental authority, and, indeed, between sovereigns exercising authority over the individual. In my view, the court below lost sight of this truism, and permitted the enumeration of certain rights in the Fourth Amendment to disparage the rights retained by the people of Page 466 U. S. 738 Massachusetts under Art. 14 of the Massachusetts Declaration of Rights. It is, of course, not my role to state what rights Art. 14 confers upon the people of Massachusetts; under our system of federalism, only Massachusetts can do that. The state court refused to perform that function, however, and instead strained to rest its judgment on federal constitutional grounds. Whatever protections Art. 14 does confer are surely disparaged when the Supreme Judicial Court of Massachusetts refuses to adjudicate their very existence because of the enumeration of certain rights in the Constitution of the United States. The rights conferred by Art. 14 may not only exceed the rights conferred by the Fourth Amendment as construed by this Court in Gates, but indeed may exceed the rights conferred by the Fourth Amendment as construed by the state court. The dissent followed the approach of the majority to its logical conclusion, stating that there "appears to be no logical basis, and no support in the case law, for interpreting the term 'cause' in art. 14 differently from the 'probable cause' requirement of the Fourth Amendment." 390 Mass. 562, 580, 458 N.E.2d 717 , 727 (1983). "The right question," however, "is not whether a state's guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state's guarantee means, and how it applies to the case at hand. The answer may turn out the same as it would under federal law. The state's law may prove to be more protective than federal law. The state law also may be less protective. In that case, the court must go on to decide the claim under federal law, assuming it has been raised." Linde, E Pluribus -- Constitutional Theory and State Courts, 18 Ga.L.Rev. 165, 179 (1984). It must be remembered that, for the first century of this Nation's history, the Bill of Rights of the Constitution of the United States was solely a protection for the individual in relation to federal authorities. State Constitutions protected Page 466 U. S. 739 the liberties of the people of the several States from abuse by state authorities. The Bill of Rights is now largely applicable to state authorities, and is the ultimate guardian of individual rights. The States in our federal system, however, remain the primary guardian of the liberty of the people. The Massachusetts court, I believe, ignored this fundamental premise of our constitutional system of government. In doing so, it made an ill-advised entry into the federal domain. Accordingly, I concur in the Court's judgment. [ Footnote 1 ] Indeed, that court rather pointedly refused to consider whether the search violated the provisions of Art. 14 of the Massachusetts Declaration of Rights. It stated, in part: "If we have correctly construed the significance of Illinois v. Gates, the Fourth Amendment standards for determining probable cause to issue a search warrant have not been made so much less clear and so relaxed as to compel us to try our hand at a definition of standards under art. 14. If we have misassessed the consequences of the Gates opinion and in fact the Gates standard proves to be unacceptably shapeless and permissive, this court may have to define the protections guaranteed to the people against unreasonable searches and seizures by art. 14, and the consequences of the violation of those protections." 390 Mass. 562, 573-574, 458 N.E.2d 717 , 724 (1983). [ Footnote 2 ] Cf. South Dakota v. Opperman, 428 U. S. 364 (1976) ( rev'g 89 S.D. 25, 228 N.W.2d 152), on remand, 247 N.W.2d 673 (1976) (judgment reinstated on state grounds); South Dakota v. Neville, 459 U. S. 553 (1983) ( rev'g 312 N.W.2d 723 (1981)), on remand, 346 N.W.2d 425 (1984) (judgment reinstated in part on state grounds). [ Footnote 3 ] See also State v. Kennedy, 295 Ore. 260, 666 P.2d 1316 (1983), and cases cited therein, id. at 262, 666 P.2d at 1318; Hewitt v. State Accident Ins. Fund Corp., 294 Ore. 33, 41-42, 653 P.2d 970 , 975 (1982).

The Supreme Court reversed the decision of the Massachusetts Supreme Judicial Court, which had ruled that a search warrant was not supported by probable cause and thus violated the Fourth Amendment. The Court held that the two-pronged test for determining probable cause (informant's "basis of knowledge" and "reliability") had been rejected in a previous case, Illinois v. Gates, and emphasized that the totality of the circumstances must be considered when determining probable cause for a warrant. The Court found that the informant's tip, along with police corroboration, provided sufficient probable cause for the warrant.

Search & Seizure

U.S. v. Place

https://supreme.justia.com/cases/federal/us/462/696/

U.S. Supreme Court United States v. Place, 462 U.S. 696 (1983) United States v. Place No. 81-1617 Argued March 2, 1983 Decided June 20, 1983 462 U.S. 696 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus When respondent's behavior aroused the suspicion of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New York's La Guardia Airport, the officers approached respondent and requested and received identification. Respondent consented to a search of the two suitcases he had checked, but, because his flight was about to depart, the officers decided not to search the luggage. The officers then found some discrepancies in the address tags on the luggage and called Drug Enforcement Administration (DEA) authorities in New York to relay this information. Upon respondent's arrival at La Guardia Airport, two DEA agents approached him, said that they believed he might be carrying narcotics, and asked for and received identification. When respondent refused to consent to a search of his luggage, one of the agents told him that they were going to take it to a federal judge to obtain a search warrant. The agents then took the luggage to Kennedy Airport where it was subjected to a "sniff test" by a trained narcotics detection dog which reacted positively to one of the suitcases. At this point, 90 minutes had elapsed since the seizure of the luggage. Thereafter, the agents obtained a search warrant for that suitcase and, upon opening it, discovered cocaine. Respondent was indicted for possession of cocaine with intent to distribute, and the District Court denied his motion to suppress the contents of the suitcase. He pleaded guilty to the charge and was convicted, but reserved the right to appeal the denial of his motion to suppress. The Court of Appeals reversed, holding that the prolonged seizure of respondent's luggage exceeded the limits of the type of investigative stop permitted by Terry v. Ohio, 392 U. S. 1 , and hence amounted to a seizure without probable cause in violation of the Fourth Amendment. Held: Under the circumstances, the seizure of respondent's luggage violated the Fourth Amendment. Accordingly, the evidence obtained from the subsequent search of the luggage was inadmissible, and respondent's conviction must be reversed. Pp. 462 U. S. 700 -710. (a) When an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny permit the officer to detain the luggage temporarily to investigate the circumstances that aroused the officer's suspicion, Page 462 U. S. 697 provided that the investigative detention is properly limited in scope. Pp. 462 U. S. 700 -706. (b) The investigative procedure of subjecting luggage to a "sniff test" by a well-trained narcotics detection dog does not constitute a "search" within the meaning of the Fourth Amendment. Pp. 462 U. S. 706 -707. (c) When the police seize luggage from the suspect's custody, the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the luggage on less than probable cause. Under this standard, the police conduct here exceeded the permissible limits of a Terry -type investigative stop. The length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. This Fourth Amendment violation was exacerbated by the DEA agents' failure to inform respondent accurately of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. Pp. 462 U. S. 707 -710. 660 F.2d 44, affirmed. O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in the result, in which MARSHALL, J., joined, post, p. 462 U. S. 710 . BLACKMUN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 462 U. S. 720 . JUSTICE O'CONNOR delivered the opinion of the Court. This case presents the issue whether the Fourth Amendment prohibits law enforcement authorities from temporarily Page 462 U. S. 698 detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics. Given the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion that a properly limited detention would entail, we conclude that the Fourth Amendment does not prohibit such a detention. On the facts of this case, however, we hold that the police conduct exceeded the bounds of a permissible investigative detention of the luggage. I Respondent Raymond J. Place's behavior aroused the suspicions of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New York's La Guardia Airport. As Place proceeded to the gate for his flight, the agents approached him and requested his airline ticket and some identification. Place complied with the request and consented to a search of the two suitcases he had checked. Because his flight was about to depart, however, the agents decided not to search the luggage. Prompted by Place's parting remark that he had recognized that they were police, the agents inspected the address tags on the checked luggage and noted discrepancies in the two street addresses. Further investigation revealed that neither address existed, and that the telephone number Place had given the airline belonged to a third address on the same street. On the basis of their encounter with Place and this information, the Miami agents called Drug Enforcement Administration (DEA) authorities in New York to relay their information about Place. Two DEA agents waited for Place at the arrival gate at La Guardia Airport in New York. There again, his behavior aroused the suspicion of the agents. After he had claimed his two bags and called a limousine, the agents decided to approach him. They identified themselves as federal narcotics agents, to which Place responded that he knew they were "cops" and had spotted them as soon as he had deplaned. Page 462 U. S. 699 One of the agents informed Place that, based on their own observations and information obtained from the Miami authorities, they believed that he might be carrying narcotics. After identifying the bags as belonging to him, Place stated that a number of police at the Miami Airport had surrounded him and searched his baggage. The agents responded that their information was to the contrary. The agents requested and received identification from Place -- a New Jersey driver's license, on which the agents later ran a computer check that disclosed no offenses, and his airline ticket receipt. When Place refused to consent to a search of his luggage, one of the agents told him that they were going to take the luggage to a federal judge to try to obtain a search warrant, and that Place was free to accompany them. Place declined, but obtained from one of the agents telephone numbers at which the agents could be reached. The agents then took the bags to Kennedy Airport, where they subjected the bags to a "sniff test" by a trained narcotics detection dog. The dog reacted positively to the smaller of the two bags but ambiguously to the larger bag. Approximately 90 minutes had elapsed since the seizure of respondent's luggage. Because it was late on a Friday afternoon, the agents retained the luggage until Monday morning, when they secured a search warrant from a Magistrate for the smaller bag. Upon opening that bag, the agents discovered 1,125 grams of cocaine. Place was indicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In the District Court, Place moved to suppress the contents of the luggage seized from him at La Guardia Airport, claiming that the warrantless seizure of the luggage violated his Fourth Amendment rights. [ Footnote 1 ] The District Court denied the motion. Page 462 U. S. 700 Applying the standard of Terry v. Ohio, 392 U. S. 1 (1968), to the detention of personal property, it concluded that detention of the bags could be justified if based on reasonable suspicion to believe that the bags contained narcotics. Finding reasonable suspicion, the District Court held that Place's Fourth Amendment rights were not violated by seizure of the bags by the DEA agents. 498 F. Supp. 1217 , 1228 (EDNY 1980). Place pleaded guilty to the possession charge, reserving the right to appeal the denial of his motion to suppress. On appeal of the conviction, the United States Court of Appeals for the Second Circuit reversed. 660 F.2d 44 (1981). The majority assumed both that Terry principles could be applied to justify a warrantless seizure of baggage on less than probable cause, and that reasonable suspicion existed to justify the investigatory stop of Place. The majority concluded, however, that the prolonged seizure of Place's baggage exceeded the permissible limits of a Terry -type investigative stop, and consequently amounted to a seizure without probable cause in violation of the Fourth Amendment. We granted certiorari, 457 U.S. 1104 (1982), and now affirm. II The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (Emphasis added.) Although, in the context of personal property, and particularly containers, the Fourth Amendment challenge is Page 462 U. S. 701 typically to the subsequent search of the container, rather than to its initial seizure by the authorities, our cases reveal some general principles regarding seizures. In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. [ Footnote 2 ] See, e.g., Marron v. United States, 275 U. S. 192 , 275 U. S. 196 (1927). Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. See, e.g., Arkansas v. Sanders, 442 U. S. 753 , 442 U. S. 761 (1979); United States v. Chadwick, 433 U. S. 1 (1977); Coolidge v. New Hampshire, 403 U. S. 443 (1971). [ Footnote 3 ] For example, "objects such as weapons or contraband found in a public place may be seized by the police without a warrant," Payton v. New York, 445 U. S. 573 , 445 U. S. 587 (1980), because, under these circumstances, the risk of the item's disappearance or use for its intended purpose before a Page 462 U. S. 702 warrant may be obtained outweighs the interest in possession. See also G. M. Leasing Corp. v. United States, 429 U. S. 338 , 429 U. S. 354 (1977). In this case, the Government asks us to recognize the reasonableness under the Fourth Amendment of warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' suspicion. Specifically, we are asked to apply the principles of Terry v. Ohio, supra, to permit such seizures on the basis of reasonable, articulable suspicion, premised on objective facts, that the luggage contains contraband or evidence of a crime. In our view, such application is appropriate. In Terry, the Court first recognized "the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause." Michigan v. Summers, 452 U. S. 692 , 452 U. S. 698 (1981). In approving the limited search for weapons, or "frisk," of an individual the police reasonably believed to be armed and dangerous, the Court implicitly acknowledged the authority of the police to make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. 392 U.S. at 392 U. S. 22 . [ Footnote 4 ] That implicit proposition was embraced openly in Adams v. Williams, 407 U. S. 143 , 407 U. S. 146 (1972), where the Court relied on Terry to hold that the police officer lawfully made a forcible stop of the suspect to investigate an informant's tip that the suspect was carrying Page 462 U. S. 703 narcotics and a concealed weapon. See also Michigan v. Summers, supra, (limited detention of occupants while authorities search premises pursuant to valid search warrant); United States v. Cortez, 449 U. S. 411 (1981) (stop near border of vehicle suspected of transporting illegal aliens); United States v. Brignoni-Ponce, 422 U. S. 873 (1975) (brief investigative stop near border for questioning about citizenship and immigration status). The exception to the probable cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of "the Fourth Amendment's general proscription against unreasonable searches and seizures." 392 U.S. at 392 U. S. 20 . We must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause. We examine first the governmental interest offered as a justification for a brief seizure of luggage from the suspect's custody for the purpose of pursuing a limited course of investigation. The Government contends that, where the authorities possess specific and articulable facts warranting a reasonable belief that a traveler's luggage contains narcotics, the governmental interest in seizing the luggage briefly to pursue further investigation is substantial. We agree. As observed in United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 561 (1980) (opinion of POWELL, J.), "[t]he public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit." Respondent suggests that, absent some special law enforcement interest such as officer safety, a generalized interest in law enforcement cannot justify an intrusion on an individual's Fourth Amendment interests in the absence of Page 462 U. S. 704 probable cause. Our prior cases, however, do not support this proposition. In Terry, we described the governmental interests supporting the initial seizure of the person as "effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." 392 U.S. at 392 U. S. 22 . Similarly, in Michigan v. Summers, we identified three law enforcement interests that justified limited detention of the occupants of the premises during execution of a valid search warrant: "preventing flight in the event that incriminating evidence is found," "minimizing the risk of harm" both to the officers and the occupants, and "orderly completion of the search." 452 U.S. at 452 U. S. 702 -703. Cf. Florida v. Royer, 460 U. S. 491 , 460 U. S. 500 (1983) (plurality opinion) ("The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect"). The test is whether those interests are sufficiently "substantial," 452 U.S. at 452 U. S. 699 , not whether they are independent of the interest in investigating crimes effectively and apprehending suspects. The context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation. Because of the inherently transient nature of drug courier activity at airports, allowing police to make brief investigative stops of persons at airports on reasonable suspicion of drug-trafficking substantially enhances the likelihood that police will be able to prevent the flow of narcotics into distribution channels. [ Footnote 5 ] Page 462 U. S. 705 Against this strong governmental interest, we must weigh the nature and extent of the intrusion upon the individual's Fourth Amendment rights when the police briefly detain luggage for limited investigative purposes. On this point, respondent Place urges that the rationale for a Terry stop of the person is wholly inapplicable to investigative detentions of personalty. Specifically, the Terry exception to the probable cause requirement is premised on the notion that a Terry -type stop of the person is substantially less intrusive of a person's liberty interests than a formal arrest. In the property context, however, Place urges, there are no degrees of intrusion. Once the owner's property is seized, the dispossession is absolute. We disagree. The intrusion on possessory interests occasioned by a seizure of one's personal effects can vary both in its nature and extent. The seizure may be made after the owner has relinquished control of the property to a third party or, as here, from the immediate custody and control of the owner. [ Footnote 6 ] Moreover, the police may confine their investigation Page 462 U. S. 706 to an on-the-spot inquiry -- for example, immediate exposure of the luggage to a trained narcotics detection dog [ Footnote 7 ] -- or transport the property to another location. Given the fact that seizures of property can vary in intrusiveness, some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime. In sum, we conclude that, when an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope. The purpose for which respondent's luggage was seized, of course, was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent's luggage for the purpose of subjecting it to the sniff test -- no matter how brief -- could not be justified on less than probable cause. See Terry v. Ohio, 392 U.S. at 392 U. S. 20 ; United States v. Cortez, 449 U.S. at 449 U. S. 421 ; United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 881 -882; Adams v. Williams, 407 U.S. at 407 U. S. 146 . The Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations Page 462 U. S. 707 of privacy." United States v. Chadwick, 433 U.S. at 433 U. S. 7 . We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. Id. at 433 U. S. 13 . A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here -- exposure of respondent's luggage, which was located in a public place, to a trained canine -- did not constitute a "search" within the meaning of the Fourth Amendment. III There is no doubt that the agents made a "seizure" of Place's luggage for purposes of the Fourth Amendment when, following his refusal to consent to a search, the agent told Place that he was going to take the luggage to a federal judge to secure issuance of a warrant. As we observed in Terry , "[t]he manner in which the seizure . . . [was] conducted Page 462 U. S. 708 is, of course, as vital a part of the inquiry as whether [it was] warranted at all." 392 U.S. at 392 U. S. 28 . We therefore examine whether the agents' conduct in this case was such as to place the seizure within the general rule requiring probable cause for a seizure or within Terry 's exception to that rule. At the outset, we must reject the Government's suggestion that the point at which probable cause for seizure of luggage from the person's presence becomes necessary is more distant than in the case of a Terry stop of the person himself. The premise of the Government's argument is that seizures of property are generally less intrusive than seizures of the person. While true in some circumstances, that premise is faulty on the facts we address in this case. The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person, since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return. [ Footnote 8 ] Therefore, when the police seize luggage from the Page 462 U. S. 709 suspect's custody, we think the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause. Under this standard, it is clear that the police conduct here exceeded the permissible limits of a Terry -type investigative stop. The length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. Although we have recognized the reasonableness of seizures longer than the momentary ones involved in Terry, Adams, and Brignoni-Ponce, see Michigan v. Summers, 452 U. S. 692 (1981), the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation. We note that here the New York agents knew the time of Place's scheduled arrival at La Guardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent's Fourth Amendment interests. [ Footnote 9 ] Thus, although we decline to adopt any outside time limitation for a permissible Terry stop, [ Footnote 10 ] we have never Page 462 U. S. 710 approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case. See Dunaway v. New York, 442 U. S. 200 (1979) Although the 90-minute detention of respondent's luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the detention of respondent's luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics. IV We conclude that, under all of the circumstances of this case, the seizure of respondent's luggage was unreasonable under the Fourth Amendment. Consequently, the evidence obtained from the subsequent search of his luggage was inadmissible, and Place's conviction must be reversed. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. [ Footnote 1 ] In support of his motion, respondent also contended that the detention of his person at both the Miami and La Guardia Airports was not based on reasonable suspicion, and that the "sniff test" of his luggage was conducted in a manner that tainted the dog's reaction. 498 F. Supp. 1217 , 1221, 1228 (EDNY 1980). The District Court rejected both contentions. As to the former, it concluded that the agents had reasonable suspicion to believe that Place was engaged in criminal activity when he was detained at the two airports, and that the stops were therefore lawful. Id. at 1225, 1226. On appeal, the Court of Appeals did not reach this issue, assuming the existence of reasonable suspicion. Respondent Place cross-petitioned in this Court on the issue of reasonable suspicion, and we denied certiorari. Place v. United States, 457 U.S. 1106 (1982). We therefore have no occasion to address the issue here. [ Footnote 2 ] The Warrant Clause of the Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [ Footnote 3 ] In Sanders, the Court explained: "The police acted properly -- indeed commendably -- in apprehending respondent and his luggage. They had ample probable cause to believe that respondent's green suitcase contained marihuana. . . . Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle . . . and seizing the suitcase they suspected contained contraband." 442 U.S. at 442 U. S. 761 . The Court went on to hold that the police violated the Fourth Amendment in immediately searching the luggage, rather than first obtaining a warrant authorizing the search. Id. at 442 U. S. 766 . That holding was not affected by our recent decision in United States v. Ross, 456 U. S. 798 , 456 U. S. 824 (1982). [ Footnote 4 ] In his concurring opinion in Terry, Justice Harlan made this logical underpinning of the Court's Fourth Amendment holding clear: "In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. . . . I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime." 392 U.S. at 392 U. S. 32 -33. [ Footnote 5 ] Referring to the problem of intercepting drug couriers in the Nation's airports, JUSTICE POWELL has observed: "Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs . . . may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement." United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 561 -562 (1980). See Florida v. Royer, 460 U. S. 491 , 460 U. S. 519 (1983) (BLACKMUN, J., dissenting) ("The special need for flexibility in uncovering illicit drug couriers is hardly debatable") (airport context). [ Footnote 6 ] One need only compare the facts of this case with those in United States v. Van Leeuwen, 397 U. S. 249 (1970). There the defendant had voluntarily relinquished two packages of coins to the postal authorities. Several facts aroused the suspicion of the postal officials, who detained the packages, without searching them, for about 29 hours while certain lines of inquiry were pursued. The information obtained during this time was sufficient to give the authorities probable cause to believe that the packages contained counterfeit coins. After obtaining a warrant, the authorities opened the packages, found counterfeit coins therein, resealed the packages, and sent them on their way. Expressly limiting its holding to the facts of the case, the Court concluded that the 29-hour detention of the packages on reasonable suspicion that they contained contraband did not violate the Fourth Amendment. Id. at 397 U. S. 253 . As one commentator has noted, Van Leeuwen was an easy case for the Court because the defendant was unable to show that the invasion intruded upon either a privacy interest in the contents of the packages or a possessory interest in the packages themselves. 3 W. LaFave, Search and Seizure § 9.6, p. 71 (Supp.1982). [ Footnote 7 ] Cf. Florida v. Royer, supra, at 460 U. S. 502 (plurality opinion) ("We agree with the State that [the officers had] adequate grounds for suspecting Royer of carrying drugs and for temporarily detaining him and his luggage while they attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detention") (emphasis added). [ Footnote 8 ] "At least when the authorities do not make it absolutely clear how they plan to reunite the suspect and his possessions at some future time and place, seizure of the object is tantamount to seizure of the person. This is because that person must either remain on the scene or else seemingly surrender his effects permanently to the police." 3 W. LaFave, Search and Seizure § 9.6, p. 72 (Supp.1982). [ Footnote 9 ] Cf. Florida v. Royer, 460 U.S. at 460 U. S. 506 (plurality opinion) ("If [trained narcotics detection dogs] had been used, Royer and his luggage could have been momentarily detained while this investigative procedure was carried out"). This course of conduct also would have avoided the further substantial intrusion on respondent's possessory interests caused by the removal of his luggage to another location. [ Footnote 10 ] Cf. ALI, Model Code of Pre-Arraignment Procedure § 110.2(1) (1975) (recommending a maximum of 20 minutes for a Terry stop). We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the result. In this case, the Court of Appeals assumed both that the officers had the "reasonable suspicion" necessary to justify an "investigative" stop of respondent under Terry v. Ohio, 392 U. S. 1 (1968), and its progeny, and that the principles of Terry apply to seizures of property. See 660 F.2d 44, 50 (CA2 1981); ante at 462 U. S. 700 . The court held simply that "the prolonged seizure of [respondent's] baggage went far beyond a mere investigative stop, and amounted to a violation of his Fourth Amendment rights." 660 F.2d at 50. See also id. Page 462 U. S. 711 at 52, 53. I would affirm the Court of Appeals' judgment on this ground. Instead of simply affirming on this ground and putting an end to the matter, the Court decides to reach, and purportedly to resolve, the constitutionality of the seizure of respondent's luggage on less than probable cause and the exposure of that luggage to a narcotics detection dog. See ante at 462 U. S. 706 -707. Apparently the Court finds itself unable to "resist the pull to decide the constitutional issues involved in this case on a broader basis than the record before [it] imperatively requires." Street v. New York, 394 U. S. 576 , 394 U. S. 581 (1969). Because the Court reaches issues unnecessary to its judgment, and because I cannot subscribe to the Court's analysis of those issues, I concur only in the result. I I have had occasion twice in recent months to discuss the limited scope of the exception to the Fourth Amendment's probable cause requirement created by Terry and its progeny. See Florida v. Royer, 460 U. S. 491 , 460 U. S. 509 (1983) (BRENNAN, J., concurring in result); Kolender v. Lawson, 461 U. S. 352 , 461 U. S. 362 (1983) (BRENNAN, J., concurring). Unfortunately, the unwarranted expansion of that exception which the Court endorses today forces me to elaborate on my previously expressed views. In Terry, the Court expressly declined to address "the constitutional propriety of an investigative seizure' upon less than probable cause for purposes of `detention' and/or interrogation." 392 U.S. at 392 U. S. 19 , n. 16. [ Footnote 2/1 ] The Court was confronted Page 462 U. S. 712 with "the quite narrow question" of "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." Id. at 392 U. S. 15 . In addressing this question, the Court noted that it was dealing "with an entire rubric of police conduct -- necessarily swift action predicated upon the on-the-spot observations of the officer on the beat -- which historically has not been, and as a practical matter could not be, subjected to the warrant procedure." Id. at 392 U. S. 20 . As a result, the conduct involved in the case had to be "tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Ibid. (footnote omitted). The Court's inquiry into the "reasonableness" of the conduct at issue was based on a " balancing [of] the need to search [or seize] against the invasion which the search [or seizure] entails.'" Id. at 392 U. S. 21 , quoting Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 537 (1967). The Court concluded that the officer's conduct was reasonable and stated its holding as follows: "We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled, for the protection of himself and others in the area, to conduct a carefully limited search of Page 462 U. S. 713 the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." 392 U.S. at 392 U. S. 30 . In Adams v. Williams, 407 U. S. 143 (1972), the Court relied on Terry to endorse "brief" investigative stops based on reasonable suspicion. 407 U.S. at 407 U. S. 145 -146. In this regard, the Court stated that "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Id. at 407 U. S. 146 . The weapons search upheld in Adams was very limited, and was based on Terry's safety rationale. 407 U.S. at 407 U. S. 146 . The Court stated that the purpose of a "limited" weapons search "is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence. . . ." Ibid. In United States v. Brignoni-Ponce, 422 U. S. 873 (1975), the Court relied on Terry and Adams in holding that, "when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion." 422 U.S. at 422 U. S. 881 . [ Footnote 2/2 ] The Court based this relaxation of the traditional probable cause requirement on the importance of the governmental interest in stemming the flow of illegal aliens, on the minimal intrusion of a brief stop, and on the absence of practical alternatives for policing the border. Ibid. The Court noted the limited holdings of Terry and Adams and, while authorizing the police to "question the driver and passengers about their citizenship and immigration status, and . . . ask them to explain suspicious circumstances," the Court expressly stated that "any further detention or search must be based on consent or probable cause." 422 U.S. at 422 U. S. 881 -882. See also Page 462 U. S. 714 Ybarra v. Illinois, 444 U. S. 85 , 444 U. S. 93 (1979) ("The Terry case created an exception to the requirement of probable cause, an exception whose narrow scope' this Court `has been careful to maintain'" (footnote omitted)); Dunaway v. New York, 442 U. S. 200 , 442 U. S. 209 -212 (1979) (discussing the narrow scope of Terry and its progeny). [ Footnote 2/3 ] It is clear that Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable suspicion. They do not provide the police with a commission to employ whatever investigative techniques they deem appropriate. As I stated in Florida v. Royer, "[t]he scope of a Terry -type "investigative" stop and any attendant search must be extremely limited or the Terry exception would "swallow the general rule that Fourth Amendment seizures [and searches] are reasonable' only if based on probable cause."" 460 U.S. at 460 U. S. 510 (concurring in result), quoting Dunaway v. New York, supra, at 442 U. S. 213 . II In some respects, the Court's opinion in this case can be seen as the logical successor of the plurality opinion in Florida v. Royer, supra. The plurality opinion in Royer contained considerable language which was unnecessary to the judgment, id. at 460 U. S. 509 (BRENNAN, J., concurring in result), regarding the permissible scope of Terry investigative stops. See 460 U.S. at 460 U. S. 501 -507, and n. 10. Even assuming, however, that the Court finds some support in Royer for its discussion of the scope of Terry stops, the Court today goes Page 462 U. S. 715 well beyond Royer in endorsing the notion that the principles of Terry permit "warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' suspicion." Ante at 462 U. S. 702 . See also ante at 462 U. S. 706 . In addition to being unnecessary to the Court's judgment, see supra at 462 U. S. 711 , this suggestion finds no support in Terry or its progeny, and significantly dilutes the Fourth Amendment's protections against government interference with personal property. In short, it represents a radical departure from settled Fourth Amendment principles. As noted supra at 462 U. S. 711 -712, Terry and the cases that followed it authorize a brief "investigative" stop of an individual based on reasonable suspicion and a limited search for weapons if the officer reasonably suspects that the individual is armed and presently dangerous. The purpose of this brief stop is "to determine [the individual's] identity or to maintain the status quo momentarily while obtaining more information. . . ." Adams v. Williams, 407 U.S. at 407 U. S. 146 . Anything more than a brief stop "must be based on consent or probable cause." United States v. Brignoni-Ponce, supra, at 422 U. S. 882 . During the course of this stop, "the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him." Kolender v. Lawson, 461 U.S. at 461 U. S. 365 (BRENNAN, J., concurring). It is true that Terry stops may involve seizures of personal effects incidental to the seizure of the person involved. Obviously, an officer cannot seize a person without also seizing the personal effects that the individual has in his possession at the time. But there is a difference between Page 462 U. S. 716 incidental seizures of personal effects and seizures of property independent of the seizure of the person. The Fourth Amendment protects "effects" as well as people from unreasonable searches and seizures. In this regard, JUSTICE STEVENS pointed out in Texas v. Brown, 460 U. S. 730 (1983), that "[t]he [Fourth] Amendment protects two different interests of the citizen -- the interest in retaining possession of property and the interest in maintaining personal privacy." Id. at 460 U. S. 747 (opinion concurring in judgment). "A seizure threatens the former, a search the latter." Ibid. Even if an item is not searched, therefore, its seizure implicates a protected Fourth Amendment interest. For this reason, seizures of property must be based on probable cause. See Colorado v. Bannister, 449 U. S. 1 , 449 U. S. 3 (1980); Payton v. New York, 445 U. S. 573 , 445 U. S. 587 (1980); G. M. Leasing Corp. v. United States, 429 U. S. 338 , 429 U. S. 351 (1977); Chambers v. Maroney, 399 U. S. 42 , 399 U. S. 51 -52 (1970); Warden v. Hayden, 387 U. S. 294 , 387 U. S. 309 -310 (1967). See also Texas v. Brown, supra, at 460 U. S. 747 -748 (STEVENS, J., concurring in judgment). Neither Terry nor its progeny changed this rule. In this case, the officers' seizure of respondent and their later independent seizure of his luggage implicated separate Fourth Amendment interests. First, respondent had a protected interest in maintaining his personal security and privacy. Terry allows this interest to be overcome, and authorizes a limited intrusion if the officers have reason to suspect that criminal activity is afoot. Second, respondent had a protected interest in retaining possession of his personal effects. While Terry may authorize seizures of personal effects incident to a lawful seizure of the person, nothing in the Terry line of cases authorizes the police to seize personal property, such as luggage, independent of the seizure of the person. Such seizures significantly expand the scope of a Terry stop, and may not be effected on less than probable Page 462 U. S. 717 cause. [ Footnote 2/4 ] Obviously, they also significantly expand the scope of the intrusion. The officers did not develop probable cause to arrest respondent during their encounter with him. See 660 F.2d at 50. Therefore, they had to let him go. But despite the absence of probable cause to arrest respondent, the officers seized his luggage and deprived him of possession. Respondent, therefore, was subjected not only to an invasion of his personal security and privacy, but also to an independent dispossession of his personal effects based simply on reasonable suspicion. It is difficult to understand how this intrusion is not more severe than a brief stop for questioning or even a limited, on-the-spot patdown search for weapons. In my view, as soon as the officers seized respondent's luggage, independent of their seizure of him, they exceeded the scope of a permissible Terry stop and violated respondent's Fourth Amendment rights. In addition, the officers' seizure of respondent's luggage violated the established rule that seizures of personal effects must be based on probable cause. Their actions, therefore, should not be upheld. The Court acknowledges that seizures of personal property must be based on probable cause. See ante at 462 U. S. 700 -702. Despite this recognition, the Court employs a balancing test drawn from Terry to conclude that personal effects may be seized based on reasonable suspicion. See ante at 462 U. S. 703 -706. [ Footnote 2/5 ] Page 462 U. S. 718 In Dunaway v. New York, 442 U. S. 200 (1979), the Court stated that "[t]he narrow intrusions involved in [ Terry and its progeny] were judged by a balancing test, rather than by the general principle that Fourth Amendment seizures must be supported by the 'long-prevailing standards' of probable cause . . . only because these intrusions fell far short of the kind of intrusion associated with an arrest." Id. at 442 U. S. 212 . As Dunaway suggests, the use of a balancing test in this case is inappropriate. First, the intrusion involved in this case is no longer the "narrow" one contemplated by the Terry line of cases. See supra at 462 U. S. 717 . In addition, the intrusion involved in this case involves not only the seizure of a person, but also the seizure of property. As noted supra at 462 U. S. 711 -712, Terry and its progeny did not address seizures of property. Those cases left unchanged the rule that seizures of property must be based on probable cause. See supra at 462 U. S. 716 -717. The Terry balancing test should not be wrenched from its factual and conceptual moorings. There are important reasons why balancing inquiries should not be conducted except in the most limited circumstances. Terry and the cases that followed it established "isolated exceptions to the general rule that the Fourth Amendment itself has already performed the constitutional balance between police objectives and personal privacy." Michigan v. Summers, 452 U. S. 692 , 452 U. S. 706 (1981) (Stewart, J., dissenting). "[T]he protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the 'often competitive enterprise of ferreting out crime.'" Dunaway v. New York, Page 462 U. S. 719 supra, at 442 U. S. 213 , quoting Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948). The truth of this proposition is apparent when one considers that the Court today has employed a balancing test "to swallow the general rule that [seizures of property] are reasonable' only if based on probable cause." 442 U.S. at 442 U. S. 213 . JUSTICE BLACKMUN's concern over "an emerging tendency on the part of the Court to convert the Terry decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable," post at 462 U. S. 721 (BLACKMUN, J., concurring in judgment) (footnote omitted), is certainly justified. III The Court also suggests today, in a discussion unnecessary to the judgment, that exposure of respondent's luggage to a narcotics detection dog "did not constitute a search' within the meaning of the Fourth Amendment." Ante at 462 U. S. 707 . In the District Court, respondent did "not contest the validity of sniff searches per se. . . ." 498 F. Supp. 1217 , 1228 (EDNY 1980). The Court of Appeals did not reach or discuss the issue. It was not briefed or argued in this Court. In short, I agree with JUSTICE BLACKMUN that the Court should not address the issue. See post at 462 U. S. 723 -724 (BLACKMUN, J., concurring in judgment). I also agree with JUSTICE BLACKMUN's suggestion, ibid., that the issue is more complex than the Court's discussion would lead one to believe. As JUSTICE STEVENS suggested in objecting to "unnecessarily broad dicta" in United States v. Knotts, 460 U. S. 276 (1983), the use of electronic detection techniques that enhance human perception implicates "especially sensitive concerns." Id. at 460 U. S. 288 (opinion concurring in judgment). Obviously, a narcotics detection dog is not an electronic detection device. Unlike the electronic "beeper" in Knotts, however, a dog does more than merely allow the police to do more efficiently what they could do using only their own senses. A dog adds a new and previously unobtainable dimension to human perception. The use of dogs, therefore, represents a greater intrusion into an individual's Page 462 U. S. 720 privacy. Such use implicates concerns that are at least as sensitive as those implicated by the use of certain electronic detection devices. Cf. Katz v. United States, 389 U. S. 347 (1967). I have expressed the view that dog sniffs of people constitute searches. See Doe v. Renfrow, 451 U. S. 1022 , 1025-1026 (1981) (BRENNAN, J., dissenting from denial of certiorari). In Doe, I suggested that sniffs of inanimate objects might present a different case. Id. at 1026, n. 4. In any event, I would leave the determination of whether dog sniffs of luggage amount to searches, and the subsidiary question of what standards should govern such intrusions, to a future case providing an appropriate, and more informed, basis for deciding these questions. IV Justice Douglas was the only dissenter in Terry. He stated that "[t]here have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand." 392 U.S. at 392 U. S. 39 (dissenting opinion). Today, the Court uses Terry as a justification for submitting to these pressures. Their strength is apparent, for even when the Court finds that an individual's Fourth Amendment rights have been violated, it cannot resist the temptation to weaken the protections the Amendment affords. [ Footnote 2/1 ] The "seizure" at issue in Terry v. Ohio was the actual physical restraint imposed on the suspect. 392 U.S. at 392 U. S. 19 . The Court assumed that the officer's initial approach and questioning of the suspect did not amount to a "seizure." Id. at 392 U. S. 19 , n. 16. The Court acknowledged, however, that "seizures" may occur irrespective of the imposition of actual physical restraint. The Court stated that "[i]t must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Id. at 392 U. S. 16 . See also id. at 392 U. S. 19 , n. 16. This standard, however, is easier to state than it is to apply. Compare United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 550 -557 (1980) (opinion of Stewart, J.), with Florida v. Royer, 460 U. S. 491 , 460 U. S. 511 -512 (1983) (BRENNAN, J., concurring in result). [ Footnote 2/2 ] The stops " usually consume[d] no more than a minute.'" United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 880 . [ Footnote 2/3 ] In Michigan v. Summers, 452 U. S. 692 (1981), the Court relied on Terry and its progeny to hold that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." 452 U.S. at 452 U. S. 705 (footnotes omitted). The Court also relied on Terry in Pennsylvania v. Mimms, 434 U. S. 106 (1977), to uphold an officer's order to an individual to get out of his car following a lawful stop of the vehicle. Both Summers and Mimms focused on seizures of people. [ Footnote 2/4 ] Putting aside the legality of the independent seizure of the luggage, the Court correctly points out that the seizure of luggage "can effectively restrain the person" beyond the initial stop "since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return." Ante at 462 U. S. 708 (footnote omitted). [ Footnote 2/5 ] To the extent that the Court relies on United States v. Van Leeuwen, 397 U. S. 249 (1970), as support for its conclusion, see ante at 462 U. S. 705 -706, n. 6, such reliance is misplaced. As the Court itself points out, the holding in Van Leeuwen was expressly limited to the facts of that case. Ante at 462 U. S. 705 , n. 6. Moreover, the Court of Appeals more than adequately distinguished Van Leeuwen. See 660 F.2d 44, 52-53 (CA2 1981). As the court stated: "Unlike the dispossession of hand baggage in a passenger's custody, which constitutes a substantial intrusion, the mere detention of mail not in his custody or control amounts to, at most, a minimal or technical interference with his person or effects, resulting in no personal deprivation at all." Ibid. JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, concurring in the judgment. For me, the Court's analysis in 462 U. S. I agree that, on the facts of this case, the detention of Place's luggage amounted to, and was functionally identical with, a seizure of his person. My concern with the Court's opinion has to do (a) with its general discussion in 462 U. S. Ohio,@ 392 U. S. 1 (1968), exception to the warrant Page 462 U. S. 721 and probable cause requirements, and (b) with the Court's haste to resolve the dog-sniff issue. I In providing guidance to other courts, we often include in our opinions material that, technically, constitutes dictum. I cannot fault the Court's desire to set guidelines for Terry seizures of luggage based on reasonable suspicion. I am concerned, however, with what appears to me to be an emerging tendency on the part of the Court to convert the Terry decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable. [ Footnote 3/1 ] I pointed out in dissent in Florida v. Royer, 460 U. S. 491 , 460 U. S. 513 (1983), that our prior cases suggest a two-step evaluation of seizures under the Fourth Amendment. The Amendment generally prohibits a seizure unless it is pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. See ante at 462 U. S. 701 ; Florida v. Royer, 460 U.S. at 460 U. S. 514 (dissenting opinion). The Court correctly observes that a warrant may be dispensed with if the officer has probable cause and if some exception to the warrant requirement, such as exigent circumstances, Page 462 U. S. 722 is applicable. Ante at 462 U. S. 701 . While the Fourth Amendment speaks in terms of freedom from unreasonable seizures, the Amendment does not leave the reasonableness of most seizures to the judgment of courts or government officers: the Framers of the Amendment balanced the interests involved and decided that a seizure is reasonable only if supported by a judicial warrant based on probable cause. See Texas v. Brown, 460 U. S. 730 , 460 U. S. 744 -745 (1983) (POWELL, J., concurring); United States v. Rabinowitz, 339 U. S. 56 , 339 U. S. 70 (1950) (Frankfurter, J., dissenting). Terry v. Ohio, however, teaches that, in some circumstances, a limited seizure that is less restrictive than a formal arrest may constitutionally occur upon mere reasonable suspicion, if "supported by a special law enforcement need for greater flexibility." Florida v. Royer, 460 U.S. at 460 U. S. 514 (dissenting opinion). See Michigan v. Summers, 452 U. S. 692 , 452 U. S. 700 (1981). When this exception to the Fourth Amendment's warrant and probable cause requirements is applicable, a reviewing court must balance the individual's interest in privacy against the government's law enforcement interest, and determine whether the seizure was reasonable under the circumstances. Id. at 452 U. S. 699 -701. Only in this limited context is a court entitled to engage in any balancing of interests in determining the validity of a seizure. Because I agree with the Court that there is a significant law enforcement interest in interdicting illegal drug traffic in the Nation's airports, ante at 462 U. S. 704 ; see Florida v. Royer, 460 U.S. at 460 U. S. 513 , 519 (dissenting opinion), a limited intrusion caused by a temporary seizure of luggage for investigative purposes could fall within the Terry exception. The critical threshold issue is the intrusiveness of the seizure. [ Footnote 3/2 ] In this Page 462 U. S. 723 case, the seizure went well beyond a minimal intrusion, and therefore cannot fall within the Terry exception. II The Court's resolution of the status of dog sniffs under the Fourth Amendment is troubling for a different reason. The District Court expressly observed that Place "does not contest the validity of sniff searches per se. " 498 F. Supp. 1217 , 1228 (EDNY 1980). [ Footnote 3/3 ] While Place may have possessed such a claim, he chose not to raise it in that court. The issue also was not presented to or decided by the Court of Appeals. Moreover, contrary to the Court's apparent intimation, ante at 462 U. S. 706 , an answer to the question is not necessary to the decision. For the purposes of this case, the precise nature of the legitimate investigative activity is irrelevant. Regardless of the validity of a dog sniff under the Fourth Amendment, the seizure was too intrusive. The Court has no need to decide the issue here. As a matter of prudence, decision of the issue is also unwise. While the Court has adopted one plausible analysis of the issue, there are others. For example, a dog sniff may be a search, but a minimally intrusive one that could be justified in this situation under Terry upon mere reasonable suspicion. Neither party has had an opportunity to brief the issue, and the Court grasps for the appropriate analysis of the problem. Although it is not essential that the Court ever adopt the views of one of the parties, it should not decide an issue on which neither party has expressed any opinion at all. The Court is certainly in no position to consider all the ramifications Page 462 U. S. 724 of this important issue. Certiorari is currently pending in two cases that present the issue directly. United States v. Beale, No. 82-674; Waltzer v. United States, No. 82-5491. There is no reason to avoid a full airing of the issue in a proper case. For the foregoing reasons, I concur only in the judgment of the Court. [ Footnote 3/1 ] The Court states that the applicability of the Terry exception "rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of 'the Fourth Amendment's general proscription against unreasonable searches and seizures.'" Ante at 462 U. S. 703 , quoting Terry , 392 U.S. at 392 U. S. 20 . As the context of the quotation from Terry makes clear, however, this balancing to determine reasonableness occurs only under the exceptional circumstances that justify the Terry exception: "But we deal here with an entire rubric of police conduct -- necessarily swift action predicated upon the on-the-spot observations of the officer on the beat -- which historically has not been, and, as a practical matter, could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Ibid. [ Footnote 3/2 ] I cannot agree with the Court's assertion that the diligence of the police in acting on their suspicion is relevant to the extent of the intrusion on Fourth Amendment interests. See ante at 462 U. S. 709 -710. It makes little difference to a traveler whose luggage is seized whether the police conscientiously followed a lead or bungled the investigation. The duration and intrusiveness of the seizure is not altered by the diligence the police exercise. Of course, diligence may be relevant to a court's determination of the reasonableness of the seizure once it is determined that the seizure is sufficiently nonintrusive as to be eligible for the Terry exception. [ Footnote 3/3 ] The District Court did hold that the dog sniff was not conducted in a fashion that under the circumstances was "reasonably calculated to achieve a tainted reaction from the dog." 498 F. Supp. at 1228 . This, however, is a due process claim, not one under the Fourth Amendment. Place apparently did not raise this issue before the Court of Appeals.

Here is a summary of the case: In United States v. Place, the US Supreme Court ruled that law enforcement officers could temporarily detain a traveler's luggage for investigation if they have reasonable suspicion that it contains narcotics. In this case, the officers' observations led them to suspect that the respondent was carrying drugs in his luggage. They detained his luggage, and a trained narcotics dog indicated the presence of drugs. The Court held that this procedure was a minimally intrusive investigative method and did not violate the Fourth Amendment. However, the Court also ruled that the prolonged seizure of the respondent's luggage (90 minutes) exceeded the limits of an investigative stop and required probable cause. As a result, the evidence obtained from the search of the luggage was inadmissible, and the respondent's conviction was reversed.

Search & Seizure

New Jersey v. T.L.O.

https://supreme.justia.com/cases/federal/us/469/325/

U.S. Supreme Court New Jersey v. T.L.O., 469 U.S. 325 (1985) New Jersey v. T.L.O. No. 83-712 Argued March 28, 1984 Reargued October 2, 1984 Decided January 15, 1985 469 U.S. 325 CERTIORARI TO THE SUPREME COURT OF NEW JERSEY Syllabus A teacher at a New Jersey high school, upon discovering respondent, then a 14-year-old freshman, and her companion smoking cigarettes in a school lavatory in violation of a school rule, took them to the Principal's office, where they met with the Assistant Vice Principal. When respondent, in response to the Assistant Vice Principal's questioning, denied that she had been smoking and claimed that she did not smoke at all, the Assistant Vice Principal demanded to see her purse. Upon opening the purse, he found a pack of cigarettes and also noticed a package of cigarette rolling papers that are commonly associated with the use of marihuana. He then proceeded to search the purse thoroughly and found some marihuana, a pipe, plastic bags, a fairly substantial amount of money, an index card containing a list of students who owed respondent money, and two letters that implicated her in marihuana dealing. Thereafter, the State brought delinquency charges against respondent in the Juvenile Court, which, after denying respondent's motion to suppress the evidence found in her purse, held that the Fourth Amendment applied to searches by school officials, but that the search in question was a reasonable one, and adjudged respondent to be a delinquent. The Appellate Division of the New Jersey Superior Court affirmed the trial court's finding that there had been no Fourth Amendment violation, but vacated the adjudication of delinquency and remanded on other grounds. The New Jersey Supreme Court reversed and ordered the suppression of the evidence found in respondent's purse, holding that the search of the purse was unreasonable. Held: 1. The Fourth Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, and is not limited to searches carried out by law enforcement officers. Nor are school officials exempt from the Amendment's dictates by virtue of the special nature of their authority over schoolchildren. In carrying out searches and other functions pursuant to disciplinary policies mandated by state statutes, school officials act as representatives of the State, not merely as surrogates for the parents of students, and they cannot claim the parents immunity from the Fourth Amendment's strictures. Pp. 469 U. S. 333 -337. Page 469 U. S. 326 2. Schoolchildren have legitimate expectations of privacy. They may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items by bringing them onto school grounds. But striking the balance between schoolchildren's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place requires some easing of the restrictions to which searches by public authorities are ordinarily subject. Thus, school officials need not obtain a warrant before searching a student who is under their authority. Moreover, school officials need not be held subject to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a determination of whether the search was justified at its inception and whether, as conducted, it was reasonably related in scope to the circumstances that justified the interference in the first place. Under ordinary circumstances, the search of a student by a school official will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. And such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search, and not excessively intrusive in light of the student's age and sex and the nature of the infraction. Pp. 469 U. S. 337 -343. 3. Under the above standard, the search in this case was not unreasonable for Fourth Amendment purposes. First, the initial search for cigarettes was reasonable. The report to the Assistant Vice Principal that respondent had been smoking warranted a reasonable suspicion that she had cigarettes in her purse, and thus the search was justified despite the fact that the cigarettes, if found, would constitute "mere evidence" of a violation of the no-smoking rule. Second, the discovery of the rolling papers then gave rise to a reasonable suspicion that respondent was carrying marihuana as well as cigarettes in her purse, and this suspicion justified the further exploration that turned up more evidence of drug-related activities. Pp. 469 U. S. 343 -347. 94 N.J. 331, 463 A.2d 934 , reversed. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and in Part 469 U. S. MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 469 U. S. 348 . Page 469 U. S. 327 BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 469 U. S. 351 . BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 469 U. S. 353 . STEVENS, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, and in Part I of which BRENNAN, J., joined, post, p. 469 U. S. 370 . JUSTICE WHITE delivered the opinion of the Court. We granted certiorari in this case to examine the appropriateness of the exclusionary rule as a remedy for searches carried out in violation of the Fourth Amendment by public school authorities. Our consideration of the proper application of the Fourth Amendment to the public schools, however, has led us to conclude that the search that gave rise to Page 469 U. S. 328 the case now before us did not violate the Fourth Amendment. Accordingly, we here address only the questions of the proper standard for assessing the legality of searches conducted by public school officials and the application of that standard to the facts of this case. I On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J. discovered two girls smoking in a lavatory. One of the two girls was the respondent T.L.O, who at that time was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal's office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T.L.O's companion admitted that she had violated the rule. T.L.O, however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all. Mr. Choplick asked T.L.O to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T.L.O as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience, possession of rolling papers by high school students was closely associated with the use of marihuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marihuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be a list of students who owed T.L.O money, and two letters that implicated T.L.O in marihuana dealing. Mr. Choplick notified T.L.O's mother and the police, and turned the evidence of drug dealing over to the police. At Page 469 U. S. 329 the request of the police, T.L.O's mother took her daughter to police headquarters, where T.L.O confessed that she had been selling marihuana at the high school. On the basis of the confession and the evidence seized by Mr. Choplick, the State brought delinquency charges against T.L.O in the Juvenile and Domestic Relations Court of Middlesex County. [ Footnote 1 ] Contending that Mr. Choplick's search of her purse violated the Fourth Amendment, T.L.O moved to suppress the evidence found in her purse as well as her confession, which, she argued, was tainted by the allegedly unlawful search. The Juvenile Court denied the motion to suppress. State ex rel. T.L.O., 178 N.J.Super. 329, 428 A.2d 1327 (1980). Although the court concluded that the Fourth Amendment did apply to searches carried out by school officials, it held that "a school official may properly conduct a search of a student's person if the official has a reasonable suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policies." Id. at 341, 428 A.2d at 1333 (emphasis in original). Applying this standard, the court concluded that the search conducted by Mr. Choplick was a reasonable one. The initial decision to open the purse was justified by Mr. Choplick's well-founded suspicion that T.L.O had violated the rule forbidding smoking in the lavatory. Once the purse Page 469 U. S. 330 was open, evidence of marihuana violations was in plain view, and Mr. Choplick was entitled to conduct a thorough search to determine the nature and extent of T.L.O's drug-related activities. Id. at 343, 428 A.2d at 1334. Having denied the motion to suppress, the court on March 23, 1981, found T.L.O. to be a delinquent and on January 8, 1982, sentenced her to a year's probation. On appeal from the final judgment of the Juvenile Court, a divided Appellate Division affirmed the trial court's finding that there had been no Fourth Amendment violation, but vacated the adjudication of delinquency and remanded for a determination whether T.L.O. had knowingly and voluntarily waived her Fifth Amendment rights before confessing. State ex rel. T.L.O., 185 N.J.Super. 279, 448 A.2d 493 (1982). T.L.O. appealed the Fourth Amendment ruling, and the Supreme Court of New Jersey reversed the judgment of the Appellate Division and ordered the suppression of the evidence found in T.L.O.'s purse. State ex rel. T.L.O., 94 N.J. 331, 463 A.2d 934 (1983). The New Jersey Supreme Court agreed with the lower courts that the Fourth Amendment applies to searches conducted by school officials. The court also rejected the State of New Jersey's argument that the exclusionary rule should not be employed to prevent the use in juvenile proceedings of evidence unlawfully seized by school officials. Declining to consider whether applying the rule to the fruits of searches by school officials would have any deterrent value, the court held simply that the precedents of this Court establish that "if an official search violates constitutional rights, the evidence is not admissible in criminal proceedings." Id. at 341, 463 A.2d at 939 (footnote omitted). With respect to the question of the legality of the search before it, the court agreed with the Juvenile Court that a warrantless search by a school official does not violate the Fourth Amendment so long as the official "has reasonable grounds to believe that a student possesses evidence of illegal Page 469 U. S. 331 activity or activity that would interfere with school discipline and order." Id. at 346, 463 A.2d at 941-942. However, the court, with two justices dissenting, sharply disagreed with the Juvenile Court's conclusion that the search of the purse was reasonable. According to the majority, the contents of T.L.O.'s purse had no bearing on the accusation against T.L.O., for possession of cigarettes (as opposed to smoking them in the lavatory) did not violate school rules, and a mere desire for evidence that would impeach T.L.O.'s claim that she did not smoke cigarettes could not justify the search. Moreover, even if a reasonable suspicion that T.L.O. had cigarettes in her purse would justify a search, Mr. Choplick had no such suspicion, as no one had furnished him with any specific information that there were cigarettes in the purse. Finally, leaving aside the question whether Mr. Choplick was justified in opening the purse, the court held that the evidence of drug use that he saw inside did not justify the extensive "rummaging" through T.L.O.'s papers and effects that followed. Id. at 347, 463 A.2d at 942-943. We granted the State of New Jersey's petition for certiorari. 464 U.S. 991 (1983). Although the State had argued in the Supreme Court of New Jersey that the search of T.L.O.'s purse did not violate the Fourth Amendment, the petition for certiorari raised only the question whether the exclusionary rule should operate to bar consideration in juvenile delinquency proceedings of evidence unlawfully seized by a school official without the involvement of law enforcement officers. When this case was first argued last Term, the State conceded for the purpose of argument that the standard devised by the New Jersey Supreme Court for determining the legality of school searches was appropriate and that the court had correctly applied that standard; the State contended only that the remedial purposes of the exclusionary rule were not well served by applying it to searches conducted by public authorities not primarily engaged in law enforcement. Page 469 U. S. 332 Although we originally granted certiorari to decide the issue of the appropriate remedy in juvenile court proceedings for unlawful school searches, our doubts regarding the wisdom of deciding that question in isolation from the broader question of what limits, if any, the Fourth Amendment places on the activities of school authorities prompted us to order reargument on that question. [ Footnote 2 ] Having heard argument on Page 469 U. S. 333 the legality of the search of T.L.O.'s purse, we are satisfied that the search did not violate the Fourth Amendment. [ Footnote 3 ] II In determining whether the search at issue in this case violated the Fourth Amendment, we are faced initially with the question whether that Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. We hold that it does. Page 469 U. S. 334 It is now beyond dispute that "the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers." Elkins v. United States, 364 U. S. 206 , 364 U. S. 213 (1960); accord, Mapp v. Ohio, 367 U. S. 643 (1961); Wolf v. Colorado, 338 U. S. 25 (1949). Equally indisputable is the proposition that the Fourteenth Amendment protects the rights of students against encroachment by public school officials: "The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." West Virginia State Bd. of Ed. v. Barnette, 319 U. S. 624 , 319 U. S. 637 (1943). These two propositions -- that the Fourth Amendment applies to the States through the Fourteenth Amendment, and that the actions of public school officials are subject to the limits placed on state action by the Fourteenth Amendment -- might appear sufficient to answer the suggestion that the Fourth Amendment does not proscribe unreasonable searches by school officials. On reargument, however, the State of New Jersey has argued that the history of the Fourth Amendment indicates that the Amendment was intended to regulate only searches and seizures carried out by law enforcement officers; accordingly, although public school officials are concededly state agents for purposes of the Fourteenth Amendment, the Fourth Amendment creates no rights enforceable against them. [ Footnote 4 ] Page 469 U. S. 335 It may well be true that the evil toward which the Fourth Amendment was primarily directed was the resurrection of the pre-Revolutionary practice of using general warrants or "writs of assistance" to authorize searches for contraband by officers of the Crown. See United States v. Chadwick, 433 U. S. 1 , 433 U. S. 7 -8 (1977); Boyd v. United States, 116 U. S. 616 , 116 U. S. 624 -629 (1886). But this Court has never limited the Amendment's prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the Court has long spoken of the Fourth Amendment's strictures as restraints imposed upon "governmental action" -- that is, "upon the activities of sovereign authority." Burdeau v. McDowell, 256 U. S. 465 , 256 U. S. 475 (1921). Accordingly, we have held the Fourth Amendment applicable to the activities of civil as well as criminal authorities: building inspectors, see Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 528 (1967), Occupational Safety and Health Act inspectors, see Marshall v. Barlow's, Inc., 436 U. S. 307 , 436 U. S. 312 -313 (1978), and even firemen entering privately owned premises to battle a fire, see Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 506 (1978), are all subject to the restraints imposed by the Fourth Amendment. As we observed in Camara v. Municipal Court, supra, "[t]he basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." 387 U.S. at 387 U. S. 528 . Because the individual's interest in privacy and personal security "suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards," Marshall v. Barlow's, Inc., supra, at 436 U. S. 312 -313, it would be "anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." Camara v. Municipal Court, supra, at 387 U. S. 530 . Page 469 U. S. 336 Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren. See, e.g., R.C.M. v. State, 660 S.W.2d 552 (Tex.App.1983). Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment. Ibid. Such reasoning is in tension with contemporary reality and the teachings of this Court. We have held school officials subject to the commands of the First Amendment, see Tinker v. Des Moines Independent Community School District, 393 U. S. 503 (1969), and the Due Process Clause of the Fourteenth Amendment, see Goss v. Lopez, 419 U. S. 565 (1975). If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students. More generally, the Court has recognized that "the concept of parental delegation" as a source of school authority is not entirely "consonant with compulsory education laws." Ingraham v. Wright, 430 U. S. 651 , 430 U. S. 662 (1977). Today's public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. See, e.g., the opinion in State ex rel. T.L.O., 94 N.J. at 343, 463 A.2d at 934, 940, describing the New Jersey statutes regulating school disciplinary policies and establishing the authority of school officials over their students. In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they Page 469 U. S. 337 cannot claim the parents' immunity from the strictures of the Fourth Amendment. III To hold that the Fourth Amendment applies to searches conducted by school authorities is only to begin the inquiry into the standards governing such searches. Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires "balancing the need to search against the invasion which the search entails." Camara v. Municipal Court, supra, at 387 U. S. 536 -537. On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other, the government's need for effective methods to deal with breaches of public order. We have recognized that even a limited search of the person is a substantial invasion of privacy. Terry v. Ohio, 392 U. S. 1 , 392 U. S. 24 -25 (1967). We have also recognized that searches of closed items of personal luggage are intrusions on protected privacy interests, for "the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view." United States v. Ross, 456 U. S. 798 , 456 U. S. 822 -823 (1982). A search of a child's person or of a closed purse or other bag carried on her person, [ Footnote 5 ] no less Page 469 U. S. 338 than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy. Of course, the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise "illegitimate." See, e.g., Hudson v. Palmer, 468 U. S. 517 (1984); Rawlings v. Kentucky, 448 U. S. 98 (1980). To receive the protection of the Fourth Amendment, an expectation of privacy must be one that society is "prepared to recognize as legitimate." Hudson v. Palmer, supra, at 468 U. S. 526 . The State of New Jersey has argued that, because of the pervasive supervision to which children in the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in articles of personal property "unnecessarily" carried into a school. This argument has two factual premises: (1) the fundamental incompatibility of expectations of privacy with the maintenance of a sound educational environment; and (2) the minimal interest of the child in bringing any items of personal property into the school. Both premises are severely flawed. Although this Court may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy. We have recently recognized that the need to maintain order in a prison is such that prisoners retain no legitimate expectations of privacy in their cells, but it goes almost without saying that "[t]he prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration." Ingraham v. Wright, supra, at 430 U. S. 669 . We are not Page 469 U. S. 339 yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment. Nor does the State's suggestion that children have no legitimate need to bring personal property into the schools seem well anchored in reality. Students at a minimum must bring to school not only the supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming. In addition, students may carry on their persons or in purses or wallets such nondisruptive yet highly personal items as photographs, letters, and diaries. Finally, students may have perfectly legitimate reasons to carry with them articles of property needed in connection with extracurricular or recreational activities. In short, schoolchildren may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds. Against the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems. See generally 1 NIE, U.S. Dept. of Health, Education and Welfare, Violent Schools -- Safe Schools: The Safe School Study Report to the Congress (1978). Even in schools that have been spared the most severe disciplinary problems, the preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult. "Events calling for discipline are frequent occurrences and sometimes require immediate, effective action." Goss v. Lopez, 419 U.S. at 419 U. S. 580 . Accordingly, we have recognized Page 469 U. S. 340 that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship. See id. at 419 U. S. 582 -583; Ingraham v. Wright, 430 U.S. at 430 U. S. 680 -682. How, then, should we strike the balance between the schoolchild's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. Just as we have in other cases dispensed with the warrant requirement when "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search," Camara v. Municipal Court, 387 U.S. at 387 U. S. 532 -533, we hold today that school officials need not obtain a warrant before searching a student who is under their authority. The school setting also requires some modification of the level of suspicion of illicit activity needed to justify a search. Ordinarily, a search -- even one that may permissibly be carried out without a warrant -- must be based upon "probable cause" to believe that a violation of the law has occurred. See, e.g., Almeida-Sanchez v. United States, 413 U. S. 266 , 413 U. S. 273 (1973); Sibron v. New York, 392 U. S. 40 , 392 U. S. 62 -66 (1968). However, "probable cause" is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although "both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, . . . in certain limited circumstances neither is required." Almeida-Sanchez v. United States, supra, at 413 U. S. 277 (POWELL, Page 469 U. S. 341 J., concurring). Thus, we have in a number of cases recognized the legality of searches and seizures based on suspicions that, although "reasonable," do not rise to the level of probable cause. See, e.g., Terry v. Ohio, 392 U. S. 1 (1968); United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 881 (195); Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 654 -655 (1979); United States v. Martinez-Fuerte, 428 U. S. 543 (1976); cf. Camara v. Municipal Court, supra, at 387 U. S. 534 -539. Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard. We join the majority of courts that have examined this issue [ Footnote 6 ] in concluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S. at 392 U. S. 20 ; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid. Under ordinary circumstances, a search of a student by a teacher or other school official [ Footnote 7 ] will be Page 469 U. S. 342 "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. [ Footnote 8 ] Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. [ Footnote 9 ] This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools Page 469 U. S. 343 nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question of reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools. IV There remains the question of the legality of the search in this case. We recognize that the "reasonable grounds" standard applied by the New Jersey Supreme Court in its consideration of this question is not substantially different from the standard that we have adopted today. Nonetheless, we believe that the New Jersey court's application of that standard to strike down the search of T.L.O.'s purse reflects a somewhat crabbed notion of reasonableness. Our review of the facts surrounding the search leads us to conclude that the search was in no sense unreasonable for Fourth Amendment purposes. [ Footnote 10 ] The incident that gave rise to this case actually involved two separate searches, with the first -- the search for cigarettes -- providing the suspicion that gave rise to the second Page 469 U. S. 344 -- the search for marihuana. Although it is the fruits of the second search that are at issue here, the validity of the search for marihuana must depend on the reasonableness of the initial search for cigarettes, as there would have been no reason to suspect that T.L.O. possessed marihuana had the first search not taken place. Accordingly, it is to the search for cigarettes that we first turn our attention. The New Jersey Supreme Court pointed to two grounds for its holding that the search for cigarettes was unreasonable. First, the court observed that possession of cigarettes was not in itself illegal or a violation of school rules. Because the contents of T.L.O.'s purse would therefore have "no direct bearing on the infraction" of which she was accused (smoking in a lavatory where smoking was prohibited), there was no reason to search her purse. [ Footnote 11 ] Second, even assuming that a search of T.L.O.'s purse might under some circumstances be reasonable in light of the accusation made against T.L.O., the New Jersey court concluded that Mr. Choplick in this particular case had no reasonable grounds to suspect that T.L.O. had cigarettes in her purse. At best, according Page 469 U. S. 345 to the court, Mr. Choplick had "a good hunch." 94 N.J. at 347, 463 A.2d at 942. Both these conclusions are implausible. T.L.O. had been accused of smoking, and had denied the accusation in the strongest possible terms when she stated that she did not smoke at all. Surely it cannot be said that under these circumstances, T.L.O.'s possession of cigarettes would be irrelevant to the charges against her or to her response to those charges. T.L.O.'s possession of cigarettes, once it was discovered, would both corroborate the report that she had been smoking and undermine the credibility of her defense to the charge of smoking. To be sure, the discovery of the cigarettes would not prove that T.L.O. had been smoking in the lavatory; nor would it, strictly speaking, necessarily be inconsistent with her claim that she did not smoke at all. But it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.Rule Evid. 401. The relevance of T.L.O.'s possession of cigarettes to the question whether she had been smoking and to the credibility of her denial that she smoked supplied the necessary "nexus" between the item searched for and the infraction under investigation. See Warden v. Hayden, 387 U. S. 294 , 387 U. S. 306 -307 (1967). Thus, if Mr. Choplick in fact had a reasonable suspicion that T.L.O. had cigarettes in her purse, the search was justified despite the fact that the cigarettes, if found, would constitute "mere evidence" of a violation. Ibid. Of course, the New Jersey Supreme Court also held that Mr. Choplick had no reasonable suspicion that the purse would contain cigarettes. This conclusion is puzzling. A teacher had reported that T.L.O. was smoking in the lavatory. Certainly this report gave Mr. Choplick reason to suspect that T.L.O. was carrying cigarettes with her; and Page 469 U. S. 346 if she did have cigarettes, her purse was the obvious place in which to find them. Mr. Choplick's suspicion that there were cigarettes in the purse was not an "inchoate and unparticularized suspicion or hunch,'" Terry v. Ohio, 392 U.S. at 392 U. S. 27 ; rather, it was the sort of "common-sense conclusio[n] about human behavior" upon which "practical people" -- including government officials -- are entitled to rely. United States v. Cortez, 449 U. S. 411 , 449 U. S. 418 (1981). Of course, even if the teacher's report were true, T.L.O. might not have had a pack of cigarettes with her; she might have borrowed a cigarette from someone else or have been sharing a cigarette with another student. But the requirement of reasonable suspicion is not a requirement of absolute certainty: "sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. . . ." Hill v. California, 401 U. S. 797 , 401 U. S. 804 (1971). Because the hypothesis that T.L.O. was carrying cigarettes in her purse was itself not unreasonable, it is irrelevant that other hypotheses were also consistent with the teacher's accusation. Accordingly, it cannot be said that Mr. Choplick acted unreasonably when he examined T.L.O.'s purse to see if it contained cigarettes. [ Footnote 12 ] Page 469 U. S. 347 Our conclusion that Mr. Choplick's decision to open T.L.O.'s purse was reasonable brings us to the question of the further search for marihuana once the pack of cigarettes was located. The suspicion upon which the search for marihuana was founded was provided when Mr. Choplick observed a package of rolling papers in the purse as he removed the pack of cigarettes. Although T.L.O. does not dispute the reasonableness of Mr. Choplick's belief that the rolling papers indicated the presence of marihuana, she does contend that the scope of the search Mr. Choplick conducted exceeded permissible bounds when he seized and read certain letters that implicated T.L.O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a reasonable suspicion that T.L.O. was carrying marihuana as well as cigarettes in her purse. This suspicion justified further exploration of T.L.O.'s purse, which turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type commonly used to store marihuana, a small quantity of marihuana, and a fairly substantial amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of "people who owe me money" as well as two letters, the inference that T.L.O. was involved in marihuana trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marihuana was unreasonable in any respect. Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was reasonable, the New Jersey Supreme Court's decision to exclude that evidence Page 469 U. S. 348 from T.L.O.'s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is Reversed. [ Footnote 1 ] T.L.O. also received a 3-day suspension from school for smoking cigarettes in a nonsmoking area and a 7-day suspension for possession of marihuana. On T.L.O.'s motion, the Superior Court of New Jersey, Chancery Division, set aside the 7-day suspension on the ground that it was based on evidence seized in violation of the Fourth Amendment. (T.L.O.) v. Piscataway Bd. of Ed., No. C.2865-79 (Super.Ct. N.J. Ch.Div., Mar. 31, 1980). The Board of Education apparently did not appeal the decision of the Chancery Division. [ Footnote 2 ] State and federal courts considering these questions have struggled to accommodate the interests protected by the Fourth Amendment and the interest of the States in providing a safe environment conducive to education in the public schools. Some courts have resolved the tension between these interests by giving full force to one or the other side of the balance. Thus, in a number of cases courts have held that school officials conducting in-school searches of students are private parties acting in loco parentis and are therefore not subject to the constraints of the Fourth Amendment. See, e.g., D. R. C. v. State, 646 P.2d 252 (Alaska App.1982); In re G., 11 Cal. App. 3d 1193 , 90 Cal. Rptr. 361 (1970); In re Donaldson, 269 Cal. App. 2d 509 , 75 Cal. Rptr. 220 (1969); R.C.M. v. State, 660 S.W.2d 552 (Tex.App.1983); Mercer v. State, 450 S.W.2d 715 (Tex.Civ.App.1970). At least one court has held, on the other hand, that the Fourth Amendment applies in full to in-school searches by school officials and that a search conducted without probable cause is unreasonable, see State v. Mora, 307 So. 2d 317 (La.), vacated, 423 U.S. 809 (1975), on remand, 330 So. 2d 900 (La.1976); others have held or suggested that the probable cause standard is applicable at least where the police are involved in a search, see M. v. Board of Ed. Ball-Chatham Community Unit School Dist. No. 5, 429 F. Supp. 288 , 292 (SD Ill.1977); Picha v. Wielgos, 410 F. Supp. 1214 , 1219-1221 (ND Ill.1976); State v. Young, 234 Ga. 488, 498, 216 S.E.2d 586 , 594 (1975); or where the search is highly intrusive, See M.M. v. Anker, 607 F.2d 588, 589 (CA2 1979). The majority of courts that have addressed the issue of the Fourth Amendment in the schools have, like the Supreme Court of New Jersey in this case, reached a middle position: the Fourth Amendment applies to searches conducted by school authorities, but the special needs of the school environment require assessment of the legality of such searches against a standard less exacting than that of probable cause. These courts have, by and large, upheld warrantless searches by school authorities provided that they are supported by a reasonable suspicion that the search will uncover evidence of an infraction of school disciplinary rules or a violation of the law. See, e.g., Tarter v. Raybuck, No. 83-3174 (CA6, Aug. 31, 1984); Bilorey v. Brown, 738 F.2d 1462 (CA9 1984); Hortol v. Goose Creek Independent School Dist., 690 F.2d 470 (CA5 1982); Bellnier v. Lund, 438 F. Supp. 47 (NDNY 1977); M. v. Board of Ed. Ball-Chatham Community Unit School Dist. No. 5, supra; In re W., 29 Cal. App. 3d 777 , 105 Cal. Rptr. 775 (1973); State v. Baccino, 282 A.2d 869 (Del. Super.1971); State v. D.T.W., 425 So. 2d 1383 (Fla.App.1983); State v. Young, supra; In re J.A. 85 Ill.App.3d 567, 406 N.E.2d 958 (1980); People v. Ward, 62 Mich.App. 46, 233 N.W.2d 180 (1975); Doe v. State, 88 N.M. 347, 540 P.2d 827 (App.1975); People v. D., 34 N.Y.2d 483, 315 N.E.2d 466 (1974); State v. McKinnon, 88 Wash. 2d 75 , 558 P.2d 781 (1977); In re L.L., 90 Wis.2d 585, 280 N.W.2d 343 (App.1979). Although few have considered the matter, courts have also split over whether the exclusionary rule is an appropriate remedy for Fourth Amendment violations committed by school authorities. The Georgia courts have held that although the Fourth Amendment applies to the schools, the exclusionary rule does not. See, e.g., State v. Young, supra; State v. Lamb, 137 Ga.App. 437, 224 S.E.2d 51 (1976). Other jurisdictions have applied the rule to exclude the fruits of unlawful school searches from criminal trials and delinquency proceedings. See State v. Mora, supra; People v. D., supra. [ Footnote 3 ] In holding that the search of T.L.O.'s purse did not violate the Fourth Amendment, we do not implicitly determine that the exclusionary rule applies to the fruits of unlawful searches conducted by school authorities. The question whether evidence should be excluded from a criminal proceeding involves two discrete inquiries: whether the evidence was seized in violation of the Fourth Amendment, and whether the exclusionary rule is the appropriate remedy for the violation. Neither question is logically antecedent to the other, for a negative answer to either question is sufficient to dispose of the case. Thus, our determination that the search at issue in this case did not violate the Fourth Amendment implies no particular resolution of the question of the applicability of the exclusionary rule. [ Footnote 4 ] Cf. Ingraham v. Wright, 430 U. S. 651 (1977) (holding that the Eighth Amendment's prohibition of cruel and unusual punishment applies only to punishments imposed after criminal convictions and hence does not apply to the punishment of schoolchildren by public school officials). [ Footnote 5 ] We do not address the question, not presented by this case, whether a schoolchild has a legitimate expectation of privacy in lockers, desks, or other school property provided for the storage of school supplies. Nor do we express any opinion on the standards of any governing searches of such areas by school officials or by other public authorities acting at the request of school officials. Compare Zamora v. Pomeroy, 639 F.2d 662, 670 (CA10 1981) ("Inasmuch as the school had assumed joint control of the locker it cannot be successfully maintained that the school did not have a right to inspect it"), and People v. Overton, 24 N.Y.2d 522, 249 N.E.2d 366 (1969) (school administrators have power to consent to search of a student's locker), with State v. Engerud, 94 N.J. 331, 348, 463 A.2d 934 , 943 (1983) ("We are satisfied that in the context of this case the student had an expectation of privacy in the contents of his locker. . . . For the four years of high school, the school locker is a home away from home. In it the student stores the kind of personal effects' protected by the Fourth Amendment"). [ Footnote 6 ] See cases cited in n. 2 supra. [ Footnote 7 ] We here consider only searches carried out by school authorities acting alone and on their own authority. This case does not present the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question. Cf. Picha v. Wielgos, 410 F. Supp. 1214 , 1219-1221 (ND.Ill. 1976) (holding probable cause standard applicable to searches involving the police). [ Footnote 8 ] We do not decide whether individualized suspicion is an essential element of the reasonableness standard we adopt for searches by school authorities. In other contexts, however, we have held that although "some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure[,] . . . the Fourth Amendment imposes no irreducible requirement of such suspicion." United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 560 -561 (1976). See also Camara v. Municipal Court, 387 U. S. 523 (1967). Exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal and where "other safeguards" are available "to assure that the individual's reasonable expectation of privacy is not subject to the discretion of the official in the field.'" Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 654 -655 (1979) (citation omitted). Because the search of T.L.O.'s purse was based upon an individualized suspicion that she had violated school rules, see infra, at 469 U. S. 343 -347, we need not consider the circumstances that might justify school authorities in conducting searches unsupported by individualized suspicion. [ Footnote 9 ] Our reference to the nature of the infraction is not intended as an endorsement of JUSTICE STEVENS' suggestion that some rules regarding student conduct are by nature too "trivial" to justify a search based upon reasonable suspicion. See post at 469 U. S. 377 -382. We are unwilling to adopt a standard under which the legality of a search is dependent upon a judge's evaluation of the relative importance of various school rules. The maintenance of discipline in the schools requires not only that students be restrained from assaulting one another, abusing drugs and alcohol, and committing other crimes, but also that students conform themselves to the standards of conduct prescribed by school authorities. We have "repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Tinker v. Des Moines Independent Community School District, 393 U. S. 503 , 393 U. S. 507 (1969). The promulgation of a rule forbidding specified conduct presumably reflects a judgment on the part of school officials that such conduct is destructive of school order or of a proper educational environment. Absent any suggestion that the rule violates some substantive constitutional guarantee, the courts should, as a general matter, defer to that judgment and refrain from attempting to distinguish between rules that are important to the preservation of order in the schools and rules that are not. [ Footnote 10 ] Of course, New Jersey may insist on a more demanding standard under its own Constitution or statutes. In that case, its courts would not purport to be applying the Fourth Amendment when they invalidate a search. [ Footnote 11 ] JUSTICE STEVENS interprets these statements as a holding that enforcement of the school's smoking regulations was not sufficiently related to the goal of maintaining discipline or order in the school to justify a search under the standard adopted by the New Jersey court. See post at 469 U. S. 382 -384. We do not agree that this is an accurate characterization of the New Jersey Supreme Court's opinion. The New Jersey court did not hold that the school's smoking rules were unrelated to the goal of maintaining discipline or order, nor did it suggest that a search that would produce evidence bearing directly on an accusation that a student had violated the smoking rules would be impermissible under the court's reasonable-suspicion standard; rather, the court concluded that any evidence a search of T.L.O.'s purse was likely to produce would not have a sufficiently direct bearing on the infraction to justify a search -- a conclusion with which we cannot agree for the reasons set forth infra, at 469 U. S. 345 . JUSTICE STEVENS' suggestion that the New Jersey Supreme Court's decision rested on the perceived triviality of the smoking infraction appears to be a reflection of his own views rather than those of the New Jersey court. [ Footnote 12 ] T.L.O. contends that even if it was reasonable for Mr. Choplick to open her purse to look for cigarettes, it was not reasonable for him to reach in and take the cigarettes out of her purse once he found them. Had he not removed the cigarettes from the purse, she asserts, he would not have observed the rolling papers that suggested the presence of marihuana, and the search for marihuana could not have taken place. T.L.O.'s argument is based on the fact that the cigarettes were not "contraband," as no school rule forbade her to have them. Thus, according to T.L.O., the cigarettes were not subject to seizure or confiscation by school authorities, and Mr. Choplick was not entitled to take them out of T.L.O.'s purse regardless of whether he was entitled to peer into the purse to see if they were there. Such hairsplitting argumentation has no place in an inquiry addressed to the issue of reasonableness. If Mr. Choplick could permissibly search T.L.O.'s purse for cigarettes, it hardly seems reasonable to suggest that his natural reaction to finding them -- picking them up -- could be a constitutional violation. We find that neither in opening the purse nor in reaching into it to remove the cigarettes did Mr. Choplick violate the Fourth Amendment. JUSTICE POWELL, with whom JUSTICE O'CONNOR joins, concurring. I agree with the Court's decision, and generally with its opinion. I would place greater emphasis, however, on the special characteristics of elementary and secondary schools that make it unnecessary to afford students the same constitutional protections granted adults and juveniles in a nonschool setting. In any realistic sense, students within the school environment have a lesser expectation of privacy than members of the population generally. They spend the school hours in close association with each other, both in the classroom and during recreation periods. The students in a particular class often know each other and their teachers quite well. Of necessity, teachers have a degree of familiarity with, and authority over, their students that is unparalleled except perhaps in the relationship between parent and child. It is simply unrealistic to think that students have the same subjective expectation of privacy as the population generally. But for purposes of deciding this case, I can assume that children in school -- no less than adults -- have privacy interests that society is prepared to recognize as legitimate. However one may characterize their privacy expectations, students properly are afforded some constitutional protections. In an often quoted statement, the Court said that students do not "shed their constitutional rights . . . at the schoolhouse gate." Tinker v. Des Moines Independent Community School District, 393 U. S. 503 , 393 U. S. 506 (1969). The Court also has "emphasized the need for affirming the comprehensive authority of the states and of school officials . . . Page 469 U. S. 349 to prescribe and control conduct in the schools." Id. at 393 U. S. 507 . See also Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 104 (1968). The Court has balanced the interests of the student against the school officials' need to maintain discipline by recognizing qualitative differences between the constitutional remedies to which students and adults are entitled. In Goss v. Lopez, 419 U. S. 565 (1975), the Court recognized a constitutional right to due process, and yet was careful to limit the exercise of this right by a student who challenged a disciplinary suspension. The only process found to be "due" was notice and a hearing described as "rudimentary"; it amounted to no more than "the disciplinarian . . . informally discuss[ing] the alleged misconduct with the student minutes after it has occurred." Id. at 419 U. S. 581 -582. In Ingraham v. Wright, 430 U. S. 651 (1977), we declined to extend the Eighth Amendment to prohibit the use of corporal punishment of schoolchildren as authorized by Florida law. We emphasized in that opinion that familiar constraints in the school, and also in the community, provide substantial protection against the violation of constitutional rights by school authorities. "[A]t the end of the school day, the child is invariably free to return home. Even while at school, the child brings with him the support of family and friends and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment." Id. at 430 U. S. 670 . The Ingraham Court further pointed out that the "openness of the public school and its supervision by the community afford significant safeguards" against the violation of constitutional rights. Ibid. The special relationship between teacher and student also distinguishes the setting within which schoolchildren operate. Law enforcement officers function as adversaries of criminal suspects. These officers have the responsibility to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial. Rarely does this type of adversarial Page 469 U. S. 350 relationship exist between school authorities and pupils. [ Footnote 2/1 ] Instead, there is a commonality of interests between teachers and their pupils. The attitude of the typical teacher is one of personal responsibility for the student's welfare as well as for his education. The primary duty of school officials and teachers, as the Court states, is the education and training of young people. A State has a compelling interest in assuring that the schools meet this responsibility. Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves from violence by the few students whose conduct in recent years has prompted national concern. For me, it would be unreasonable and at odds with history to argue that the full panoply of constitutional rules applies with the same force and effect in the schoolhouse as it does in the enforcement of criminal laws. [ Footnote 2/2 ] In sum, although I join the Court's opinion and its holding, [ Footnote 2/3 ] my emphasis is somewhat different. Page 469 U. S. 351 [ Footnote 2/1 ] Unlike police officers, school authorities have no law enforcement responsibility or indeed any obligation to be familiar with the criminal laws. Of course, as illustrated by this case, school authorities have a layman's familiarity with the types of crimes that occur frequently in our schools: the distribution and use of drugs, theft, and even violence against teachers as well as fellow students. [ Footnote 2/2 ] As noted above, decisions of this Court have never held to the contrary. The law recognizes a host of distinctions between the rights and duties of children and those of adults. See Goss v. Lopez, 419 U. S. 565 , 419 U. S. 591 (1975) (POWELL, J., dissenting.) [ Footnote 2/3 ] The Court's holding is that "when there are reasonable grounds for suspecting that [a] search will turn up evidence that the student has violated or is violating either the law or the rules of the school," a search of the student's person or belongings is justified. Ante at 469 U. S. 342 . This is in accord with the Court's summary of the views of a majority of the state and federal courts that have addressed this issue. See ante at 469 U. S. 332 -333, n. 2. JUSTICE BLACKMUN, concurring in the judgment. I join the judgment of the Court and agree with much that is said in its opinion. I write separately, however, because I believe the Court omits a crucial step in its analysis of whether a school search must be based upon probable cause. The Court correctly states that we have recognized limited exceptions to the probable cause requirement "[w]here a careful balancing of governmental and private interests suggests that the public interest is best served" by a lesser standard. Ante at 469 U. S. 341 . I believe that we have used such a balancing test, rather than strictly applying the Fourth Amendment's Warrant and Probable-Cause Clause, only when we were confronted with "a special law enforcement need for greater flexibility." Florida v. Royer, 460 U. S. 491 , 460 U. S. 514 (1983) (BLACKMUN, J., dissenting). I pointed out in United States v. Place, 462 U. S. 696 (1983): "While the Fourth Amendment speaks in terms of freedom from unreasonable [searches], the Amendment does not leave the reasonableness of most [searches] to the judgment of courts or government officers; the Framers of the Amendment balanced the interests involved and decided that a [search] is reasonable only if supported by a judicial warrant based on probable cause. See Texas v. Brown, 460 U. S. 730 , 460 U. S. 744 -745 (1983) (POWELL, J., concurring); United States v. Rabinowitz, 339 U. S. 56 , 339 U. S. 70 (1950) (Frankfurter, J., dissenting)." Id. at 462 U. S. 722 (opinion concurring in judgment). See also Dunaway v. New York, 442 U. S. 200 , 442 U. S. 213 -214 (1979); United States v. United States District Court, 407 U. S. 297 , 407 U. S. 315 -316 (1972). Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers. Page 469 U. S. 352 Thus, for example, in determining that police can conduct a limited "stop and frisk" upon less than probable cause, this Court relied upon the fact that "as a practical matter" the stop and frisk could not be subjected to a warrant and probable cause requirement, because a law enforcement officer must be able to take immediate steps to assure himself that the person he has stopped to question is not armed with a weapon that could be used against him. Terry v. Ohio, 392 U. S. 1 , 392 U. S. 20 -21, 392 U. S. 23 -24 (1968). Similarly, this Court's holding that a roving Border Patrol may stop a car and briefly question its occupants upon less than probable cause was based in part upon "the absence of practical alternatives for policing the border." United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 881 (1975). See also Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1049 , n. 14 (1983); United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 557 (1976); Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 537 (1967). The Court's implication that the balancing test is the rule rather than the exception is troubling for me because it is unnecessary in this case. The elementary and secondary school setting presents a special need for flexibility justifying a departure from the balance struck by the Framers. As JUSTICE POWELL notes, "[w]ithout first establishing discipline and maintaining order, teachers cannot begin to educate their students." Ante at 469 U. S. 350 . Maintaining order in the classroom can be a difficult task. A single teacher often must watch over a large number of students, and, as any parent knows, children at certain ages are inclined to test the outer boundaries of acceptable conduct and to imitate the misbehavior of a peer if that misbehavior is not dealt with quickly. Every adult remembers from his own schooldays the havoc a water pistol or peashooter can wreak until it is taken away. Thus, the Court has recognized that "[e]vents calling for discipline are frequent occurrences and sometimes require immediate, effective action." Goss v. Lopez, 419 U. S. 565 , 419 U. S. 580 (1975). Indeed, because drug use and possession of weapons have become increasingly common Page 469 U. S. 353 among young people, an immediate response frequently is required not just to maintain an environment conducive to learning, but to protect the very safety of students and school personnel. Such immediate action obviously would not be possible if a teacher were required to secure a warrant before searching a student. Nor would it be possible if a teacher could not conduct a necessary search until the teacher thought there was probable cause for the search. A teacher has neither the training nor the day-to-day experience in the complexities of probable cause that a law enforcement officer possesses, and is ill-equipped to make a quick judgment about the existence of probable cause. The time required for a teacher to ask the questions or make the observations that are necessary to turn reasonable grounds into probable cause is time during which the teacher, and other students, are diverted from the essential task of education. A teacher's focus is, and should be, on teaching and helping students, rather than on developing evidence against a particular troublemaker. Education "is perhaps the most important function" of government, Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 493 (1954), and government has a heightened obligation to safeguard students whom it compels to attend school. The special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable cause requirement, and in applying a standard determined by balancing the relevant interests. I agree with the standard the Court has announced, and with its application of the standard to the facts of this case. I therefore concur in its judgment. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part. I fully agree with Part 469 U. S. Teachers, like all other government officials, must conform their Page 469 U. S. 354 conduct to the Fourth Amendment's protections of personal privacy and personal security. As JUSTICE STEVENS points out, post at 469 U. S. 373 -374, 469 U. S. 385 -386, this principle is of particular importance when applied to schoolteachers, for children learn as much by example as by exposition. It would be incongruous and futile to charge teachers with the task of embuing their students with an understanding of our system of constitutional democracy, while at the same time immunizing those same teachers from the need to respect constitutional protections. See Board of Education v. Pico, 457 U. S. 853 , 457 U. S. 864 -865 (1982) (plurality opinion); West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 637 (1943). I do not, however, otherwise join the Court's opinion. Today's decision sanctions school officials to conduct fullscale searches on a "reasonableness" standard whose only definite content is that it is not the same test as the "probable cause" standard found in the text of the Fourth Amendment. In adopting this unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards, the Court carves out a broad exception to standards that this Court has developed over years of considering Fourth Amendment problems. Its decision is supported neither by precedent nor even by a fair application of the "balancing test" it proclaims in this very opinion. I Three basic principles underly this Court's Fourth Amendment jurisprudence. First, warrantless searches are per se unreasonable, subject only to a few specifically delineated and well-recognized exceptions. See, e.g., Katz v. United States, 389 U. S. 347 , 389 U. S. 357 (1967); accord, Welsh v. Wisconsin, 466 U. S. 740 , 466 U. S. 748 -749 (1984); United States v. Place, 462 U. S. 696 , 462 U. S. 701 (1983); Steagald v. United States, 451 U. S. 204 , 451 U. S. 211 -212 (1981); Mincey v. Arizona, 437 U. S. 385 (1978); Terry v. Ohio, 392 U. S. 1 , 392 U. S. 20 (1968); Johnson v. United States, 333 U. S. 10 , 333 U. S. 13 -14 (1948). Second, full-scale searches -- whether conducted in accordance with the warrant Page 469 U. S. 355 requirement or pursuant to one of its exceptions -- are "reasonable" in Fourth Amendment terms only on a showing of probable cause to believe that a crime has been committed and that evidence of the crime will be found in the place to be searched. Beck v. Ohio, 379 U. S. 89 , 379 U. S. 91 (1964); Wong Sun v. United States, 371 U. S. 471 , 371 U. S. 479 (1963); Brinegar v. United States, 338 U. S. 160 , 338 U. S. 175 -176 (1949). Third, categories of intrusions that are substantially less intrusive than full-scale searches or seizures may be justifiable in accordance with a balancing test even absent a warrant or probable cause, provided that the balancing test used gives sufficient weight to the privacy interests that will be infringed. Dunaway v. New York, 442 U. S. 200 , 442 U. S. 210 (1979); Terry v. Ohio, supra. Assistant Vice Principal Choplick's thorough excavation of T.L.O.'s purse was undoubtedly a serious intrusion on her privacy. Unlike the searches in Terry v. Ohio, supra, or Adams v. Williams, 407 U. S. 143 (1972), the search at issue here encompassed a detailed and minute examination of respondent's pocketbook, in which the contents of private papers and letters were thoroughly scrutinized. [ Footnote 3/1 ] Wisely, neither petitioner nor the Court today attempts to justify the search of T.L.O.'s pocketbook as a minimally intrusive search in the Terry line. To be faithful to the Court's settled doctrine, the inquiry therefore must focus on the warrant and probable cause requirements. A I agree that schoolteachers or principals, when not acting as agents of law enforcement authorities, generally may conduct a search of their students' belongings without first Page 469 U. S. 356 obtaining a warrant. To agree with the Court on this point is to say that school searches may justifiably be held to that extent to constitute an exception to the Fourth Amendment's warrant requirement. Such an exception, however, is not to be justified, as the Court apparently holds, by assessing net social value through application of an unguided "balancing test" in which "the individual's legitimate expectations of privacy and personal security" are weighed against "the government's need for effective methods to deal with breaches of public order." Ante at 469 U. S. 337 . The Warrant Clause is something more than an exhortation to this Court to maximize social welfare as we see fit. It requires that the authorities must obtain a warrant before conducting a full-scale search. The undifferentiated governmental interest in law enforcement is insufficient to justify an exception to the warrant requirement. Rather, some special governmental interest beyond the need merely to apprehend lawbreakers is necessary to justify a categorical exception to the warrant requirement. For the most part, special governmental needs sufficient to override the warrant requirement flow from "exigency" -- that is, from the press of time that makes obtaining a warrant either impossible or hopelessly infeasible. See United States v. Place, supra, at 462 U. S. 701 -702; Mincey v. Arizona, supra, at 437 U. S. 393 -394; Johnson v. United States, supra, at 333 U. S. 15 . Only after finding an extraordinary governmental interest of this kind do we -- or ought we -- engage in a balancing test to determine if a warrant should nonetheless be required. [ Footnote 3/2 ] Page 469 U. S. 357 To require a showing of some extraordinary governmental interest before dispensing with the warrant requirement is not to undervalue society's need to apprehend violators of the criminal law. To be sure, forcing law enforcement personnel to obtain a warrant before engaging in a search will predictably deter the police from conducting some searches that they would otherwise like to conduct. But this is not an unintended result of the Fourth Amendment's protection of privacy; rather, it is the very purpose for which the Amendment was thought necessary. Only where the governmental interests at stake exceed those implicated in any ordinary law enforcement context -- that is, only where there is some extraordinary governmental interest involved -- is it legitimate to engage in a balancing test to determine whether a warrant is indeed necessary. In this case, such extraordinary governmental interests do exist and are sufficient to justify an exception to the warrant requirement. Students are necessarily confined for most of the schoolday in close proximity to each other and to the school staff. I agree with the Court that we can take judicial notice of the serious problems of drugs and violence that plague our schools. As JUSTICE BLACKMUN notes, teachers must not merely "maintain an environment conducive to learning" among children who "are inclined to test the outer boundaries of acceptable conduct," but must also "protect the very safety of students and school personnel." Ante at 469 U. S. 352 -353. A teacher or principal could neither carry out essential teaching functions nor adequately protect students' safety if required to wait for a warrant before conducting a necessary search. B I emphatically disagree with the Court's decision to cast aside the constitutional probable cause standard when assessing the constitutional validity of a schoolhouse search. The Court's decision jettisons the probable cause standard -- the only standard that finds support in the text of the Fourth Page 469 U. S. 358 Amendment -- on the basis of its Rohrschach-1ike "balancing test." Use of such a "balancing test" to determine the standard for evaluating the validity of a full-scale search represents a sizable innovation in Fourth Amendment analysis. This innovation finds support neither in precedent nor policy and portends a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens. Moreover, even if this Court's historic understanding of the Fourth Amendment were mistaken and a balancing test of some kind were appropriate, any such test that gave adequate weight to the privacy and security interests protected by the Fourth Amendment would not reach the preordained result the Court's conclusory analysis reaches today. Therefore, because I believe that the balancing test used by the Court today is flawed both in its inception and in its execution, I respectfully dissent. 1 An unbroken line of cases in this Court have held that probable cause is a prerequisite for a full-scale search. In Carroll v. United States, 267 U. S. 132 , 267 U. S. 149 (1925), the Court held that "[o]n reason and authority the true rule is that, if the search and seizure . . . are made upon probable cause . . . the search and seizure are valid." Under our past decisions probable cause -- which exists where "the facts and circumstances within [the officials'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief" that a criminal offense had occurred and the evidence would be found in the suspected place, id. at 267 U. S. 162 -- is the constitutional minimum for justifying a full-scale search, regardless of whether it is conducted pursuant to a warrant or, as in Carroll, within one of the exceptions to the warrant requirement. Henry v. United States, 361 U. S. 98 , 361 U. S. 104 (1959) ( Caroll "merely relaxed the requirements for a warrant on grounds of practicality," but "did not dispense Page 469 U. S. 359 with the need for probable cause"); accord, Chambers v. Maroney, 399 U. S. 42 , 399 U. S. 51 (1970) ("In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution"). [ Footnote 3/3 ] Our holdings that probable cause is a prerequisite to a fullscale search are based on the relationship between the two Clauses of the Fourth Amendment. The first Clause ("The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . .") states the purpose of the Amendment and its coverage. The second Clause (". . . and no Warrants shall issue but upon probable cause . . .") gives content to the word "unreasonable" in the first Clause. "For all but . . . narrowly defined intrusions, the requisite 'balancing' has been performed in centuries of precedent and is embodied in the principle that seizures are 'reasonable' only if supported by probable cause." Dunaway v. New York, 442 U.S. at 442 U. S. 214 . I therefore fully agree with the Court that "the underlying command of the Fourth Amendment is always that searches and seizures be reasonable." Ante at 469 U. S. 337 . But this "underlying command" is not directly interpreted in each category of cases by some amorphous "balancing test." Rather, the provisions of the Warrant Clause -- a warrant and probable cause -- provide the yardstick against which official searches Page 469 U. S. 360 and seizures are to be measured. The Fourth Amendment neither requires nor authorizes the conceptual free-for-all that ensues when an unguided balancing test is used to assess specific categories of searches. If the search in question is more than a minimally intrusive Terry stop, the constitutional probable cause standard determines its validity. To be sure, the Court recognizes that probable cause "ordinarily" is required to justify a full-scale search and that the existence of probable cause "bears on" the validity of the search. Ante at 469 U. S. 340 -341. Yet the Court fails to cite any case in which a full-scale intrusion upon privacy interests has been justified on less than probable cause. The line of cases begun by Terry v. Ohio, 392 U. S. 1 (1968), provides no support, for they applied a balancing test only in the context of minimally intrusive searches that served crucial law enforcement interests. The search in Terry itself, for instance, was a "limited search of the outer clothing." Id. at 392 U. S. 30 . The type of border stop at issue in United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 880 (1975), usually "consume[d] no more than a minute"; the Court explicitly noted that "any further detention . . . must be based on consent or probable cause." Id. at 422 U. S. 882 . See also United States v. Hensley, ante at 469 U. S. 224 (momentary stop); United States v. Place, 462 U.S. at 462 U. S. 706 -707 (brief detention of luggage for canine "sniff"); Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam) (brief frisk after stop for traffic violation); United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 560 (1976) (characterizing intrusion as "minimal"); Adams v. Williams, 407 U. S. 143 (1972) (stop and frisk). In short, all of these cases involved "'seizures' so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment 'seizures' reasonable could be replaced by a balancing test." Dunaway, supra, at 442 U. S. 210 . Nor do the "administrative search" cases provide any comfort for the Court. In Camara v. Municipal Court, 387 U. S. 523 (1967), the Court held that the probable cause standard governed even administrative searches. Although Page 469 U. S. 361 the Camara Court recognized that probable cause standards themselves may have to be somewhat modified to take into account the special nature of administrative searches, the Court did so only after noting that "because [housing code] inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy." Id. at 387 U. S. 537 . Subsequent administrative search cases have similarly recognized that such searches intrude upon areas whose owners harbor a significantly decreased expectation of privacy, see, e.g., Donovan v. Dewey, 452 U. S. 594 , 452 U. S. 598 -599 (1981), thus circumscribing the injury to Fourth Amendment interests caused by the search. Considerations of the deepest significance for the freedom of our citizens counsel strict adherence to the principle that no search may be conducted where the official is not in possession of probable cause that is, where the official does not know of "facts and circumstances [that] warrant a prudent man in believing that the offense has been committed." Henry v. United States, 361 U.S. at 361 U. S. 102 ; see also id. at 361 U. S. 100 -101 (discussing history of probable cause standard). The Fourth Amendment was designed not merely to protect against official intrusions whose social utility was less as measured by some "balancing test" than its intrusion on individual privacy; it was designed in addition to grant the individual a zone of privacy whose protections could be breached only where the "reasonable" requirements of the probable cause standard were met. Moved by whatever momentary evil has aroused their fears, officials -- perhaps even supported by a majority of citizens -- may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. [ Footnote 3/4 ] But the Fourth Amendment Page 469 U. S. 362 rests on the principle that a true balance between the individual and society depends on the recognition of "the right to be let alone the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting). That right protects the privacy and security of the individual unless the authorities can cross a specific threshold of need, designated by the term "probable cause." I cannot agree with the Court's assertions today that a "balancing test" can replace the constitutional threshold with one that is more convenient for those enforcing the laws but less protective of the citizens' liberty; the Fourth Amendment's protections should not be defaced by "a balancing process that overwhelms the individual's protection against unwarranted official intrusion by a governmental interest said to justify the search and seizure." United States v. Martinez-Fuerte, supra, at 428 U. S. 570 (BRENNAN, J., dissenting). 2 I thus do not accept the majority's premise that "[t]o hold that the Fourth Amendment applies to searches conducted by school authorities is only to begin the inquiry into the standards governing such searches." Ante at 469 U. S. 337 . For me, the finding that the Fourth Amendment applies, coupled with the observation that what is at issue is a full-scale search, is the end of the inquiry. But even if I believed that a "balancing test" appropriately replaces the judgment of the Framers of the Fourth Amendment, I would nonetheless object to the cursory and shortsighted "test" that the Court employs to justify its predictable weakening of Fourth Amendment protections. In particular, the test employed by the Court vastly overstates the social costs that a probable cause standard entails and, though it plausibly articulates the serious privacy interests at stake, inexplicably fails to accord them adequate weight in striking the balance. Page 469 U. S. 363 The Court begins to articulate its "balancing test" by observing that "the government's need for effective methods to deal with breaches of public order" is to be weighed on one side of the balance. Ibid. Of course, this is not correct. It is not the government's need for effective enforcement methods that should weigh in the balance, for ordinary Fourth Amendment standards -- including probable cause.-- may well permit methods for maintaining the public order that are perfectly effective. If that were the case, the governmental interest in having effective standards would carry no weight at all as a justification for departing from the probable cause standard. Rather, it is the costs of applying probable cause as opposed to applying some lesser standard that should be weighed on the government's side. [ Footnote 3/5 ] In order to tote up the costs of applying the probable-cause standard, it is thus necessary first to take into account the nature and content of that standard, and the likelihood that it would hamper achievement of the goal -- vital not just to "teachers and administrators," see ante at 469 U. S. 339 -- of maintaining an effective educational setting in the public schools. The seminal statement concerning the nature of the probable cause standard is found in Carroll v. United States, 267 U. S. 132 (1925). Carroll held that law enforcement authorities have probable cause to search where "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to Page 469 U. S. 364 warrant a man of reasonable caution in the belief" that a criminal offense had occurred. Id. at 267 U. S. 162 . In Brinegar v. United States, 338 U. S. 160 (1949), the Court amplified this requirement, holding that probable cause depends upon "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. at 338 U. S. 175 . Two Terms ago, in Illinois v. Gates, 462 U. S. 213 (1983), this Court expounded at some length its view of the probable cause standard. Among the adjectives used to describe the standard were "practical," "fluid," "flexible," "easily applied," and "nontechnical." See id. at 462 U. S. 232 , 462 U. S. 236 , 462 U. S. 239 . The probable cause standard was to be seen as a "common-sense" test whose application depended on an evaluation of the "totality of the circumstances." Id. at 462 U. S. 238 . Ignoring what Gates took such great pains to emphasize, the Court today holds that a new "reasonableness" standard is appropriate because it "will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense." Ante at 469 U. S. 343 . I had never thought that our pre- Gates understanding of probable cause defied either reason or common sense. But after Gates, I would have thought that there could be no doubt that this "nontechnical," "practical," and "easily applied" concept was eminently serviceable in a context like a school, where teachers require the flexibility to respond quickly and decisively to emergencies. A consideration of the likely operation of the probable cause standard reinforces this conclusion. Discussing the issue of school searches, Professor LaFave has noted that the cases that have reached the appellate courts "strongly suggest that in most instances the evidence of wrong-doing prompting teachers or principals to conduct searches is sufficiently detailed and specific to meet the traditional probable cause test." 3 W. LaFave, Search and Seizure § 10.11, Page 469 U. S. 365 pp. 459-460 (1978). [ Footnote 3/6 ] The problems that have caused this Court difficulty in interpreting the probable cause standard have largely involved informants, see, e.g., Illinois v. Gates, supra; Spinelli v. United States, 393 U. S. 410 (1969); Agilar v. Texas, 378 U. S. 108 (1964); Draper v. United States, 358 U. S. 307 (1959). However, three factors make it likely that problems involving informants will not make it difficult for teachers and school administrators to make probable cause decisions. This Court's decision in Gates applying a "totality of the circumstances" test to determine whether an informant's tip can constitute probable cause renders the test easy for teachers to apply. The fact that students and teachers interact daily in the school building makes it more likely that teachers will get to know students who supply information; the problem of informants who remain anonymous even to the teachers -- and who are therefore unavailable for verification or further questioning -- is unlikely to arise. Finally, teachers can observe the behavior of students under suspicion to corroborate any doubtful tips they do receive. As compared with the relative ease with which teachers can apply the probable cause standard, the amorphous "reasonableness under all the circumstances" standard freshly coined by the Court today will likely spawn increased litigation and greater uncertainty among teachers and administrators. Of course, as this Court should know, an essential purpose of developing and articulating legal norms is to enable individuals to conform their conduct to those norms. A school system conscientiously attempting to obey the Fourth Amendment's dictates under a probable cause standard could, for example, consult decisions and other legal materials and prepare a booklet expounding the rough outlines of the concept. Such a booklet could be distributed to Page 469 U. S. 366 teachers to provide them with guidance as to when a search may be lawfully conducted. I cannot but believe that the same school system faced with interpreting what is permitted under the Court's new "reasonableness" standard would be hopelessly adrift as to when a search may be permissible. The sad result of this uncertainty may well be that some teachers will be reluctant to conduct searches that are fully permissible and even necessary under the constitutional probable cause standard, while others may intrude arbitrarily and unjustifiably on the privacy of students. [ Footnote 3/7 ] One further point should be taken into account when considering the desirability of replacing the constitutional probable cause standard. The question facing the Court is not whether the probable cause standard should be replaced by a test of "reasonableness under all the circumstances." Rather, it is whether traditional Fourth Amendment standards should recede before the Court's new standard. Thus, although the Court today paints with a broad brush and holds its undefined "reasonableness" standard applicable to all school searches, I would approach the question with considerably more reserve. I would not think it necessary to develop a single standard to govern all school searches, any more Page 469 U. S. 367 than traditional Fourth Amendment law applies even the probable cause standard to all searches and seizures. For instance, just as police officers may conduct a brief stop and frisk on something less than probable cause, so too should teachers be permitted the same flexibility. A teacher or administrator who had reasonable suspicion that a student was carrying a gun would no doubt have authority under ordinary Fourth Amendment doctrine to conduct a limited search of the student to determine whether the threat was genuine. The "costs" of applying the traditional probable cause standard must therefore be discounted by the fact that, where additional flexibility is necessary and where the intrusion is minor, traditional Fourth Amendment jurisprudence itself displaces probable cause when it determines the validity of a search. A legitimate balancing test whose function was something more substantial than reaching a predetermined conclusion acceptable to this Court's impressions of what authority teachers need would therefore reach rather a different result than that reached by the Court today. On one side of the balance would be the costs of applying traditional Fourth Amendment standards -- the "practical" and "flexible" probable cause standard where a full-scale intrusion is sought, a lesser standard in situations where the intrusion is much less severe and the need for greater authority compelling. Whatever costs were toted up on this side would have to be discounted by the costs of applying an unprecedented and ill-defined "reasonableness under all the circumstances" test that will leave teachers and administrators uncertain as to their authority and will encourage excessive fact-based litigation. On the other side of the balance would be the serious privacy interests of the student, interests that the Court admirably articulates in its opinion, ante at 469 U. S. 337 -339, but which the Court's new ambiguous standard places in serious jeopardy. I have no doubt that a fair assessment of the two Page 469 U. S. 368 sides of the balance would necessarily reach the same conclusion that, as I have argued above, the Fourth Amendment's language compels -- that school searches like that conducted in this case are valid only if supported by probable cause. II Applying the constitutional probable cause standard to the facts of this case, I would find that Mr. Choplick's search violated T.L.O.'s Fourth Amendment rights. After escorting T.L.O. into his private office, Mr. Choplick demanded to see her purse. He then opened the purse to find evidence of whether she had been smoking in the bathroom. When he opened the purse, he discovered the pack of cigarettes. At this point, his search for evidence of the smoking violation was complete. Mr. Choplick then noticed, below the cigarettes, a pack of cigarette rolling papers. Believing that such papers were "associated," see ante at 469 U. S. 328 , with the use of marihuana, he proceeded to conduct a detailed examination of the contents of her purse, in which he found some marihuana, a pipe, some money, an index card, and some private letters indicating that T.L.O. had sold marihuana to other students. The State sought to introduce this latter material in evidence at a criminal proceeding, and the issue before the Court is whether it should have been suppressed. On my view of the case, we need not decide whether the initial search conducted by Mr. Choplick -- the search for evidence of the smoking violation that was completed when Mr. Choplick found the pack of cigarettes -- was valid. For Mr. Choplick at that point did not have probable cause to continue to rummage through T.L.O.'s purse. Mr. Choplick's suspicion of marihuana possession at this time was based solely on the presence of the package of cigarette papers. The mere presence without more of such a staple item of commerce is insufficient to warrant a person of reasonable caution in inferring both that T.L.O. had violated the law Page 469 U. S. 369 by possessing marihuana and that evidence of that violation would be found in her purse. Just as a police officer could not obtain a warrant to search a home based solely on his claim that he had seen a package of cigarette papers in that home, Mr. Choplick was not entitled to search possibly the most private possessions of T.L.O. based on the mere presence of a package of cigarette papers. Therefore, the fruits of this illegal search must be excluded and the judgment of the New Jersey Supreme Court affirmed. III In the past several Terms, this Court has produced a succession of Fourth Amendment opinions in which "balancing tests" have been applied to resolve various questions concerning the proper scope of official searches. The Court has begun to apply a "balancing test" to determine whether a particular category of searches intrudes upon expectations of privacy that merit Fourth Amendment protection. See Hudson v. Palmer, 468 U. S. 517 , 468 U. S. 527 (1984) ("Determining whether an expectation of privacy is legitimate' or `reasonable' necessarily entails a balancing of interests"). It applies a "balancing test" to determine whether a warrant is necessary to conduct a search. See ante at 469 U. S. 340 ; United States v. Martinez-Fuerte, 428 U.S. at 428 U. S. 564 -566. In today's opinion, it employs a "balancing test" to determine what standard should govern the constitutionality of a given category of searches. See ante at 469 U. S. 340 -341. Should a search turn out to be unreasonable after application of all of these "balancing tests," the Court then applies an additional "balancing test" to decide whether the evidence resulting from the search must be excluded. See United States v. Leon, 468 U. S. 897 (1984). All of these "balancing tests" amount to brief nods by the Court in the direction of a neutral utilitarian calculus while the Court in fact engages in an unanalyzed exercise of judicial will. Perhaps this doctrinally destructive nihilism is merely Page 469 U. S. 370 a convenient umbrella under which a majority that cannot agree on a genuine rationale can conceal its differences. Compare ante p. 469 U. S. 327 (WHITE, J., delivering the opinion of the Court), with ante p. 469 U. S. 348 (POWELL, J., joined by O'CONNOR, J., concurring), and ante p. 469 U. S. 351 (BLACKMUN, J., concurring in judgment). And it may be that the real force underlying today's decision is the belief that the Court purports to reject -- the belief that the unique role served by the schools justifies an exception to the Fourth Amendment on their behalf. If so, the methodology of today's decision may turn out to have as little influence in future cases as will its result, and the Court's departure from traditional Fourth Amendment doctrine will be confined to the schools. On my view, the presence of the word "unreasonable" in the text of the Fourth Amendment does not grant a shifting majority of this Court the authority to answer all Fourth Amendment questions by consulting its momentary vision of the social good. Full-scale searches unaccompanied by probable cause violate the Fourth Amendment. I do not pretend that our traditional Fourth Amendment doctrine automatically answers all of the difficult legal questions that occasionally arise. I do contend, however, that this Court has an obligation to provide some coherent framework to resolve such questions on the basis of more than a conclusory recitation of the results of a "balancing test." The Fourth Amendment itself supplies that framework and, because the Court today fails to heed its message, I must respectfully dissent. [ Footnote 3/1 ] A purse typically contains items of highly personal nature. Especially for shy or sensitive adolescents, it could prove extremely embarrassing for a teacher or principal to rummage through its contents, which could include notes from friends, fragments of love poems, caricatures of school authorities, and items of personal hygiene. [ Footnote 3/2 ] Administrative search cases involving inspection schemes have recognized that "if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection. . . ." United States v. Biswell, 406 U. S. 311 , 406 U. S. 316 (1972); accord, Donovan v. Dewey, 452 U. S. 594 , 452 U. S. 603 (1981). Cf. Marshall v. Barlow's, Inc., 436 U. S. 307 (1978) (holding that a warrant is nonetheless necessary in some administrative search contexts). [ Footnote 3/3 ] In fact, despite the somewhat diminished expectation of privacy that this Court has recognized in the automobile context, see South Dakota v. Opperman, 428 U. S. 364 , 428 U. S. 367 -368 (1976), we have required probable cause even to justify a warrantless automobile search, see United States v. Ortiz, 422 U. S. 891 , 422 U. S. 896 (1975) ("A search, even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search") (footnote omitted); Chamers v. Maroney, 399 U.S. at 399 U. S. 51 . [ Footnote 3/4 ] As Justice Stewart said in Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 455 (1971): "In times of unrest, whether caused by crime or racial conflict or fear of internal subversion this basic law and the values that it represents may appear unrealistic or 'extravagant' to some. But the values were those of the authors of our fundamental constitutional concepts." [ Footnote 3/5 ] I speak of the "government's side" only because it is the terminology used by the Court. In my view, this terminology itself is seriously misleading. The government is charged with protecting the privacy and security of the citizen, just as it is charged with apprehending those who violate the criminal law. Consequently, the government has no legitimate interest in conducting a search that unduly intrudes on the privacy and security of the citizen. The balance is not between the rights of the government and the rights of the citizen, but between opposing conceptions of the constitutionally legitimate means of carrying out the government's varied responsibilities. [ Footnote 3/6 ] It should be noted that Professor LaFave reached this conclusion in 1978, before this Court's decision in Gates made clear the "flexibility" of the probable cause concept. [ Footnote 3/7 ] A comparison of the language of the standard ("reasonableness under all the circumstances") with the traditional language of probable cause ("facts sufficient to warrant a person of reasonable caution in believing that a crime had been committed and the evidence would be found in the designated place") suggests that the Court's new standard may turn out to be probable cause under a new guise. If so, the additional uncertainty caused by this Court's innovation is surely unjustifiable; it would be naive to expect that the addition of this extra dose of uncertainty would do anything other than "burden the efforts of school authorities to maintain order in their schools," ante at 469 U. S. 342 . If, on the other hand, the new standard permits searches of students in instances when probable cause is absent -- instances, according to this Court's consistent formulations, when a person of reasonable caution would not think it likely that a violation existed or that evidence of that violation would be found -- the new standard is genuinely objectionable and impossible to square with the premise that our citizens have the right to be free from arbitrary intrusions on their privacy. JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BRENNAN joins as to Part I, concurring in part and dissenting in part. Assistant Vice Principal Choplick searched T.L.O.'s purse for evidence that she was smoking in the girls' restroom. Because T.L.O.'s suspected misconduct was not illegal and did not pose a serious threat to school discipline, the New Jersey Supreme Court held that Choplick's search Page 469 U. S. 371 of her purse was an unreasonable invasion of her privacy and that the evidence which he seized could not be used against her in criminal proceedings. The New Jersey court's holding was a careful response to the case it was required to decide. The State of New Jersey sought review in this Court, first arguing that the exclusionary rule is wholly inapplicable to searches conducted by school officials, and then contending that the Fourth Amendment itself provides no protection at all to the student's privacy. The Court has accepted neither of these frontal assaults on the Fourth Amendment. It has, however, seized upon this "no smoking" case to announce "the proper standard" that should govern searches by school officials who are confronted with disciplinary problems far more severe than smoking in the restroom. Although I join Part 469 U. S. I continue to believe that the Court has unnecessarily and inappropriately reached out to decide a constitutional question. See 468 U. S. 1214 (1984) (STEVENS, J., dissenting from reargument order). More importantly, I fear that the concerns that motivated the Court's activism have produced a holding that will permit school administrators to search students suspected of violating only the most trivial school regulations and guidelines for behavior. I The question the Court decides today -- whether Mr. Choplick's search of T.L.O.'s purse violated the Fourth Amendment -- was not raised by the State's petition for writ of certiorari. That petition only raised one question: "Whether the Fourth Amendment's exclusionary rule applies to searches made by public school officials and teachers in school." [ Footnote 4/1 ] The State quite properly declined to submit the former question because "[it] did not wish to present what might appear to be solely a factual dispute to this Court." [ Footnote 4/2 ] Page 469 U. S. 372 Since this Court has twice had the threshold question argued, I believe that it should expressly consider the merits of the New Jersey Supreme Court's ruling that the exclusionary rule applies. The New Jersey Supreme Court's holding on this question is plainly correct. As the state court noted, this case does not involve the use of evidence in a school disciplinary proceeding; the juvenile proceedings brought against T.L.O. involved a charge that would have been a criminal offense if committed by an adult. [ Footnote 4/3 ] Accordingly, the exclusionary rule issue decided by that court and later presented to this Court concerned only the use in a criminal proceeding of evidence obtained in a search conducted by a public school administrator. Having confined the issue to the law enforcement context, the New Jersey court then reasoned that this Court's cases have made it quite clear that the exclusionary rule is equally applicable "whether the public official who illegally obtained the evidence was a municipal inspector, See v. Seattle, 387 U. S. 541 [1967]; Camara [v. Municipal Court,] 387 U. S. 523 [1967]; a firefighter, Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 506 [1978]; or a school administrator or law enforcement official. [ Footnote 4/4 ]" It correctly concluded "that, if an official search violates constitutional rights, the evidence is not admissible in criminal proceedings." [ Footnote 4/5 ] When a defendant in a criminal proceeding alleges that she was the victim of an illegal search by a school administrator, the application of the exclusionary rule is a simple corollary of the principle that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 655 (1961). The practical basis for this principle is, in part, its deterrent effect, see id. at 367 U. S. 656 , and as a general Page 469 U. S. 373 matter it is tolerably clear to me, as it has been to the Court, that the existence of an exclusionary remedy does deter the authorities from violating the Fourth Amendment by sharply reducing their incentive to do so. [ Footnote 4/6 ] In the case of evidence obtained in school searches, the "overall educative effect" [ Footnote 4/7 ] of the exclusionary rule adds important symbolic force to this utilitarian judgment. Justice Brandeis was both a great student and a great teacher. It was he who wrote: "Our Government is the potent, the onmipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 485 (1928) (dissenting opinion). Those of us who revere the flag and the ideals for which it stands believe in the power of symbols. We cannot ignore that rules of law also have a symbolic power that may vastly exceed their utility. Schools are places where we inculcate the values essential to the meaningful exercise of rights and responsibilities by a self-governing citizenry. [ Footnote 4/8 ] If the Nation's students can be convicted through the use of arbitrary methods destructive of personal liberty, they cannot help but feel that they have Page 469 U. S. 374 been dealt with unfairly. [ Footnote 4/9 ] The application of the exclusionary rule in criminal proceedings arising from illegal school searches makes an important statement to young people that "our society attaches serious consequences to a violation of constitutional rights," [ Footnote 4/10 ] and that this is a principle of "liberty and justice for all." [ Footnote 4/11 ] Thus, the simple and correct answer to the question presented by the State's petition for certiorari would have required affirmance of a state court's judgment suppressing evidence. That result would have been dramatically out of character for a Court that not only grants prosecutors relief from suppression orders with distressing regularity, [ Footnote 4/12 ] but Page 469 U. S. 375 also is prone to rely on grounds not advanced by the parties in order to protect evidence from exclusion. [ Footnote 4/13 ] In characteristic disregard of the doctrine of judicial restraint, the Court avoided that result in this case by ordering reargument and directing the parties to address a constitutional question that the parties, with good reason, had not asked the Court to decide. Because judicial activism undermines the Court's power to perform its central mission in a legitimate way, I dissented from the reargument order. See 468 U. S. 1214 (1984). I have not modified the views expressed in that dissent, but since the majority has brought the question before us, I shall explain why I believe the Court has misapplied the standard of reasonableness embodied in the Fourth Amendment. II The search of a young woman's purse by a school administrator is a serious invasion of her legitimate expectations of privacy. A purse "is a common repository for one's personal effects and therefore is inevitably associated with the expectation of privacy." Arkansas v. Sanders, 442 U. S. 753 , 442 U. S. 762 (1979). Although such expectations must sometimes yield to the legitimate requirements of government, in assessing the constitutionality of a warrantless search, our decision must be guided by the language of the Fourth Amendment: "The right of the people to be secure in their persons, houses, Page 469 U. S. 376 papers and effects, against unreasonable searches and seizures, shall not be violated. . . . " In order to evaluate the reasonableness of such searches, "it is necessary 'first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,' for there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'" Terry v. Ohio, 392 U. S. 1 , 392 U. S. 20 -21 (1968) ( quoting Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 528 , 387 U. S. 534 -537,(1967)). [ Footnote 4/14 ] The "limited search for weapons" in Terry was justified by the "immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." 392 U.S. at 392 U. S. 23 , 392 U. S. 25 . When viewed from the institutional perspective, "the substantial need of teachers and administrators for freedom to maintain order in the schools," ante at 469 U. S. 341 (majority opinion), is no less acute. Violent, unlawful, or seriously disruptive conduct is fundamentally inconsistent with the principal function of teaching institutions which is to educate young people and prepare them for citizenship. [ Footnote 4/15 ] When such conduct occurs amidst a sizable group of impressionable young people, it creates an explosive atmosphere that requires a prompt and effective response. Thus, warrantless searches of students by school administrators are reasonable when undertaken for those purposes. Page 469 U. S. 377 But the majority's statement of the standard for evaluating the reasonableness of such searches is not suitably adapted to that end. The majority holds that "a search of a student by a teacher or other school official will be 'justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. " Ante at 469 U. S. 341 -342. This standard will permit teachers and school administrators to search students when they suspect that the search will reveal evidence of even the most trivial school regulation or precatory guideline for student behavior. The Court's standard for deciding whether a search is justified "at its inception" treats all violations of the rules of the school as though they were fungible. For the Court, a search for curlers and sunglasses in order to enforce the school dress code [ Footnote 4/16 ] is apparently just as important as a search for evidence of heroin addiction or violent gang activity. The majority, however, does not contend that school administrators have a compelling need to search students in Page 469 U. S. 378 order to achieve optimum enforcement of minor school regulations. [ Footnote 4/17 ] To the contrary, when minor violations are involved, there is every indication that the informal school disciplinary process, with only minimum requirements of due process, [ Footnote 4/18 ] can function effectively without the power to search for enough evidence to prove a criminal case. In arguing that teachers and school administrators need the power to search students based on a lessened standard, the United States as amicus curiae relies heavily on empirical evidence of a contemporary crisis of violence and unlawful behavior that is seriously undermining the process of education in American schools. [ Footnote 4/19 ] A standard better attuned to this concern would permit teachers and school administrators to search a student when they have reason to believe that the search will uncover evidence that the student is violating the law or engaging in conduct that is seriously disruptive of school order, or the educational process. This standard is properly directed at "[t]he sole justification for the [warrantless] search." [ Footnote 4/20 ] In addition, a standard Page 469 U. S. 379 that varies the extent of the permissible intrusion with the gravity of the suspected offense is also more consistent with common law experience and this Court's precedent. Criminal law has traditionally recognized a distinction between essentially regulatory offenses and serious violations of the peace, and graduated the response of the criminal justice system depending on the character of the violation. [ Footnote 4/21 ] The application of a similar distinction in evaluating the reasonableness of warrantless searches and seizures "is not a novel idea." Welsh v. Wisconsin, 466 U. S. 740 , 466 U. S. 750 (1984). [ Footnote 4/22 ] In Welsh, police officers arrived at the scene of a traffic accident and obtained information indicating that the driver of the automobile involved was guilty of a first offense of Page 469 U. S. 380 driving while intoxicated -- a civil violation with a maximum fine of $200. The driver had left the scene of the accident, and the officers followed the suspect to his home where they arrested him without a warrant. Absent exigent circumstances, the warrantless invasion of the home was a clear violation of Payton v. New York, 445 U. S. 573 (1980). In holding that the warrantless arrest for the "noncriminal, traffic offense" in Welsh was unconstitutional, the Court noted that "application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has been committed." 466 U.S. at 466 U. S. 753 . The logic of distinguishing between minor and serious offenses in evaluating the reasonableness of school searches is almost too clear for argument. In order to justify the serious intrusion on the persons and privacy of young people that New Jersey asks this Court to approve, the State must identify "some real immediate and serious consequences." McDonald v. United States, 335 U. S. 451 , 335 U. S. 460 (1948) (Jackson, J., concurring, joined by Frankfurter, J.). [ Footnote 4/23 ] While school administrators have entirely legitimate reasons for adopting school regulations and guidelines for student behavior, the authorization of searches to enforce them "displays a shocking lack of all sense of proportion." Id. 335 U. S. 459 . [ Footnote 4/24 ] Page 469 U. S. 381 The majority offers weak deference to these principles of balance and decency by announcing that school searches will only be reasonable in scope "when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. " Ante at 469 U. S. 342 (emphasis added). The majority offers no explanation why a two-part standard is necessary to evaluate the reasonableness of the ordinary school search. Significantly, in the balance of its opinion the Court pretermits any discussion of the nature of T.L.O.'s infraction of the "no smoking" rule. The "rider" to the Court's standard for evaluating the reasonableness of the initial intrusion apparently is the Court's perception that its standard is overly generous and does not, by itself, achieve a fair balance between the administrator's right to search and the student's reasonable expectations of privacy. The Court's standard for evaluating the "scope" of reasonable school searches is obviously designed to prohibit physically intrusive searches of students by persons of the opposite sex for relatively minor offenses. The Court's effort to establish a standard that is, at once, clear enough to allow searches to be upheld in nearly every case, and flexible enough to prohibit obviously unreasonable intrusions of young adults' privacy only creates uncertainty in the extent of its resolve to prohibit the latter. Moreover, the majority's application of its standard in this case -- to permit a male administrator to rummage through the purse of a female high school student in order to obtain evidence that she was smoking Page 469 U. S. 382 in a bathroom -- raises grave doubts in my mind whether its effort will be effective. [ Footnote 4/25 ] Unlike the Court, I believe the nature of the suspected infraction is a matter of first importance in deciding whether any invasion of privacy is permissible. III The Court embraces the standard applied by the New Jersey Supreme Court as equivalent to its own, and then deprecates the state court's application of the standard as reflecting "a somewhat crabbed notion of reasonableness." Ante at 469 U. S. 343 . There is no mystery, however, in the state court's finding that the search in this case was unconstitutional; the decision below was not based on a manipulation of reasonable suspicion, but on the trivial character of the activity that promoted the official search. The New Jersey Supreme Court wrote: "We are satisfied that, when a school official has reasonable grounds to believe that a student possesses evidence of illegal activity or activity that would interfere with school discipline and order, the school official has the right to conduct a reasonable search for such evidence." "In determining whether the school official has reasonable grounds, courts should consider the child's age, history, and school record, the prevalence and seriousness of the problem in the school to which the search was Page 469 U. S. 383 directed, the exigency to make the search without delay, and the probative value and reliability of the information used as a justification for the search. [ Footnote 4/26 ]" The emphasized language in the state court's opinion focuses on the character of the rule infraction that is to be the object of the search. In the view of the state court, there is a quite obvious and material difference between a search for evidence relating to violent or disruptive activity, and a search for evidence of a smoking rule violation. This distinction does not imply that a no-smoking rule is a matter of minor importance. Rather, like a rule that prohibits a student from being tardy, its occasional violation in a context that poses no threat of disrupting school order and discipline offers no reason to believe that an immediate search is necessary to avoid unlawful conduct, violence, or a serious impairment of the educational process. A correct understanding of the New Jersey court's standard explains why that court concluded in T.L.O.'s case that "the assistant principal did not have reasonable grounds to believe that the student was concealing in her purse evidence of criminal activity or evidence of activity that would seriously interfere with school discipline or order. [ Footnote 4/27 ]" The importance of the nature of the rule infraction to the New Jersey Supreme Court's holding is evident from its brief explanation of the principal basis for its decision: "A student has an expectation of privacy in the contents of her purse. Mere possession of cigarettes did not violate school rule or policy, since the school allowed smoking in designated areas. The contents of the handbag had no direct bearing on the infraction." "The assistant principal's desire, legal in itself, to gather evidence to impeach the student's credibility at a Page 469 U. S. 384 hearing on the disciplinary infraction does not validate the search. [ Footnote 4/28 ]" Like the New Jersey Supreme Court, I would view this case differently if the Assistant Vice Principal had reason to believe T.L.O.'s purse contained evidence of criminal activity, or of an activity that would seriously disrupt school discipline. There was, however, absolutely no basis for any such assumption -- not even a "hunch." In this case, Mr. Choplick overreacted to what appeared to be nothing more than a minor infraction -- a rule prohibiting smoking in the bathroom of the freshmen's and sophomores' building. [ Footnote 4/29 ] It is, of course, true that he actually found evidence of serious wrongdoing by T.L.O., but no one claims that the prior search may be justified by his unexpected discovery. As far as the smoking infraction is concerned, the search for cigarettes merely tended to corroborate a teacher's eyewitness account of T.L.O.'s violation of a minor regulation designed to channel student smoking behavior into designated locations. Because this conduct was neither unlawful nor significantly disruptive of school order or the educational process, the invasion of privacy associated with the forcible opening of T.L.O.'s purse was entirely unjustified at its inception. A review of the sampling of school search cases relied on by the Court demonstrates how different this case is from those Page 469 U. S. 385 in which there was indeed a valid justification for intruding on a student's privacy. In most of them the student was suspected of a criminal violation; [ Footnote 4/30 ] in the remainder either violence or substantial disruption of school order or the integrity of the academic process was at stake. [ Footnote 4/31 ] Few involved matters as trivial as the no-smoking rule violated by T.L.0., [ Footnote 4/32 ] The rule the Court adopts today is so open-ended that it may make the Fourth Amendment virtually meaningless in the school context. Although I agree that school administrators must have broad latitude to maintain order and discipline in our classrooms, that authority is not unlimited. IV The schoolroom is the first opportunity most citizens have to experience the power of government. Through it passes every citizen and public official, from schoolteachers to Page 469 U. S. 386 policemen and prison guards. The values they learn there, they take with them in life. One of our most cherished ideals is the one contained in the Fourth Amendment: that the government may not intrude on the personal privacy of its citizens without a warrant or compelling circumstance. The Court's decision today is a curious moral for the Nation's youth. Although the search of T.L.O.'s purse does not trouble today's majority, I submit that we are not dealing with "matters relatively trivial to the welfare of the Nation. There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution." West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 638 (1943). I respectfully dissent. [ Footnote 4/1 ] Pet. for Cert. i. [ Footnote 4/2 ] Supplemental Brief for Petitioner 6. [ Footnote 4/3 ] State ex rel. T.L.O., 94 N.J. 331, 337, nn. 1 and 2, 342, n. 5, 463 A.2d 934 , 937, nn. 1 and 2, 939, n. 5 (1983). [ Footnote 4/4 ] Id. at 341, 463 A.2d at 939. [ Footnote 4/5 ] Id. at 341-342, 463 A.2d at 939. [ Footnote 4/6 ] See, e.g., Stone v. Powell, 428 U. S. 465 , 428 U. S. 492 (1976); United States v. Janis, 428 U. S. 433 , 428 U. S. 453 (1976); United States v. Calandra, 414 U. S. 338 , 414 U. S. 347 -348 (1974); Alderman V. United States, 394 U. S. 165 , 394 U. S. 174 -175 (1969). [ Footnote 4/7 ] Stone v. Powell, 428 U.S. at 428 U. S. 493 . [ Footnote 4/8 ] See Board of Education v. Pico, 457 U. S. 853 , 457 U. S. 864 -865 (1982) (BRENNAN, J., joined by MARSHALL and STEVENS, JJ.); id. at 457 U. S. 876 , 457 U. S. 880 (BLACKMUN, J., concurring in part and concurring in judgment); Plyler v. Doe, 457 U. S. 202 , 457 U. S. 221 (1982); Ambach v. Norwick, 441 U. S. 68 , 441 U. S. 76 (1979); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , 393 U. S. 507 , 393 U. S. 511 -513 (1969); Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 493 (1954); West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 637 (1943). [ Footnote 4/9 ] Cf. In re Gault, 387 U. S. 1 , 387 U. S. 26 -27 (1967). JUSTICE BRENNAN has written of an analogous case: "We do not know what class petitioner was attending when the police and dogs burst in, but the lesson the school authorities taught her that day will undoubtedly make a greater impression than the one her teacher had hoped to convey. I would grant certiorari to teach petitioner another lesson: that the Fourth Amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures'. . . . Schools cannot expect their students to learn the lessons of good citizenship when the school authorities themselves disregard the fundamental principles underpinning our constitutional freedoms." Doe v. Renfrow, 451 U. S. 1022 , 1027-1028 (1981) (dissenting from denial of certiorari). [ Footnote 4/10 ] Stone v. Powell, 428 U.S. at 428 U. S. 492 . [ Footnote 4/11 ] 36 U.S.C. § 172 (pledge of allegiance to the flag). [ Footnote 4/12 ] A brief review of the Fourth Amendment cases involving criminal prosecutions since the October Term, 1982, supports the proposition. Compare Florida v. Rodriguez, ante p. 469 U. S. 1 (per curiam); United States v. Leon, 468 U. S. 897 (1984); Massachusetts v. Sheppard, 468 U. S. 981 (1984); Segura v. United States, 468 U. S. 796 (1984); United States v. Karo, 468 U. S. 705 (1984); Oliver v. United States, 466 U. S. 170 (1984); United States v. Jacobsen, 466 U. S. 109 (1984); Massachusetts v. Upton, 466 U. S. 727 (1984) (per curiam); Florida v. Meyers, 466 U. S. 380 (1984) (per curiam); Michigan v. Long, 463 U. S. 1032 (1983); Illinois v. Andreas, 463 U. S. 765 (1983); Illinois v. Lafayette, 462 U. S. 640 (1983); United States v. Villamonte-Marquez, 462 U. S. 579 (1983); Illinois v. Gates, 462 U. S. 213 (1983); Texas v. Brown, 460 U. S. 730 (1983); United States v. Knotts, 460 U. S. 276 (1983); Illinois v. Batchelder, 463 U. S. 1112 (1983) (per curiam); Cardwell v. Taylor, 461 U. S. 571 (1983) (per curiam), with Thompson v. Louisiana, ante p. 469 U. S. 17 (per curiam); Welsh v. Wisconsin, 466 U. S. 740 (1984); Michigan v. Clifford, 464 U. S. 287 (1984); United States v. Place, 462 U. S. 696 (1983); Florida v. Royer, 460 U. S. 491 (1983). [ Footnote 4/13 ] E.g. United States v. Karo, 468 U.S. at 468 U. S. 719 -721; see also Segura v. United States, 468 U.S. at 468 U. S. 805 -813 (opinion of BURGER, C.J., joined by O'CONNOR, J.); cf. Illinois v. Gates, 459 U. S. 1028 (1982) (STEVENS, J., dissenting from reargument order, joined by BRENNAN and MARSHALL, JJ.) [ Footnote 4/14 ] See also United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 881 -882 (1975); United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 567 (1976). [ Footnote 4/15 ] Cf. ante at 469 U. S. 353 (BLACKMUN, J., concurring in judgment) ("The special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable cause requirement"); ante at 469 U. S. 350 (POWELL, J., concurring, joined by O'CONNOR, J.) ("Without first establishing discipline and maintaining order, teachers cannot begin to educate their students"). [ Footnote 4/16 ] Parent-Student Handbook of Piscataway [N.J.] H. S. (1979), Record Doc. S-1, p. 7. A brief survey of school rule books reveals that, under the majority's approach, teachers and school administrators may also search students to enforce school rules regulating: "(i) secret societies;" "(ii) students driving to school;" "(iii) parking and use of parking lots during school hours;" "(iv) smoking on campus;" "(v) the direction of traffic in the hallways;" "(vi) student presence in the hallways during class hours without a pass;" "(vii) profanity;" "(viii) school attendance of interscholastic athletes on the day of a game, meet or match;" "(ix) cafeteria use and cleanup;" "(x) eating lunch off-campus; and" "(xi) unauthorized absence." See id. at 7-18; Student Handbook of South Windsor [Conn.] H. S. (1984); Fairfax County [Va.] Public Schools, Student Responsibilities and Rights (1980); Student Handbook of Chantilly [Va.] H. S. (1984). [ Footnote 4/17 ] Cf. Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 535 -536 (1967) ("There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures. . . . [I]f the probable cause standard . . . is adopted, . . . the reasonable goals of code enforcement will be dealt a crushing blow"). [ Footnote 4/18 ] See Goss v. Lopez, 419 U. S. 565 , 419 U. S. 583 -584 (1975). [ Footnote 4/19 ] "The sad truth is that many classrooms across the country are not temples of learning teaching the lessons of good will, civility, and wisdom that are central to the fabric of American life. To the contrary, many schools are in such a state of disorder that not only is the educational atmosphere polluted, but the very safety of students and teachers is imperiled." Brief for United States as Amicus Curiae 23. See also Brief for National Education Association as Amicus Curiae 21 ("If a suspected violation of a rule threatens to disrupt the school or threatens to harm students, school officials should be free to search for evidence of it"). [ Footnote 4/20 ] Terry v. Ohio, 392 U. S. 1 , 392 U. S. 29 (1968); United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 881 -882. [ Footnote 4/21 ] Throughout the criminal law this dichotomy has been expressed by classifying crimes as misdemeanors or felonies, malum prohibitum or malum in se, crimes that do not involve moral turpitude or those that do, and major or petty offenses. See generally W. LaFave, Handbook on Criminal Law § 6 (1972). Some codes of student behavior also provide a system of graduated response by distinguishing between violent, unlawful, or seriously disruptive conduct, and conduct that will only warrant serious sanctions when the student engages in repetitive offenses. See, e.g., Parent-Student Handbook of Piscataway [N.J.] H.S. (1979), Record Doc. S-1, pp. 15-16; Student Handbook of South Windsor [Conn.] H.S. � E (1984); Rules of the Board of Education of the District of Columbia, Ch. IV, §§ 431.1-.10 (1982). Indeed, at Piscataway High School a violation of smoking regulations that is "[a] student's first offense will result in assignment of up to three (3) days of after school classes concerning hazards of smoking." Record Doc. S-1, supra, at 15. [ Footnote 4/22 ] In Goss v. Lopez, 419 U.S. at 419 U. S. 582 -583 (emphasis added), the Court noted that similar considerations require some variance in the requirements of due process in the school disciplinary context: "[A]s a general rule notice and hearing should precede removal of the student from school. We agree . . ., however, that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases the necessary notice and rudimentary hearing should follow as soon as practicable. . . ." [ Footnote 4/23 ] In McDonald police officers made a warrantless search of the office of an illegal "numbers" operation. Justice Jackson rejected the view that the search could be supported by exigent circumstances: "Even if one were to conclude that urgent circumstances might justify a forced entry without a warrant, no such emergency was present in this case. . . . Whether there is reasonable necessity for a search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it. . . . [The defendant's] criminal operation, while a shabby swindle that the police are quite right in suppressing, was not one which endangered life or limb or the peace and good order of the community. . . ." 335 U.S. at 335 U. S. 459 -460. [ Footnote 4/24 ] While a policeman who sees a person smoking in an elevator in violation of a city ordinance may conduct a full-blown search for evidence of the smoking violation in the unlikely event of a custodial arrest, United States v. Robinson, 414 U. S. 218 , 414 U. S. 236 (1973); Gustafson v. Florida, 414 U. S. 260 , 414 U. S. 265 -266 (1973), it is more doubtful whether a search of this kind would be reasonable if the officer only planned to issue a citation to the offender and depart, see Robinson, 414 U.S. at 414 U. S. 236 , n. 6. In any case, the majority offers no rationale supporting its conclusion that a student detained by school officials for questioning, on reasonable suspicion that she has violated a school rule, is entitled to no more protection under the Fourth Amendment than a criminal suspect under custodial arrest. [ Footnote 4/25 ] One thing is clear under any standard -- the shocking strip searches that are described in some cases have no place in the schoolhouse. See Doe v. Renfrow, 631 F.2d 91, 92-93 (CA7 1980) ("It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude"), cert. denied 451 U. S. 1022 (1981); Bellnier v. Lund, 438 F. Supp. 47 (NDNY 1977), People v. D., 34 N.Y.2d 483, 315 N.E.2d 466 (1974); M.J. v. State, 399 So. 2d 996 (Fla.App.1981). To the extent that deeply intrusive searches are ever reasonable outside the custodial context, it surely must only be to prevent imminent, and serious harm. [ Footnote 4/26 ] 94 N.J. at 346, 463 A.2d at 941-942 ( quoting State v. McKinnon, 88 Wash. 2d 75 , 81, 558 P.2d 781 , 784 (1977)) (emphasis added). [ Footnote 4/27 ] 94 N.J. at 347, 463 A.2d at 942 (emphasis added). [ Footnote 4/28 ] Ibid. The court added: "Moreover, there were not reasonable grounds to believe that the purse contained cigarettes, if they were the object of the search. No one had furnished information to that effect to the school official. He had, at best, a good hunch. No doubt good hunches would unearth much more evidence of crime on the persons of students and citizens as a whole. But more is required to sustain a search." Id. at 347, 463 A.2d at 942-943. It is this portion of the New Jersey Supreme Court's reasoning -- a portion that was not necessary to its holding -- to which this Court makes its principal response. See ante, at 469 U. S. 345 -346. [ Footnote 4/29 ] See Parent-Student Handbook of Piscataway [N.J.] H.S. 15, 18 (1979), Record Doc. S-1. See also Tr. of Mar. 31, 1980, Hearing 13-14. [ Footnote 4/30 ] See, e.g., Tarter v. Raybuck, 742 F.2d 977 (CA6 1984) (search for marihuana); M. v. Board of Education Ball-Chatham Community Unit School Dist. No. 5, 429 F. Supp. 288 (SD Ill.1977) (drugs and large amount of money); D.R.C. v. State, 646 P.2d 252 (AlaskaApp.1982) (stolen money); In re W., 29 Cal. App. 3d 777 , 105 Cal. Rptr. 775 (1973) (marihuana); In re G., 11 Cal. App. 3d 1193 , 90 Cal. Rptr. 361 (1970) (amphetamine pills); In re Donaldson, 269 Cal. App. 2d 509 , 75 Cal. Rptr. 220 (1969) (methedrine pills); State v. Baccino, 282 A.2d 869 (Del. Super.1971) (drugs); State v. D.T.W., 425 So. 2d 1383 (Fla.App.1983) (drugs); In re J.A., 85 Ill.App.3d 567, 406 N.E.2d 958 (1980) (marihuana); People v. Ward, 62 Mich.App. 46, 233 N.W.2d 180 (1975) (drug pills); Mercer v. State, 450 S.W.2d 715 (Tex.Civ.App.1970) (marihuana); State v. McKinnon, 88 Wash. 2d 75 , 558 P.2d 781 (1977) ("speed"). [ Footnote 4/31 ] See, e.g., In re L.L., 90 Wis.2d 585, 280 N.W.2d 343 (App.1979) (search for knife or razor blade), R.C.M. v. State, 660 S.W.2d 552 (Tex.App.1983) (student with bloodshot eyes wandering halls in violation of school rule requiring students to remain in examination room or at home during midterm examinations). [ Footnote 4/32 ] See, e.g., State v. Young, 234 Ga. 488, 216 S.E.2d 586 (three students searched when they made furtive gestures and displayed obvious consciousness of guilt), cert. denied, 423 U.S. 1039 (1975); Doe v. State, 88 N.M. 347, 540 P.2d 827 (1975) (student searched for pipe when a teacher saw him using it to violate smoking regulations).

Here is a summary of the case: Case: New Jersey v. T.L.O. (1985) Issue: Does the Fourth Amendment's protection against unreasonable searches and seizures apply to searches conducted by public school officials, and what standard should be used to determine the reasonableness of such searches? Holding: Yes, the Fourth Amendment applies to searches by school officials. The reasonableness of a search by a school official depends on the facts and circumstances, balancing the student's legitimate expectations of privacy against the school's need to maintain order and discipline. Facts: A teacher caught T.L.O., a 14-year-old student, smoking in the school bathroom, violating school rules. The teacher took T.L.O. to the principal's office, where the assistant vice principal demanded to search her purse. He found cigarettes and rolling papers, commonly associated with marijuana use. He then searched the purse further and discovered marijuana, a pipe, plastic bags, money, and evidence of marijuana dealing. Procedural History: The New Jersey Supreme Court held that the search of T.L.O.'s purse was unreasonable under the Fourth Amendment and ordered the evidence suppressed. Reasoning: School officials act as representatives of the state when carrying out searches and are not exempt from the Fourth Amendment. Students have legitimate privacy expectations, but schools have a legitimate need to maintain order and discipline. The Court adopted a standard of reasonableness for school searches, considering the student's privacy interest and the nature of the intrusion, balanced against the school's need to maintain a safe environment. Conclusion: The Court reversed the New Jersey Supreme Court's decision, finding that the search of T.L.O.'s purse was reasonable under the circumstances and that the evidence found should not be suppressed.

Search & Seizure

Winston v. Lee

https://supreme.justia.com/cases/federal/us/470/753/

U.S. Supreme Court Winston v. Lee, 470 U.S. 753 (1985) Winston v. Lee No. 83-1334 Argued October 31, 1984 Decided March 20, 1985 470 U.S. 753 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus A shopkeeper was wounded by gunshot during an attempted robbery but, also being armed with a gun, apparently wounded his assailant in his left side, and the assailant then ran from the scene. Shortly after the victim was taken to a hospital, police officers found respondent, who was suffering from a gunshot wound to his left chest area, eight blocks away from the shooting. He was also taken to the hospital, where the victim identified him as the assailant. After an investigation, the police charged respondent with, inter alia, attempted robbery and malicious wounding. Thereafter the Commonwealth of Virginia moved in state court for an order directing respondent to undergo surgery to remove a bullet lodged under his left collarbone, asserting that the bullet would provide evidence of respondent's guilt or innocence. On the basis of expert testimony that the surgery would require an incision of only about one-half inch, could be performed under local anesthesia, and would result in "no danger on the basis that there's no general anesthesia employed," the court granted the motion, and the Virginia Supreme Court denied respondent's petition for a writ of prohibition and/or a writ of habeas corpus. Respondent then brought an action in Federal District Court to enjoin the pending operation on Fourth Amendment grounds, but the court refused to issue a preliminary injunction. Subsequently, X rays taken just before surgery was scheduled showed that the bullet was lodged substantially deeper than had been thought when the state court granted the motion to compel surgery, and the surgeon concluded that a general anesthetic would be desirable. Respondent unsuccessfully sought a rehearing in the state trial court, and the Virginia Supreme Court affirmed. However, respondent then returned to the Federal District Court, which, after an evidentiary hearing, enjoined the threatened surgery. The Court of Appeals affirmed. Held. The proposed surgery would violate respondent's right to be secure in his person and the search would be "unreasonable" under the Fourth Amendment. Pp. 470 U. S. 758 -767. (a) A compelled surgical intrusion into an individual's body for evidence implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if likely to produce evidence Page 470 U. S. 754 of a crime. The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure to obtain evidence for fairly determining guilt or innocence. The appropriate framework of analysis for such cases is provided in Schmerber v. California, 384 U. S. 757 , which held that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violating the suspect's Fourth Amendment rights. Beyond the threshold requirements as to probable cause and warrants, Schmerber's inquiry considered other factors for determining "reasonableness" -- including the extent to which the procedure may threaten the individual's safety or health, the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity, and the community's interest in fairly and accurately determining guilt or innocence. Pp. 470 U. S. 758 -763. (b) Under the Schmerber balancing test, the lower federal courts reached the correct result here. The threats to respondent's safety posed by the surgery were the subject of sharp dispute, and there was conflict in the testimony concerning the nature and scope of the operation. Thus, the resulting uncertainty about the medical risks was properly taken into account. Moreover, the intrusion on respondent's privacy interests and bodily integrity can only be characterized as severe. Surgery without the patient's consent, performed under a general anesthetic to search for evidence of a crime, involves a virtually total divestment of the patient's ordinary control over surgical probing beneath his skin. On the other hand, the Commonwealth's assertions of compelling need to intrude into respondent's body to retrieve the bullet are not persuasive. The Commonwealth has available substantial additional evidence that respondent was the individual who accosted the victim. Pp. 470 U. S. 763 -766. 717 F.2d 888, affirmed. BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 470 U. S. 767 . BLACKMUN and REHNQUIST, JJ., concurred in the judgment. Page 470 U. S. 755 JUSTICE BRENNAN delivered the opinion of the Court. Schmerber v. California, 384 U. S. 757 (1966), held, inter alia, that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violation of the suspect's right secured by the Fourth Amendment not to be subjected to unreasonable searches and seizures. However, Schmerber cautioned: "That we today hold that the Constitution does not forbid the States['] minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions." Id. at 384 U. S. 772 . In this case, the Commonwealth of Virginia seeks to compel the respondent Rudolph Lee, who is suspected of attempting to commit armed robbery, to undergo a surgical procedure under a general anesthetic for removal of a bullet lodged in his chest. Petitioners allege that the bullet will provide evidence of respondent's guilt or innocence. We conclude that the procedure sought here is an example of the "more substantial intrusion" cautioned against in Schmerber, and hold that to permit the procedure would violate respondent's right to be secure in his person guaranteed by the Fourth Amendment. I A At approximately 1 a. m. on July 18, 1982, Ralph E. Watkinson was closing his shop for the night. As he was locking the door, he observed someone armed with a gun coming toward him from across the street. Watkinson was also armed, and when he drew his gun, the other person told him to freeze. Watkinson then fired at the other person, who returned his fire. Watkinson was hit in the legs, while the other individual, who appeared to be wounded in his left side, ran from the scene. The police arrived on the scene shortly thereafter, and Watkinson was taken by ambulance Page 470 U. S. 756 to the emergency room of the Medical College of Virginia (MCV) Hospital. Approximately 20 minutes later, police officers responding to another call found respondent eight blocks from where the earlier shooting occurred. Respondent was suffering from a gunshot wound to his left chest area, and told the police that he had been shot when two individuals attempted to rob him. An ambulance took respondent to the MCV Hospital. Watkinson was still in the MCV emergency room and, when respondent entered that room, said "[t]hat's the man that shot me." App. 14. After an investigation, the police decided that respondent's story of having been himself the victim of a robbery was untrue, and charged respondent with attempted robbery, malicious wounding, and two counts of using a firearm in the commission of a felony. B The Commonwealth shortly thereafter moved in state court for an order directing respondent to undergo surgery to remove an object thought to be a bullet lodged under his left collarbone. The court conducted several evidentiary hearings on the motion. At the first hearing, the Commonwealth's expert testified that the surgical procedure would take 45 minutes and would involve a three to four percent chance of temporary nerve damage, a one percent chance of permanent nerve damage, and a one-tenth of one percent chance of death. At the second hearing, the expert testified that, on reexamination of respondent, he discovered that the bullet was not "back inside close to the nerves and arteries," id. at 52, as he originally had thought. Instead, he now believed the bullet to be located "just beneath the skin." Id. at 57. He testified that the surgery would require an incision of only one and one-half centimeters (slightly more than one-half inch), could be performed under local anesthesia, and would result in "no danger on the basis that there's no general anesthesia employed." Id. at 51. Page 470 U. S. 757 The state trial judge granted the motion to compel surgery. Respondent petitioned the Virginia Supreme Court for a writ of prohibition and/or a writ of habeas corpus, both of which were denied. Respondent then brought an action in the United States District Court for the Eastern District of Virginia to enjoin the pending operation on Fourth Amendment grounds. The court refused to issue a preliminary injunction, holding that respondent's cause had little likelihood of success on the merits. 551 F. Supp. 247 , 247 -253 (1982). [ Footnote 1 ] On October 18, 1982, just before the surgery was scheduled, the surgeon ordered that X-rays be taken of respondent's chest. The X-rays revealed that the bullet was in fact lodged two and one-half to three centimeters (approximately one inch) deep in muscular tissue in respondent's chest, substantially deeper than had been thought when the state court granted the motion to compel surgery. The surgeon now believed that a general anesthetic would be desirable for medical reasons. Respondent moved the state trial court for a rehearing based on the new evidence. After holding an evidentiary hearing, the state trial court denied the rehearing, and the Virginia Supreme Court affirmed. Respondent then returned to federal court, where he moved to alter or amend the judgment previously entered against him. After an evidentiary hearing, the District Court enjoined the threatened surgery. 551 F. Supp. at 253-261 (supplemental opinion). [ Footnote 2 ] Page 470 U. S. 758 A divided panel of the Court of Appeals for the Fourth Circuit affirmed. 717 F.2d 888 (1983). [ Footnote 3 ] We granted certiorari, 466 U.S. 942 (1984), to consider whether a State may, consistently with the Fourth Amendment, compel a suspect to undergo surgery of this kind in a search for evidence of a crime. II The Fourth Amendment protects "expectations of privacy," see Katz v. United States, 389 U. S. 347 (1967) --the individual's legitimate expectations that, in certain places and at certain times, he has "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States , 277 U. S. 438 , Page 470 U. S. 759 277 U. S. 478 (1928) (Brandeis, J., dissenting). Putting to one side the procedural protections of the warrant requirement, the Fourth Amendment generally protects the "security" of "persons, houses, papers, and effects" against official intrusions up to the point where the community's need for evidence surmounts a specified standard, ordinarily "probable cause." Beyond this point, it is ordinarily justifiable for the community to demand that the individual give up some part of his interest in privacy and security to advance the community's vital interests in law enforcement; such a search is generally "reasonable" in the Amendment's terms. A compelled surgical intrusion into an individual's body for evidence, however, implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if likely to produce evidence of a crime. In Schmerber v. California, 384 U. S. 757 (1966), we addressed a claim that the State had breached the Fourth Amendment's protection of the "right of the people to be secure in their persons . . . against unreasonable searches and seizures" (emphasis added) when it compelled an individual suspected of drunken driving to undergo a blood test. Schmerber had been arrested at a hospital while receiving treatment for injuries suffered when the automobile he was driving struck a tree. Id. at 384 U. S. 758 . Despite Schmerber's objection, a police officer at the hospital had directed a physician to take a blood sample from him. Schmerber subsequently objected to the introduction at trial of evidence obtained as a result of the blood test. The authorities in Schmerber clearly had probable cause to believe that he had been driving while intoxicated, id. at 384 U. S. 768 , and to believe that a blood test would provide evidence that was exceptionally probative in confirming this belief. Id. at 384 U. S. 770 . Because the case fell within the exigent circumstances exception to the warrant requirement, no warrant was necessary. Ibid. The search was not more intrusive than reasonably necessary to accomplish its goals. Nonetheless, Page 470 U. S. 760 Schmerber argued that the Fourth Amendment prohibited the authorities from intruding into his body to extract the blood that was needed as evidence. Schmerber noted that "[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." Id. at 384 U. S. 767 . Citing Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 27 (1949), and Mapp v. Ohio, 367 U. S. 643 (1961), we observed that these values were "basic to a free society." We also noted that, "[b]ecause we are dealing with intrusions into the human body, rather than with state interferences with property relationships or private papers -- 'houses, papers, and effects' -- we write on a clean slate." 384 U.S. at 384 U. S. 767 -768. The intrusion perhaps implicated Schmerber's most personal and deep-rooted expectations of privacy, and the Court recognized that Fourth Amendment analysis thus required a discerning inquiry into the facts and circumstances to determine whether the intrusion was justifiable. The Fourth Amendment neither forbids nor permits all such intrusions; rather, the Amendment's "proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Id. at 384 U. S. 768 . The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure. In a given case, the question whether the community's need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers. We believe that Schmerber, however, provides the appropriate framework of analysis for such cases. Schmerber recognized that the ordinary requirements of the Fourth Amendment would be the threshold requirements for conducting this kind of surgical search and seizure. We noted the importance of probable cause. Id. at 384 U. S. 768 -769. Page 470 U. S. 761 And we pointed out: "Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. . . . The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great." Id. at 384 U. S. 770 . Beyond these standards, Schmerber's inquiry considered a number of other factors in determining the "reasonableness" of the blood test. A crucial factor in analyzing the magnitude of the intrusion in Schmerber is the extent to which the procedure may threaten the safety or health of the individual. "[F]or most people, [a blood test] involves virtually no risk, trauma, or pain." Id. at 384 U. S. 771 . Moreover, all reasonable medical precautions were taken, and no unusual or untested procedures were employed in Schmerber; the procedure was performed "by a physician in a hospital environment according to accepted medical practices." Ibid. Notwithstanding the existence of probable cause, a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect. [ Footnote 4 ] Another factor is the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity. Intruding into an individual's living room, See Payton Page 470 U. S. 762 v. New York, 445 U. S. 573 (1980), eavesdropping upon an individual's telephone conversations, see Katz v. United States, 389 U.S. at 389 U. S. 361 , or forcing an individual to accompany police officers to the police station, see Dunaway v. New York, 442 U. S. 200 (1979), typically do not injure the physical person of the individual. Such intrusions do, however, damage the individual's sense of personal privacy and security, and are thus subject to the Fourth Amendment's dictates. In noting that a blood test was "a commonplace in these days of periodic physical examinations," 384 U.S. at 384 U. S. 771 , Schmerber recognized society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity. [ Footnote 5 ] Weighed against these individual interests is the community's interest in fairly and accurately determining guilt or innocence. This interest is of course of great importance. We noted in Schmerber that a blood test is "a highly effective means of determining the degree to which a person is under the influence of alcohol." Id. at 384 U. S. 771 . Moreover, there was "a clear indication that in fact [desired] evidence [would] be found" if the blood test were undertaken. Id. at 384 U. S. 770 . Page 470 U. S. 763 Especially given the difficulty of proving drunkenness by other means, these considerations showed that results of the blood test were of vital importance if the State were to enforce its drunken driving laws. In Schmerber, we concluded that this state interest was sufficient to justify the intrusion, and the compelled blood test was thus "reasonable" for Fourth Amendment purposes. III Applying the Schmerber balancing test in this case, we believe that the Court of Appeals reached the correct result. The Commonwealth plainly had probable cause to conduct the search. In addition, all parties apparently agree that respondent has had a full measure of procedural protections, and has been able fully to litigate the difficult medical and legal questions necessarily involved in analyzing the reasonableness of a surgical incision of this magnitude. [ Footnote 6 ] Our inquiry therefore must focus on the extent of the intrusion on respondent's privacy interests and on the State's need for the evidence. The threats to the health or safety of respondent posed by the surgery are the subject of sharp dispute between the parties. Before the new revelations of October 18, the District Court found that the procedure could be carried out "with virtually no risk to [respondent]." 551 F. Supp. at 252. On rehearing, however, with new evidence before it, the District Court held that "the risks previously involved have increased in magnitude even as new risks are being added." Id. at 260. The Court of Appeals examined the medical evidence in the record and found that respondent would suffer some risks Page 470 U. S. 764 associated with the surgical procedure. [ Footnote 7 ] One surgeon had testified that the difficulty of discovering the exact location of the bullet "could require extensive probing and retracting of the muscle tissue," carrying with it "the concomitant risks of injury to the muscle, as well as injury to the nerves, blood vessels and other tissue in the chest and pleural cavity." 717 F.2d at 900. The court further noted that "the greater intrusion and the larger incisions increase the risks of infection." Ibid. Moreover, there was conflict in the testimony concerning the nature and the scope of the operation. One surgeon stated that it would take 15-20 minutes, while another predicted the procedure could take up to two and one-half hours. Ibid. The court properly took the resulting uncertainty about the medical risks into account. [ Footnote 8 ] Both lower courts in this case believed that the proposed surgery, which for purely medical reasons required the use of a general anesthetic, [ Footnote 9 ] would be an "extensive" intrusion on respondent's personal privacy and bodily integrity. Ibid. Page 470 U. S. 765 When conducted with the consent of the patient, surgery requiring general anesthesia is not necessarily demeaning or intrusive. In such a case, the surgeon is carrying out the patient's own will concerning the patient's body, and the patient's right to privacy is therefore preserved. In this case, however, the Court of Appeals noted that the Commonwealth proposes to take control of respondent's body, to "drug this citizen -- not yet convicted of a criminal offense -- with narcotics and barbiturates into a state of unconsciousness," id. at 901, and then to search beneath his skin for evidence of a crime. This kind of surgery involves a virtually total divestment of respondent's ordinary control over surgical probing beneath his skin. The other part of the balance concerns the Commonwealth's need to intrude into respondent's body to retrieve the bullet. The Commonwealth claims to need the bullet to demonstrate that it was fired from Watkinson's gun, which in turn would show that respondent was the robber who confronted Watkinson. However, although we recognize the difficulty of making determinations in advance as to the strength of the case against respondent, petitioners' assertions of a compelling need for the bullet are hardly persuasive. The very circumstances relied on in this case to demonstrate probable cause to believe that evidence will be found tend to vitiate the Commonwealth's need to compel respondent to undergo surgery. The Commonwealth has available substantial additional evidence that respondent was the individual who accosted Watkinson on the night of the robbery. No party in this case suggests that Watkinson's entirely spontaneous identification of respondent at the hospital would be inadmissible. In addition, petitioners can no doubt prove that Watkinson was found a few blocks from Watkinson's store shortly after the incident took place. And petitioners can certainly show that the location of the bullet (under respondent's left collarbone) seems to correlate with Watkinson's report that the robber "jerked" to the left. App. 13. The fact that the Page 470 U. S. 766 Commonwealth has available such substantial evidence of the origin of the bullet restricts the need for the Commonwealth to compel respondent to undergo the contemplated surgery. [ Footnote 10 ] In weighing the various factors in this case, we therefore reach the same conclusion as the courts below. The operation sought will intrude substantially on respondent's protected interests. The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be "reasonable." In addition, the intrusion on respondent's privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it. We believe that, in these circumstances, the Commonwealth has failed to demonstrate that it would be "reasonable" under the terms of the Fourth Amendment to search for evidence of this crime by means of the contemplated surgery. Page 470 U. S. 767 IV The Fourth Amendment is a vital safeguard of the right of the citizen to be free from unreasonable governmental intrusions into any area in which he has a reasonable expectation of privacy. Where the Court has found a lesser expectation of privacy, see, e.g., Rakas v. Illinois, 439 U. S. 128 (1978); South Dakota v. Opperman, 428 U. S. 364 (1976), or where the search involves a minimal intrusion on privacy interests, see, e.g., United States v. Hensley, 469 U. S. 221 (1985); Dunaway v. New York, 442 U.S. at 442 U. S. 210 -211; United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 880 (1975); Adams v. Williams, 407 U. S. 143 (1972); Terry v. Ohio, 392 U. S. 1 (1968), the Court has held that the Fourth Amendment's protections are correspondingly less stringent. Conversely, however, the Fourth Amendment's command that searches be "reasonable" requires that, when the State seeks to intrude upon an area in which our society recognizes a significantly heightened privacy interest, a more substantial justification is required to make the search "reasonable." Applying these principles, we hold that the proposed search in this case would be "unreasonable" under the Fourth Amendment. Affirmed. JUSTICE BLACKMUN and JUSTICE REHNQUIST concur in the judgment. [ Footnote 1 ] Respondent's action in the District Court was styled as a petition for habeas corpus and an action under 42 U.S.C. § 1983 for a preliminary injunction. Because the District Court denied the relief sought, it found it unnecessary to consider whether res judicata, see Allen v. McCurry, 449 U. S. 90 (1980), would bar consideration of the § 1983 claim. 551 F. Supp. at 252, n. 4. [ Footnote 2 ] Respondent had moved to reopen the petition for habeas corpus, as well as to alter or amend the judgment. Petitioners moved to dismiss the petition for habeas on the ground that respondent was not at that time "in custody" for purposes of 28 U.S.C. § 2241. The District Court rejected this contention, holding that habeas was available because respondent was objecting to a future custody that would take place when the operation was to be performed. 551 F. Supp. at 257-259. The Court of Appeals held that respondent's claim was cognizable only under § 1983. 717 F.2d 888, 893 (1983). Respondent has not cross-petitioned for review of this holding, and it is therefore not before us. [ Footnote 3 ] The Fourth Circuit held that Allen v. McCurry, supra, did not bar respondent's attempt to relitigate in federal court the same Fourth Amendment issues previously litigated in state court. The court agreed with the District Court's conclusion, see 551 F. Supp. at 258-259, that respondent had not had a full and fair opportunity to litigate in the state trial court. 717 F.2d at 895-899. Respondent filed his motion for rehearing in state court on October 18, the day he was informed of the changed circumstances regarding the removal of the bullet. On October 19, the state court ordered an evidentiary hearing to be held on October 21. The Court of Appeals was "satisfied from the record that counsel was not able, despite obviously diligent effort, to obtain an independent review of the medical record by outside physicians, nor was he able to consult with the independent expert in anesthesiology in order to prepare a presentation on the risks of general anesthesia." Id. at 897. Yet, despite the crucial nature of the medical evidence, the state court refused to grant respondent's repeated request for a continuance. Because "[t]he arbitrary truncation of preparation time deprived [respondent] of a fair opportunity to determine the crucial factors relevant to his claim and to obtain independent expert witnesses to testify about those factors," id. at 898-899, the Court of Appeals refused to grant preclusive effect to the state court's findings. Petitioners do not challenge this ruling. [ Footnote 4 ] Numerous courts have recognized the crucial importance of this factor. See, e.g., Bowden v. State, 256 Ark. 820, 823, 510 S.W.2d 879 , 882 (1974) (refusing to order surgery because of medical risk); People v. Smith, 80 Misc.2d 210, 362 N.Y.S.2d 909 (1974) (same); State v. Allen, 277 S.C. 595, 291 S.E.2d 459 (1982) (same); see also 717 F.2d 888, 900 (CA4 1983) (case below); id. at 905-908 (Widener, J., dissenting); United States v. Crowder, 177 U.S. App.D.C. 165, 169, 543 F.2d 312, 316 (1976) (en banc), cert. denied, 429 U.S. 1062 (1977); State v. Overstreet, 551 S.W.2d 621 , 628 (Mo.1977) (en banc). See generally Note, 68 Marq.L.Rev. 130, 135 (1984) (discussing cases involving bodily intrusions); Note, 60 Notre Dame L.Rev. 149, 152-156 (1984) (same); Note, 55 Texas L.Rev. 147 (1976) (same); Mandell & Richardson, Surgical Search: Removing a Scar on the Fourth Amendment, 75 J.Crim.L. & C., No. 3, p. 525 (1984). [ Footnote 5 ] See also Schmerber, 384 U.S. at 384 U. S. 771 , n. 13 (" The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance, and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors'") (quoting Breithaupt v. Abram, 352 U. S. 432 , 352 U. S. 436 (1957)). The degree of intrusion in Schmerber was minimized as well by the fact that a blood test "involves virtually no risk, trauma, or pain," 384 U.S. at 384 U. S. 771 , and by the fact that the blood test was conducted "in a hospital environment according to accepted medical practices." Ibid. As such, the procedure in Schmerber contrasted sharply with the practice in Rochin v. California, 342 U. S. 165 (1952), in which police officers broke into a suspect's room, attempted to extract narcotics capsules he had put into his mouth, took him to a hospital, and directed that an emetic be administered to induce vomiting. Id. at 342 U. S. 166 . Rochin , recognizing the individual's interest in "human dignity," id. at 342 U. S. 174 , held the search and seizure unconstitutional under the Due Process Clause. [ Footnote 6 ] Because the State has afforded respondent the benefit of a full adversary presentation and appellate review, we do not reach the question whether the State may compel a suspect to undergo a surgical search of this magnitude for evidence absent such special procedural protections. Cf. United States v. Crowder, supra, at 169, 543 F.2d at 316; State v. Lawson, 187 N.J.Super. 25, 28-29, 453 A.2d 556 , 558 (App.Div.1982). [ Footnote 7 ] The Court of Appeals concluded, however, that "the specific physical risks from putting [respondent] under general anesthesia may therefore be considered minimal." 717 F.2d at 900. Testimony had shown that "the general risks of harm or death from general anesthesia are quite low, and that [respondent] was in the statistical group of persons with the lowest risk of injury from general anesthesia." Ibid. [ Footnote 8 ] One expert testified that this would be "minor" surgery. See App. 99. The question whether the surgery is to be characterized in medical terms as "major" or "minor" is not controlling. We agree with the Court of Appeals and the District Court in this case that "there is no reason to suppose that the definition of a medical term of art should coincide with the parameters of a constitutional standard." 551 F. Supp. at 260 (quoted at 717 F.2d at 901); accord, State v. Overstreet, 551 S.W.2d at 628. This does not mean that the application of medical concepts in such cases is to be ignored. However, no specific medical categorization can control the multifaceted legal inquiry that the court must undertake. [ Footnote 9 ] Somewhat different issues would be raised if the use of a general anesthetic became necessary because of the patient's refusal to cooperate. Cf. State v. Lawson, supra. [ Footnote 10 ] There are also some questions concerning the probative value of the bullet, even if it could be retrieved. The evidentiary value of the bullet depends on a comparison between markings, if any, on the bullet in respondent's shoulder and markings, if any, found on a test bullet that the police could fire from Watkinson's gun. However, the record supports some doubt whether this kind of comparison is possible. This is because the bullet's markings may have been corroded in the time that the bullet has been in respondent's shoulder, thus making it useless for comparison purposes. See 717 F.2d at 901, n. 15. In addition, respondent argues that any given gun may be incapable of firing bullets that have a consistent set of markings. See Joling, An Overview of Firearms Identification Evidence for Attorneys I: Salient Features of Firearms Evidence, 26 J.Forensic Sci. 153, 154 (1981). The record is devoid of any evidence that the police have attempted to test-fire Watkinson's gun, and there thus remains the additional possibility that a comparison of bullets is impossible because Watkinson's gun does not consistently fire bullets with the same markings. However, because the courts below made no findings on this point, we hesitate to give it significant weight in our analysis. CHIEF JUSTICE BURGER, concurring. I join because I read the Court's opinion as not preventing detention of an individual if there are reasonable grounds to believe that natural bodily functions will disclose the presence of contraband materials secreted internally.

Here is a summary of the case: In Winston v. Lee, the U.S. Supreme Court considered whether a compelled surgical intrusion to retrieve a bullet from a suspect's body violated the Fourth Amendment, which protects the right to be secure in one's person against unreasonable searches and seizures. The case arose from an attempted robbery, where the victim wounded the assailant, who fled. The police later found the respondent with a gunshot wound and charged him with attempted robbery and malicious wounding. The state court ordered surgery to remove the bullet as evidence, but the bullet was deeper than expected, requiring general anesthesia. The Court held that the proposed surgery would violate the respondent's Fourth Amendment rights, as it was an unreasonable search. It weighed the individual's interests in privacy and security against society's interest in obtaining evidence, concluding that the surgery was unjustified. The Court considered the risks of the procedure and the probative value of the evidence, noting that the bullet may not provide useful evidence due to corrosion or the gun's inconsistent markings. This case sets a precedent for when surgical intrusions for evidence may violate the Fourth Amendment, emphasizing a case-by-case approach that balances individual rights with societal interests.

Search & Seizure

Segura v. U.S.

https://supreme.justia.com/cases/federal/us/468/796/

U.S. Supreme Court Segura v. United States, 468 U.S. 796 (1984) Segura v. United States No. 82-5298 Argued November 9, 1983 Decided July 5, 1984 468 U.S. 796 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Acting on information that petitioners probably were trafficking in cocaine from their apartment, New York Drug Enforcement Task Force agents began a surveillance of petitioners. Thereafter, upon observing petitioner Colon deliver a bulky package to one Parra at a restaurant parking lot, while petitioner Segura and one Rivudalla-Vidal visited inside the restaurant, the agents followed Parra and Rivudalla-Vidal to their apartment and stopped them. Parra was found to possess cocaine, and she and Rivudalla-Vidal were immediately arrested. After being advised of his constitutional rights, Rivudalla-Vidal admitted that he had purchased the cocaine from petitioner Segura and confirmed that petitioner Colon had made the delivery at the restaurant. Task Force agents were then authorized by an Assistant United States Attorney to arrest petitioners, and were advised that a search warrant for petitioners' apartment probably could not be obtained until the following day, but that the agent should secure the premises to prevent destruction of evidence. Later that same evening, the agents arrested petitioner Segura in the lobby of petitioners' apartment building, took him to the apartment, knocked on the door, and, when it was opened by petitioner Colon, entered the apartment without requesting or receiving permission. The agents then conducted a limited security check of the apartment and, in the process, observed, in plain view, various drug paraphernalia. Petitioner Colon was then arrested, and both petitioners were taken into custody. Two agents remained in the apartment awaiting the warrant, but, because of "administrative delay," the search warrant was not issued until some 19 hours after the initial entry into the apartment. In the search pursuant to the warrant, the agents discovered, inter alia, cocaine and records of narcotics transactions. These items were seized, together with those observed during the security check. The District Court granted petitioners' pretrial motion to suppress all the seized evidence. The Court of Appeals held that the evidence discovered in plain view on the initial entry, but not the evidence seized during the warrant search, must be suppressed. Petitioners were subsequently convicted of violating federal drug laws, and the Court of Appeals affirmed. Held: 1. The exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later Page 468 U. S. 797 discovered and found to be derivative of an illegality or "fruit of the poisonous tree." Nardone v. United States, 308 U. S. 338 , 308 U. S. 341 . The exclusionary rule does not apply, however, if the connection between the illegal police conduct and the discovery and seizure of the evidence is "so attenuated as to dissipate the taint," ibid., as, for example, where the police had an "independent source" for discovery of the evidence. Silverthorne Lumber Co. v. United States, 251 U. S. 385 . Pp. 468 U. S. 804 -805. 2. Here, there was an independent source for the challenged evidence; the evidence was discovered during a search of petitioners' apartment pursuant to a valid warrant. The information on which the warrant was secured came from sources wholly unconnected with the initial entry, and was known to the agents well before that entry. Hence, whether the initial entry was illegal or not is irrelevant to the admissibility of the evidence, and exclusion of the evidence is not warranted as derivative or as "fruit of the poisonous tree." Pp. 468 U. S. 813 -816. 697 F.2d 300, affirmed. BURGER, C.J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V, and VI, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and an opinion with respect to Part IV, in which O'CONNOR, J., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 468 U. S. 817 . CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether, because of an earlier illegal entry, the Fourth Amendment requires suppression of evidence seized later from a private residence Page 468 U. S. 798 pursuant to a valid search warrant which was issued on information obtained by the police before the entry into the residence. I Resolution of this issue requires us to consider two separate questions: first, whether the entry and internal securing of the premises constituted an impermissible seizure of all the contents of the apartment, seen and unseen; second, whether the evidence first discovered during the search of the apartment pursuant to a valid warrant issued the day after the entry should have been suppressed as "fruit" of the illegal entry. Our disposition of both questions is carefully limited. The Court of Appeals affirmed the District Court's holding that there were no exigent circumstances to justify the warrantless entry into petitioners' apartment. That issue is not before us, and we have no reason to question the courts' holding that that search was illegal. The ensuing interference with petitioners' possessory interests in their apartment, however, is another matter. On this first question, we conclude that, assuming that there was a seizure of all the contents of the petitioners' apartment when agents secured the premises from within, that seizure did not violate the Fourth Amendment. Specifically, we hold that, where officers, having probable cause, enter premises and, with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment's proscription against unreasonable seizures. [ Footnote 1 ] Page 468 U. S. 799 The illegality of the initial entry, as we will show, has no bearing on the second question. The resolution of this second question requires that we determine whether the initial entry tainted the discovery of the evidence now challenged. On this issue, we hold that the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as "fruit" of the illegal entry, because the warrant and the information on which it was based were unrelated to the entry, and therefore constituted an independent source for the evidence under Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920). II In January, 1981, the New York Drug Enforcement Task Force received information indicating that petitioners Andres Segura and Luz Marina Colon probably were trafficking in cocaine from their New York apartment. Acting on this information, Task Force agents maintained continuing surveillance over petitioners until their arrest on February 12, 1981. On February 9, agents observed a meeting between Segura and Enrique Rivudalla-Vidal, during which, as it later developed, the two discussed the possible sale of cocaine by Segura to Rivudalla-Vidal. Three days later, February 12, Segura telephoned Rivudalla-Vidal and agreed to provide him with cocaine. The two agreed that the delivery would be made at 5 p.m. that day at a designated fast-food restaurant in Queens, N.Y. Rivudalla-Vidal and one Esther Parra arrived at the restaurant at 5 p.m., as agreed. While Segura and Rivudalla-Vidal visited inside the restaurant, agents observed Colon deliver a bulky package to Parra, who had remained in Rivudalla-Vidal's car in the restaurant parking lot. A short time after the delivery of the package, Rivudalla-Vidal and Parra left the restaurant and Page 468 U. S. 800 proceeded to their apartment. Task Force agents followed. The agents stopped the couple as they were about to enter Rivudalla-Vidal's apartment. Parra was found to possess cocaine; both Rivudalla-Vidal and Parra were immediately arrested. After Rivudalla-Vidal and Parra were advised of their constitutional rights, Rivudalla-Vidal agreed to cooperate with the agents. He admitted that he had purchased the cocaine from Segura and he confirmed that Colon had made the delivery at the fast-food restaurant earlier that day, as the agents had observed. Rivudalla-Vidal informed the agents that Segura was to call him at approximately 10 o'clock that evening to learn if Rivudalla-Vidal had sold the cocaine, in which case Segura was to deliver additional cocaine. Between 6:30 and 7 p.m. the same day, Task Force agents sought and received authorization from an Assistant United States Attorney to arrest Segura and Colon. The agents were advised by the Assistant United States Attorney that, because of the lateness of the hour, a search warrant for petitioners' apartment probably could not be obtained until the following day, but that the agents should proceed to secure the premises to prevent the destruction of evidence. At about 7:30 p.m., the agents arrived at petitioners' apartment and established external surveillance. At 11:15 p.m., Segura, alone, entered the lobby of the apartment building, where he was immediately arrested by agents. He first claimed he did not reside in the building. The agents took him to his third floor apartment, and when they knocked on the apartment door, a woman later identified as Colon appeared; the agents then entered with Segura, without requesting or receiving permission. There were three persons in the living room of the apartment in addition to Colon. Those present were informed by the agents that Segura was under arrest and that a search warrant for the apartment was being obtained. Following this brief exchange in the living room, the agents conducted a limited security check of the apartment to Page 468 U. S. 801 ensure that no one else was there who might pose a threat to their safety or destroy evidence. In the process, the agents observed, in a bedroom in plain view, a triple-beam scale, jars of lactose, and numerous small cellophane bags, all accouterments of drug trafficking. None of these items was disturbed by the agents. After this limited security check, Colon was arrested. In the search incident to her arrest, agents found in her purse a loaded revolver and more than $2,000 in cash. Colon, Segura, and the other occupants of the apartment were taken to Drug Enforcement Administration headquarters. Two Task Force agents remained in petitioners' apartment awaiting the warrant. Because of what is characterized as "administrative delay," the warrant application was not presented to the Magistrate until 5 p.m. the next day. The warrant was issued, and the search was performed at approximately 6 p.m., some 19 hours after the agents' initial entry into the apartment. In the search pursuant to the warrant, agents discovered almost three pounds of cocaine, 18 rounds of .38-caliber ammunition fitting the revolver agents had found in Colon's possession at the time of her arrest, more than $50,000 cash, and records of narcotics transactions. Agents seized these items, together with those observed during the security check the previous night. Before trial in the United States District Court in the Eastern District of New York, petitioners moved to suppress all of the evidence seized from the apartment -- the items discovered in plain view during the initial security check and those not in plain view first discovered during the subsequent warrant search. [ Footnote 2 ] After a full evidentiary hearing, the Page 468 U. S. 802 District Court granted petitioners' motion. The court ruled that there were no exigent circumstances justifying the initial entry into the apartment. Accordingly, it held that the entry, the arrest of Colon and search incident to her arrest, and the effective seizure of the drug paraphernalia in plain view were illegal. The District Court ordered this evidence suppressed as "fruits" of illegal searches. The District Court held that the warrant later issued was supported by information sufficient to establish probable cause; however, it read United States v. Griffin, 502 F.2d 959 (CA6), cert. denied, 419 U.S. 1050 (1974), as requiring suppression of the evidence seized under the valid warrant. [ Footnote 3 ] The District Court reasoned that this evidence would not necessarily have been discovered, because, absent the illegal entry and "occupation" of the apartment, Colon might have arranged to have the drugs removed or destroyed, in which event they would not have been in the apartment when the warrant search was made. Under this analysis, the District Court held that even the drugs seized under the valid warrant were "fruit of the poisonous tree." On an appeal limited to the admissibility of the incriminating evidence, the Court of Appeals affirmed in part and reversed in part. 663 F.2d 411 (1981). It affirmed the District Court holding that the initial warrantless entry was not justified by exigent circumstances and that the evidence discovered in plain view during the initial entry must be suppressed. [ Footnote 4 ] The Court of Appeals rejected the argument Page 468 U. S. 803 advanced by the United States that the evidence in plain view should not be excluded because it was not actually "seized" until after the search warrant was secured. Relying upon its holding in United States v. Agapito, 620 F.2d 324 (CA2), cert. denied, 449 U.S. 834 (1980), [ Footnote 5 ] the Court of Appeals reversed the District Court's holding requiring suppression of the evidence seized under the valid warrant executed on the day following the initial entry. The Court of Appeals described as "prudentially unsound" the District Court's decision to suppress that evidence simply because it could have been destroyed had the agents not entered. Petitioners were convicted of conspiring to distribute cocaine, in violation of 21 U.S.C. § 846, and of distributing and possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). On the subsequent review of these convictions, the Second Circuit affirmed, 697 F.2d 300 (1982), rejecting claims by petitioners that the search warrant was procured through material misrepresentations and that the evidence at trial was insufficient as a matter of law to support Page 468 U. S. 804 their convictions. We granted certiorari, 459 U.S. 1200 (1983), and we affirm. III At the outset, it is important to focus on the narrow and precise question now before us. As we have noted, the Court of Appeals agreed with the District Court that the initial warrantless entry and the limited security search were not justified by exigent circumstances, and were therefore illegal. No review of that aspect of the case was sought by the Government, and no issue concerning items observed during the initial entry is before the Court. The only issue here is whether drugs and the other items not observed during the initial entry and first discovered by the agents the day after the entry, under an admittedly valid search warrant, should have been suppressed. The suppression or exclusionary rule is a judicially prescribed remedial measure, and, as "with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, 414 U. S. 338 , 414 U. S. 348 (1974). Under this Court's holdings, the exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, Weeks v. United States, 232 U. S. 383 (1914), but also evidence later discovered and found to be derivative of an illegality or "fruit of the poisonous tree." Nardone v. United States, 308 U. S. 338 , 308 U. S. 341 (1939). It "extends as well to the indirect as the direct products" of unconstitutional conduct. Wong Sun v. United States, 371 U. S. 471 , 371 U. S. 484 (1963). Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion. The question to be resolved when it is claimed that evidence subsequently obtained is "tainted" or is "fruit" of a prior illegality is whether the challenged evidence was " come at by exploitation of [the initial] illegality, or instead by means sufficiently distinguishable to be purged Page 468 U. S. 805 of the primary taint.'" Id. at 371 U. S. 488 (citation omitted; emphasis added). It has been well established for more than 60 years that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is "so attenuated as to dissipate the taint," Nardone v. United States, supra, at 306 U. S. 341 . It is not to be excluded, for example, if police had an "independent source" for discovery of the evidence: "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source, they may be proved like any others. " Silverthorne Lumber Co. v. United States, 251 U.S. at 251 U. S. 392 (emphasis added). In short, it is clear from our prior holdings that "the exclusionary rule has no application [where] the Government learned of the evidence from an independent source.'" Wong Sun, supra, at 371 U. S. 487 (quoting Silverthorne Lumber Co., supra, at 251 U. S. 392 ); see also United States v. Crews, 445 U. S. 463 (1980); United States v. Wade, 388 U. S. 218 , 388 U. S. 242 (1967); Costello v. United States, 365 U. S. 265 , 365 U. S. 278 -280 (1961). IV Petitioners argue that all of the contents of the apartment, seen and not seen, including the evidence now in question, were "seized" when the agents entered and remained on the premises while the lawful occupants were away from the apartment in police custody. The essence of this argument is that, because the contents were then under the control of the agents and no one would have been permitted to remove the incriminating evidence from the premises or destroy it, a Page 468 U. S. 806 "seizure" took place. Plainly, this argument is advanced to avoid the Silverthorne "independent source" exception. If all the contents of the apartment were "seized" at the time of the illegal entry and securing, presumably the evidence now challenged would be suppressible as primary evidence obtained as a direct result of that entry. We need not decide whether, when the agents entered the apartment and secured the premises, they effected a seizure of the cocaine, the cash, the ammunition, and the narcotics records within the meaning of the Fourth Amendment. By its terms, the Fourth Amendment forbids only "unreasonable" searches and seizures. Assuming, arguendo, that the agents seized the entire apartment and its contents, as petitioners suggest, the seizure was not unreasonable under the totality of the circumstances. Different interests are implicated by a seizure than by a search. United States v. Jacobsen, 466 U. S. 109 , 466 U. S. 113 , and n. 5, 466 U. S. 122 -126 (1984); Texas v. Brown, 460 U. S. 730 (1983); id. at 460 U. S. 747 -748 (STEVENS, J., concurring in judgment); United States v. Chadwick, 433 U. S. 1 , 433 U. S. 13 -14, n. 8 (1977); Chambers v. Maroney, 399 U. S. 42 , 399 U. S. 51 -52 (1970). A seizure affects only the person's possessory interests; a search affects a person's privacy interests. United States v. Jacobsen, supra, at 466 U. S. 113 , and n. 5; United States v. Chadwick, supra, at 433 U. S. 13 -14, n. 8; see generally Texas v. Brown, supra, at 460 U. S. 747 -751 (STEVENS, J., concurring in judgment). Recognizing the generally less intrusive nature of a seizure, Chadwick, supra, at 433 U. S. 13 -14, n. 8; Chambers v. Maroney, supra, at 399 U. S. 51 , the Court has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been held impermissible. Chambers v. Maroney, supra; United States v. Chadwick, supra; Arkansas v. Sanders, 442 U. S. 753 (1979). [ Footnote 6 ] Page 468 U. S. 807 We focused on the issue notably in Chambers, holding that it was reasonable to seize and impound an automobile, on the basis of probable cause, for "whatever period is necessary to obtain a warrant for the search." 399 U.S. at 399 U. S. 51 (footnote omitted). We acknowledged in Chambers that following the car until a warrant could be obtained was an alternative to impoundment, albeit an impractical one. But we allowed the seizure nonetheless, because otherwise the occupants of the car could have removed the "instruments or fruits of crime" before the search. Id. at 399 U. S. 51 , n. 9. The Court allowed the warrantless seizure to protect the evidence from destruction, even though there was no immediate fear that the evidence was in the process of being destroyed or otherwise lost. The Chambers Court declared: "For constitutional purposes, we see no difference between, on the one hand, seizing and holding the car before presenting the probable cause issue to a magistrate and, on the other hand, carrying out an immediate search without a warrant. Given probable cause to search, Page 468 U. S. 808 either course is reasonable under the Fourth Amendment. " Id. at 52 (emphasis added) In Chadwick, we held that the warrantless search of the footlocker after it had been seized and was in a secure area of the Federal Building violated the Fourth Amendment's proscription against unreasonable searches, but neither the respondents nor the Court questioned the validity of the initial warrantless seizure of the footlocker on the basis of probable cause. The seizure of Chadwick's footlocker clearly interfered with his use and possession of the footlocker -- his possessory interest -- but we held that this did not "diminish [his] legitimate expectation that the footlocker's contents would remain private." 433 U.S. at 433 U. S. 13 -14, n. 8 (emphasis added). And again, in Arkansas v. Sanders, supra, we held that, absent exigent circumstances, a warrant was required to search luggage seized from an automobile which was already in the possession and control of police at the time of the search. However, we expressly noted that the police acted not only "properly," but "commendably" in seizing the suitcase without a warrant on the basis of probable cause to believe that it contained drugs. 442 U.S. at 442 U. S. 761 . The taxi into which the suitcase had been placed was about to drive away. However, just as there was no immediate threat of loss or destruction of evidence in Chambers -- since officers could have followed the car until a warrant issued -- so too, in Sanders, officers could have followed the taxicab. Indeed, there arguably was even less fear of immediate loss of the evidence in Sanders, because the suitcase at issue had been placed in the vehicle's trunk, thus rendering immediate access unlikely before police could act. Underlying these decisions is a belief that society's interest in the discovery and protection of incriminating evidence from removal or destruction can supersede, at least for a limited period, a person's possessory interest in property, provided that there is probable cause to believe that that property is associated with criminal activity. See United States v. Place, 462 U. S. 696 (1983). Page 468 U. S. 809 The Court has not had occasion to consider whether, when officers have probable cause to believe that evidence of criminal activity is on the premises, the temporary securing of a dwelling to prevent the removal or destruction of evidence violates the Fourth Amendment. However, in two cases, we have suggested that securing of premises under these circumstances does not violate the Fourth Amendment, at least when undertaken to preserve the status quo while a search warrant is being sought. In Mincey v. Arizona, 437 U. S. 385 (1978), we noted with approval that, to preserve evidence, a police guard had been stationed at the entrance to an apartment in which a homicide had been committed, even though "[t]here was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant." Id. at 437 U. S. 394 . Similarly, in Rawlings v. Kentucky, 448 U. S. 98 (1980), although officers secured, from within, the home of a person for whom they had an arrest warrant, and detained all occupants while other officers were obtaining a search warrant, the Court did not question the admissibility of evidence discovered pursuant to the warrant later issued. [ Footnote 7 ] Page 468 U. S. 810 We see no reason, as Mincey and Rawlings would suggest, why the same principle applied in Chambers, Chadwick, and Sanders should not apply where a dwelling is involved. The sanctity of the home is not to be disputed. But the home is sacred in Fourth Amendment terms not primarily because of the occupants' possessory interests in the premises, but because of their privacy interests in the activities that take place within. "[T]he Fourth Amendment protects people, not places." Katz v. United States, 389 U. S. 347 , 389 U. S. 351 (1967); see also Payton v. New York, 445 U. S. 573 , 445 U. S. 615 (1980) (WHITE, J., dissenting). As we have noted, however, a seizure affects only possessory interests, not privacy interests. Therefore, the heightened protection we accord privacy interests is simply not implicated where a seizure of premises, not a search, is at issue. We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents. We reaffirm at the same time, however, that, absent exigent circumstances, a warrantless search -- such as that invalidated in Vale v. Louisiana, 399 U. S. 30 , 399 U. S. 33 -34 (1970) -- is illegal. Here, the agents had abundant probable cause in advance of their entry to believe that there was a criminal drug operation being carried on in petitioners' apartment; indeed, petitioners do not dispute the probable cause determination. The agents had maintained surveillance over petitioners for weeks, and had observed petitioners leave the apartment to Page 468 U. S. 811 make sales of cocaine. Wholly apart from observations made during that extended surveillance, Rivudalla-Vidal had told agents after his arrest on February 13 that petitioners had supplied him with cocaine earlier that day, that he had not purchased all of the cocaine offered by Segura, and that Segura probably had more cocaine in the apartment. On the basis of this information, a Magistrate duly issued a search warrant, the validity of which was upheld by both the District Court and the Court of Appeals, and which is not before us now. In this case, the agents entered and secured the apartment from within. Arguably, the wiser course would have been to depart immediately and secure the premises from the outside by a "stakeout" once the security check revealed that no one other than those taken into custody were in the apartment. But the method actually employed does not require a different result under the Fourth Amendment, insofar as the seizure is concerned. As the Court of Appeals held, absent exigent circumstances, the entry may have constituted an illegal search, or interference with petitioners' privacy interests, requiring suppression of all evidence observed during the entry. Securing of the premises from within, however, was no more an interference with the petitioners' possessory interests in the contents of the apartment than a perimeter "stakeout." In other words, the initial entry -- legal or not -- does not affect the reasonableness of the seizure. Under either method -- entry and securing from within or a perimeter stakeout -- agents control the apartment pending arrival of the warrant; both an internal securing and a perimeter stakeout interfere to the same extent with the possessory interests of the owners. Petitioners argue that we heighten the possibility of illegal entries by a holding that the illegal entry and securing of the premises from the inside do not themselves render the seizure any more unreasonable than had the agents staked out the apartment from the outside. We disagree. In the Page 468 U. S. 812 first place, an entry in the absence of exigent circumstances is illegal. We are unwilling to believe that officers will routinely and purposely violate the law as a matter of course. Second, as a practical matter, officers who have probable cause and who are in the process of obtaining a warrant have no reason to enter the premises before the warrant issues, absent exigent circumstances, which, of course, would justify the entry. United States v. Santana, 427 U. S. 38 (1976); Johnson v. United States, 333 U. S. 10 (1948). Third, officers who enter illegally will recognize that whatever evidence they discover as a direct result of the entry may be suppressed, as it was by the Court of Appeals in this case. Finally, if officers enter without exigent circumstances to justify the entry, they expose themselves to potential civil liability under 42 U.S.C. § 1983. Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388 (1971). Of course, a seizure reasonable at its inception because based upon probable cause may become unreasonable as a result of its duration or for other reasons. Cf. United States v. Place, 462 U. S. 696 (1983). Here, because of the delay in securing the warrant, the occupation of the apartment continued throughout the night and into the next day. Such delay in securing a warrant in a large metropolitan center unfortunately is not uncommon; this is not, in itself, evidence of bad faith. And there is no suggestion that the officers, in bad faith, purposely delayed obtaining the warrant. The asserted explanation is that the officers focused first on the task of processing those whom they had arrested before turning to the task of securing the warrant. It is not unreasonable for officers to believe that the former should take priority, given, as was the case here, that the proprietors of the apartment were in the custody of the officers throughout the period in question. There is no evidence that the agents in any way exploited their presence in the apartment; they simply awaited issuance of the warrant. Moreover, more than half of the 19-hour Page 468 U. S. 813 delay was between 10 p.m. and 10 a. m. the following day, when it is reasonable to assume that judicial officers are not as readily available for consideration of warrant requests. Finally, and most important, we observed in United States v. Place, supra, at 462 U. S. 705 , that "[t]he intrusion on possessory interests occasioned by a seizure . . . can vary both in its nature and extent. The seizure may be made after the owner has relinquished control of the property to a third party or . . . from the immediate custody and control of the owner." Here, of course, Segura and Colon, whose possessory interests were interfered with by the occupation, were under arrest and in the custody of the police throughout the entire period the agents occupied the apartment. The actual interference with their possessory interests in the apartment and its contents was, thus, virtually nonexistent. Cf. United States v. Van Leeuwen, 397 U. S. 249 (1970). We are not prepared to say under these limited circumstances that the seizure was unreasonable under the Fourth Amendment. [ Footnote 8 ] V Petitioners also argue that, even if the evidence was not subject to suppression as primary evidence "seized" by virtue of the initial illegal entry and occupation of the premises, it should have been excluded as "fruit" derived from that illegal entry. Whether the initial entry was illegal or not is irrelevant to the admissibility of the challenged evidence, because Page 468 U. S. 814 there was an independent source for the warrant under which that evidence was seized. Exclusion of evidence as derivative or "fruit of the poisonous tree" is not warranted here because of that independent source. None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners' apartment; the information came from sources wholly unconnected with the entry, and was known to the agents well before the initial entry. No information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant. It is therefore beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged. This evidence was discovered the day following the entry, during the search conducted under a valid warrant; it was the product of that search, wholly unrelated to the prior entry. The valid warrant search was a "means sufficiently distinguishable" to purge the evidence of any "taint" arising from the entry. Wong Sun, 371 U.S. at 371 U. S. 488 . [ Footnote 9 ] Had police never entered the apartment, but instead conducted a perimeter stakeout to prevent anyone from entering the apartment and destroying evidence, the contraband now challenged would have been discovered and seized precisely as it was here. The legality of the initial entry is, thus, wholly irrelevant under Wong Sun, supra, and Page 468 U. S. 815 Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920). [ Footnote 10 ] Our conclusion that the challenged evidence was admissible is fully supported by our prior cases going back more than a half century. The Court has never held that evidence is "fruit of the poisonous tree" simply because "it would not have come to light but for the illegal actions of the police." See Wong Sun, supra, at 371 U. S. 487 -488; Rawlings v. Kentucky, 448 U. S. 98 (1980); Brown v. Illinois, 422 U. S. 590 , 422 U. S. 599 (1975). That would squarely conflict with Silverthorne and our other cases allowing admission of evidence, notwithstanding a prior illegality, when the link between the illegality and that evidence was sufficiently attenuated to dissipate the taint. By the same token, our cases make clear that evidence will not be excluded as "fruit" unless the illegality is at least the "but for" cause of the discovery of the evidence. Suppression is not justified unless "the challenged evidence is in some sense the product of illegal governmental activity." United States v. Crews, 445 U.S. at 445 U. S. 471 . The illegal entry into petitioners' apartment did not contribute in any way to discovery of the evidence seized under the warrant; it is clear, therefore, that not even the threshold "but for" requirement was met in this case. The dissent contends that the initial entry and securing of the premises are the "but for" causes of the discovery of the evidence in that, had the agents not entered the apartment, but instead secured the premises from the outside, Colon or her friends, if alerted, could have removed or destroyed the evidence before the warrant issued. While the dissent embraces this "reasoning," petitioners do not press this argument. Page 468 U. S. 816 The Court of Appeals rejected this argument as "prudentially unsound," and because it rested on "wholly speculative assumptions." Among other things, the Court of Appeals suggested that, had the agents waited to enter the apartment until the warrant issued, they might not have decided to take Segura to the apartment, and thereby alert Colon. Or, once alerted by Segura's failure to appear, Colon might have attempted to remove the evidence, rather than destroy it, in which event the agents could have intercepted her and the evidence. We agree fully with the Court of Appeals that the District Court's suggestion that Colon and her cohorts would have removed or destroyed the evidence was pure speculation. Even more important, however, we decline to extend the exclusionary rule, which already exacts an enormous price from society and our system of justice, to further "protect" criminal activity, as the dissent would have us do. It may be that, if the agents had not entered the apartment, petitioners might have arranged for the removal or destruction of the evidence, and that, in this sense, the agents' actions could be considered the "but for" cause for discovery of the evidence. But at this juncture we are reminded of Justice Frankfurter's warning that "[s]ophisticated argument may prove a causal connection between information obtained through [illegal conduct] and the Government's proof," and his admonition that the courts should consider whether, "[a]s a matter of good sense, . . . such connection may have become so attenuated as to dissipate the taint." Nardone, 308 U.S. at 308 U. S. 341 . The essence of the dissent is that there is some "constitutional right" to destroy evidence. This concept defies both logic and common sense. VI We agree with the Court of Appeals that the cocaine, cash records, and ammunition were properly admitted into evidence. Accordingly, the judgment is affirmed. It is so ordered. Page 468 U. S. 817 * JUSTICE WHITE, JUSTICE POWELL, and JUSTICE REHNQUIST join all but Part IV of this opinion. [ Footnote 1 ] See Griswold, Criminal Procedure, -- 1969 Is It a Means or an End?, 29 Md.L.Rev. 307, 317 (1969); see generally 2 W. LaFave, Search and Seizure § 6.5 (1978). [ Footnote 2 ] Rivudalla-Vidal and Parra were indicted with petitioners and were charged with one count of possession with intent to distribute one-half kilogram of cocaine on one occasion and one kilogram on another occasion. Both pleaded guilty to the charges. They moved in the District Court to suppress the one-half kilogram of cocaine found on Parra's person at the time of their arrests on the ground that the Task Force agents had stopped them in violation of Terry v. Ohio, 392 U. S. 1 (1968). The court denied the motion. Rivudalla-Vidal and Parra absconded prior to sentencing by the District Court. [ Footnote 3 ] In Griffin, absent exigent circumstances, police officers forcibly entered an apartment and discovered in plain view narcotics and related paraphernalia. The entry took place while other officers sought a search warrant. The Court of Appeals for the Sixth Circuit affirmed the District Court's grant of the defendant's suppression motion. [ Footnote 4 ] Both the District Court and the Court of Appeals held that the initial entry into the apartment was not justified by exigent circumstances, and thus that the items discovered in plain view during the limited security check had to be suppressed to effect the purposes of the Fourth Amendment. The United States, although it does not concede the correctness of this holding, does not contest it in this Court. Because the Government has decided not to press its argument that exigent circumstances existed, we need not and do not address this aspect of the Court of Appeals decision. We are concerned only with whether the Court of Appeals properly determined that the Fourth Amendment did not require suppression of the evidence seized during execution of the valid warrant. [ Footnote 5 ] In Agapito, DEA agents, following a 2-day surveillance of the defendant's hotel room, arrested the suspected occupants of the room in the lobby of the hotel. After the arrests, the agents entered the hotel room and remained within, with the exception of periodic departures, for almost 24 hours until a search warrant issued. During their stay in the room, the agents seized but did not open a suitcase found in the room. In the search pursuant to the warrant, the agents found cocaine in the suitcase. Although the Second Circuit held that the initial entry was illegal, it held that the cocaine need not be suppressed because it was discovered in the search under the valid warrant. [ Footnote 6 ] In two instances, the Court has allowed temporary seizures and limited detentions of property based upon less than probable cause. In United States v. Van Leeuwen, 397 U. S. 249 (1970), the Court refused to invalidate the seizure and detention -- on the basis of only reasonable suspicion -- of two packages delivered to a United States Post Office for mailing. One of the packages was detained on mere suspicion for only 1 1/2 hours; by the end of that period, enough information had been obtained to establish probable cause that the packages contained stolen coins. But the other package was detained for 29 hours before a search warrant was finally served. Both seizures were held reasonable. In fact, the Court suggested that both seizures and detentions for these "limited times" were "prudent" under the circumstances. Only last Term, in United States v. Place, 462 U. S. 696 (1983), we considered the validity of a brief seizure and detention of a traveler's luggage on the basis of a reasonable suspicion that the luggage contained contraband; the purpose of the seizure and brief detention was to investigate further the causes for the suspicion. Although we held that the 90-minute detention of the luggage in the airport was, under the circumstances, unreasonable, we held that the rationale of Terry v. Ohio, 392 U. S. 1 (1968), applies to permit an officer, on the basis of reasonable suspicion that a traveler is carrying luggage containing contraband, to seize and detain the luggage briefly to "investigate the circumstances that aroused his suspicion." 462 U.S. at 462 U. S. 706 . [ Footnote 7 ] A distinguished constitutional scholar raised the question whether a seizure of premises might not be appropriate to preserve the status quo and protect valuable evidence while police officers in good faith seek a warrant. "Here there is a very real practical problem. Does the police officer have any power to maintain the status quo while he, or a colleague of his, is taking the time necessary to draw up a sufficient affidavit to support an application for a search warrant, and then finding a magistrate, submitting the application to him, obtaining the search warrant if it is issued, and then bringing it to the place where the arrest was made. It seems inevitable that a minimum of several hours will be required for this process, at the very best. Unless there is some kind of a power to prevent removal of material from the premises, or destruction of material during this time, the search warrant will almost inevitably be fruitless. " Griswold, 29 Md.L.Rev. at 317 (emphasis added). Justice Black posed essentially the same question in his dissent in Vale v. Louisiana, 399 U. S. 30 , 399 U. S. 36 (1970). After pointing out that Vale's arrest just outside his residence was "plainly visible to anyone within the house, and the police had every reason to believe that someone in the house was likely to destroy the contraband if the search were postponed," he noted: "This case raises most graphically the question how does a policeman protect evidence necessary to the State if he must leave the premises to get a warrant, allowing the evidence he seeks to be destroyed. The Court's answer to that question makes unnecessarily difficult the conviction of those who prey upon society." Id. at 399 U. S. 41 . [ Footnote 8 ] Our decision in United States v. Place, 462 U. S. 696 (1983), is not inconsistent with this conclusion. There, we found unreasonable a 90-minute detention of a traveler's luggage. But the detention was based only on a suspicion that the luggage contained contraband, not on probable cause. After probable cause was established, authorities held the unopened luggage for almost three days before a warrant was obtained. It was not suggested that this delay presented an independent basis for suppression of the evidence eventually discovered. [ Footnote 9 ] Our holding in this respect is consistent with the vast majority of Federal Courts of Appeals which have held that evidence obtained pursuant to a valid warrant search need not be excluded because of a prior illegal entry. See, e.g., United States v. Perez, 700 F.2d 1232 (CA8 1983); United States v. Kinney, 638 F.2d 941 (CA6), cert. denied, 452 U.S. 918 (1981); United States v. Fitzharris, 633 F.2d 416 (CA5 1980), cert. denied, 451 U.S. 988 (1981); United States v. Agapito, 620 F.2d 324 (CA2 1980); United States v. Bosby, 675 F.2d 1174 (CA11 1982) (dictum). The only Federal Court of Appeals to hold otherwise is the Ninth Circuit. See United States v. Lomas, 706 F.2d 886 (1983); United States v. Allard, 634 F.2d 1182 (1980). [ Footnote 10 ] It is important to note that the dissent stresses the legal status of the agents' initial entry and occupation of the apartment; however, this case involves only evidence seized in the search made subsequently under a valid warrant. Implicit in the dissent is that the agents' presence in the apartment denied petitioners some legal "right" to arrange to have the incriminating evidence concealed or destroyed. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting. Correct analysis of the Fourth Amendment issues raised by this case requires, first, a precise identification of the two constitutional violations that occurred, and, second, an explanation of why a remedy for both is appropriate. While I do not believe that the current record justifies suppression of the challenged evidence, neither does it justify affirmance of petitioners' convictions. We must consider the substantial contention, supported by the findings of the District Court and left unaddressed by the opinion of this Court, that the authorities' access to the evidence introduced against petitioners at trial was made possible only through exploitation of both constitutional violations. Because I believe that contention must be addressed before petitioners' convictions are finally affirmed, I would remand for further proceedings. The Court's disposition, I fear, will provide government agents with an affirmative incentive to engage in unconstitutional violations of the privacy of the home. The Court's disposition is, therefore, inconsistent with a primary purpose of the Fourth Amendment's exclusionary rule -- to ensure that all private citizens -- not just these petitioners -- have some meaningful protection against future violations of their rights. I The events that occurred on February 12 and 13, 1981, were the culmination of an investigation of petitioners that had been under way for over two weeks. On the evening of February 12, agents of the New York Drug Enforcement Task Force arrested Rivudalla-Vidal and Parra, who told them that Segura probably had cocaine in his apartment. At that point, the agents concluded that they had probable cause to search petitioners' apartment, and contacted the United States Attorney's office. An Assistant United States Attorney informed the agents that, at that hour, 6:30 p.m., it was too late to obtain a search warrant, and advised them instead to go to the apartment, arrest Segura, and "secure the Page 468 U. S. 818 premises" pending the issuance of a warrant. [ Footnote 2/1 ] The agents arrived at the apartment about an hour later and positioned themselves on a fire escape, where they could observe anyone entering or leaving the apartment. They also put their ears to the door, but heard nothing. [ Footnote 2/2 ] After three hours of waiting, the agents left their perch and went outside the building, where they continued waiting for Segura to show up. The District Court described what followed: "Around 11:15 p.m., Segura appeared, and as he began to enter the locked door at the lobby, he was apprehended and placed in handcuffs under arrest. The agents, led by Shea, informed him that they wanted to go upstairs to 3D, to which Segura replied that he did not live in the building or in that apartment. Forcibly bringing him to the third floor, the agents began down the hallway, at which point Segura again resisted. Shea again forced him down the hallway to the door of 3D, an Page 468 U. S. 819 apartment which is located in the rear of the building, with no view of the front of the building where the arrest took place. Shea knocked on the door of 3D, with Segura standing, handcuffed, in front of him. Luz Colon, unknown to Shea at the time as such, opened the door. Detective Shea, without more, walked into the apartment with Segura in custody. He was then followed by two other agents, and five minutes later, by Palumbo. Neither Shea nor any other agent had an arrest warrant, or a search warrant. Nor did any of the officers ask for or receive consent to enter apartment 3D." App. 10-11. The agents arrested Colon and three other persons found in the apartment. Colon was unknown to the agents at the time. [ Footnote 2/3 ] The agents made a cursory search of the apartment and saw various items of narcotics paraphernalia in plain view. [ Footnote 2/4 ] The agents left that evidence -- the "prewarrant evidence" -- in the apartment, but they took the arrestees to headquarters. At least two of the agents spent the night in the apartment and remained in it throughout the following day while their colleagues booked the arrestees and presumably persevered in their efforts to obtain a warrant to search the apartment. Finally, at 6 p.m. on February 13, the remaining agents were informed that a search warrant had just been issued, and at that point they conducted a thorough search. The District Court concluded: "There was thus a lapse of some 18-20 hours from the entry into the apartment to the execution of the search warrant, during which time the officers remained inside the apartment and in complete control of it." Id. at 11. Upon searching the apartment, the agents found one kilo of cocaine, over $50,000, several rounds of .38-caliber ammunition, and records of narcotics transactions. Page 468 U. S. 820 II The Court frames the appropriate inquiry in this case as whether the evidence obtained when the search warrant was executed was a "fruit" of illegal conduct. Ante at 468 U. S. 804 . As a predicate to that inquiry, the illegal conduct must, of course, be identified. The District Court found that no exigent circumstances justified the agents' initial warrantless entry into petitioners' apartment. App. 11-13. The Court of Appeals affirmed this finding, and the Government did not seek review of it by this Court. Thus, it is uncontested that the warrantless entry of petitioners' apartment was unconstitutional. [ Footnote 2/5 ] It is equally clear that the subsequent 18-20-hour occupation of the apartment was independently unconstitutional for two separate reasons. First, the occupation was an unreasonable "search" within the meaning of the Fourth Amendment. A "search" for purposes of the Fourth Amendment occurs when a reasonable expectation of privacy is infringed. [ Footnote 2/6 ] Nowhere are expectations of privacy greater than in the home. As the Court has repeatedly noted, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U. S. 297 , 407 U. S. 313 (1972). [ Footnote 2/7 ] Of course, the invasion of privacy Page 468 U. S. 821 occasioned by a physical entry does not cease after the initial entry. In Mincey v. Arizona, 437 U. S. 385 (1978), we held that, although the police lawfully entered Mincey's home to arrest him, the Constitution forbade them to remain in the home and to search it. The Court reasoned that, despite the lawful initial entry, Mincey retained a constitutionally protected privacy interest in his home that could not be infringed without a warrant. See id. at 437 U. S. 390 -391. Similarly, in Chimel v. California, 395 U. S. 752 (1969), we could "see no reason why, simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require." Id. at 395 U. S. 766 -767, n. 12. [ Footnote 2/8 ] Here, by remaining in the home after the initial entry, the agents exacerbated the invasion of petitioners' protected privacy interests. Even assuming the most innocent of motives, the agents' occupation of petitioners' living quarters inevitably involved scrutiny of a variety of personal effects throughout the apartment. [ Footnote 2/9 ] Petitioners privacy interests were unreasonably infringed by the agents' prolonged Page 468 U. S. 822 occupation of their home. THE CHIEF JUSTICE simply ignores this point, assuming that there is no constitutional distinction between surveillance of the home from the outside and physical occupation from the inside. THE CHIEF JUSTICE's assumption is, of course, untenable; there is a fundamental difference when there is a "breach of the entrance to an individual's home. The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home -- a zone which finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their . . . houses . . . shall not be violated.'" Payton v. New York, 445 U. S. 573 , 445 U. S. 589 (1980). Second, the agents' occupation was also an unreasonable "seizure" within the meaning of the Fourth Amendment. A "seizure" occurs when there is some meaningful interference with an individual's possessory interests. [ Footnote 2/10 ] There can be no doubt here that petitioners' possessory interests with respect to their apartment were subject to meaningful governmental interference. The agents not only excluded petitioners from access to their own apartment, and thereby prevented them from exercising any possessory right at all to the apartment and its contents, but they also exercised complete dominion and control over the apartment and its contents. [ Footnote 2/11 ] Our cases virtually compel the conclusion that the contents of the apartment Page 468 U. S. 823 were seized. We have held that, when the police take custody of a person, they concomitantly acquire lawful custody of his personal effects, see Illinois v. Lafayette, 462 U. S. 640 , 462 U. S. 648 (1983); United States v. Edwards, 415 U. S. 800 (1974); United States v. Robinson, 414 U. S. 218 (1973); and when they take custody of a car, they are also in lawful custody of its contents, see South Dakota v. Opperman, 428 U. S. 364 (1976). Surely it follows that, when the authorities take custody of an apartment, they also take custody of its contents. [ Footnote 2/12 ] This seizure was constitutionally unreasonable. Even a seizure reasonable at its inception can become unreasonable because of its duration. United States v. Place, 462 U. S. 696 , 462 U. S. 709 -710 (1983). Even if exigent circumstances justified the entry into and impoundment of the premises pending a warrant -- and no one even argues that such circumstances existed -- the duration of the seizure would nevertheless have been unreasonable. While exigent circumstances may justify police conduct that would otherwise be unreasonable if undertaken without a warrant, such conduct must be "strictly circumscribed by the exigencies which justify its initiation," Terry v. Ohio, 392 U. S. 1 , 392 U. S. 25 -26 (1968). [ Footnote 2/13 ] The cases THE CHIEF JUSTICE cites, ante at 468 U. S. 807 -810, for the proposition that the government may impound premises for the amount of time necessary to procure a warrant thus have no application to this case whatsoever. [ Footnote 2/14 ] There is no contention Page 468 U. S. 824 that a period of 18-20 hours was even remotely necessary to procure a warrant. The contrast between the 90-minute duration of the seizure of a piece of luggage held unreasonable in Place and the 18-20-hour duration of the seizure of the apartment and its contents in this case graphically illustrates the unreasonable character of the agents' conduct. Moreover, unlike Place, which involved a seizure lawful at its inception, this seizure was constitutionally unreasonable from the moment it began. It was conducted without a warrant and in the absence of exigent circumstances. [ Footnote 2/15 ] It has been clear since at least Chimel v. California, 395 U. S. 752 (1969), that the police may neither search nor seize the contents of a home without a warrant. [ Footnote 2/16 ] There is simply no basis for concluding that this 18-20-hour warrantless invasion of petitioners' home complied with the Fourth Amendment. Because the agents unreasonably delayed in seeking judicial authorization for their seizure of petitioners' apartment, that seizure was unreasonable. Page 468 U. S. 825 Nevertheless, in what I can only characterize as an astonishing holding, THE CHIEF JUSTICE, joined by JUSTICE O'CONNOR, concludes that the 18-20-hour seizure of the apartment was not unreasonable. He advances three reasons for that conclusion, none of which has any merit. First, he seeks to justify the delay because "the officers focused first on the task of processing those whom they had arrested before turning to the task of securing the warrant." Ante at 468 U. S. 812 . But there is no evidence that this task presented any difficulties; indeed, since the arrest of the occupants itself was unconstitutional, it is truly ironic that THE CHIEF JUSTICE uses one wrong to justify another. Of greater significance, the District Court expressly found that the length of the delay was unreasonable, and that the Government had made no attempt to justify it; that finding was upheld by the Court of Appeals, and in this Court the Government expressly concedes that the delay was unreasonable. [ Footnote 2/17 ] Second, THE CHIEF JUSTICE suggests that it is relevant that the officers did not act in "bad faith." Ante at 468 U. S. 798 , 468 U. S. 812 . This is done despite the fact that there is no finding as to whether the agents acted in good or bad faith; the reason is that the litigants have never raised the issue. More important, Page 468 U. S. 826 this Court has repeatedly held that a police officer's good or bad faith in undertaking a search or seizure is irrelevant to its constitutional reasonableness, [ Footnote 2/18 ] and does so again today. [ Footnote 2/19 ] Finally, and "most important" to his conclusion, THE CHIEF JUSTICE suggests that there was no significant interference with petitioners' possessory interests in their apartment, because they were in custody anyway. Ante at 468 U. S. 813 . The cases are legion holding that a citizen retains a protected possessory interest in his home and the effects within it which may not be infringed without a warrant even though that person is in custody. Mincey and Chimel are but two instances of that general rule -- the defendants in both cases were in custody, yet both were held to have protected possessory interests in their homes and the effects within them that could not be infringed without a warrant. Even when a person is in custody after an arrest based on probable cause, he still, of course, owns his house and his right to exclude others -- including federal narcotics agents -- remains inviolate. What is even more strange about THE CHIEF JUSTICE's conclusion is that it permits the authorities to benefit from the fact that they had unlawfully arrested Colon. Colon was in her own home when she was arrested without a warrant. That was unconstitutional. [ Footnote 2/20 ] If the agents had decided to obey the Constitution and not arrest Colon, then she would not have "relinquished control" over the property, and presumably it would have been unreasonable for the agents to have remained on the premises under THE CHIEF JUSTICE's analysis. However, because the agents conducted an unlawful arrest in addition to their previous Page 468 U. S. 827 unlawful entry, an otherwise unreasonable occupation becomes "reasonable." THE CHIEF JUSTICE's approach is as reasonable as was the agents' conduct. Only in that sense does it achieve its purpose. Thus, on the basis of the record evidence and the findings of the District Court, it is clear that the 18-20-hour occupation of petitioners' apartment was a second independent violation of the Fourth Amendment. Not only was it the fruit of the initial illegal entry into that apartment, but it also constituted an unreasonable search and seizure of the apartment. The District Court concluded that both violations should be remedied by suppression of all of the evidence found in the apartment. The Court of Appeals agreed that suppression of the prewarrant evidence was the proper remedy for the first violation, but prescribed no remedy for the second. THE CHIEF JUSTICE does not agree that there was a second violation, and the Court concludes that the unconstitutional conduct that did occur was neutralized by the ultimate issuance of a valid warrant. In reaching that conclusion, the Court correctly recognizes that the law requires suppression of the evidence if it was " "come at by exploitation of [the initial] illegality,"'" instead of "`"by means sufficiently distinguishable to be purged of the primary taint."'" Ante at 468 U. S. 804 -805 (quoting Wong Sn v. United States, 371 U. S. 471 , 371 U. S. 488 (1963)). The Court fails, however, to discuss the reason for that rule or how it should apply to the facts of this case. III Every time a court holds that unconstitutionally obtained evidence may not be used in a criminal trial, it is acutely aware of the social costs that such a holding entails. [ Footnote 2/21 ] Only Page 468 U. S. 828 the most compelling reason could justify the repeated imposition of such costs on society. That reason, of course, is to prevent violations of the Constitution from occurring. [ Footnote 2/22 ] As the Court has repeatedly stated, a principal purpose of the exclusionary rule is to deter violations of the Fourth Amendment. See, e.g., Stone v. Powell, 428 U. S. 465 , 428 U. S. 486 (1976); United States v. Janis, 428 U. S. 433 , 428 U. S. 446 -447 (1976); United States v. Peltier, 422 U. S. 531 , 422 U. S. 536 -539 (1975); United States v. Calandra, 414 U. S. 338 , 414 U. S. 347 -348 (1974). "The rule is calculated to prevent, not to repair. Its purpose is to deter -- to compel respect for the constitutional Page 468 U. S. 829 guaranty in the only effectively available way -- by removing the incentive to disregard it." Elkins v. United States, 364 U. S. 206 , 364 U. S. 217 (1960). The deterrence rationale for the exclusionary rule sometimes, but not always, requires that it be applied to the indirect consequences of a constitutional violation. If the government could utilize evidence obtained through exploitation of illegal conduct, it would retain an incentive to engage in that conduct. "To forbid the direct use of methods thus characterized [as illegal] but to put no curb on their full indirect use would only invite the very methods deemed 'inconsistent with ethical standards and destructive of personal liberty.'" Nardone v. United States, 308 U. S. 338 , 308 U. S. 340 (1939). We have not, however, mechanically applied the rule to every item of evidence that has a causal connection with police misconduct. "The notion of the 'dissipation of the taint' attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost." Brown v. Illinois, 422 U. S. 590 , 422 U. S. 609 (1975) (POWELL, J., concurring in part). [ Footnote 2/23 ] This point is well illustrated by our cases concerning the use of confessions obtained as the result of unlawful arrests. In Wong Sun v. United States, 371 U. S. 471 (1963), we rejected a rule that any evidence that would not have been obtained but for the illegal actions of the police should be suppressed. See id. at 371 U. S. 487 -488, 371 U. S. 491 . Yet in Brown v. Illinois, 422 U. S. 590 (1975), while continuing to reject a "but-for" rule, see id. at 422 U. S. 603 , we held that the taint of an unlawful arrest could not be purged merely by warning the arrestee of his right to remain silent and to consult with Page 468 U. S. 830 counsel as required by Miranda v. Arizona, 384 U. S. 436 (1966). We explained: "If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. Arrests made without warrant or without probable cause, for questioning or 'investigation,' would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a 'cure-all,' and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to 'a form of words.'" 422 U.S. at 422 U. S. 602 -603 (citation and footnote omitted). These holdings make it clear that taint questions do not depend merely on questions of causation; causation is a necessary, but not a sufficient, condition for exclusion. In addition, it must be shown that exclusion is required to remove the incentive for the police to engage in the unlawful conduct. When it is, exclusion is mandated if the Fourth Amendment is to be more than "a form of words." IV The Court concludes that the evidence introduced against petitioners at trial was obtained from a source that was "independent" of the prior illegality -- the search warrant. The Court explains that, since the police had a legal basis for obtaining and executing the search warrant, the fruits of the authorized search were not produced by exploitation of the prior illegality. Ante at 468 U. S. 814 -815. There are significant analytical difficulties lurking in the Court's approach. First, the Court accepts the distinction between the evidence Page 468 U. S. 831 obtained pursuant to the warrant and the evidence obtained during the initial illegal entry. Ante at 468 U. S. 814 ; see also ante at 468 U. S. 812 (opinion of BURGER, C.J.). I would not draw a distinction between the prewarrant evidence and the postwarrant evidence. The warrant embraced both categories equally, and if there had been no unlawful entry, there is no more reason to believe that the evidence in plain view would have remained in the apartment and would have been obtained when the warrant was executed than the evidence that was concealed. The warrant provided an "independent" justification for seizing all the evidence in the apartment -- that in plain view just as much as the items that were concealed. The "plain view" items were not actually removed from the apartment until the warrant was executed; [ Footnote 2/24 ] thus, there was no more interference with petitioners' possessory interest in those items than with their interest in the concealed items. If the execution of a valid warrant takes the poison out of the hidden fruit, I should think that it would also remove the taint from the fruit in plain view. [ Footnote 2/25 ] Second, the Court's holding is inadequate to resolve the claims raised by petitioners. The Court states that the fruits of the judicially authorized search were untainted because "[n]o information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant." Ante at 468 U. S. 814 . That is sufficient to dispose only of a claim that petitioners do not make -- that the information which led to the issuance of the search warrant was tainted. It does not dispose of the claim that Page 468 U. S. 832 petitioners do make -- that the agents' access to the fruits of the authorized search, rather than the information which led to that search, was a product of illegal conduct. On this question, the length of the delay in obtaining the warrant is surely relevant. If Segura had not returned home at all that night, or during the next day, it is probable that the occupants of the apartment would have become concerned, and might at least have destroyed the records of their illegal transactions, or removed some of the evidence. If one of the occupants had left the apartment and taken evidence with him or her during the 18-20-hour period prior to the execution of the search warrant, then obviously that evidence would not have been accessible to the agents when the warrant finally was executed. [ Footnote 2/26 ] The District Court concluded that there was a possibility that the evidence's availability when the warrant was executed hinged solely on the illegal impoundment. It found: "The evidence would not inevitably have been discovered. In fact, Colon might well have destroyed the evidence had she not been illegally excluded [from the apartment]." App. 15. This finding indicates that there is substantial doubt as to whether all of the evidence that was actually seized would have been discovered if there had been no illegal entry and occupation. The majority insists that the idea that access to evidence is a relevant consideration is "unsound" because it would "extend" the exclusionary rule and "further protect' criminal activity," ante at 468 U. S. 816 . However, this very point is far from Page 468 U. S. 833 novel; it actually has been the long-settled rule. It is implicit in virtually every case in which we have applied the exclusionary rule. In the seminal case, Weeks v. United States, 232 U. S. 383 (1914), federal agents illegally entered Weeks' house and seized evidence. The Court ordered the evidence suppressed precisely because, absent the illegality, the agents would never have obtained access to the evidence. See id. at 232 U. S. 393 -394. More recently, in Payton v. New York, 445 U. S. 573 (1980), we held that suppression was required because the agents were not authorized to enter the house; it was the Fourth Amendment violation that enabled them to obtain access to the evidence. Indeed, we have regularly invoked the exclusionary rule because the evidence would have eluded the police absent the illegality. [ Footnote 2/27 ] Here, too, if the evidence would not have been available to the agents at the time they finally executed the warrant had they not illegally entered and impounded petitioners' apartment, then it cannot be said that the agents' access to the evidence was "independent" of the prior illegality. The unlawful delay provides the same justification for suppression as does the unlawful entry: both violations precluded the possibility that evidence would have been moved out of the reach of the agents. We approved of exactly that principle only last Term, in United States v. Place, 462 U. S. 696 (1983). There, luggage was detained for some 90 minutes until a trained narcotics detection dog arrived. The dog then sniffed the luggage, signaled the presence of narcotics, a Page 468 U. S. 834 warrant was obtained on the strength of the dog's reaction, and when the warrant was executed, narcotics were discovered. The Court held that, while the initial seizure was lawful, it became unreasonable because of its duration. Thus, absent the illegality, the authorities would have had to give the luggage back to Place, who would have then taken it away. [ Footnote 2/28 ] The evidence was obtained in violation of the Fourth Amendment because it was the unlawful delay that prevented the evidence from disappearing before it could be obtained by the authorities. That is precisely the claim made by petitioners here. When it finally does confront petitioners' claim concerning the relationship between the unlawful occupation of their apartment and the evidence obtained at the conclusion of that occupation, ante at 468 U. S. 815 -816, the Court rejects it for two reasons. First, it finds the possibility that the evidence would not have been in the apartment had it not been impounded to be speculative. However, the District Court found a distinct, nonspeculative possibility that the evidence would not have been available to the police had they not entered the apartment illegally. The Court is obligated to respect that finding unless found to be clearly erroneous, which it is not. Indeed, it is equally speculative to assume that the occupants of the apartment would not have become concerned enough to take some action had Segura been missing for 18-20 hours. [ Footnote 2/29 ] Second, the Court thinks it "prudentially unsound" Page 468 U. S. 835 to suppress the evidence, noting a certain irony in extending the protection of the Constitution simply because criminals may destroy evidence if given the chance. This analysis confuses two separate issues however: (1) whether the initial entry was justified by exigent circumstances; and (2) whether the discovery of the evidence can be characterized as "inevitable" notwithstanding the 18-hour delay. There is no dispute that the risk of immediate destruction did not justify the entry. The argument petitioners make is not that there was some immediate threat of destruction of evidence, but that there was a substantial possibility that, over the course of 18-20 hours, at least some of the evidence would have been removed or destroyed. [ Footnote 2/30 ] Page 468 U. S. 836 For me, however, the controlling question should not be answered merely on the basis of such speculation, but rather by asking whether the deterrent purposes of the exclusionary rule would be served or undermined by suppression of this evidence. That is the appropriate "prudential" consideration identified in our exclusionary rule cases. The District Court found that there was a distinct possibility that the evidence was preserved only through an illegal occupation of petitioners' apartment. That possibility provides a sufficient reason for asking whether the deterrent rationale of the exclusionary rule is applicable to the second constitutional violation committed by the police in this case. V The importance of applying the exclusionary rule to the police conduct in this case is underscored by its facts. The 18-20-hour occupation of petitioners' home was blatantly unconstitutional. At the same time, the law enforcement justification for engaging in such conduct is exceedingly weak. There can be no justification for inordinate delay in securing a warrant. Thus, applying the exclusionary rule to such conduct would impair no legitimate interest in law enforcement. Moreover, the deterrence rationale of the rule is plainly applicable. The agents impounded this apartment precisely because they wished to avoid risking a loss of access to the evidence within it. Thus, the unlawful benefit they acquired through the impoundment was not so "attenuated" as to make it unlikely that the deprivation of that benefit through the exclusionary rule would have a deterrent effect. To the contrary, it was exactly the benefit identified by the District Page 468 U. S. 837 Court -- avoiding a risk of loss of evidence -- that motivated the agents in this case to violate the Constitution. Thus, the policies underlying the exclusionary rule demand that some deterrent be created to this kind of unconstitutional conduct. Yet the majority's disposition of this case creates none. Under the majority's approach, the agents could have remained indefinitely -- impounding the apartment for a week or a month -- without being deprived of the advantage derived from the unlawful impoundment. We cannot expect such an approach to prevent similar violations of the Fourth Amendment in the future. In my opinion the exclusionary rule should be applied to both of the constitutional violations to deprive the authorities of the advantage they gained as a result of their unconstitutional entry and impoundment of petitioners' apartment. The deterrence rationale of the exclusionary rule requires suppression unless the Government can prove that the evidence in fact would have remained in the apartment had it not been unlawfully impounded. The risk of uncertainty as to what would have happened absent the illegal conduct posed by the facts of this case should be borne by the party that created that uncertainty, the Government. That is the teaching of our exclusionary rule cases. See Taylor v. Alabama, 457 U. S. 687 , 457 U. S. 690 (1982); Dunaway v. New York, 442 U. S. 200 , 442 U. S. 218 (1979); Brown v. Illinois, 422 U.S. at 422 U. S. 604 . Further proceedings are necessary in this case if petitioners' claim is to be properly evaluated. The District Court found only that there was a demonstrable possibility that the evidence obtained during the execution of the search warrant would have been destroyed absent the illegal entry and impoundment. While this finding is sufficient to establish prima facie that the Government exploited the illegality by avoiding a risk of losing the evidence in the apartment, the existence of a mere possibility cannot be equated with an ultimate finding that such exploitation did in fact occur. The Page 468 U. S. 838 District Court made no specific finding as to whether the Government had demonstrated that the evidence obtained pursuant to the search warrant would have remained in the apartment had the agents not illegally entered and impounded it. It may be that an evidentiary hearing would be necessary to supplement the record on this point. Accordingly, I would remand this case to the Court of Appeals with instructions that it be remanded to the District Court for further proceedings. VI The Government did not contest the blatant unconstitutionality of the agents' conduct in this case. Nevertheless, today's holding permits federal agents to benefit from that conduct by avoiding the risk that evidence would be unavailable when the search warrant was finally executed. The majority's invocation of the "enormous price" of the exclusionary rule, and its stated unwillingness to "protect criminal activity," ante at 468 U. S. 816 , is the most persuasive support that the Court provides for its holding. Of course, the Court is quite right to be ever mindful of the cost of excessive attention to procedural safeguards. But an even-handed approach to difficult cases like this requires attention to countervailing considerations as well. There are two that I would stress. First, we should consider the impact of the Court's holding on the leaders of the law enforcement community who have achieved great success in creating the kind of trained, professional officers who deservedly command the respect of the communities they serve. The image of the "keystone cop" whose skills seldom transcended the ham-handed employment of the "third degree" is largely a matter of memory for those of us who lived through the 1920's, 1930's and 1940's. For a congeries of reasons, among which unquestionably is the added respect for the constitutional rights of the individual engendered by cases like Miranda v. Arizona, 384 U. S. 436 (1966), and Mapp v. Ohio, 367 U. S. 643 (1961), the professionalism that has always characterized the Federal Page 468 U. S. 839 Bureau of Investigation is now typical of police forces throughout the land. A rule of law that is predicated on the absurd notion that a police officer does not have the skill required to obtain a valid search warrant in less than 18 or 20 hours, or that fails to deter the authorities from delaying unreasonably their attempt to obtain a warrant after they have entered a home, is demeaning to law enforcement, and can only encourage sloppy, undisciplined procedures. Second, the Court's rhetoric cannot disguise the fact that, when it not only tolerates but also provides an affirmative incentive for warrantless and plainly unreasonable and unnecessary intrusions into the home, the resulting erosion of the sanctity of the home is a "price" paid by the innocent and guilty alike. [ Footnote 2/31 ] More than half a century ago, Justice Holmes explained why the Government cannot be permitted to benefit from its violations of the Constitution. "The Government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means which otherwise it would not have had. " Page 468 U. S. 840 "The proposition could not be presented more nakedly. It is that although, of course, its seizure was an outrage which the Government now regrets, . . . the protection of the Constitution covers the physical possession, but not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act. . . . In our opinion, such is not the law. It reduces the Fourth Amendment to a form of words. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all." Silverthorne Lumber Co. v. United States, 251 U. S. 385 , 251 U. S. 391 -392 (1920) (citation omitted). If we are to give more than lipservice to protection of the core constitutional interests that were twice violated in this case, some effort must be made to isolate and then remove the advantages the Government derived from its illegal conduct. I respectfully dissent. [ Footnote 2/1 ] THE CHIEF JUSTICE seems to think that this problem was caused by the unavailability of a magistrate to issue a warrant at this hour, ante, at 468 U. S. 812 -813. However, as the Government candidly admits, the fault here lies not with the judiciary, but with the United States Attorney's office for failing to exercise due diligence in attempting to procure a warrant. One of the agents testified that the Assistant United States Attorney told him only that " perhaps a Magistrate could not be found at that particular time in the evening." Tr. 154 (emphasis supplied). The Assistant United States Attorney testified that he did not even attempt to locate a magistrate or obtain a search warrant. Id. at 441-442. As the Government concedes in its brief: "It is not clear why a greater effort was not made to obtain a search warrant when the officers first sought one, and we do not condone the failure to do so. . . . We note that, subsequent to the events in this case, the United States Attorney circulated an internal memorandum reemphasizing that search warrants should be sought when at all possible, regardless of the hour, in order to avoid the need for warrantless entries to secure premises." Brief for United States 40, n. 23. [ Footnote 2/2 ] Based on the information they had been given prior to their arrival at the apartment, the agents believed, correctly as it turned out, that Segura was not in the apartment. Tr. 394. [ Footnote 2/3 ] Id. at 366, 392. [ Footnote 2/4 ] However, none of this evidence could be seen until after the agents had entered the apartment. Id. at 405. [ Footnote 2/5 ] In Vale v. Louisiana, 399 U. S. 30 (1970), we held that, absent a demonstrable threat of imminent destruction of evidence, the authorities may not enter a residence in order to preserve that evidence without a warrant. See also United States v. Jeffers, 342 U. S. 48 , 342 U. S. 51 -52 (1951); McDonald v. United States, 335 U. S. 451 , 335 U. S. 454 -455 (1948); Johnson v. United States, 333 U. S. 10 , 333 U. S. 13 -15 (1948). The illegality is even more plain in this case, because the entry was effected by force late at night. [ Footnote 2/6 ] See Oliver v. United States, 466 U. S. 170 , 466 U. S. 177 (1984); Illinois v. Andreas, 463 U. S. 765 , 463 U. S. 771 (1983); United States v. Knotts, 460 U. S. 276 , 460 U. S. 280 -281 (1983); Smith v. Maryland, 442 U. S. 735 , 442 U. S. 739 -741 (1979); Terry v. Ohio, 392 U. S. 1 , 392 U. S. 9 (1968). [ Footnote 2/7 ] See also e.g., Welsh v. Wisconsin, 466 U. S. 740 , 466 U. S. 748 (1984); Michigan v. Clifford, 464 U. S. 287 , 464 U. S. 296 -297 (1984) (plurality opinion); Steagald v. United States, 451 U. S. 204 , 451 U. S. 212 (1981); Payton v. New York, 445 U. S. 573 , 445 U. S. 583 -590 (1980); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 481 (1971); McDonald v. United States, 335 U.S. at 335 U. S. 455 -456; Johnson V. United States, 333 U.S. at 333 U. S. 13 -14. v. United States, 451 U. S. 204 , 451 U. S. 212 (1981); Payton v. New York, 445 U. S. 573 , 445 U. S. 583 -590 (1980); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 481 (1971); McDonald v. United States, 335 U.S. at 335 U. S. 455 -456; Johnson V. United States, 333 U.S. at 333 U. S. 13 -14. [ Footnote 2/8 ] See also 395 U.S. at 395 U. S. 764 -765: "It is argued in the present case that it is 'reasonable' to search a man's house when he is arrested in it. But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively 'reasonable' to search a man's house when he is arrested on his front lawn or just down the street -- than it is when he happens to be in the house at the time of arrest." [ Footnote 2/9 ] At oral argument, the Government conceded that the agents' occupation of the apartment constituted a "continuing search" for exactly this reason. Tr. of Oral Arg. 27, 31. [ Footnote 2/10 ] See United States v. Karo, ante at 468 U. S. 712 -713; United States v. Jacobsen, 466 U. S. 109 , 466 U. S. 120 -121, 124-125 (1984); United States v. Place, 462 U. S. 696 , 462 U. S. 707 -708 (1983); id. at 462 U. S. 716 (BRENNAN, J., concurring in result); Texas v. Brown, 460 U. S. 730 , 460 U. S. 747 -748 (1983) (STEVENS, J., concurring in judgment). [ Footnote 2/11 ] While Segura was lawfully in custody during this period, Colon and her three companions were not. They were unknown to the agents prior to the illegal entry, and, as the District Court noted, would have been able to remain in the apartment free from governmental interference had the unlawful entry not occurred. [ Footnote 2/12 ] THE CHIEF JUSTICE's parsimonious approach to Fourth Amendment rights is vividly illustrated by the fact that, as though he were preparing an adversary's brief, he is unwilling even to acknowledge explicitly that the apartment and its contents were seized, but only "assum[es]" that was the case. Ante at 468 U. S. 806 . [ Footnote 2/13 ] See Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 393 (1978); G. M. Leasing Corp. v. United States, 429 U. S. 338 , 429 U. S. 358 -359 (1977); Vale v. Louisiana, 399 U.S. at 399 U. S. 34 -35; Chimel v. California, 395 U. S. 752 , 395 U. S. 762 -763 (1969). [ Footnote 2/14 ] THE CHIEF JUSTICE's misuse of Place, ante at 468 U. S. 813 , n. 8, is quite remarkable. He suggests that Place approved the almost 3-day detention of Place's luggage before a warrant was obtained, when in fact the Court had no occasion to reach that issue because it held that the initial 90-minute detention of the luggage pending a "sniff test" using a trained narcotics-detecting dog was unreasonable. See 462 U.S. at 462 U. S. 710 . Other than this reference to Place, THE CHIEF JUSTICE's diligent search for support for his holding has produced nothing but dissenting opinions and a law review article. See ante at 468 U. S. 809 -810, n. 7. Dean Griswold's article, however, did not even purport to answer the question presented by this case. See Griswold, Criminal Procedure, 1969 -- Is It a Means or an End?, 29 Md.L.Rev. 307, 317 (1969). [ Footnote 2/15 ] Since these premises were impounded "from the inside," I assume impoundment would be permissible even absent exigent circumstances when it occurs "from the outside" -- when the authorities merely seal off premises pending the issuance of a warrant but do not enter. [ Footnote 2/16 ] See also Steagald v. United States, 451 U. S. 204 (1981); Payton v. New York, 445 U. S. 573 (1980); Mincey v. Arizona, 437 U. S. 385 (1978); Vale v. Louisiana, 399 U. S. 30 (1970). In fact, except for an aberrational warrantless "search incident to an arrest" exception recognized in United States v. Rabinowitz, 339 U. S. 56 (1950), and repudiated by Chimel, this rule has been settled since Agnello v. United States, 269 U. S. 20 , 269 U. S. 32 -33 (1925). See also Trupiano v. United States, 334 U. S. 699 (1948). [ Footnote 2/17 ] The only explanation the Government has offered for the delay is that most of February 13 was taken up with "processing" the arrests. Brief for United States 5, n. 4. At oral argument, the Government conceded that the delay was unreasonable. Tr. of Oral Arg. 27. At the suppression hearing in the District Court, one of the agents testified that the warrant application was not even presented to a Magistrate until 5 p.m. on February 13. He explained: "Well, it's very hard to get secretarial services today." Tr. 162-163. The Assistant United States Attorney responsible for procuring the warrant testified similarly. Id. at 445. The attorney did not explain why he did not simply write out the two-page application by hand, or seek a telephonic warrant under Federal Rule of Criminal Procedure 41(c)(2). The District Court found that the delay was unreasonable, App. 15-16, a finding that the Court of Appeals did not disturb. The Government does not challenge that finding in this Court. [ Footnote 2/18 ] See Terry v. Ohio, 392 U.S. at 392 U. S. 22 ; Beck v. Ohio, 379 U. S. 89 , 379 U. S. 97 (1964); Henry v. United States, 361 U. S. 98 , 361 U. S. 102 (1959). [ Footnote 2/19 ] United States v. Leon, post at 468 U. S. 915 , n. 13. [ Footnote 2/20 ] Welsh v. Wisconsin, 466 U. S. 740 (1984); Payton v. New York, 445 U. S. 573 (1980). [ Footnote 2/21 ] Justice Holmes commented on this dilemma: "[W]e must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime, I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that, in future, it will pay for the fruits. We have to choose, and, for my part, I think it a less evil that some criminals should escape than that the Government should play an ignoble part." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 470 (1928) (dissenting opinion). [ Footnote 2/22 ] Justice Stewart has written: "[T]he Framers did not intend the Bill of Rights to be no more than unenforceable guiding principles -- no more than a code of ethics under an honor system. The proscriptions and guarantees in the amendments were intended to create legal rights and duties." "The Bill of Rights is but one component of our legal system -- the one that limits the government's reach. The primary responsibility for enforcing the Constitution's limits on government, at least since the time of Marbury v. Madison, has been vested in the judicial branch. In general, when law enforcement officials violate a person's Fourth Amendment rights, they do so in attempting to obtain evidence for use in criminal proceedings. To give effect to the Constitution's prohibition against illegal searches and seizures, it may be necessary for the judiciary to remove the incentive for violating it. Thus, it may be argued that, although the Constitution does not explicitly provide for exclusion, the need to enforce the Constitution's limits on government -- to preserve the rule of law -- requires an exclusionary rule." Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule, 83 Colum.L.Rev. 1365, 1383-1384 (1983) (footnotes omitted). [ Footnote 2/23 ] See 3 W. LaFave, Search and Seizure § 11.4(a) (1978); Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 388-390 (1964); Pitler, "The Fruit of the Poisonous Tree" Revisited and Shepardized, 56 Calif.L.Rev. 579, 586-589 (1968). [ Footnote 2/24 ] Tr. 259. [ Footnote 2/25 ] I recognize that the legality of the seizure of the evidence that was in plain view when the officers entered is not before us, but I find it necessary to discuss it since it affects the analysis of the issue that is in dispute. THE CHIEF JUSTICE does so as well; he relies on the deterrent effect of the suppression of the evidence found in plain view in responding to petitioners' argument that the Court of Appeals' decision will encourage illegal entries in the course of securing premises from the inside. Ante at 468 U. S. 812 . [ Footnote 2/26 ] It is by no means impossible that at least one of the occupants might have been able to leave the apartment. None of them was known to the agents, and if the agents were located outside the apartment building, they would not have known that a person leaving the building would have come from petitioners' apartment. There were quite a few apartments on each floor of the apartment building. Tr. 253. Moreover, as the District Court noted, the agents could not see petitioners' apartment from their position in the front of the building. [ Footnote 2/27 ] The element of access, rather than information, is central to virtually the whole of our jurisprudence under the Warrant Clause of the Fourth Amendment. In all of our cases suppressing evidence because it was obtained pursuant to a warrantless search, we have focused not on the authorities' lack of appropriate information to authorize the search, but rather on the fact that that information was not presented to a magistrate. Thus, suppression is the consequence not of a lack of information, but of the fact that the authorities' access to the evidence in question was not properly authorized, and hence was unconstitutional. [ Footnote 2/28 ] Even more recently, in Welsh v. Wisconsin, 466 U. S. 740 (1984), we again employed this concept. The Court held that police could not justify under the Fourth Amendment the warrantless arrest of Welsh, who was suspected of drunken driving, in his own home, "simply because evidence of the petitioner's blood-alcohol level might have dissipated while the police obtained a warrant." Id. at 466 U. S. 754 (footnote omitted). [ Footnote 2/29 ] The Court of Appeals, with which this Court agrees, noted that the District Court's ruling depended on "speculative assumptions," such as that the agents would not have kept the apartment under surveillance after Segura's arrest had they not illegally entered it, that Colon would have �destroyed the evidence, rather than merely removed it from the apartment, or that the evidence could have been destroyed unobtrusively. However, each of these "assumptions" is supported by the evidence. First, the agents would have had no reason to keep the apartment under surveillance subsequent to the arrests of all the persons that they had surveilled, Parra, Rivudalla-Vidal, and Segura. Second, even if Colon had merely removed the evidence from the apartment, there is reason to believe the agents would not have intercepted her. See 468 U.S. 796 fn2/26|>n. 26, supra. Third, since the agents were outside the apartment, and would have had no reason to remain on the scene after Segura's arrest, they would not have been around to notice had evidence been removed or destroyed unobtrusively. Moreover, even if it would have been difficult to remove or destroy some of the evidence, such as the triple-beam scale petitioners owned, that does not mean that all of the evidence would have remained in the apartment over the course of an 18-20-hour period. The Court of Appeals' assumptions to the contrary are just as "speculative" as the finding of the District Court. [ Footnote 2/30 ] The cases in the lower courts the majority cites in support of its holding, ante at 468 U. S. 814 , n. 9, are plainly distinguishable. In United States v. Perez, 700 F.2d 1232, 1237-1238 (CA8 1983), the court remanded for a hearing as to whether the search and seizure authorized by a warrant was tainted by prior illegality. In United States v. Kinney, 638 F.2d 941, 945 (CA6), cert. denied, 452 U.S. 918 (1981), the court found no taint, but in that case there was no occupation of the searched premises prior to obtaining the warrant, and hence no claim of the type made here. The same is true of the other cases the Court cites, United States v. Bosby, 675 F.2d 1174, 1180-1181 (CA11 1982); United States v. Fitzharris, 633 F.2d 416 (CA5 1980), cert. denied, 451 U.S. 988 (1981); United States v. Agapito, 620 F.2d 324, 338 (CA2), cert. denied, 449 U.S. 834 (1980). As the Court concedes, United States v. Lomas, 706 F.2d 886 (CA9 1983), and United States v. Allard, 634 F.2d 1182 (CA9 1980), are contrary to its holding. [ Footnote 2/31 ] The words that this case calls to my mind are not those of Nardone ante at 468 U. S. 816 , but rather those in two of Justice Jackson's dissents. With respect to the claim that the Fourth Amendment "protect[s] criminal activity," he wrote: "Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. . . . Courts can protect the innocent against such invasions only indirectly, and through the medium of excluding evidence obtained against those who frequently are guilty. . . . So a search against Brinegar's car must be regarded as a search of the car of Everyman." Brinegar v. United States, 338 U. S. 160 , 338 U. S. 181 (1949). And with respect to the "price" exacted by the exclusionary rule, he wrote: "[T]he forefathers thought this was not too great a price to pay for that decent privacy of home, papers and effects which is indispensable to individual dignity and self-respect. They may have overvalued privacy, but I am not disposed to set their command at naught." Harris v. United States, 331 U. S. 145 , 331 U. S. 198 (1947).

Here is a summary of the Supreme Court case Segura v. United States, 468 U.S. 796 (1984): The Supreme Court held that evidence obtained during an initial illegal entry into an apartment was admissible because it was discovered in plain view and there was an independent source for the evidence (a search warrant). The Court also found that the officers had reasonable grounds to secure the premises to prevent the destruction of evidence while they obtained a search warrant. However, Justice Marshall, in his dissenting opinion, argued that the majority's decision weakened the exclusionary rule and undermined the protection against unreasonable searches and seizures provided by the Fourth Amendment.

Search & Seizure

Colorado v. Bertine

https://supreme.justia.com/cases/federal/us/479/367/

U.S. Supreme Court Colorado v. Bertine, 479 U.S. 367 (1987) Colorado v. Bertine No. 85-889 Argued November 10, 1986 Decided January 14, 1987 479 U.S. 367 CERTIORARI TO THE SUPREME COURT OF COLORADO Syllabus A Boulder, Colorado, police officer arrested respondent for driving his van while under the influence of alcohol. After respondent was taken into custody and before a tow truck arrived to take the van to an impoundment lot, another officer, acting in accordance with local police procedures, inventoried the van's contents, opening a closed backpack in which he found various containers holding controlled substances, cocaine paraphernalia, and a large amount of cash. Prior to his trial on charges including drug offenses, the state trial court granted respondent's motion to suppress the evidence found during the inventory search. Although the court determined that the search did not violate respondent's rights under the Fourth Amendment of the Federal Constitution, it held that the search violated the Colorado Constitution. The Colorado Supreme Court affirmed, but premised its ruling on the Federal Constitution. Held: The Fourth Amendment does not prohibit the State from proving the criminal charges with the evidence discovered during the inventory search of respondent's van. This case is controlled by the principles governing inventory searches of automobiles and of an arrestee's personal effects, as set forth in South Dakota v. Opperman, 428 U. S. 364 , and Illinois v. Lafayette, 462 U. S. 640 , rather than those governing searches of closed trunks and suitcases conducted solely for the purpose of investigating criminal conduct. United States v. Chadwick, 433 U. S. 1 , and Arkansas v. Sanders, 442 U. S. 753 , distinguished. The policies behind the warrant requirement, and the related concept of probable cause, are not implicated in an inventory search, which serves the strong governmental interests in protecting an owner's property while it is in police custody, insuring against claims of lost, stolen, or vandalized property, and guarding the police from danger. There was no showing here that the police, who were following standardized caretaking procedures, acted in bad faith or for the sole purpose of investigation. Police, before inventorying a container, are not required to weigh the strength of the individual's privacy interest in the container against the possibility that the container might serve as a repository for dangerous or valuable items. There is no merit to the contention that the search of respondent's van was unconstitutional because departmental regulations gave the police discretion to choose between impounding the van and parking Page 479 U. S. 368 and locking it in a public parking place. The exercise of police discretion is not prohibited so long as that discretion is exercised -- as was done here -- according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. Pp. 479 U. S. 371 -376. 706 P.2d 411 , reversed. REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, STEVENS, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed a concurring opinion, in which POWELL and O'CONNOR, JJ., joined, post, p. 479 U. S. 376 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 479 U. S. 377 . CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. On February 10, 1984, a police officer in Boulder, Colorado, arrested respondent Steven Lee Bertine for driving while under the influence of alcohol. After Bertine was taken into custody and before the arrival of a tow truck to take Bertine's van to an impoundment lot, [ Footnote 1 ] a backup officer Page 479 U. S. 369 inventoried the contents of the van. The officer opened a closed backpack in which he found controlled substances, cocaine paraphernalia, and a large amount of cash. Bertine was subsequently charged with driving while under the influence of alcohol, unlawful possession of cocaine with intent to dispense, sell, and distribute, and unlawful possession of methaqualone. We are asked to decide whether the Fourth Amendment prohibits the State from proving these charges with the evidence discovered during the inventory of Bertine's van. We hold that it does not. The backup officer inventoried the van in accordance with local police procedures, which require a detailed inspection and inventory of impounded vehicles. He found the backpack directly behind the front seat of the van. Inside the pack, the officer observed a nylon bag containing metal canisters. Opening the canisters, the officer discovered that they contained cocaine, methaqualone tablets, cocaine paraphernalia, and $700 in cash. In an outside zippered pouch of the backpack, he also found $210 in cash in a sealed envelope. After completing the inventory of the van, the officer had the van towed to an impound lot and brought the backpack, money, and contraband to the police station. After Bertine was charged with the offenses described above, he moved to suppress the evidence found during the inventory search on the ground, inter alia, that the search of the closed backpack and containers exceeded the permissible scope of such a search under the Fourth Amendment. The Colorado trial court ruled that probable cause supported Bertine's arrest, and that the police officers had made the decisions to impound the vehicle and to conduct a thorough inventory search in good faith. Although noting that the inventory of the vehicle was performed in a "somewhat slipshod" manner, the District Court concluded that "the search of the backpack was done for the purpose of protecting the Page 479 U. S. 370 owner's property, protection of the police from subsequent claims of loss or stolen property, and the protection of the police from dangerous instrumentalities." App. 81-83. The court observed that the standard procedures for impounding vehicles mandated a "detailed inventory involving the opening of containers and the listing of [their] contents." Id. at 81. Based on these findings, the court determined that the inventory search did not violate Bertine's rights under the Fourth Amendment of the United States Constitution. Id. at 83. The court, nevertheless, granted Bertine's motion to suppress, holding that the inventory search violated the Colorado Constitution. On the State's interlocutory appeal, the Supreme Court of Colorado affirmed. 706 P.2d 411 (1986). In contrast to the District Court, however, the Colorado Supreme Court premised its ruling on the United States Constitution. The court recognized that, in South Dakota v. Opperman, 428 U. S. 364 (1976), we had held inventory searches of automobiles to be consistent with the Fourth Amendment, and that, in Illinois v. Lafayette, 462 U. S. 640 (1983), we had held that the inventory search of personal effects of an arrestee at a police station was also permissible under that Amendment. The Supreme Court of Colorado felt, however, that our decisions in Arkansas v. Sanders, 442 U. S. 753 (1979), and United States v. Chadwick, 433 U. S. 1 (1977), holding searches of closed trunks and suitcases to violate the Fourth Amendment, meant that Opperman and Lafayette did not govern this case. [ Footnote 2 ] We granted certiorari to consider the important and recurring question of federal law decided by the Colorado Supreme Page 479 U. S. 371 Court. [ Footnote 3 ] 475 U.S. 1081 (1986). As that court recognized, inventory searches are now a well defined exception to the warrant requirement of the Fourth Amendment. See Lafayette, supra, at 462 U. S. 643 ; Opperman, supra, at 428 U. S. 367 -376. The policies behind the warrant requirement are not implicated in an inventory search, Opperman, 428 U.S. at 428 U. S. 370 , n. 5, nor is the related concept of probable cause: "The standard of probable cause is peculiarly related to criminal investigations, not routine, noncriminal procedures. . . . The probable cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions, particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations." Ibid. See also United States v. Chadwick, supra, at 433 U. S. 10 , n. 5. For these reasons, the Colorado Supreme Court's reliance on Arkansas v. Sanders, supra, and United States v. Chadwick, supra, was incorrect. Both of these cases concerned searches solely for the purpose of investigating criminal conduct, with the validity of the searches therefore dependent on the application of the probable cause and warrant requirements of the Fourth Amendment. By contrast, an inventory search may be "reasonable" under the Fourth Amendment even though it is not conducted pursuant to a warrant based upon probable cause. In Page 479 U. S. 372 Opperman, this Court assessed the reasonableness of an inventory search of the glove compartment in an abandoned automobile impounded by the police. We found that inventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. In light of these strong governmental interests and the diminished expectation of privacy in an automobile, we upheld the search. In reaching this decision, we observed that our cases accorded deference to police caretaking procedures designed to secure and protect vehicles and their contents within police custody. See Cooper v. California, 386 U. S. 58 , 386 U. S. 61 -62 (1967); Harris v. United States, 390 U. S. 234 , 390 U. S. 236 (1968); Cady v. Dombrowski, 413 U. S. 433 , 413 U. S. 447 -448 (1973). [ Footnote 4 ] In our more recent decision, Lafayette, a police officer conducted an inventory search of the contents of a shoulder bag in the possession of an individual being taken into custody. In deciding whether this search was reasonable, we recognized that the search served legitimate governmental interests similar to those identified in Opperman. We determined that those interests outweighed the individual's Fourth Amendment interests, and upheld the search. In the present case, as in Opperman and Lafayette, there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. In addition, the governmental interests justifying the inventory searches in Opperman and Lafayette are Page 479 U. S. 373 nearly the same as those which obtain here. In each case, the police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property. [ Footnote 5 ] The Supreme Court of Colorado opined that Lafayette was not controlling here because there was no danger of introducing contraband or weapons into a jail facility. Our opinion in Lafayette, however, did not suggest that the station-house setting of the inventory search was critical to our holding in that case. Both in the present case and in Lafayette, the common governmental interests described above were served by the inventory searches. The Supreme Court of Colorado also expressed the view that the search in this case was unreasonable because Bertine's van was towed to a secure, lighted facility, and because Bertine himself could have been offered the opportunity to make other arrangements for the safekeeping of his property. But the security of the storage facility does not completely eliminate the need for inventorying; the police may still wish to protect themselves or the owners of the lot against false claims of theft or dangerous instrumentalities. And while giving Bertine an opportunity to make alternative Page 479 U. S. 374 arrangements would undoubtedly have been possible, we said in Lafayette: "[T]he real question is not what 'could have been achieved,' but whether the Fourth Amendment requires such steps. . . ." "The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative 'less intrusive' means." Lafayette, 462 U.S. at 462 U. S. 647 (emphasis in original). See Cady v. Dombrowski, supra, at 413 U. S. 447 ; United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 557 , n. 12 (1976). We conclude that here, as in Lafayette, reasonable police regulations relating to inventory procedures, administered in good faith, satisfy the Fourth Amendment, even though courts might, as a matter of hindsight, be able to devise equally reasonable rules requiring a different procedure. [ Footnote 6 ] The Supreme Court of Colorado also thought it necessary to require that police, before inventorying a container, weigh the strength of the individual's privacy interest in the container against the possibility that the container might serve as a repository for dangerous or valuable items. We think that such a requirement is contrary to our decisions in Page 479 U. S. 375 Opperman and Lafayette, and by analogy to our decision in United States v. Ross, 456 U. S. 798 (1982): "Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit." Lafayette, supra, at 462 U. S. 648 . "When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand." United States v. Ross, supra, at 456 U. S. 821 . We reaffirm these principles here: "'[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.'" Lafayette, supra, at 462 U. S. 648 (quoting New York v. Belton, 453 U. S. 454 , 453 U. S. 458 (1981)). Bertine finally argues that the inventory search of his van was unconstitutional because departmental regulations gave the police officers discretion to choose between impounding his van and parking and locking it in a public parking place. The Supreme Court of Colorado did not rely on this argument in reaching its conclusion, and we reject it. Nothing in Opperman or Lafayette prohibits the exercise of police discretion, so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. Here, the discretion afforded the Boulder police was exercised in light of Page 479 U. S. 376 standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it. [ Footnote 7 ] There was no showing that the police chose to impound Bertine's van in order to investigate suspected criminal activity. While both Opperman and Lafayette are distinguishable from the present case on their facts, we think that the principles enunciated in those cases govern the present one. The judgment of the Supreme Court of Colorado is therefore Reversed. [ Footnote 1 ] Section 7-7-2(a)(4) of the Boulder Revised Code authorizes police officers to impound vehicles when drivers are taken into custody. Section 7-7-2(a)(4) provides: "A peace officer is authorized to remove or cause to be removed a vehicle from any street, parking lot, or driveway when:" "(4) The driver of a vehicle is taken into custody by the police department." Boulder Rev. Code § 7-7-2(a)(4)(1981). [ Footnote 2 ] Two justices dissented from the majority opinion, arguing that South Dakota v. Opperman and Illinois v. Lafayette compel the conclusion that the inventory search of the backpack found in Bertine's van was permissible under the Fourth Amendment. [ Footnote 3 ] Since our decision in South Dakota v. Opperman, several courts have confronted the issue whether police may inventory the contents of containers found in vehicles taken into police custody. See, e.g., United States v. Griffin, 729 F.2d 475 (CA7) (upholding inventory search of package found in paper bag), cert. denied, 469 U.S. 830 (1984); United States v. Bloomfield, 594 F.2d 1200 (CA8 1979) (affirming suppression of evidence found in closed knapsack); People v. Braasch, 122 Ill.App. 3d 747, 461 N.E.2d 651 (1984) (upholding inventory of paper bag); People v. Gonzalez, 62 N.Y.2d 386, 465 N.E.2d 823 (1984) (upholding inventory of paper bag); Boggs v. Commonwealth, 229 Va. 501, 331 S.E.2d 407 (1985) (upholding inventory of boxes and pouch found in bag), cert. denied, 475 U.S. 1031 (1986). [ Footnote 4 ] The Colorado Supreme Court correctly stated that Opperman did not address the question whether the scope of an inventory search may extend to closed containers located in the interior of an impounded vehicle. We did note, however, that "'when the police take custody of any sort of container [such as] an automobile . . . it is reasonable to search the container to itemize the property to be held by the police.'" 428 U.S. at 428 U. S. 371 (quoting United States v. Gravitt, 484 F.2d 375, 378 (CA5 1973), cert. denied, 414 U.S. 1135 (1974)). [ Footnote 5 ] In arguing that the latter two interests are not implicated here, the dissent overlooks the testimony of the backup officer who conducted the inventory of Bertine's van. According to the officer, the vehicle inventory procedures of the Boulder Police Department are designed for the "[p]rotection of the police department" in the event that an individual later claims that "there was something of value taken from within the vehicle." 2 Tr. 19. The officer added that inventories are also conducted in order to check "[f]or any dangerous items such as explosives [or] weapons." Id. at 20. The officer testified that he had found such items in vehicles. [ Footnote 6 ] We emphasize that, in this case, the trial court found that the Police Department's procedures mandated the opening of closed containers and the listing of their contents. Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria. See Lafayette, 462 U.S. at 462 U. S. 648 ; Opperman, 428 U.S. at 428 U. S. 374 -375. By quoting a portion of the Colorado Supreme Court's decision out of context, the dissent suggests that the inventory here was not authorized by the standard procedures of the Boulder Police Department. See post at 479 U. S. 380 -381. Yet that court specifically stated that the procedure followed here was "officially authorized." 706 P.2d 411 , 413, n. 2 (1985). In addition, the court did not disturb the trial court's finding that the police procedures for impounding vehicles required a detailed inventory of Bertine's van. See id. at 418-419. [ Footnote 7 ] In arguing that the Boulder Police Department procedures set forth no standardized criteria guiding an officer's decision to impound a vehicle, the dissent selectively quotes from the police directive concerning the care and security of vehicles taken into police custody. The dissent fails to mention that the directive establishes several conditions that must be met before an officer may pursue the park-and-lock alternative. For example, police may not park and lock the vehicle where there is reasonable risk of damage or vandalism to the vehicle or where the approval of the arrestee cannot be obtained. App. 91-92, 94-95. Not only do such conditions circumscribe the discretion of individual officers, but they also protect the vehicle and its contents and minimize claims of property loss. JUSTICE BLACKMUN, with whom JUSTICE POWELL and JUSTICE O'CONNOR join, concurring. The Court today holds that police officers may open closed containers while conducting a routine inventory search of an impounded vehicle. I join the Court's opinion, but write separately to underscore the importance of having such inventories conducted only pursuant to standardized police procedures. The underlying rationale for allowing an inventory exception to the Fourth Amendment warrant rule is that police officers are not vested with discretion to determine the scope of the inventory search. See South Dakota v. Opperman, 428 U. S. 364 , 428 U. S. 382 -383 (1976) (POWELL, J., concurring). This absence of discretion ensures that inventory searches will not be used as a purposeful and general means of discovering evidence of crime. Thus, it is permissible Page 479 U. S. 377 for police officers to open closed containers in an inventory search only if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle. As the Court emphasizes, the trial court in this case found that the Police Department's standard procedures did mandate the opening of closed containers and the listing of their contents. See ante at 479 U. S. 374 , n. 6. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting. Recognizing that "both Opperman and Lafayette are distinguishable from the present case on their facts," ante at 479 U. S. , the majority applies the balancing test enunciated in those cases to uphold as reasonable the inventory of a closed container in a car impounded when its driver was placed under arrest. However, the distinctive facts of this case require a different result. This search -- it cannot legitimately be labeled an inventory -- was unreasonable and violated the Fourth Amendment. Unlike the inventories in South Dakota v. Opperman, 428 U. S. 364 (1976), and Illinois v. Lafayette, 462 U. S. 640 (1983), it was not conducted according to standardized procedures. Furthermore, the governmental interests justifying the intrusion are significantly weaker than the interests identified in either Opperman or Lafayette, and the expectation of privacy is considerably stronger. I As the Court acknowledges, ante at 479 U. S. 374 , and n. 6, and 479 U. S. 375 -376, inventory searches are reasonable only if conducted according to standardized procedures. In both Opperman and Lafayette, the Court relied on the absence of police discretion in determining that the inventory searches in question were reasonable. Chief Justice Burger's opinion in Opperman repeatedly referred to this standardized nature of inventory procedures. See 428 U.S. at 428 U. S. 369 , 428 U. S. 372 , 428 U. S. 376 . JUSTICE POWELL'S concurring opinion in that case also Page 479 U. S. 378 stressed that "no significant discretion is placed in the hands of the individual officer: he usually has no choice as to the subject of the search or its scope." Id. at 428 U. S. 384 (footnote omitted). Similarly, the Court in Lafayette emphasized the standardized procedure under which the station-house inventory was conducted. See 462 U.S. at 462 U. S. 646 , 462 U. S. 647 , 462 U. S. 648 ; see also id. at 462 U. S. 649 (MARSHALL, J., concurring in judgment). In assessing the reasonableness of searches conducted in limited situations such as these, where we do not require probable cause or a warrant, we have consistently emphasized the need for such set procedures: "standardless and unconstrained discretion is the evil the Court has discerned when, in previous cases, it has insisted that the discretion of the official in the field be circumscribed, at least to some extent." Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 661 (1979). See Almeida-Sanchez v. United States, 413 U. S. 266 , 413 U. S. 270 (1973); Cady v. Dombrowski, 413 U. S. 433 , 413 U. S. 443 (1973); Harris v. United States, 390 U. S. 234 , 390 U. S. 235 (1968); Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 532 -533 (1967). The Court today attempts to evade these clear prohibitions on unfettered police discretion by declaring that "the discretion afforded the Boulder police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it." Ante at 479 U. S. 375 -376. This vital assertion is flatly contradicted by the record in this case. The officer who conducted the inventory, Officer Reichenbach, testified at the suppression hearing that the decision not to "park and lock" respondent's vehicle was his "own individual discretionary decision." Tr. 76. Indeed, application of these supposedly standardized "criteria" upon which the Court so heavily relies would have yielded a different result in this case. Since there was ample public parking adjacent to the intersection where respondent was stopped, consideration of "feasibility" would certainly have militated in favor of the "park and lock" Page 479 U. S. 379 option, not against it. I do not comprehend how consideration of "appropriateness" serves to channel a field officer's discretion; nonetheless, the "park and lock" option would seem particularly appropriate in this case, where respondent was stopped for a traffic offense and was not likely to be in custody for a significant length of time. Indeed, the record indicates that no standardized criteria limit a Boulder police officer's discretion. According to a departmental directive, [ Footnote 2/1 ] after placing a driver under arrest, an officer has three options for disposing of the vehicle. First, he can allow a third party to take custody. [ Footnote 2/2 ] Second, the officer or the driver (depending on the nature of the arrest) may take the car to the nearest public parking facility, lock it, and take the keys. [ Footnote 2/3 ] Finally, the officer can do what was done in Page 479 U. S. 380 this case: impound the vehicle, and search and inventory its contents, including closed containers. [ Footnote 2/4 ] Under the first option, the police have no occasion to search the automobile. Under the "park and lock" option, "[c]losed containers that give no indication of containing either valuables or a weapon may not be opened and the contents searched ( i.e., inventoried)." App. 92-93 (emphasis added). Only if the police choose the third option are they entitled to search closed containers in the vehicle. Where the vehicle is not itself evidence of a crime, [ Footnote 2/5 ] as in this case, the police apparently have totally unbridled discretion as to which procedure to use. See 706 P.2d 411 , 413, n. 3 (Colo. 1985) ("[T]he Boulder Police Department's regulations and rules do not require that an automobile be inventoried and searched in accordance with the procedures followed in this Page 479 U. S. 381 case"). Consistent with this conclusion, Officer Reichenbach testified that such decisions were left to the discretion of the officer on the scene. App. 60. Once a Boulder police officer has made this initial completely discretionary decision to impound a vehicle, he is given little guidance as to which areas to search and what sort of items to inventory. The arresting officer, Officer Toporek, testified at the suppression hearing as to what items would be inventoried: "That would I think be very individualistic as far as what an officer may or may not go into. I think whatever arouses his suspicious [ sic ] as far as what may be contained in any type of article in the car." Id. at 78. In application, these so-called procedures left the breadth of the "inventory" to the whim of the individual officer. Clearly, "[t]he practical effect of this system is to leave the [owner] subject to the discretion of the official in the field." Camara v. Municipal Court, 387 U.S. at 387 U. S. 532 . Inventory searches are not subject to the warrant requirement because they are conducted by the government as part of a "community caretaking" function, "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. at 413 U. S. 441 . Standardized procedures are necessary to ensure that this narrow exception is not improperly used to justify, after the fact, a warrantless investigative foray. Accordingly, to invalidate a search that is conducted without established procedures, it is not necessary to establish that the police actually acted in bad faith, or that the inventory was in fact a "pretext." By allowing the police unfettered discretion, Boulder's discretionary scheme, like the random spot checks in Delaware v. Prouse, is unreasonable because of the " grave danger' of abuse of discretion." 440 U.S. at 440 U. S. 662 . II In South Dakota v. Opperman, 428 U. S. 364 (1976), and Illinois v. Lafayette, 462 U. S. 640 (1983), both of which Page 479 U. S. 382 involved inventories conducted pursuant to standardized procedures, we balanced the individual's expectation of privacy against the government's interests to determine whether the search was reasonable. Even if the search in this case did constitute a legitimate inventory, it would nonetheless be unreasonable under this analysis. A The Court greatly overstates the justifications for the inventory exception to the Fourth Amendment. Chief Justice Burger, writing for the majority in Opperman, relied on three governmental interests to justify the inventory search of an unlocked glove compartment in an automobile impounded for overtime parking: (i) "the protection of the owner's property while it remains in police custody"; (ii) "the protection of the police against claims or disputes over lost or stolen property"; and (iii) "the protection of the police from potential danger." 428 U.S. at 428 U. S. 369 . The majority finds that "nearly the same" interests obtain in this case. See ante at 479 U. S. 373 . As JUSTICE POWELL's concurring opinion in Opperman reveals, however, only the first of these interests is actually served by an automobile inventory search. The protection-against-claims interest did not justify the inventory search either in Opperman, see 428 U.S. at 428 U. S. 378 , n. 3 (POWELL, J., concurring), or in this case. As the majority apparently concedes, ante at 479 U. S. 373 , the use of secure impoundment facilities effectively eliminates this concern. [ Footnote 2/6 ] As Page 479 U. S. 383 to false claims, "inventories are [not] a completely effective means of discouraging false claims, since there remains the possibility of accompanying such claims with an assertion that an item was stolen prior to the inventory or was intentionally omitted from the police records." 428 U.S. at 428 U. S. 378 -379 (POWELL, J., concurring). See also id. at 428 U. S. 391 , and nn. 9 and 10 (MARSHALL, J., dissenting); 2 W. LaFave, Search and Seizure § 5.5, p. 360, n. 50 (1978 and Supp. 1986). Officer Reichenbach's inventory in this case would not have protected the police against claims lodged by respondent, false or otherwise. Indeed, the trial court's characterization of the inventory as "slipshod" is the height of understatement. For example, Officer Reichenbach failed to list $150 in cash found in respondent's wallet or the contents of a sealed envelope marked "rent," $210, in the relevant section of the property form. Tr. 40-41; App. 41-42. His reports make no reference to other items of value, including respondent's credit cards, and a converter, a hydraulic jack, and a set of tire chains, worth a total of $125. Tr. 41, 62-63. The $700 in cash found in respondent's backpack, along with the contraband, appeared only on a property form completed later by someone other than Officer Reichenbach. Id. at 81-82. The interior of the vehicle was left in disarray, id. at 99, and the officer "inadvertently" retained respondent's keys -- including his house keys -- for two days following his arrest. Id. at 116, 133-134. The third interest -- protecting the police from potential danger -- failed to receive the endorsement of a majority of the Court in OPperman. After noting that "there is little danger associated with impounding unsearched vehicles," JUSTICE POWELL recognized that "there does not appear to be any effective way of identifying in advance those circumstances or classes of automobile impoundments which represent a greater risk." 428 U.S. at 428 U. S. 378 . See also id. at 428 U. S. 390 (MARSHALL, J., dissenting) (safety rationale "cannot justify the search of every car upon the basis of undifferentiated possibility Page 479 U. S. 384 of harm"). As with the charge of overtime parking in Opperman, there is nothing in the nature of the offense for which respondent was arrested that suggests he was likely to be carrying weapons, explosives, or other dangerous items. Cf. Cady v. Dombrowski, 413 U.S. at 413 U. S. 436 -437 (police reasonably believed that the defendant's service revolver was in the car). Not only is protecting the police from dangerous instrumentalities an attenuated justification for most automobile inventory searches, but opening closed containers to inventory the contents can only increase the risk. In the words of the District Court in United States v. Cooper, 428 F. Supp. 652 , 654-655 (SD Ohio 1977): "The argument that the search was necessary to avoid a possible boobytrap is . . . easily refuted. No sane individual inspects for boobytraps by simply opening the container." Thus, only the government's interest in protecting the owner's property actually justifies an inventory search of an impounded vehicle. See 428 U.S. at 428 U. S. 379 (POWELL, J., concurring); id. at 428 U. S. 391 (MARSHALL, J., dissenting). While I continue to believe that preservation of property does not outweigh the privacy and security interests protected by the Fourth Amendment, I fail to see how preservation can even be asserted as a justification for the search in this case. In Opperman, the owner of the impounded car was not available to safeguard his possessions, see id. at 428 U. S. 375 , and it could plausibly be argued that, in his absence, the police were entitled to act for his presumed benefit. See also Cady v. Dombrowski, supra, at 413 U. S. 436 (comatose defendant). When the police conducted the inventory in Opperman, they could not predict how long the car would be left in their possession. See 428 U.S. at 428 U. S. 379 (POWELL, J., concurring) ("[M]any owners might leave valuables in their automobiles temporarily that they would not leave there unattended for the several days that police custody may last"); cf. Cooper v. California, 386 U. S. 58 , 386 U. S. 61 (1967) (police retained car for four months pending forfeiture; length of time considered by the Court in assessing Page 479 U. S. 385 reasonableness of inventory). In this case, however, the owner was "present to make other arrangements for the safekeeping of his belongings," Opperman, 428 U.S. at 428 U. S. 375 , yet the police made no attempt to ascertain whether in fact he wanted them to "safeguard" his property. Furthermore, since respondent was charged with a traffic offense, he was unlikely to remain in custody for more than a few hours. He might well have been willing to leave his valuables unattended in the locked van for such a short period of time. See Tr. 110 (had he been given the choice, respondent indicated at the suppression hearing that he "would have parked [the van] in the lot across the street [and] [h]ad somebody come and get it"). Thus, the government's interests in this case are weaker than in Opperman, but the search here is much more intrusive. Opperman did not involve a search of closed containers or other items that " touch upon intimate areas of an individual's personal affairs,'" 428 U.S. at 428 U. S. 380 , and n. 7 (POWELL, J., concurring) (quoting California Bankers Assn. v. Shultz, 416 U. S. 21 , 416 U. S. 78 -79 (1974) (POWELL, J., concurring)); nor can the Court's opinion be read to authorize the inspection of "containers which might themselves be sealed, removed and secured without further intrusion." 428 U.S. at 428 U. S. 388 , n. 6 (MARSHALL, J., dissenting). To expand the Opperman rationale to include containers in which the owner clearly has a reasonable expectation of privacy, the Court relies on Illinois v. Lafayette, 462 U. S. 640 (1983). Such reliance is fundamentally misplaced, however; the inventory in Lafayette was justified by considerations which are totally absent in this context. In Lafayette, we upheld a station-house inventory search of an arrestee's shoulder bag. Notwithstanding the Court's assertions to the contrary, ante at 479 U. S. 373 , the inventory in that case was justified primarily by compelling governmental interests unique to the station house, preincarceration context. There is a powerful interest in preventing the introduction Page 479 U. S. 386 of contraband or weapons into a jail. [ Footnote 2/7 ] "Arrested persons have also been known to injure themselves -- or others -- with belts, knives, drugs, or other items on their person while being detained. Dangerous instrumentalities -- such as razor blades, bombs, or weapons -- can be concealed in innocent-looking articles taken from the arrestee's possession." 462 U.S. at 462 U. S. 646 . Removing such items from persons about to be incarcerated is necessary to reasonable jail security; once these items have been identified and removed, "inventorying them is an entirely reasonable administrative procedure." Ibid. Although Lafayette also involved the property justifications relied on in Opperman, I do not believe it can fairly be read to expand the scope of inventory searches where the pressing security concerns of the station house are absent. B Not only are the government's interests weaker here than in Opperman and Lafayette, but respondent's privacy interest is greater. In upholding the search in Opperman, the Court emphasized the fact that the defendant had a diminished expectation of privacy in his automobile, due to "pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements" and "the obviously public nature of automobile travel." 428 U.S. at 428 U. S. 368 . See also id. at 428 U. S. 379 (POWELL, J., concurring); but see id. at 428 U. S. 386 -388 (MARSHALL, J., dissenting). Similarly, in Lafayette, the Court emphasized the Page 479 U. S. 387 fact that the defendant was in custody at the time the inventory took place. 462 U.S. at 462 U. S. 645 -646. Here the Court completely ignores respondent's expectation of privacy in his backpack. Whatever his expectation of privacy in his automobile generally, our prior decisions clearly establish that he retained a reasonable expectation of privacy in the backpack and its contents. See Arkansas v. Sanders, 442 U. S. 753 , 442 U. S. 762 (1979) ("[L]uggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy"); United States v. Chadwick, 433 U. S. 1 , 433 U. S. 13 (1977) ("[A] person's expectations of privacy in personal luggage are substantially greater than in an automobile"). Indeed, the Boulder police officer who conducted the inventory acknowledged that backpacks commonly serve as repositories for personal effects. [ Footnote 2/8 ] Thus, even if the governmental interests in this case were the same as those in Opperman, they would nonetheless be outweighed by respondent's comparatively greater expectation of privacy in his luggage. III In Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 461 -462 (1971), a plurality of this Court stated: "The word automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." By upholding the search in this case, the Court not only ignores that principle, but creates another talisman to overcome the requirements of the Fourth Amendment -- the term "inventory." Accordingly, I dissent. [ Footnote 2/1 ] Subsections 7-7-2(a)(1) and 7-7-2(a)(g) of the Boulder Revised Code authorize police to impound a vehicle if the driver is taken into custody or if the vehicle obstructs traffic. A departmental directive authorizes inventory searches of impounded vehicles. See General Procedure issued from the office of the Chief of Police, Boulder Police Department, concerning Motor Vehicle Impounds, effective September 7, 1977, reproduced in App. 89-95. [ Footnote 2/2 ] See id. at 95. [ Footnote 2/3 ] If the vehicle and its contents are not evidence of a crime and the owner consents, § III of the General Procedure provides, in relevant part: "A. Upon placing the operator of a motor vehicle in custody, Officers may take the following steps in securing the arrestee's vehicle and property. . . :" " * * * *" "4. The Officer shall drive the vehicle off the roadway and legally park the vehicle in the nearest PUBLIC parking area. The date, time, and location where the vehicle is parked shall be indicated on the IMPOUND FORM." "5. The Officer shall remove the ignition keys, and lock all doors of the vehicle." "6. During the booking process, the arrestee shall be given a continuation form for his signature which indicates the location of his vehicle. One copy of the continuation form is to be retained in the case file." Id. at 93-94 (emphasis added). [ Footnote 2/4 ] Section II(A) of the General Procedure establishes the following impoundment procedures: "1. If the vehicle or its contents have been used in the commission of a crime or are themselves the fruit of a crime, the Officer shall conduct a detailed vehicle inspection and inventory and record it upon the VEHICLE IMPOUND FORM." "2. Personal items of value should be removed from the vehicle and subsequently placed into Property for safekeeping." "3. The Officer shall request a Tow Truck, and upon its arrival have the Tow Truck operator sign the IMPOUND FORM, keeping one copy in his possession, before the Officer releases the vehicle for impoundment in the City of Boulder impoundment facility." Id. at 90-91. Subsection (B) of the directive provides that this procedure is also to be followed when a vehicle involved in a traffic accident is to be held for evidentiary purposes. [ Footnote 2/5 ] Respondent's van was not evidence of a crime within the meaning of the departmental directive; Officer Reichenbach testified that it was not his practice to impound all cars following an arrest for driving while under the influence of alcohol. Tr. 61. The Memorandum also requires the "approval of the arrestee" before the police can "park and lock" his car, App. 92. In this case, however, respondent was never advised of this option, and had no opportunity to consent. At the suppression hearing, he indicated that he would have consented to such a procedure. See Tr. 110. [ Footnote 2/6 ] The impoundment lot in South Dakota v. Opperman was "the old county highway yard. It ha[d] a wooden fence partially around part of it, and kind of a dilapidated wire fence, a makeshift fence." 428 U.S. at 428 U. S. 366 , n. 1. See also Cady v. Dombrowski, 413 U. S. 433 , 413 U. S. 443 (1973) ("[T]he car was left outside, in a lot seven miles from the police station to which respondent had been taken, and no guard was posted over it"). By contrast, in the present case, respondent's vehicle was taken to a lighted, private storage lot with a locked 6-foot fence. The lot was patrolled by private security officers and police, and nothing had ever been stolen from a vehicle in the lot. App. 69-71. [ Footnote 2/7 ] The importance of this justification to the outcome in Illinois v. Lafayette is amply demonstrated by the Court's direction on remand: "The record is unclear as to whether respondent was to have been incarcerated after being booked for disturbing the peace. That is an appropriate inquiry on remand." 462 U.S. at 462 U. S. 648 , n. 3. See also id. at 462 U. S. 649 (MARSHALL, J., concurring in judgment) ("I agree that the police do not need a warrant or probable cause to conduct an inventory search prior to incarcerating a suspect " (emphasis added)); see also United States v. Robinson, 414 U. S. 218 , 414 U. S. 258 , n. 7 (1973) (MARSHALL, J., dissenting) (the justification for station-house searches is "the fact that the suspect will be placed in jail"). [ Footnote 2/8 ] At the suppression hearing, Officer Reichenbach stated: "The average person on the street . . . carries items of personal value in the backpacks, wallets, checkbooks, textbooks." Tr. 23.

The Supreme Court ruled that evidence obtained during an inventory search of a vehicle is admissible in court, even if the search was not supported by a warrant or probable cause, as long as the search was conducted according to standardized procedures and not for the sole purpose of investigation. This case established that inventory searches serve important governmental interests and do not implicate the same privacy concerns as other types of searches. The Court also upheld the discretion of the police to choose between impounding a vehicle and parking and locking it in a public place, as long as that discretion is exercised according to standard criteria.

Search & Seizure

Tennessee v. Garner

https://supreme.justia.com/cases/federal/us/471/1/

U.S. Supreme Court Tennessee v. Garner, 471 U.S. 1 (1985) Tennessee v. Garner No. 83-1035 Argued October 30, 1984 Decided March 27, 1985* 471 U.S. 1 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JUSTICE WHITE delivered the opinion of the Court. This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. I At about 10:45 p. m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a "prowler inside call." Upon arriving at the scene, they saw a woman standing on her porch and gesturing toward the adjacent house. [ Footnote 1 ] She told them she had heard glass breaking and that "they" or "someone" was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent's decedent, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner's face and hands. He saw no sign of a weapon, and, though not certain, was "reasonably sure" and "figured" that Garner was unarmed. App. 41, 56; Record 219. He thought Garner was 17 or 18 years old and [4 ] about 5' 5" or 5' 7" tall. [ Footnote 2 ] While Garner was crouched at the base of the fence, Hymon called out "police, halt" and took a few steps toward him. Garner then began to climb over the fence. Convinced that, if Garner made it over the fence, he would elude capture, [ Footnote 3 ] Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body. [ Footnote 4 ] In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that "[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest." Tenn.Code Ann. [5 ] 40-7-108 (1982). [ Footnote 5 ] The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. App. 140-144. The incident was reviewed by the Memphis Police Firearm's Review Board and presented to a grand jury. Neither took any action. Id. at 57. Garner's father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. 1983 for asserted violations of Garner's constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer Hymon, the Police Department, its Director, and the Mayor and city of Memphis. After a 3-day bench trial, the District Court entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then concluded that Hymon's actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner's escape. Garner had "recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon." App. to Pet. for Cert. A10. The Court of Appeals for the Sixth Circuit affirmed with regard to Hymon, finding that he had acted in good faith reliance on the Tennessee statute, and was therefore within the scope of his qualified immunity. 600 F.2d 52 (1979). It remanded for reconsideration of the possible liability of the city, however, in light of Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), which had come down after the District Court's decision. The District Court was [6 ] directed to consider whether a city enjoyed a qualified immunity, whether the use of deadly force and hollow point bullets in these circumstances was constitutional, and whether any unconstitutional municipal conduct flowed from a "policy or custom" as required for liability under Monell. 600 F.2d at 54-55. The District Court concluded that Monell did not affect its decision. While acknowledging some doubt as to the possible immunity of the city, it found that the statute, and Hymon's actions, were constitutional. Given this conclusion, it declined to consider the "policy or custom" question. App. to Pet. for Cert. A37-A39. The Court of Appeals reversed and remanded. 710 F.2d 240 (1983). It reasoned that the killing of a fleeing suspect is a "seizure" under the Fourth Amendment, [ Footnote 6 ] and is therefore constitutional only if "reasonable." The Tennessee statute failed as applied to this case, because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes -- "the facts, as found, did not justify the use of deadly force under the Fourth Amendment." Id. at 246. Officers cannot resort to deadly force unless they "have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large." Ibid. [ Footnote 7 ] [7 ] The State of Tennessee, which had intervened to defend the statute, see 28 U.S.C. 2403(b), appealed to this Court. The city filed a petition for certiorari. We noted probable jurisdiction in the appeal, and granted the petition. 465 U.S. 1098 (1984). II Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U.S. 873 , 878 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U. S. 544 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. A A police officer may arrest a person if he has probable cause to believe that person committed a crime. E.g., United States v. Watson, 423 U. S. 411 (1976). Petitioners and appellant argue that, if this requirement is satisfied, the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of [8 ] the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure, "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696 , 703 (1983); see Delaware v. Prouse, 440 U.S. 648 , 654 (1979); United States v. Martinez-Fuerte, 428 U.S. 543 , 555 (1976). We have described "the balancing of competing interests" as "the key principle of the Fourth Amendment." Michigan v. Summers, 452 U.S. 692 , 700 , n. 12 (1981). See also Camara v. Municipal Court, 387 U.S. 523 , 536 -537 (1967). Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz, 422 U.S. 891 , 895 (1975); Terry v. Ohio, 392 U.S. 1 , 28 -29 (1968). Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy detention of luggage, United States v. Place, supra, an airport seizure not "carefully tailored to its underlying justification," Florida v. Royer, 460 U.S. 491 , 500 (1983) (plurality opinion), surgery under general anesthesia to obtain evidence, Winston v. Lee, 471 U. S. 753 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U. S. 721 (1969); Hayes v. Florida, 471 U. S. 811 (1985). On the other hand, under the same approach it has upheld the taking of fingernail scrapings from a suspect, Cupp v. Murphy, 412 U. S. 291 (1973), an unannounced entry into a home to prevent the destruction of evidence, Ker v. California, 374 U. S. 23 (1963), administrative housing inspections without probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v. California, 384 U. S. 757 (1966). In each of these cases, the question was whether [9 ] the totality of the circumstances justified a particular sort of search or seizure. B The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement. [ Footnote 8 ] It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly [10 ] force, or at least the meaningful threat thereof. "Being able to arrest such individuals is a condition precedent to the state's entire system of law enforcement." Brief for Petitioners 14. Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, at 659. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, [ Footnote 9 ] the presently available evidence does not support this thesis. [ Footnote 10 ] The fact is that a majority of police departments [11 ] in this country have forbidden the use of deadly force against nonviolent suspects. See infra at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d 525 , 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects. It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where [12 ] feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster. III A It is insisted that the Fourth Amendment must be construed in light of the common law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale's posthumously published Pleas of the Crown: "[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony." 2 M. Hale, Historia Placitorum Coronae 85 (1736). See also 4 W. Blackstone, Commentaries *289. Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E.g., Holloway v. Moser, 193 N.C. 185, 136 S.E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N.W. 944, 945 (1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed.1982); Day, Shooting the Fleeing Felon: State of the Law, 14 Crim.L.Bull. 285, 286-287 (1978); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 807-816 (1924). But see Storey v. State, 71 Ala. 329 (1882); State v. Bryant, 65 N.C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874). [13 ] The State and city argue that, because this was the prevailing rule at the time of the adoption of the Fourth Amendment and for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be "reasonable." It is true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. See, e.g., United States v. Watson, 423 U.S. 411 , 418 -419 (1976); Gersten v. Pugh, 420 U.S. 103 , 111 , 114 (1975); Carroll v. United States, 267 U.S. 132 , 149 -153 (1925). On the other hand, it "has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage." Payton v. New York, 445 U.S. 573 , 591 , n. 33 (1980). Because of sweeping change in the legal and technological context, reliance on the common law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry. B It has been pointed out many times that the common law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death. [ Footnote 11 ] "Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or [14 ] fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected." American Law Institute, Model Penal Code 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter Model Penal Code Comment). Courts have also justified the common law rule by emphasizing the relative dangerousness of felons. See, e.g., Schumann v. McGinn, 307 Minn. at 458, 240 N.W.2d at 533; Holloway v. Moser, supra, at 187, 136 S.E. at 376 (1927). Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. See, e.g., Enmund v. Florida, 458 U. S. 782 (1982); Coker v. Georgia, 433 U. S. 584 (1977). And while in earlier times "the gulf between the felonies and the minor offences was broad and deep," 2 Pollock & Maitland 467, n. 3; Carroll v. United States, supra, at 158, today the distinction is minor, and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Wilgus, 22 Mich.L.Rev. at 572-573. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a "felon" is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies. [ Footnote 12 ] There is an additional reason why the common law rule cannot be directly translated to the present day. The common law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety [15 ] of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common law rule has an altogether different meaning -- and harsher consequences -- now than in past centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum.L.Rev. 701, 741 (1937). [ Footnote 13 ] One other aspect of the common law rule bears emphasis. It forbids the use of deadly force to apprehend a misdemeanant, condemning such action as disproportionately severe. See Holloway v. Moser, 193 N.C., at 187, 136 S.E. at 376; State v. Smith, 127 Iowa at 535, 103 N.W. at 945. See generally Annot., 83 A.L.R. 3d 238 (1978). In short, though the common law pedigree of Tennessee's rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied. C In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to prevailing [16 ] rules in individual jurisdictions. See, e.g., United States v. Watson, 423 U.S. at 421-422. The rules in the States are varied. See generally Comment, 18 Ga.L.Rev. 137, 140-144 (1983). Some 19 States have codified the common law rule, [ Footnote 14 ] though in two of these the courts have significantly limited the statute. [ Footnote 15 ] Four States, though without a relevant statute, apparently retain the common law rule. [ Footnote 16 ] Two States have adopted the Model Penal Code's [17 ] provision verbatim. [ Footnote 17 ] Eighteen others allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested. [ Footnote 18 ] Louisiana and Vermont, though without statutes or case law on point, do forbid the use of deadly force to prevent any but violent felonies. [ Footnote 19 ] The remaining States either have no relevant statute or case law or have positions that are unclear. [ Footnote 20 ] [18 ] It cannot be said that there is a constant or overwhelming trend away from the common law rule. In recent years, some States have reviewed their laws and expressly rejected abandonment of the common law rule. [ Footnote 21 ] Nonetheless, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States. This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common law rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. Id. at 40-41; App. 83. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where "the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury." Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983) (italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a [19 ] felon presented a threat of death or serious bodily harm. Boston Police Department, Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 1016, n.19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U. S. 171 (1977). Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K. Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record 1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the older and fading common law view is a dubious indicium of the constitutionality of the Tennessee statute now before us. D Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long standing "unreasonable" if doing so would severely hamper effective law enforcement. But the indications are to the contrary. There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today. Amici note that, "[a]fter extensive research and consideration, [they] have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies." Id. at 11. The submission is that the obvious state interests in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. See supra at 10-11, and n. 10. [20 ] Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of attempting to assess the suspect's dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances. See, e.g., Terry v. Ohio, 392 U.S. at 20, 27. Nor is there any indication that, in States that allow the use of deadly force only against dangerous suspects, see nn. 15 17-19 supra, the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers' split-second decisions. Moreover, the highly technical felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments. IV The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available. See App. to Pet. for Cert. A9-A11, A38. This conclusion made a determination of Garner's apparent dangerousness unnecessary. The court did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. Id. at A4, A23. See also App. 41, 56; Record 219. Restated in Fourth Amendment terms, this means Hymon had no articulable basis to think Garner was armed. In reversing, the Court of Appeals accepted the District Court's factual conclusions and held that "the facts, as found, did not justify the use of deadly force." 710 F.2d at 246. [21 ] We agree. Officer Hymon could not reasonably have believed that Garner -- young, slight, and unarmed -- posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that "[t]he facts of this case did not indicate to Officer Hymon that Garner was nondangerous.'" App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others. The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. Post at 29, 32. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a "property," rather than a "violent," crime. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984). [ Footnote 22 ] Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much. See also Solem v. Helm, 463 U.S. 277 , 296 -297, and nn. 22-23 (1983). In fact, the available statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8% of all burglaries involved violent crime. Bureau of Justice Statistics, House [22 ] hold Burglary 4 (1985). [ Footnote 23 ] See also T. Reppetto, Residential Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb, 11 Criminology 208, 214 (1973). V We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U.S.C. 2403(b), and is not subject to liability. The possible liability of the remaining defendants -- the Police Department and the city of Memphis -- hinges on Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. So ordered. * Together with No. 83-1070, Memphs Police Department et al. v. Garner et al., on certiorari to the same court. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting. The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to [23 ] apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority's balancing of the interests of the suspect and the public interest in effective law enforcement. Ante at 8. Notwithstanding the venerable common law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante at 14, 16-17, the majority concludes that Tennessee's statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent. I The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the caller said that "they" were breaking into the house next door. App. in No. 81-5605 (CA6), p. 207. The officers found the residence had been forcibly entered through a window, and saw lights [24 ] on inside the house. Officer Hymon testified that, when he saw the broken window, he realized "that something was wrong inside," id. at 656, but that he could not determine whether anyone -- either a burglar or a member of the household -- was within the residence. Id. at 209. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult, and was unsure whether Garner was armed because Hymon "had no idea what was in the hand [that he could not see] or what he might have had on his person." Id. at 658-659. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. Id. at 657. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his revolver and mortally wounded the suspected burglar. Appellee-respondent, the deceased's father, filed a 42 U.S.C. 1983 action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner's constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon's actions were justified by a Tennessee statute that authorizes a police officer to "use all the necessary means to effect the arrest," if "after notice of the intention to arrest the defendant, he either flee or forcibly resist." Tenn.Code Ann. 40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e.g., Johnson v. State, 173 Tenn. 134, 114 S.W.2d [25 ] (1938). The District Court held that the Tennessee statute is constitutional, and that Hymon's actions, as authorized by that statute, did not violate Garner's constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute "authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape" violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F.2d 240, 244 (1983). The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon's use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner's constitutional rights. Thus, the majority's assertion that a police officer who has probable cause to seize a suspect "may not always do so by killing him," ante at 9, is unexceptionable, but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." Ante at 11. The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence. II For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon "seized" Gamer by shooting him. Whether that seizure was reasonable, and therefore permitted by the Fourth Amendment, requires a careful balancing [26 ] of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U.S. 696 , 703 (1983). In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the "rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat." Terry v. Ohio, 392 U.S. 1 , 20 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional -- as opposed to purely judicial -- limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e.g., United States v. Watson, 423 U.S. 411 , 416 -421 (1976); Carroll v. United States, 267 U.S. 132 , 149 -153 (1925). Cf. United States v. Villamonte-Marquez, 462 U.S. 579 , 585 (1983) (noting "impressive historical pedigree" of statute challenged under Fourth Amendment). The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person's home, but also "pos[e] real risk of serious harm to others." Solem v. Helm, 463 U.S. 277 , 315 -316 (1983) (BURGER, C.J., dissenting). According to recent Department of Justice statistics, "[t]hree-fifths of all rapes in the home, [27 ] three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars." Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid. Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority's confident assertion that "burglaries only rarely involve physical violence." Ante at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the "harsh potentialities for violence" inherent in the forced entry into a home preclude characterization of the crime as "innocuous, inconsequential, minor, or nonviolent.'" Solem v. Helm, supra, at 316 (BURGER, C.J., dissenting). See also Restatement of Torts 131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed.1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm). Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that, in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the [28 ] Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e.g., Wiley v. Memphis Police Department, 548 F.2d 1247, 1252-1253 (CA6), cert. denied, 434 U.S. 822 (1977); Jones v. Marshall, 528 F.2d 132, 142 (CA2 1975). The Court unconvincingly dismisses the general deterrence effects by stating that "the presently available evidence does not support [the] thesis" that the threat of force discourages escape, and that "there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases." Ante at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable, and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U.S. 447 , 464 (1984) ("The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws"). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States. Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The [29 ] majority declares that "[t]he suspect's fundamental interest in his own life need not be elaborated upon." Ante at 9. This blithe assertion hardly provides an adequate substitute for the majority's failure to acknowledge the distinctive manner in which the suspect's interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer's use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person's interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. Payton v. New York, 445 U.S. 573 , 617 , n. 14 (1980) (WHITE, J., dissenting) ("[T]he policeman's hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel"). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt. A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are, in retrospect, deeply regrettable. No one can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon's conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The [30 ] police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime. Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be "narrowly drawn to express only the legitimate state interests at stake." 710 F.2d at 245. The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn, and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Id. at 246-247. Whatever the validity of Tennessee's statute in other contexts, I cannot agree that its application in this case resulted in a deprivation "without due process of law." Cf. Baker v. McCollan, 443 U.S. 137 , 144 -145 (1979). Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v. Ellington, 323 F. Supp. 1072 , 1075-1076 (WD Tenn.1971) (three-judge court). Finally, because there is no indication that the use [31 ] of deadly force was intended to punish, rather than to capture, the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520 , 538 -539 (1979). Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals. III Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court's opinion. The Court holds that deadly force may be used only if the suspect "threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm." Ante at 11. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. Ibid. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Angeles v. Lyons, 461 U. S. 95 (1983). Although it is unclear from the language of the opinion, I assume that the majority intends the word "use" to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no "seizure" for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with 1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court's opinion, despite its broad language, actually decides only that the [32 ] shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a 1983 action. The Court's silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Payton v. New York, 445 U.S. at 619 (WHITE, J., dissenting). Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide "probable cause" for believing that a suspect "poses a significant threat of death or serious physical injury," ante at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer's split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force. IV The Court's opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court "lightly brushe[s] aside," Payton v. New York, supra, at 600, a longstanding police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority's creation of a constitutional right to flight for burglary suspects [33 ] seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect's escape into the night. I respectfully dissent. Footnotes [ Footnote 1 ] The owner of the house testified that no lights were on in the house, but that a back door light was on. Record 160. Officer Hymon, though uncertain, stated in his deposition that there were lights on in the house. Id. at 209. [ Footnote 2 ] In fact, Garner, an eighth-grader, was 15. He was 5' 4" tall and weighed somewhere around 100 or 110 pounds. App. to Pet. for Cert. A5. [ Footnote 3 ] When asked at trial why he fired, Hymon stated: "Well, first of all it was apparent to me from the little bit that I knew about the area at the time that he was going to get away because, number 1, I couldn't get to him. My partner then couldn't find where he was because, you know, he was late coming around. He didn't know where I was talking about. I couldn't get to him because of the fence here, I couldn't have jumped this fence and come up, consequently jumped this fence and caught him before he got away because he was already up on the fence, just one leap and he was already over the fence, and so there is no way that I could have caught him." App. 52. He also stated that the area beyond the fence was dark, that he could not have gotten over the fence easily because he was carrying a lot of equipment and wearing heavy boots, and that Garner, being younger and more energetic, could have outrun him. Id. at 53-54. [ Footnote 4 ] Garner had rummaged through one room in the house, in which, in the words of the owner, "[a]ll the stuff was out on the floors, all the drawers was pulled out, and stuff was scattered all over." Id. at 34. The owner testified that his valuables were untouched, but that, in addition to the purse and the 10 dollars, one of his wife's rings was missing. The ring was not recovered. Id. at 34-35. [ Footnote 5 ] Although the statute does not say so explicitly, Tennessee law forbids the use of deadly force in the arrest of a misdemeanant. See Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938). [ Footnote 6 ] "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . ." U.S.Const., Amdt. 4. [ Footnote 7 ] The Court of Appeals concluded that the rule set out in the Model Penal Code "accurately states Fourth Amendment limitations on the use of deadly force against fleeing felons." 710 F.2d at 247. The relevant portion of the Model Penal Code provides: "The use of deadly force is not justifiable . . . unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer; and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed." American Law Institute, Model Penal Code 3.07(2)(b) (Proposed Official Draft 1962). The court also found that "[a]n analysis of the facts of this case under the Due Process Clause" required the same result, because the statute was not narrowly drawn to further a compelling state interest. 710 F.2d at 246-247. The court considered the generalized interest in effective law enforcement sufficiently compelling only when the the suspect is dangerous. Finally, the court held, relying on Owen v. City of Independence, 445 U. S. 622 (1980), that the city was not immune. [ Footnote 8 ] The dissent emphasizes that subsequent investigation cannot replace immediate apprehension. We recognize that this is so, see n 13, infra; indeed, that is the reason why there is any dispute. If subsequent arrest were assured, no one would argue that use of deadly force was justified. Thus, we proceed on the assumption that subsequent arrest is not likely. Nonetheless, it should be remembered that failure to apprehend at the scene does not necessarily mean that the suspect will never be caught. In lamenting the inadequacy of later investigation, the dissent relies on the report of the President's Commission on Law Enforcement and Administration of Justice. It is worth noting that, notwithstanding its awareness of this problem, the Commission itself proposed a policy for use of deadly force arguably even more stringent than the formulation we adopt today. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 189 (1967). The Commission proposed that deadly force be used only to apprehend "perpetrators who, in the course of their crime, threatened the use of deadly force, or if the officer believes there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if his apprehension is delayed." In addition, the officer would have "to know, as a virtual certainty, that the suspect committed an offense for which the use of deadly force is permissible." Ibid. [ Footnote 9 ] We note that the usual manner of deterring illegal conduct -- through punishment -- has been largely ignored in connection with flight from arrest. Arkansas, for example, specifically excepts flight from arrest from the offense of "obstruction of governmental operations." The commentary notes that this "reflects the basic policy judgment that, absent the use of force or violence, a mere attempt to avoid apprehension by a law enforcement officer does not give rise to an independent offense." Ark.Stat.Ann. 41-2802(3)(a) (1977) and commentary. In the few States that do outlaw flight from an arresting officer, the crime is only a misdemeanor. See, e.g., Ind.Code 35-44-3-3 (1982). Even forceful resistance, though generally a separate offense, is classified as a misdemeanor. E.g., Ill.Rev.Stat., ch. 38, 1131-1 (1984); Mont.Code Ann. 45-7-301 (1984); N.H.Rev.Stat.Ann. 642:2 (Supp.1983); Ore.Rev.Stat. 162.315 (1983). This lenient approach does avoid the anomaly of automatically transforming every fleeing misdemeanant into a fleeing felon -- subject, under the common law rule, to apprehension by deadly force -- solely by virtue of his flight. However, it is in real tension with the harsh consequences of flight in cases where deadly force is employed. For example, Tennessee does not outlaw fleeing from arrest. The Memphis City Code does, 22-34.1 (Supp. 17, 1971), subjecting the offender to a maximum fine of $50, 1-8 (1967). Thus, Garner's attempted escape subjected him to (a) a $50 fine, and (b) being shot. [ Footnote 10 ] See Sherman, Reducing Police Gun Use, in Control in the Police Organization 98, 120-123 (M. Punch ed.1983); Fyfe, Observations on Police Deadly Force, 27 Crime & Delinquency 376, 378-381 (1981); W. Geller & K. Karales, Split-Second Decisions 67 (1981); App. 84 (affidavit of William Bracey, Chief of Patrol, New York City Police Department). See generally Brief for Police Foundation et al. as Amici Curiae. [ Footnote 11 ] The roots of the concept of a "felony" lie not in capital punishment but in forfeiture. 2 F. Pollock & F. Maitland, The History of English Law 465 (2d ed.1909) (hereinafter Pollock & Maitland). Not all felonies were always punishable by death. See id. at 466-467, n. 3. Nonetheless, the link was profound. Blackstone was able to write: "The idea of felony is indeed so generally connected with that of capital punishment that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law implies that is shall be punished with death, viz. by hanging, as well as with forfeiture. . . ." 4 W. Blackstone, Commentaries *98. See also R. Perkins & R. Boyce, Criminal Law 14-15 (3d ed.1982); 2 Pollock & Maitland 511. [ Footnote 12 ] White-collar crime, for example, poses a less significant physical threat than, say, drunken driving. See Welsh v. Wisconsin, 466 U. S. 740 (1984); id. at 755 (BLACKMUN, J., concurring). See Model Penal Code Comment at 57. [ Footnote 13 ] It has been argued that sophisticated techniques of apprehension and increased communication between the police in different jurisdictions have made it more likely that an escapee will be caught than was once the case, and that this change has also reduced the "reasonableness" of the use of deadly force to prevent escape. E.g., Sherman, Execution Without Trial: Police Homicide and the Constitution, 33 Vand.L.Rev. 71, 76 (1980). We are unaware of any data that would permit sensible evaluation of this claim. Current arrest rates are sufficiently low, however, that we have some doubt whether, in past centuries, the failure to arrest at the scene meant that the police had missed their only chance in a way that is not presently the case. In 1983, 21% of the offenses in the Federal Bureau of Investigation crime index were cleared by arrest. Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 159 (1984). The clearance rate for burglary was 15%. Ibid. [ Footnote 14 ] Ala.Code 13A-3-27 (1982); Ark.Stat.Ann. 41-510 (1977); Cal.Penal Code Ann. 196 (West 1970); Conn.Gen.Stat. 53a-22 (1972); Fla.Stat. 776.05 (1983); Idaho Code 19-610 (1979); Ind.Code 35-41-3-3 (1982); Kan.Stat.Ann. 21-3215 (1981); Miss.Code Ann. 97-3-15(d) (Supp.1984); Mo.Rev.Stat. 563.046 (1979); Nev.Rev.Stat. 200.140 (1983); N.M.Stat.Ann. 30-2-6 (1984); Okla.Stat., Tit. 21, 732 (1981); R.I.Gen.Laws 12-7-9 (1981); S.D.Codified Laws 22-16-32, 22-16-33 (1979); Tenn.Code Ann. 40-7-108 (1982); Wash.Rev.Code 9 A. 16.040(3) (1977). Oregon limits use of deadly force to violent felons, but also allows its use against any felon if "necessary." Ore.Rev.Stat. 161.239 (1983). Wisconsin's statute is ambiguous, but should probably be added to this list. Wis.Stat. 939.45(4) (1981-1982) (officer may use force necessary for "a reasonable accomplishment of a lawful arrest"). But see Clark v. Ziedonis, 368 F. Supp. 544 (ED Wis.1973), aff'd on other grounds, 513 F.2d 79 (CA7 1975). [ Footnote 15 ] In California, the police may use deadly force to arrest only if the crime for which the arrest is sought was "a forcible and atrocious one which threatens death or serious bodily harm," or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire, 69 Cal. App. 3d 325 , 333, 138 Cal. Rptr. 26, 30-31 (1977). See also People v. Ceballos, 12 Cal. 3d 470 , 476-484, 526 P.2d 241, 245-250 (1974); Long Beach Police Officers Assn. v. Long Beach, 61 Cal. App. 3d 364 , 373-374, 132 Cal. Rptr. 348, 353-354 (1976). In Indiana, deadly force may be used only to prevent injury, the imminent danger of injury or force, or the threat of force. It is not permitted simply to prevent escape. Rose v. State, 431 N.E.2d 521 (Ind.App.1982). [ Footnote 16 ] These are Michigan, Ohio, Virginia, and West Virginia. Werner v. Hartfelder, 113 Mich.App. 747, 318 N.W.2d 825 (1982); State v. Foster, 60 Ohio Misc. 46, 59-66, 396 N.E.2d 246, 255-258 (Com.Pl.1979) (citing cases); Berr v. Hamman, 203 Va. 596, 125 S.E.2d 851 (1962); Thompson v. Norfolk & W. R. Co., 116 W.Va. 705, 711-712, 182 S.E. 880, 883-884 (1935) [ Footnote 17 ] Haw.Rev.Stat. 703-307 (1976); Neb.Rev.Stat. 28-1412 (1979). Massachusetts probably belongs in this category. Though it once rejected distinctions between felonies, Uraneck v. Lima, 359 Mass. 749, 750, 269 N.E.2d 670, 671 (1971), it has since adopted the Model Penal Code limitations with regard to private citizens, Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977), and seems to have extended that decision to police officers, Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980). [ Footnote 18 ] Alaska Stat.Ann. 11.81.370(a) (1983); Ariz.Rev.Stat.Ann. 13-410 (1978); Colo.Rev.Stat. 18-1-707 (1978); Del.Code Ann., Tit. 11, 467 (1979) (felony involving physical force and a substantial risk that the suspect will cause death or serious bodily injury or will never be recaptured); Ga.Code 16-3-21(a) (1984); Ill.Rev.Stat., ch. 38, 7-5 (1984); Iowa Code 804.8 (1983) (suspect has used or threatened deadly force in commission of a felony, or would use deadly force if not caught); Ky.Rev.Stat. 503.090 (1984) (suspect committed felony involving use or threat of physical force likely to cause death or serious injury, and is likely to endanger life unless apprehended without delay); Me.Rev.Stat.Ann., Tit. 17-A, 107 (1983) (commentary notes that deadly force may be used only "where the person to be arrested poses a threat to human life"); Minn.Stat. 609.066 (1984); N.H.Rev.Stat.Ann. 627:5(II) (Supp.1983); N.J.Stat.Ann. 2C-3-7 (West 1982); N.Y. Penal Law 35.30 (McKinney Supp.1984-1985); N.C.Gen.Stat. 15A-401 (1983); N.D.Cent.Code 12.1-05-07.2.d (1976); 18 Pa.Cons.Stat. 508 (1982); Tex.Penal Code Ann. 9.51(c) (1974); Utah Code Ann. 76-2-404 (1978). [ Footnote 19 ] See La.Rev.Stat.Ann. 14:20(2) (West 1974); Vt.Stat.Ann., Tit. 13, 2305 (1974 and Supp.1984). A Federal District Court has interpreted the Louisiana statute to limit the use of deadly force against fleeing suspects to situations where "life itself is endangered or great bodily harm is threatened." Sauls v. Hutto, 304 F. Supp. 124 , 132 (ED La.1969). [ Footnote 20 ] These are Maryland, Montana, South Carolina, and Wyoming. A Maryland appellate court has indicated, however, that deadly force may not be used against a felon who "was in the process of fleeing and, at the time, presented no immediate danger to . . . anyone. . . ." Giant Food, Inc. v. Scherry, 51 Md.App. 586, 589, 596, 444 A.2d 483 , 486, 489 (1982). [ Footnote 21 ] In adopting its current statute in 1979, for example, Alabama expressly chose the common law rule over more restrictive provisions. Ala.Code 13A-3-27, Commentary, pp. 67-63 (1982). Missouri likewise considered but rejected a proposal akin to the Model Penal Code rule. See Mattis v. Schnarr, 547 F.2d 1007, 1022 (CA8 1976) (Gibson, C.J., dissenting), vacated as moot sub nom. Ashcroft v. Mattis, 431 U. S. 171 (1977). Idaho, whose current statute codifies the common law rule, adopted the Model Penal Code in 1971, but abandoned it in 1972. [ Footnote 22 ] In a recent report, the Department of Corrections of the District of Columbia also noted that "there is nothing inherently dangerous or violent about the offense," which is a crime against property. D.C. Department of Corrections, Prisoner Screening Project 2 (1985). [ Footnote 23 ] The dissent points out that three-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home assaults are committed by burglars. Post at 26-27. These figures mean only that, if one knows that a suspect committed a rape in the home, there is a good chance that the suspect is also a burglar. That has nothing to do with the question here, which is whether the fact that someone has committed a burglary indicates that he has committed, or might commit, a violent crime. The dissent also points out that this 3.8% adds up to 2.8 million violent crimes over a 10-year period, as if to imply that today's holding will let loose 2.8 million violent burglars. The relevant universe is, of course, far smaller. At issue is only that tiny fraction of cases where violence has taken place and an officer who has no other means of apprehending the suspect is unaware of its occurrence.

Here is a summary of the key points from the Tennessee v. Garner case: Memphis police officers Hymon and Wright responded to a "prowler inside call" and saw a fleeing suspect, Edward Garner, who was apparently unarmed. Officer Hymon shot and killed Garner as he attempted to climb a fence and escape. The case centers around the constitutionality of the use of deadly force by police officers to prevent the escape of an apparently unarmed suspected felon. The Court concluded that deadly force may only be used when necessary to prevent escape and when the officer has probable cause to believe the suspect poses a significant threat of death or serious harm to themselves or others. At the time, a Tennessee statute and the Memphis Police Department policy authorized the use of deadly force to prevent the escape of a fleeing felon. However, the Court found that these policies were too broad and did not sufficiently protect the suspect's Fourth Amendment rights. The Court's decision considered the common law "fleeing felon" rule, which allowed the use of deadly force against any fleeing felon, and the Model Penal Code's more restrictive approach, which limited the use of deadly force to situations where the officer has probable cause to believe the suspect poses a significant threat. The Court held that the use of deadly force against Garner was unreasonable and unconstitutional, as Garner was not suspected of a crime involving the infliction or threatened infliction of serious physical harm and was not an immediate threat to the officer or others. This case sets an important precedent for the use of deadly force by law enforcement and establishes that the Fourth Amendment prohibits the use of deadly force to prevent the escape of an apparently unarmed suspected felon unless there is a significant threat of death or serious physical injury.

Search & Seizure

Arizona v. Hicks

https://supreme.justia.com/cases/federal/us/480/321/

U.S. Supreme Court Arizona v. Hicks, 480 U.S. 321 (1987) Arizona v. Hicks No. 86-1027 Argued December 8, 1986 Decided March 3, 1987 480 U.S. 321 CERTIORARI TO THE COURT OF APPEALS OF ARIZONA Syllabus A bullet fired through the floor of respondent's apartment injured a man on the floor below. Police entered the apartment to search for the shooter, for other victims, and for weapons, and there seized three weapons and discovered a stocking-cap mask. While there, one of the policemen noticed two sets of expensive stereo components and, suspecting that they were stolen, read and recorded their serial numbers -- moving some of them, including a turntable, to do so -- and phoned in the numbers to headquarters. Upon learning that the turntable had been taken in an armed robbery, he seized it immediately. Respondent was subsequently indicted for the robbery, but the state trial court granted his motion to suppress the evidence that had been seized, and the Arizona Court of Appeals affirmed. Relying upon a statement in Mincey v. Arizona, 437 U. S. 385 , that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," the Court of Appeals held that the policeman's obtaining the serial numbers violated the Fourth Amendment because it was unrelated to the shooting, the exigent circumstance that justified the initial entry and search. Both state courts rejected the contention that the policeman's actions were justified under the "plain view" doctrine. Held: 1. The policeman's actions come within the purview of the Fourth Amendment. The mere recording of the serial numbers did not constitute a "seizure," since it did not meaningfully interfere with respondent's possessory interest in either the numbers or the stereo equipment. However, the moving of the equipment was a "search" separate and apart from the search that was the lawful objective of entering the apartment. The fact that the search uncovered nothing of great personal value to respondent is irrelevant. Pp. 480 U. S. 324 -325. 2. The "plain view" doctrine does not render the search "reasonable" under the Fourth Amendment. Pp. 480 U. S. 325 -329. (a) The policeman's action directed to the stereo equipment was not ipso facto unreasonable simply because it was unrelated to the justification for entering the apartment. That lack of relationship always exists when the "plain view" doctrine applies. In saying that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," Mincey was simply addressing the scope of the primary Page 480 U. S. 322 search itself, and was not overruling the "plain view" doctrine by implication. Pp. 480 U. S. 325 -326. (b) However, the search was invalid because, as the State concedes, the policeman had only a "reasonable suspicion" -- i.e., less than probable cause to believe -- that the stereo equipment was stolen. Probable cause is required to invoke the "plain view" doctrine as it applies to seizures. It would be illogical to hold that an object is seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for it if it had been known to be on the premises. Probable cause to believe the equipment was stolen was also necessary to support the search here, whether legal authority to move the equipment could be found only as the inevitable concomitant of the authority to seize it or also as a consequence of some independent power to search objects in plain view. Pp. 480 U. S. 326 -328. 3. The policeman's action cannot be upheld on the ground that it was not a "full-blown search," but was only a "cursory inspection" that could be justified by reasonable suspicion instead of probable cause. A truly cursory inspection -- one that involves merely looking at what is already exposed to view, without disturbing it -- is not a "search" for Fourth Amendment purposes, and therefore does not even require reasonable suspicion. This Court is unwilling to create a subcategory of "cursory" searches under the Fourth Amendment. Pp. 480 U. S. 328 -329. 146 Ariz. 533, 707 P.2d 331, affirmed. SCALIA, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 480 U. S. 329 . POWELL, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR, J., joined, post, p. 480 U. S. 330 . O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and POWELL, J., joined, post, p. 480 U. S. 333 . Page 480 U. S. 323 JUSTICE SCALIA delivered the opinion of the Court. In Coolidge v. New Hampshire, 403 U. S. 443 (1971), we said that, in certain circumstances, a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the Fourth Amendment. See id. at 403 U. S. 465 -471 (plurality opinion); id. at 465 U. S. 505 -506 (Black, J., concurring and dissenting); id. at 465 U. S. 521 -522 (WHITE, J., concurring and dissenting). We granted certiorari, 475 U.S. 1107 (1986), in the present case to decide whether this "plain view" doctrine may be invoked when the police have less than probable cause to believe that the item in question is evidence of a crime or is contraband. I On April 18, 1984, a bullet was fired through the floor of respondent's apartment, striking and injuring a man in the apartment below. Police officers arrived and entered respondent's apartment to search for the shooter, for other victims, and for weapons. They found and seized three weapons, including a sawed-off rifle, and in the course of their search also discovered a stocking-cap mask. One of the policemen, Officer Nelson, noticed two sets of expensive stereo components, which seemed out of place in the squalid and otherwise ill-appointed four-room apartment. Suspecting that they were stolen, he read and recorded their serial numbers -- moving some of the components, including a Bang and Olufsen turntable, in order to do so -- which he then reported by phone to his headquarters. On being advised that the turntable had been taken in an armed robbery, he seized it immediately. It was later determined that some of the other serial numbers matched those on other stereo equipment taken in the same armed robbery, and a warrant Page 480 U. S. 324 was obtained and executed to seize that equipment as well. Respondent was subsequently indicted for the robbery. The state trial court granted respondent's motion to suppress the evidence that had been seized. The Court of Appeals of Arizona affirmed. It was conceded that the initial entry and search, although warrantless, were justified by the exigent circumstance of the shooting. The Court of Appeals viewed the obtaining of the serial numbers, however, as an additional search, unrelated to that exigency. Relying upon a statement in Mincey v. Arizona, 437 U. S. 385 (1978), that a "warrantless search must be 'strictly circumscribed by the exigencies which justify its initiation,'" id. at 437 U. S. 393 (citation omitted), the Court of Appeals held that the police conduct violated the Fourth Amendment, requiring the evidence derived from that conduct to be excluded. 146 Ariz. 533, 534-535, 707 P.2d 331, 332-333 (1985). Both courts -- the trial court explicitly and the Court of Appeals by necessary implication -- rejected the State's contention that Officer Nelson's actions were justified under the "plain view" doctrine of Coolidge v. New Hampshire, supra. The Arizona Supreme Court denied review, and the State filed this petition. II As an initial matter, the State argues that Officer Nelson's actions constituted neither a "search" nor a "seizure" within the meaning of the Fourth Amendment. We agree that the mere recording of the serial numbers did not constitute a seizure. To be sure, that was the first step in a process by which respondent was eventually deprived of the stereo equipment. In and of itself, however, it did not "meaningfully interfere" with respondent's possessory interest in either the serial numbers or the equipment, and therefore did not amount to a seizure. See Maryland v. Macon, 472 U. S. 463 , 472 U. S. 469 (1985). Officer Nelson's moving of the equipment, however, did constitute a "search" separate and apart from the search for Page 480 U. S. 325 the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent's privacy interest. See Illinois v. Andreas, 463 U. S. 765 , 463 U. S. 771 (1983). But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent's privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL's suggestion, post at 480 U. S. 333 , the "distinction between 'looking' at a suspicious object in plain view and `moving' it even a few inches" is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent -- serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable. III The remaining question is whether the search was "reasonable" under the Fourth Amendment. On this aspect of the case, we reject, at the outset, the apparent position of the Arizona Court of Appeals that, because the officers' action directed to the stereo equipment was unrelated to the justification for their entry into respondent's apartment, it was ipso facto unreasonable. That lack of relationship always exists with regard to action validated under the "plain view" doctrine; where action is taken for the purpose justifying the entry, invocation of the doctrine is superfluous. Mincey v. Arizona, supra, in saying that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," 437 U.S. at 437 U. S. 393 (citation omitted), was addressing only the scope of the primary Page 480 U. S. 326 search itself, and was not overruling by implication the many cases acknowledging that the "plain view" doctrine can legitimate action beyond that scope. We turn, then, to application of the doctrine to the facts of this case. "It is well established that, under certain circumstances, the police may seize evidence in plain view without a warrant," Coolidge v. New Hampshire, 403 U.S. at 403 U. S. 465 (plurality opinion) (emphasis added). Those circumstances include situations "[w]here the initial intrusion that brings the police within plain view of such [evidence] is supported . . . by one of the recognized exceptions to the warrant requirement," ibid., such as the exigent circumstances intrusion here. It would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination. It is clear, therefore, that the search here was valid if the "plain view" doctrine would have sustained a seizure of the equipment. There is no doubt it would have done so if Officer Nelson had probable cause to believe that the equipment was stolen. The State has conceded, however, that he had only a "reasonable suspicion," by which it means something less than probable cause. See Brief for Petitioner 18-19. * We have not ruled on the question whether probable cause is required in order to invoke the "plain view" doctrine. Dicta in Payton v. New York, 445 U. S. 573 , 445 U. S. 587 (1980), suggested that the standard of probable cause must be met, but our later opinions in Texas v. Brown, 460 U. S. 730 (1983), explicitly regarded the issue as unresolved, see id. at 460 U. S. 742 , n. 7 (plurality opinion); id. at 460 U. S. 746 (STEVENS, J., concurring in judgment). We now hold that probable cause is required. To say otherwise would be to cut the "plain view" doctrine loose from its theoretical and practical moorings. The theory of that doctrine consists of extending to nonpublic places such as the Page 480 U. S. 327 home, where searches and seizures without a warrant are presumptively unreasonable, the police's longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband. See Payton v. New York, supra, at 445 U. S. 586 -587. And the practical justification for that extension is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk -- to themselves or to preservation of the evidence -- of going to obtain a warrant. See Coolidge v. New Hampshire, supra, at 403 U. S. 468 (plurality opinion). Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the standard of probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for that same object if it had been known to be on the premises. We do not say, of course, that a seizure can never be justified on less than probable cause. We have held that it can -- where, for example, the seizure is minimally intrusive and operational necessities render it the only practicable means of detecting certain types of crime. See, e.g., United States v. Cortez, 449 U. S. 411 (1981) (investigative detention of vehicle suspected to be transporting illegal aliens); United States v. Brignoni-Ponce, 422 U. S. 873 (1975) (same); United States v. Place, 462 U. S. 696 , 462 U. S. 709 , and n. 9 (1983) (dictum) (seizure of suspected drug dealer's luggage at airport to permit exposure to specially trained dog). No special operational necessities are relied on here, however -- but rather the mere fact that the items in question came lawfully within the officer's plain view. That alone cannot supplant the requirement of probable cause. The same considerations preclude us from holding that, even though probable cause would have been necessary for a seizure, the search of objects in plain view that occurred here Page 480 U. S. 328 could be sustained on lesser grounds. A dwellingplace search, no less than a dwellingplace seizure, requires probable cause, and there is no reason in theory or practicality why application of the "plain view" doctrine would supplant that requirement. Although the interest protected by the Fourth Amendment injunction against unreasonable searches is quite different from that protected by its injunction against unreasonable seizures, see Texas v. Brown, supra, at 460 U. S. 747 -748 (STEVENS, J., concurring in judgment), neither the one nor the other is of inferior worth or necessarily requires only lesser protection. We have not elsewhere drawn a categorical distinction between the two insofar as concerns the degree of justification needed to establish the reasonableness of police action, and we see no reason for a distinction in the particular circumstances before us here. Indeed, to treat searches more liberally would especially erode the plurality's warning in Coolidge that "the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." 403 U.S. at 403 U. S. 466 . In short, whether legal authority to move the equipment could be found only as an inevitable concomitant of the authority to seize it, or also as a consequence of some independent power to search certain objects in plain view, probable cause to believe the equipment was stolen was required. JUSTICE O'CONNOR's dissent suggests that we uphold the action here on the ground that it was a "cursory inspection," rather than a "full-blown search," and could therefore be justified by reasonable suspicion instead of probable cause. As already noted, a truly cursory inspection -- one that involves merely looking at what is already exposed to view, without disturbing it -- is not a "search" for Fourth Amendment purposes, and therefore does not even require reasonable suspicion. We are unwilling to send police and judges into a new thicket of Fourth Amendment law, to seek a creature of uncertain description that is neither a "plain view" inspection nor Page 480 U. S. 329 yet a "full-blown search." Nothing in the prior opinions of this Court supports such a distinction, not even the dictum from Justice Stewart's concurrence in Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 571 (1969), whose reference to a "mere inspection" describes, in our view, close observation of what lies in plain sight. JUSTICE POWELL's dissent reasonably asks what it is we would have had Officer Nelson do in these circumstances. Post at 480 U. S. 332 . The answer depends, of course, upon whether he had probable cause to conduct a search, a question that was not preserved in this case. If he had, then he should have done precisely what he did. If not, then he should have followed up his suspicions, if possible, by means other than a search -- just as he would have had to do if, while walking along the street, he had noticed the same suspicious stereo equipment sitting inside a house a few feet away from him, beneath an open window. It may well be that, in such circumstances, no effective means short of a search exist. But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. Our disagreement with the dissenters pertains to where the proper balance should be struck; we choose to adhere to the textual and traditional standard of probable cause. The State contends that, even if Officer Nelson's search violated the Fourth Amendment, the court below should have admitted the evidence thus obtained under the "good faith" exception to the exclusionary rule. That was not the question on which certiorari was granted, and we decline to consider it. For the reasons stated, the judgment of the Court of Appeals of Arizona is Affirmed. * Contrary to the suggestion in JUSTICE O'CONNOR's dissent, post at 480 U. S. 339 , this concession precludes our considering whether the probable cause standard was satisfied in this case. JUSTICE WHITE, concurring. I write only to emphasize that this case does not present, and we have no occasion to address, the so-called "inadvertent Page 480 U. S. 330 discovery" prong of the plain view exception to the Warrant Clause. See Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 469 -471 (1971) (plurality opinion). This "requirement" of the plain view doctrine has never been accepted by a judgment supported by a majority of this Court, and I therefore do not accept JUSTICE O'CONNOR's dissent's assertion that evidence seized in plain view must have been inadvertently discovered in order to satisfy the dictates of the Fourth Amendment. See post at 480 U. S. 334 . I join the majority opinion today without regard to the inadvertence of the officers' discovery of the stereo components' serial numbers. The police officers conducted a search of respondent's stereo equipment absent probable cause that the equipment was stolen. It is for this reason that the judgment of the Court of Appeals of Arizona must be affirmed. JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, dissenting. I join JUSTICE O'CONNOR's dissenting opinion, and write briefly to highlight what seem to me the unfortunate consequences of the Court's decision. Today the Court holds for the first time that the requirement of probable cause operates as a separate limitation on the application of the plain view doctrine. [ Footnote 1 ] The plurality opinion in Coolidge v. New Hampshire, 403 U. S. 443 (1971), Page 480 U. S. 331 required only that it be "immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." Id. at 403 U. S. 466 (citation omitted). There was no general exploratory search in this case, and I would not approve such a search. All the pertinent objects were in plain view, and could be identified as objects frequently stolen. There was no looking into closets, opening of drawers or trunks, or other "rummaging around." JUSTICE O'CONNOR properly emphasizes that the moving of a suspicious object in plain view results in a minimal invasion of privacy. Post at 480 U. S. 338 . The Court nevertheless holds that "merely looking at" an object in plain view is lawful, ante at 480 U. S. 328 , but "moving" or "disturbing" the object to investigate a reasonable suspicion is not, ante at 480 U. S. 324 , 480 U. S. 328 . The facts of this case well illustrate the unreasonableness of this distinction. The officers' suspicion that the stereo components at issue were stolen was both reasonable and based on specific, articulable facts. Indeed, the State was unwise to concede the absence of probable cause. The police lawfully entered respondent's apartment under exigent circumstances that arose when a bullet fired through the floor of the apartment struck a man in the apartment below. What they saw in the apartment hardly suggested that it was occupied by law-abiding citizens. A .25-caliber automatic pistol lay in plain view on the living room floor. During a concededly lawful search, the officers found a .45-caliber automatic, a .22-caliber, sawed-off rifle, and a stocking-cap mask. The apartment was littered with drug paraphernalia. App. 29. The officers also observed two sets of expensive stereo components of a type that frequently was stolen. [ Footnote 2 ] Page 480 U. S. 332 It is fair to ask what Officer Nelson should have done in these circumstances. Accepting the State's concession that he lacked probable cause, he could not have obtained a warrant to seize the stereo components. Neither could he have remained on the premises and forcibly prevented their removal. Officer Nelson's testimony indicates that he was able to read some of the serial numbers without moving the components. [ Footnote 3 ] To read the serial number on a Bang and Olufsen turntable, however, he had to "turn it around or turn it upside down." Id. at 19. Officer Nelson noted the serial numbers on the stereo components and telephoned the National Crime Information Center to check them against the Center's computerized listing of stolen property. The computer confirmed his suspicion that at least the Bang and Olufsen turntable had been stolen. On the basis of this information, the officers obtained a warrant to seize the turntable and other stereo components that also proved to be stolen. The Court holds that there was an unlawful search of the turntable. It agrees that the "mere recording of the serial numbers did not constitute a seizure." Ante at 480 U. S. 324 . Thus, if the computer had identified as stolen property a component with a visible serial number, the evidence would have been admissible. But the Court further holds that "Officer Nelson's moving of the equipment . . . did constitute a 'search.' . . ." Ibid. It perceives a constitutional distinction between reading a serial number on an object and moving or picking up an identical object to see its serial number. To make its position unmistakably clear, the Court concludes that a "search is a search, even if it happens to disclose nothing but the bottom of a turntable." Ante at 480 U. S. 325 . With Page 480 U. S. 333 all respect, this distinction between "looking" at a suspicious object in plain view and "moving" it even a few inches trivializes the Fourth Amendment. [ Footnote 4 ] The Court's new rule will cause uncertainty, and could deter conscientious police officers from lawfully obtaining evidence necessary to convict guilty persons. Apart from the importance of rationality in the interpretation of the Fourth Amendment, today's decision may handicap law enforcement without enhancing privacy interests. Accordingly, I dissent. [ Footnote 1 ] In Texas v. Brown, 460 U. S. 730 (1983), the plurality opinion expressly declined to "address whether, in some circumstances, a degree of suspicion lower than probable cause would be sufficient basis for a seizure. . . ." Id. at 460 U. S. 742 , n. 7. Even the probable cause standard, in the plurality's view, requires only facts sufficient to "'warrant a man of reasonable caution in the belief' . . . that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false." Id. at 460 U. S. 742 (quoting Carroll v. United States, 267 U. S. 132 , 267 U. S. 162 (1925)). See also Texas v. Brown, supra, at 460 U. S. 746 (POWELL, J., concurring in judgment) (leaving open the question whether probable cause is required to inspect objects in plain view). As the Court recognizes, ante at 480 U. S. 326 , the statements in Payton v. New York, 445 U. S. 573 , 445 U. S. 587 (1980), are dicta. [ Footnote 2 ] Responding to a question on cross-examination, Officer Nelson explained that his suspicion was "based on 12 years' worth of police experience. I have worked in different burglary crimes throughout that period of time and . . . I'm just very familiar with people converting stolen stereos and TV's into their own use." App. 28-29. [ Footnote 3 ] Officer Nelson testified that there was an opening of about a foot between the back of one set of stereo equipment and the wall. Id. at 20. Presumably this opening was large enough to permit Officer Nelson to view serial numbers on the backs of the components without moving them. [ Footnote 4 ] Numerous articles that frequently are stolen have identifying numbers, including expensive watches and cameras, and also credit cards. Assume for example that an officer reasonably suspects that two identical watches, both in plain view, have been stolen. Under the Court's decision, if one watch is lying face up and the other lying face down, reading the serial number on one of the watches would not be a search. But turning over the other watch to read its serial number would be a search. Moreover, the officer's ability to read a serial number may depend on its location in a room and light conditions at a particular time. Would there be a constitutional difference if an officer, on the basis of a reasonable suspicion, used a pocket flashlight or turned on a light to read a number, rather than moving the object to a point where a serial number was clearly visible? JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE POWELL join, dissenting. The Court today gives the right answer to the wrong question. The Court asks whether the police must have probable cause before either seizing an object in plain view or conducting a full-blown search of that object, and concludes that they must. I agree. In my view, however, this case presents a different question: whether police must have probable cause before conducting a cursory inspection of an item in plain view. Because I conclude that such an inspection is reasonable if the police are aware of facts or circumstances that justify a reasonable suspicion that the item is evidence of a crime, I would reverse the judgment of the Arizona Court of Appeals, and therefore dissent. Page 480 U. S. 334 In Coolidge v. New Hampshire, 403 U. S. 443 (1971), Justice Stewart summarized three requirements that the plurality thought must be satisfied for a plain view search or seizure. First, the police must lawfully make an initial intrusion or otherwise be in a position from which they can view a particular area. Second, the officer must discover incriminating evidence "inadvertently." Third, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. As another plurality observed in Texas v. Brown, 460 U. S. 730 , 460 U. S. 737 (1983), these three requirements have never been expressly adopted by a majority of this Court, but "as the considered opinion of four Members of this Court [the Coolidge plurality] should obviously be the point of reference for further discussion of the issue." There is no dispute in this case that the first two requirements have been satisfied. The officers were lawfully in the apartment pursuant to exigent circumstances, and the discovery of the stereo was inadvertent -- the officers did not " know in advance the location of [certain] evidence and intend to seize it,' relying on the plain view doctrine only as a pretext." Ibid. (quoting Coolidge v. New Hampshire, supra, at 403 U. S. 470 ). Instead, the dispute in this case focuses on the application of the "immediately apparent" requirement; at issue is whether a police officer's reasonable suspicion is adequate to justify a cursory examination of an item in plain view. The purpose of the "immediately apparent" requirement is to prevent "general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. at 403 U. S. 467 . If an officer could indiscriminately search every item in plain view, a search justified by a limited purpose -- such as exigent circumstances -- could be used to eviscerate the protections of the Fourth Amendment. In order to prevent such a general search, therefore, we require that the relevance of the item be "immediately apparent." As Justice Stewart explained: Page 480 U. S. 335 "Of course, the extension of the original justification [for being present] is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Cf. 394 U. S. Georgia, [ 394 U.S. 557 ], 394 U. S. 571 -572 [(1969)] (Stewart, J., concurring in result)." Id. at 403 U. S. 466 -467. Thus, I agree with the Court that, even under the plain view doctrine, probable cause is required before the police seize an item, or conduct a full-blown search of evidence in plain view. Ante at 480 U. S. 326 -328. Such a requirement of probable cause will prevent the plain view doctrine from authorizing general searches. This is not to say, however, that even a mere inspection of a suspicious item must be supported by probable cause. When a police officer makes a cursory inspection of a suspicious item in plain view in order to determine whether it is indeed evidence of a crime, there is no "exploratory rummaging." Only those items that the police officer "reasonably suspects" as evidence of a crime may be inspected, and perhaps more importantly, the scope of such an inspection is quite limited. In short, if police officers have a reasonable, articulable suspicion that an object they come across during the course of a lawful search is evidence of crime, in my view they may make a cursory examination of the object to verify their suspicion. If the officers wish to go beyond such a cursory examination of the object, however, they must have probable cause. This distinction between a full-blown search and seizure of an item and a mere inspection of the item was first suggested by Justice Stewart. In his concurrence in Stanley v. Georgia, 394 U. S. 557 (1969), which is cited in Coolidge, Justice Stewart observed that the federal agents there had acted within the scope of a lawful warrant in opening the drawers of the defendant's desk. When they found in one of the drawers not the gambling material described in the warrant Page 480 U. S. 336 but movie films, they proceeded to exhibit the films on the defendant's projector, and thereafter arrested the defendant for possession of obscene matter. Justice Stewart agreed with the majority that the film had to be suppressed, but in doing so he suggested that a less intrusive inspection of evidence in plain view would present a different case: "This is not a case where agents, in the course of a lawful search, came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection. " Id. at 394 U. S. 571 (emphasis added) (footnote omitted). Following Justice Stewart's suggestion, the overwhelming majority of both state and federal courts have held that probable cause is not required for a minimal inspection of an item in plain view. As Professor LaFave summarizes the view of these courts, "the minimal additional intrusion which results from an inspection or examination of an object in plain view is reasonable if the officer was first aware of some facts and circumstances which justify a reasonable suspicion (not probable cause, in the traditional sense) that the object is or contains a fruit, instrumentality, or evidence of crime." 2 W. LaFave, Search and Seizure § 6.7(b), p. 717 (2d ed. 1987); see also id. at 345 ("It is generally assumed that there is nothing improper in merely picking up an unnamed article for the purpose of noting its brand name or serial number or other identifying characteristics to be found on the surface"). Thus, while courts require probable cause for more extensive examination, cursory inspections -- including picking up or moving objects for a better view -- require only a reasonable suspicion. See, e.g., United States v. Marbury, 732 F.2d 390, 399 (CA5 1984) (police may inspect an item found in plain view to determine whether it is evidence of crime if they have a reasonable suspicion to believe that the item is evidence); United States v. Hillyard, 677 F.2d 1336, 1342 (CA9 1982) (police may give suspicious documents brief perusal if they have a "reasonable suspicion"); United States v. Wright, 667 Page 480 U. S. 337 F.2d 793, 798 (CA9 1982) ("[A]n officer may conduct such an examination if he at least has a reasonable suspicion' to believe that the discovered item is evidence"); United States v. Roberts, 619 F.2d 379, 381 (CA5 1980) ("Police officers are not required to ignore the significance of items in plain view even when the full import of the objects cannot be positively ascertained without some examination"); United States v. Ochs, 595 F.2d 1247, 1257-1258, and n. 8 (CA2 1979) (Friendly, J.) (same). Indeed, several state courts have applied a reasonable suspicion standard in factual circumstances almost identical to this case. See, e.g., State v. Noll, 116 Wis.2d 443, 343 N.W.2d 391 (1984) (officer, upon seeing television, could check serial numbers); State v. Riedinger, 374 N.W.2d 866 (ND 1985) (police, in executing warrant for drugs, could check serial number of microwave oven); People v. Dorris, 110 Ill.App.3d 660, 442 N.E.2d 951 (1982) (police may note account number of deposit slip because, when the police have a reasonable suspicion that an item in plain view is stolen property, the minimal additional intrusion of checking external identification numbers is proper); State v. Proctor, 12 Wash. App. 274, 529 P.2d 472 (1974) (upholding police notation of serial numbers on calculators); People v. Eddington, 23 Mich.App. 210, 178 N.W.2d 686 (1970) (upholding examination of heels of shoes), rev'd on other grounds, 387 Mich. 551, 198 N.W.2d 297 (1972). This distinction between searches based on their relative intrusiveness -- and its subsequent adoption by a consensus of American courts -- is entirely consistent with our Fourth Amendment jurisprudence. We have long recognized that searches can vary in intrusiveness, and that some brief searches "may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a [search] based only on specific articulable facts" that the item in question is contraband or evidence of a crime. United States v. Place , 462 U. S. 696 , 462 U. S. 706 Page 480 U. S. 338 (1983). In Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 654 (1979), we held that the permissibility of a particular law enforcement practice should be judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Thus, "[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard." New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 341 (1986). The governmental interests considered include crime prevention and detection. Terry v. Ohio, 392 U. S. 1 , 392 U. S. 22 (1968). The test is whether these law enforcement interests are sufficiently "substantial," not, as the Court would have it, whether "operational necessities render [a standard less than probable cause] the only practicable means of detecting certain types of crimes." Ante at 480 U. S. 327 . See United States v. Place, supra, at 462 U. S. 704 . In my view, the balance of the governmental and privacy interests strongly supports a reasonable suspicion standard for the cursory examination of items in plain view. The additional intrusion caused by an inspection of an item in plain view for its serial number is minuscule. Indeed, the intrusion in this case was even more transitory and less intrusive than the seizure of luggage from a suspected drug dealer in United States v. Place, supra, and the "severe, though brief, intrusion upon cherished personal security" in Terry v. Ohio, supra, at 392 U. S. 24 -25. Weighed against this minimal additional invasion of privacy are rather major gains in law enforcement. The use of identification numbers in tracing stolen property is a powerful law enforcement tool. Serial numbers are far more helpful and accurate in detecting stolen property than simple police recollection of the evidence. Cf. New York v. Class, 475 U. S. 106 , 475 U. S. 111 (1986) (observing importance of vehicle identification numbers). Given the prevalence of mass-produced Page 480 U. S. 339 goods in our national economy, a serial number is often the only sure method of detecting stolen property. The balance of governmental and private interests strongly supports the view, accepted by a majority of courts, that a standard of reasonable suspicion meets the requirements of the Fourth Amendment. Unfortunately, in its desire to establish a "bright-line" test, the Court has taken a step that ignores a substantial body of precedent and that places serious roadblocks to reasonable law enforcement practices. Indeed, in this case no warrant to search the stereo equipment for its serial number could have been obtained by the officers based on reasonable suspicion alone, and, in the Court's view, the officers may not even move the stereo turntable to examine its serial number. The theoretical advantages of the "search is a search" approach adopted by the Court today are simply too remote to justify the tangible and severe damage it inflicts on legitimate and effective law enforcement. Even if probable cause were the appropriate standard, I have little doubt that it was satisfied here. When police officers, during the course of a search inquiring into grievously unlawful activity, discover the tools of a thief (a sawed-off rifle and a stocking mask) and observe in a small apartment two sets of stereo equipment that are both inordinately expensive in relation to their surroundings and known to be favored targets of larcenous activity, the "flexible, common-sense standard" of probable cause has been satisfied. Texas v. Brown, 460 U.S. at 460 U. S. 742 (plurality opinion). Because the Court today ignores the existence of probable cause, and in doing so upsets a widely accepted body of precedent on the standard of reasonableness for the cursory examination of evidence in plain view, I respectfully dissent.

Here is a summary of the Supreme Court case Arizona v. Hicks (1987): Issue: Whether a police officer's moving of stereo equipment to record serial numbers during a warrantless search of a home, which was justified by exigent circumstances, violated the Fourth Amendment. Holding: Yes, the officer's actions violated the Fourth Amendment. While recording serial numbers did not constitute a "seizure," the act of moving the equipment constituted a separate "search" unrelated to the initial lawful objective of the search. The "plain view" doctrine did not apply because the officer only had a "reasonable suspicion" rather than probable cause to believe the equipment was stolen. Therefore, the search was invalid. Impact: The case sets a precedent for when the "plain view" doctrine can be applied during a warrantless search and clarifies that probable cause, rather than reasonable suspicion, is required for such searches.

Search & Seizure

U.S. v. Leon

https://supreme.justia.com/cases/federal/us/468/897/

U.S. Supreme Court United States v. Leon, 468 U.S. 897 (1984) United States v. Leon No. 82-1771 Argued January 17, 1984 Decided July 5, 1984 468 U.S. 897 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Acting on the basis of information from a confidential informant, officers of the Burbank, Cal., Police Department initiated a drug-trafficking investigation involving surveillance of respondents' activities. Based on an affidavit summarizing the police officers' observations, Officer Rombach prepared an application for a warrant to search three residences and respondents' automobiles for an extensive list of items. The application w as reviewed by several Deputy District Attorneys, and a facially valid search warrant was issued by a state court judge. Ensuing searches produced large quantities of drugs and other evidence. Respondents were indicted for federal drug offenses, and filed motions to suppress the evidence seized pursuant to the warrant. After an evidentiary hearing, the District Court granted the motions in part, concluding that the affidavit was insufficient to establish probable cause. Although recognizing that Officer Rombach had acted in good faith, the court rejected the Government's suggestion that the Fourth Amendment exclusionary rule should not apply where evidence is seized in reasonable, good faith reliance on a search warrant. The Court of Appeals affirmed, also refusing the Government's invitation to recognize a good faith exception to the rule. The Government's petition for certiorari presented only the question whether a good faith exception to the exclusionary rule should be recognized. Held: 1. The Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. Pp. 468 U. S. 905 -925. (a) An examination of the Fourth Amendment's origin and purposes makes clear that the use of fruits of a past unlawful search or seizure works no new Fourth Amendment wrong. The question whether the exclusionary sanction is appropriately imposed in a particular case as a judicially created remedy to safeguard Fourth Amendment rights through its deterrent effect, must be resolved by weighing the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence. Indiscriminate application of the Page 468 U. S. 898 exclusionary rule -- impeding the criminal justice system's truthfinding function and allowing some guilty defendants to go free -- may well generate disrespect for the law and the administration of justice. Pp. 468 U.S. 906 -908. (b) Application of the exclusionary rule should continue where a Fourth Amendment violation has been substantial and deliberate, but the balancing approach that has evolved in determining whether the rule should be applied in a variety of contexts -- including criminal trials -- suggests that the rule should be modified to permit the introduction of evidence obtained by officers reasonably relying on a warrant issued by a detached and neutral magistrate. Pp. 468 U. S. 908 -913. (c) The deference accorded to a magistrate's finding of probable cause for the issuance of a warrant does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based, and the courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police. Moreover, reviewing courts will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause. However, the exclusionary rule is designed to deter police misconduct, rather than to punish the errors of judges and magistrates. Admitting evidence obtained pursuant to a warrant while at the same time declaring that the warrant was somehow defective will not reduce judicial officers' professional incentives to comply with the Fourth Amendment, encourage them to repeat their mistakes, or lead to the granting of all colorable warrant requests. Pp. 468 U. S. 913 -917. (d) Even assuming that the exclusionary rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity. In the ordinary case, an officer cannot be expected to question the magistrate's probable cause determination or his judgment that the form of the warrant is technically sufficient . Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law, and penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. Pp. 468 U. S. 918 -921. (e) A police officer's reliance on the magistrate's probable cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable. Suppression remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth, or if the Page 468 U. S. 899 issuing magistrate wholly abandoned his detached and neutral judicial role. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid. Pp. 468 U. S. 922 -925. 2. In view of the modification of the exclusionary rule, the Court of Appeals' judgment cannot stand in this case. Only respondent Leon contended that no reasonably well trained police officer could have believed that there existed probable cause to search his house. However, the record establishes that the police officers' reliance on the state court judge's determination of probable cause was objectively reasonable. Pp. 925-926. 701 F.2d 187, reversed. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 468 U. S. 927 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 468 U. S. 928 . STEVENS, J., filed a dissenting opinion, post, p. 468 U. S. 960 . Page 468 U. S. 900 JUSTICE WHITE delivered the opinion of the Court. This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. To resolve this question, we must consider once again the tension between the sometimes competing goals of, on the one hand, deterring official misconduct and removing inducements to unreasonable invasions of privacy and, on the other, establishing procedures under which criminal defendants are "acquitted Page 468 U. S. 901 or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, 394 U. S. 165 , 394 U. S. 175 (1969). I In August, 1981, a confidential informant of unproven reliability informed an officer of the Burbank Police Department that two persons known to him as "Armando" and "Patsy" were selling large quantities of cocaine and methaqualone from their residence at 620 Price Drive in Burbank, Cal. The informant also indicated that he had witnessed a sale of methaqualone by "Patsy" at the residence approximately five months earlier, and had observed at that time a shoebox containing a large amount of cash that belonged to "Patsy." He further declared that "Armando" and "Patsy" generally kept only small quantities of drugs at their residence and stored the remainder at another location in Burbank. On the basis of this information, the Burbank police initiated an extensive investigation focusing first on the Price Drive residence and later on two other residences as well. Cars parked at the Price Drive residence were determined to belong to respondents Armando Sanchez, who had previously been arrested for possession of marihuana, and Patsy Stewart, who had no criminal record. During the course of the investigation, officers observed an automobile belonging to respondent Ricardo Del Castillo, who had previously been arrested for possession of 50 pounds of marihuana, arrive at the Price Drive residence. The driver of that car entered the house, exited shortly thereafter carrying a small paper sack, and drove away. A check of Del Castillo's probation records led the officers to respondent Alberto Leon, whose telephone number Del Castillo had listed as his employer's. Leon had been arrested in 1980 on drug charges, and a companion had informed the police at that time that Leon was heavily involved in the importation of drugs into this country. Before the current investigation began, the Burbank officers had Page 468 U. S. 902 learned that an informant had told a Glendale police officer that Leon stored a large quantity of methaqualone at his residence in Glendale. During the course of this investigation, the Burbank officers learned that Leon was living at 716 South Sunset Canyon in Burbank. Subsequently, the officers observed several persons, at least one of whom had prior drug involvement, arriving at the Price Drive residence and leaving with small packages; observed a variety of other material activity at the two residences as well as at a condominium at 7902 Via Magdalena; and witnessed a variety of relevant activity involving respondents' automobiles. The officers also observed respondents Sanchez and Stewart board separate flights for Miami. The pair later returned to Los Angeles together, consented to a search of their luggage that revealed only a small amount of marihuana, and left the airport. Based on these and other observations summarized in the affidavit, App. 34, Officer Cyril Rombach of the Burbank Police Department, an experienced and well-trained narcotics investigator, prepared an application for a warrant to search 620 Price Drive, 716 South Sunset Canyon, 7902 Via Magdalena, and automobiles registered to each of the respondents for an extensive list of items believed to be related to respondents' drug trafficking activities. Officer Rombach's extensive application was reviewed by several Deputy District Attorneys. A facially valid search warrant was issued in September, 1981, by a State Superior Court Judge. The ensuing searches produced large quantities of drugs at the Via Magdalena and Sunset Canyon addresses and a small quantity at the Price Drive residence. Other evidence was discovered at each of the residences and in Stewart's and Del Castillo's automobiles. Respondents were indicted by a grand jury in the District Court for the Central District of California and charged with conspiracy to possess and distribute cocaine and a variety of substantive counts. Page 468 U. S. 903 The respondents then filed motions to suppress the evidence seized pursuant to the warrant. [ Footnote 1 ] The District Court held an evidentiary hearing and, while recognizing that the case was a close one, see id. at 131, granted the motions to suppress in part. It concluded that the affidavit was insufficient to establish probable cause, [ Footnote 2 ] but did not suppress all of the evidence as to all of the respondents because none of the respondents had standing to challenge all of the searches. [ Footnote 3 ] In Page 468 U. S. 904 response to a request from the Government, the court made clear that Officer Rombach had acted in good faith, but it rejected the Government's suggestion that the Fourth Amendment exclusionary rule should not apply where evidence is seized in reasonable, good faith reliance on a search warrant. [ Footnote 4 ] The District Court denied the Government's motion for reconsideration, id. at 147, and a divided panel of the Court of Appeals for the Ninth Circuit affirmed, judgt. order reported at 701 F.2d 187 (1983). The Court of Appeals first concluded that Officer Rombach's affidavit could not establish probable cause to search the Price Drive residence. To the extent that the affidavit set forth facts demonstrating the basis of the informant's knowledge of criminal activity, the information included was fatally stale. The affidavit, moreover, failed to establish the informant's credibility. Accordingly, the Court of Appeals concluded that the information provided by the informant was inadequate under both prongs of the two-part test established in Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969). [ Footnote 5 ] The officers' independent investigation neither cured the staleness nor corroborated the details of the informant's declarations. The Court of Appeals then considered whether the affidavit formed a proper basis for the Page 468 U. S. 905 search of the Sunset Canyon residence. In its view, the affidavit included no facts indicating the basis for the informants' statements concerning respondent Leon's criminal activities, and was devoid of information establishing the informants' reliability. Because these deficiencies had not been cured by the police investigation, the District Court properly suppressed the fruits of the search. The Court of Appeals refused the Government's invitation to recognize a good faith exception to the Fourth Amendment exclusionary rule. App. to Pet. for Cert. 4a. The Government's petition for certiorari expressly declined to seek review of the lower courts' determinations that the search warrant was unsupported by probable cause, and presented only the question "[w]hether the Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good faith reliance on a search warrant that is subsequently held to be defective." We granted certiorari to consider the propriety of such a modification. 463 U.S. 1206 (1983). Although it undoubtedly is within our power to consider the question whether probable cause existed under the "totality of the circumstances" test announced last Term in Illinois v. Gates, 462 U. S. 213 (1983), that question has not been briefed or argued; and it is also within our authority, which we choose to exercise, to take the case as it comes to us, accepting the Court of Appeals' conclusion that probable cause was lacking under the prevailing legal standards. See this Court's Rule 21. 1(a). We have concluded that, in the Fourth Amendment context, the exclusionary rule can be modified somewhat without jeopardizing its ability to perform its intended functions. Accordingly, we reverse the judgment of the Court of Appeals. II Language in opinions of this Court and of individual Justices has sometimes implied that the exclusionary rule is a necessary corollary of the Fourth Amendment, Mapp v. Page 468 U. S. 906 Ohio, 367 U. S. 643 , 367 U. S. 651 , 655-657 (1961); Olmstead v. United States, 277 U. S. 438 , 277 U. S. 462 -463 (1928), or that the rule is required by the conjunction of the Fourth and Fifth Amendments. Mapp v. Ohio, supra, at 367 U. S. 661 -662 (Black, J., concurring); Agnello v. United States, 269 U. S. 20 , 269 U. S. 33 -34 (1925). These implications need not detain us long. The Fifth Amendment theory has not withstood critical analysis or the test of time, see Andresen v. Maryland, 427 U. S. 463 (1976), and the Fourth Amendment "has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons." Stone v. Powell, 428 U. S. 465 , 428 U. S. 486 (1976). A The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure "work[s] no new Fourth Amendment wrong." United States v. Calandra, 414 U. S. 338 , 414 U. S. 354 (1974). The wrong condemned by the Amendment is "fully accomplished" by the unlawful search or seizure itself, ibid., and the exclusionary rule is neither intended nor able to "cure the invasion of the defendant's rights which he has already suffered." Stone v. Powell, supra, at 428 U. S. 540 (WHITE, J., dissenting). The rule thus operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, supra, at 414 U. S. 348 . Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is "an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." Illinois v. Gates, supra, at 462 U. S. 223 . Only the former question is currently before us, and it must Page 468 U. S. 907 be resolved by weighing the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective. The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. "Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truthfinding functions of judge and jury." United States v. Payner, 447 U. S. 727 , 447 U. S. 734 (1980). An objectionable collateral consequence of this interference with the criminal justice system's truthfinding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains. [ Footnote 6 ] Particularly Page 468 U. S. 908 when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Stone v. Powell, 428 U.S. at 428 U. S. 490 . Indiscriminate application of the exclusionary rule, therefore, may well "generat[e] disrespect for the law and administration of justice." Id. at 428 U. S. 491 . Accordingly, "[a]s with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, supra, at 414 U. S. 348 ; see Stone v. Powell, supra, at 428 U. S. 486 -487; United States v. Janis, 428 U. S. 433 , 428 U. S. 447 (1976). B Close attention to those remedial objectives has characterized our recent decisions concerning the scope of the Fourth Amendment exclusionary rule. The Court has, to be sure, not seriously questioned, "in the absence of a more efficacious sanction, the continued application of the rule to suppress evidence Page 468 U. S. 909 from the [prosecution's] case where a Fourth Amendment violation has been substantial and deliberate. . . ." Franks v. Delaware, 438 U. S. 154 , 438 U. S. 171 (1978); Stone v. Powell, supra, at 428 U. S. 492 . Nevertheless, the balancing approach that has evolved in various contexts -- including criminal trials -- "forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good faith belief that a search or seizure was in accord with the Fourth Amendment." Illinois v. Gates, 462 U.S. at 462 U. S. 255 (WHITE, J., concurring in judgment). In Stone v. Powell, supra, the Court emphasized the costs of the exclusionary rule, expressed its view that limiting the circumstances under which Fourth Amendment claims could be raised in federal habeas corpus proceedings would not reduce the rule's deterrent effect, id. at 428 U. S. 489 -495, and held that a state prisoner who has been afforded a full and fair opportunity to litigate a Fourth Amendment claim may not obtain federal habeas relief on the ground that unlawfully obtained evidence had been introduced at his trial. Cf. Rose v. Mitchell, 443 U. S. 545 , 443 U. S. 560 -563 (1979). Proposed extensions of the exclusionary rule to proceedings other than the criminal trial itself have been evaluated and rejected under the same analytic approach. In United States v. Calandra, for example, we declined to allow grand jury witnesses to refuse to answer questions based on evidence obtained from an unlawful search or seizure, since "[a]ny incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain, at best." 414 U.S. at 414 U. S. 348 . Similarly, in United States v. Janis, supra, we permitted the use in federal civil proceedings of evidence illegally seized by state officials, since the likelihood of deterring police misconduct through such an extension of the exclusionary rule was insufficient to outweigh its substantial social costs. In so doing, we declared that, "[i]f . . . the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted." Id. at 428 U. S. 454 . Page 468 U. S. 910 As cases considering the use of unlawfully obtained evidence in criminal trials themselves make clear, it does not follow from the emphasis on the exclusionary rule's deterrent value that "anything which deters illegal searches is thereby commanded by the Fourth Amendment." Alderman v. United States, 394 U.S. at 394 U. S. 174 . In determining whether persons aggrieved solely by the introduction of damaging evidence unlawfully obtained from their coconspirators or codefendants could seek suppression, for example, we found that the additional benefits of such an extension of the exclusionary rule would not outweigh its costs. Id. at 394 U. S. 174 -175. Standing to invoke the rule has thus been limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct. Rakas v. Illinois, 439 U. S. 128 (1978); Brown v. United States, 411 U. S. 223 (1973); Wong Sun v. United States, 371 U. S. 471 , 371 U. S. 491 -492 (1963). Cf. United States v. Payner, 447 U. S. 727 (1980). Even defendants with standing to challenge the introduction in their criminal trials of unlawfully obtained evidence cannot prevent every conceivable use of such evidence. Evidence obtained in violation of the Fourth Amendment and inadmissible in the prosecution's case in chief may be used to impeach a defendant's direct testimony. Walder v. United States, 347 U. S. 62 (1954). See also Oregon v. Hass, 420 U. S. 714 (1975); Harris v. New York, 401 U. S. 222 (1971). A similar assessment of the "incremental furthering" of the ends of the exclusionary rule led us to conclude in United States v. Havens, 446 U. S. 620 , 446 U. S. 627 (1980), that evidence inadmissible in the prosecution's case in chief or otherwise as substantive evidence of guilt may be used to impeach statements made by a defendant in response to "proper cross-examination reasonably suggested by the defendant's direct examination." Id. at 446 U. S. 627 -628. When considering the use of evidence obtained in violation of the Fourth Amendment in the prosecution's case in chief, moreover, we have declined to adopt a per se or "but for" rule Page 468 U. S. 911 that would render inadmissible any evidence that came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U. S. 590 (1975); Wong Sun v. United States, supra, at 371 U. S. 487 -488. We also have held that a witness' testimony may be admitted even when his identity was discovered in an unconstitutional search. United States v. Ceccolini, 435 U. S. 268 (1978). The perception underlying these decisions -- that the connection between police misconduct and evidence of crime may be sufficiently attenuated to permit the use of that evidence at trial -- is a product of considerations relating to the exclusionary rule and the constitutional principles it is designed to protect. Dunaway v. New York, 442 U. S. 200 , 442 U. S. 217 -218 (1979); United States v. Ceccolini, supra, at 435 U. S. 279 . [ Footnote 7 ] In short, the "dissipation of the taint" concept that the Court has applied in deciding whether exclusion is appropriate in a particular case "attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost." Brown v. Illinois, supra, at 411 U. S. 609 (POWELL, J., concurring in part). Not surprisingly in view of this purpose, an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus. Dunaway v. New York, supra, at 442 U. S. 218 ; Brown v. Illinois, supra, at 411 U. S. 603 -604. The same attention to the purposes underlying the exclusionary rule also has characterized decisions not involving the scope of the rule itself. We have not required suppression of the fruits of a search incident to an arrest made in good faith reliance on a substantive criminal statute that subsequently Page 468 U. S. 912 is declared unconstitutional. Michigan v. DeFillippo, 443 U. S. 31 (1979). [ Footnote 8 ] Similarly, although the Court has been unwilling to conclude that new Fourth Amendment principles are always to have only prospective effect, United States v. Johnson, 457 U. S. 537 , 457 U. S. 560 (1982), [ Footnote 9 ] no Fourth Amendment decision marking a "clear break with the past" has been applied retroactively. See United States v. Peltier, 422 U. S. 531 (1975); Desist v. United States, 394 U. S. 244 (1969); Linkletter v. Walker, 381 U. S. 618 (1965). [ Footnote 10 ] The propriety Page 468 U. S. 913 of retroactive application of a newly announced Fourth Amendment principle, moreover, has been assessed largely in terms of the contribution retroactivity might make to the deterrence of police misconduct. United States v. Johnson, supra, at 457 U. S. 560 -561; United States v. Peltier, supra, at 422 U. S. 536 -539, 422 U. S. 542 . As yet, we have not recognized any form of good faith exception to the Fourth Amendment exclusionary rule. [ Footnote 11 ] But the balancing approach that has evolved during the years of experience with the rule provides strong support for the modification currently urged upon us. As we discuss below, our evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case in chief. III A Because a search warrant "provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard Page 468 U. S. 914 against improper searches than the hurried judgment of a law enforcement officer 'engaged in the often competitive enterprise of ferreting out crime,'" United States v. Chadwick, 433 U. S. 1 , 433 U. S. 9 (1977) (quoting Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948)), we have expressed a strong preference for warrants, and declared that, "in a doubtful or marginal case, a search under a warrant may be sustainable where without one it would fall." United States v. Ventresca, 380 U. S. 102 , 380 U. S. 106 (1965). See Aguilar v. Texas, 378 U.S. at 378 U. S. 111 . Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according "great deference" to a magistrate's determination. Spinelli v. United States, 393 U.S. at 393 U. S. 419 . See Illinois v. Gates, 462 U.S. at 462 U. S. 236 ; United States v. Ventresca, supra, at 380 U. S. 108 -109. Deference to the magistrate, however, is not boundless. It is clear, first, that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Franks v. Delaware, 438 U. S. 154 (1978). [ Footnote 12 ] Second, the courts must also insist that the magistrate purport to "perform his neutral and detached' function and not serve merely as a rubber stamp for the police." Aguilar v. Texas, supra, at 378 U. S. 111 . See Illinois v. Gates, supra, at 462 U. S. 239 . A magistrate failing to "manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application" and who acts instead as "an adjunct law enforcement officer" cannot provide valid authorization for an otherwise unconstitutional search. Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 , 442 U. S. 326 -327 (1979). Page 468 U. S. 915 Third, reviewing courts will not defer to a warrant based on an affidavit that does not "provide the magistrate with a substantial basis for determining the existence of probable cause." Illinois v. Gates, 462 U.S. at 462 U. S. 239 . "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Ibid. See Aguilar v. Texas, supra, at 378 U. S. 114 -115; Giordenello v. United States, 357 U. S. 480 (1958); Nathanson v. United States, 290 U. S. 41 (1933). [ Footnote 13 ] Even if the warrant application was supported by more than a "bare bones" affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate's probable cause determination reflected an improper analysis of the totality of the circumstances, Illinois v. Gates, supra, at 462 U. S. 238 -239, or because the form of the warrant was improper in some respect. Only in the first of these three situations, however, has the Court set forth a rationale for suppressing evidence obtained pursuant to a search warrant; in the other areas, it has simply excluded such evidence without considering whether Page 468 U. S. 916 Fourth Amendment interests will be advanced. To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced. First, the exclusionary rule is designed to deter police misconduct, rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment, or that lawlessness among these actors requires application of the extreme sanction of exclusion. [ Footnote 14 ] Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate. [ Footnote 15 ] Many of the factors Page 468 U. S. 917 that indicate that the exclusionary rule cannot provide an effective "special" or "general" deterrent for individual offending law enforcement officers [ Footnote 16 ] apply as well to judges or magistrates. And, to the extent that the rule is thought to operate as a "systemic" deterrent on a wider audience, [ Footnote 17 ] it clearly can have no such effect on individuals empowered to issue search warrants. Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them. Imposition of the exclusionary sanction is not necessary meaningfully to inform judicial officers of their errors, and we cannot conclude that admitting evidence obtained pursuant to a warrant while at the same time declaring that the warrant was somehow defective will in any way reduce judicial officers' professional incentives to comply with the Fourth Amendment, encourage them to repeat their mistakes, or lead to the granting of all colorable warrant requests. [ Footnote 18 ] Page 468 U. S. 918 B If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments. One could argue that applying the exclusionary rule in cases where the police failed to demonstrate probable cause in the warrant application deters future inadequate presentations or "magistrate shopping," and thus promotes the ends of the Fourth Amendment. Suppressing evidence obtained pursuant to a technically defective warrant supported by probable cause also might encourage officers to scrutinize more closely the form of the warrant, and to point out suspected judicial errors. We find such arguments speculative, and conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis, and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule. [ Footnote 19 ] We have frequently questioned whether the exclusionary rule can have any deterrent effect when the offending officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment. "No empirical researcher, proponent or opponent of the rule has yet been able to establish with any assurance whether the rule has a deterrent effect. . . ." United States v. Janis, 428 U.S. at 428 U. S. 452 , n. 22. But even assuming that the rule effectively Page 468 U. S. 919 deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity. As we observed in Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 447 (1974), and reiterated in United States v. Peltier, 422 U.S. at 422 U. S. 539 : "The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force." The Peltier Court continued, id. at 422 U. S. 542 : "If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." See also Illinois v. Gates, 462 U.S. at 462 U. S. 260 -261 (WHITE, J., concurring in judgment); United States v. Janis, supra, at 428 U. S. 459 ; Brown v. Illinois, 422 U.S. at 422 U. S. 610 -611 (POWELL, J., concurring in part). [ Footnote 20 ] In short, where the officer's conduct is objectively reasonable, Page 468 U. S. 920 "excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty." Stone v. Powell, 428 U.S. at 428 U. S. 539 -540 (WHITE, J., dissenting). This is particularly true, we believe, when an officer, acting with objective good faith, has obtained a search warrant from a judge or magistrate and acted within its scope. [ Footnote 21 ] In most Page 468 U. S. 921 such cases, there is no police illegality, and thus nothing to deter. It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate's probable cause determination or his judgment that the form of the warrant is technically sufficient. "[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law." Id. at 428 U. S. 498 (BURGER, C.J., concurring). Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. [ Footnote 22 ] Page 468 U. S. 922 C We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms. "[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness," Illinois v. Gates, 462 U.S. at 462 U. S. 267 (WHITE, J., concurring in judgment), for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." United States v. Ross, 456 U. S. 798 , 456 U. S. 823 , n. 32 (1982). Nevertheless, the officer's reliance on the magistrate's probable cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, cf. Harlow v. Fitzgerald, 457 U. S. 800 , 457 U. S. 815 -819 (1982), [ Footnote 23 ] and it is clear that, in some circumstances Page 468 U. S. 923 the officer [ Footnote 24 ] will have no reasonable grounds for believing that the warrant was properly issued. Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U. S. 154 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979); in such circumstances, no reasonably well-trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Brown v. Illinois, 422 U.S. at 422 U. S. 610 -611 (POWELL, J., concurring in part); see Illinois v. Gates, supra, at 462 U. S. 263 -264 (WHITE, J., concurring in judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, post at 468 U. S. 988 -991. In so limiting the suppression remedy, we leave untouched the probable cause standard and the various requirements for a valid warrant. Other objections to the modification of Page 468 U. S. 924 the Fourth Amendment exclusionary rule we consider to be insubstantial. The good faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the good faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time. Nor are we persuaded that application of a good faith exception to searches conducted pursuant to warrants will preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state. [ Footnote 25 ] There is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated. Defendants seeking suppression of the fruits of allegedly unconstitutional searches or seizures undoubtedly raise live controversies which Art. III empowers federal courts to adjudicate. As cases addressing questions of good faith immunity under 42 U.S.C. § 1983, compare O'Connor v. Donaldson, 422 U. S. 563 (1975), with Procunier v. Navarette, 434 U. S. 555 , 434 U. S. 566 , n. 14 (1978), and cases involving the harmless error doctrine, compare Milton v. Wainwright, 407 U. S. 371 , 407 U. S. 372 (1972), with Coleman v. Alabama, 399 U. S. 1 (1970), make clear, courts have considerable Page 468 U. S. 925 discretion in conforming their decisionmaking processes to the exigencies of particular cases. If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good faith issue. [ Footnote 26 ] Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue. Even if the Fourth Amendment question is not one of broad import, reviewing courts could decide in particular cases that magistrates under their supervision need to be informed of their errors, and so evaluate the officers' good faith only after finding a violation. In other circumstances, those courts could reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers' good faith. We have no reason to believe that our Fourth Amendment jurisprudence would suffer by allowing reviewing courts to exercise an informed discretion in making this choice. IV When the principles we have enunciated today are applied to the facts of this case, it is apparent that the judgment of the Court of Appeals cannot stand. The Court of Appeals applied the prevailing legal standards to Officer Rombach's warrant application, and concluded that the application could not support the magistrate's probable cause determination. In so doing, the court clearly informed the magistrate that he Page 468 U. S. 926 had erred in issuing the challenged warrant. This aspect of the court's judgment is not under attack in this proceeding. Having determined that the warrant should not have issued, the Court of Appeals understandably declined to adopt a modification of the Fourth Amendment exclusionary rule that this Court had not previously sanctioned. Although the modification finds strong support in our previous cases, the Court of Appeals' commendable self-restraint is not to be criticized. We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Only respondent Leon has contended that no reasonably well trained police officer could have believed that there existed probable cause to search his house; significantly, the other respondents advance no comparable argument. Officer Rombach's application for a warrant clearly was supported by much more than a "bare bones" affidavit. The affidavit related the results of an extensive investigation and, as the opinions of the divided panel of the Court of Appeals make clear, provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause. Under these circumstances, the officers' reliance on the magistrate's determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate. Accordingly, the judgment of the Court of Appeals is Reversed. Page 468 U. S. 927 [ Footnote 1 ] Respondent Leon moved to suppress the evidence found on his person at the time of his arrest and the evidence seized from his residence at 716 South Sunset Canyon. Respondent Stewart's motion covered the fruits of searches of her residence at 620 Price Drive and the condominium at 7902 Via Magdalena and statements she made during the search of her residence. Respondent Sanchez sought to suppress the evidence discovered during the search of his residence at 620 Price Drive and statements he made shortly thereafter. He also joined Stewart's motion to suppress evidence seized from the condominium. Respondent Del Castillo apparently sought to suppress all of the evidence seized in the searches. App. 78-80. The respondents also moved to suppress evidence seized in the searches of their automobiles. [ Footnote 2 ] "I just cannot find this warrant sufficient for a showing of probable cause." " * * * *" "There is no question of the reliability and credibility of the informant as not being established." "Some details given tended to corroborate, maybe, the reliability of [the informant's] information about the previous transaction, but if it is not a stale transaction, it comes awfully close to it; and all the other material I think is as consistent with innocence as it is with guilt." " * * * *" "So I just do not think this affidavit can withstand the test. I find, then, that there is no probable cause in this case for the issuance of the search warrant. . . ." Id. at 127. [ Footnote 3 ] The District Court concluded that Sanchez and Stewart had standing to challenge the search of 620 Price Drive; that Leon had standing to contest the legality of the search of 716 South Sunset Canyon; that none of the respondents had established a legitimate expectation of privacy in the condominium at 7902 Via Magdalena; and that Stewart and Del Castillo each had standing to challenge the searches of their automobiles. The Government indicated that it did not intend to introduce evidence seized from the other respondents' vehicles. Id. at 127-129. Finally, the court suppressed statements given by Sanchez and Stewart. Id. at 129-130. [ Footnote 4 ] "On the issue of good faith, obviously that is not the law of the Circuit, and I am not going to apply that law." "I will say certainly in my view, there is not any question about good faith. [Officer Rombach] went to a Superior Court judge and got a warrant; obviously laid a meticulous trail. Had surveilled for a long period of time, and I believe his testimony -- and I think he said he consulted with three Deputy District Attorneys before proceeding himself, and I certainly have no doubt about the fact that that is true." Id. at 140. [ Footnote 5 ] In Illinois v. Gates, 462 U. S. 213 (1983), decided last Term, the Court abandoned the two-pronged Aguilar-Spinelli test for determining whether an informant's tip suffices to establish probable cause for the issuance of a warrant and substituted in its place a "totality of the circumstances" approach. [ Footnote 6 ] Researchers have only recently begun to study extensively the effects of the exclusionary rule on the disposition of felony arrests. One study suggests that the rule results in the nonprosecution or nonconviction of between 0.6% and 2.35% of individuals arrested for felonies. Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NU Study and Other Studies of "Lost" Arrests, 1983 A.B.F.Res.J. 611, 621. The estimates are higher for particular crimes the prosecution of which depends heavily on physical evidence. Thus, the cumulative loss due to nonprosecution or nonconviction of individuals arrested on felony drug charges is probably in the range of 2.8% to 7.1%. Id. at 680. Davies' analysis of California data suggests that screening by police and prosecutors results in the release because of illegal searches or seizures of as many as 1.4% of all felony arrestees, id. at 650, that 0.9% of felony arrestees are released, because of illegal searches or seizures, at the preliminary hearing or after trial, id. at 653, and that roughly 0.05% of all felony arrestees benefit from reversals on appeal because of illegal searches. Id. at 654. See also K. Brosi, A Cross-City Comparison of Felony Case Processing 16, 18-19 (1979); U.S. General Accounting Office, Report of the Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 10-11, 14 (1979); F. Feeney, F. Dill, & A. Weir, Arrests Without Convictions: How Often They Occur and Why 203-206 (National Institute of Justice 1983); National Institute of Justice, The Effects of the Exclusionary Rule: A Study in California 1-2 (1982); Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 A.B.F.Res.J. 585, 600. The exclusionary rule also has been found to affect the plea-bargaining process. S. Schlesinger, Exclusionary Injustice: The Problem of Illegally Obtained Evidence 63 (1977). But see Davies, supra, at 668-669; Nardulli, supra, at 604-606. Many of these researchers have concluded that the impact of the exclusionary rule is insubstantial, but the small percentages with which they deal mask a large absolute number of felons who are released because the cases against them were based in part on illegal searches or seizures. "[A]ny rule of evidence that denies the jury access to clearly probative and reliable evidence must bear a heavy burden of justification, and must be carefully limited to the circumstances in which it will pay its way by deterring official unlawlessness." Illinois v. Gates, 462 U.S. at 462 U. S. 257 -258 (WHITE, J., concurring in judgment). Because we find that the rule can have no substantial deterrent effect in the sorts of situations under consideration in this case, see infra at 468 U. S. 916 -921, we conclude that it cannot pay its way in those situations. [ Footnote 7 ] "Brown's focus on 'the causal connection between the illegality and the confession' reflected the two policies behind the use of the exclusionary rule to effectuate the Fourth Amendment. Where there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts." Dunaway v. New York, 442 U.S. at 442 U. S. 217 -218 (citation omitted). [ Footnote 8 ] We have held, however, that the exclusionary rule requires suppression of evidence obtained in searches carried out pursuant to statutes, not yet declared unconstitutional, purporting to authorize searches and seizures without probable cause or search warrants. See, e.g., Ybarra v. Illinois, 444 U. S. 85 (1979); Torres v. Puerto Rico, 442 U. S. 465 (1979); Almeida-Sanchez v. United States, 413 U. S. 266 (1973); Sibron v. New York, 392 U. S. 40 (1968); Berger v. New York, 388 U. S. 41 (1967). "Those decisions involved statutes which, by their own terms, authorized searches under circumstances which did not satisfy the traditional warrant and probable cause requirements of the Fourth Amendment." Michigan v. DeFillippo, 443 U.S. at 443 U. S. 39 . The substantive Fourth Amendment principles announced in those cases are fully consistent with our holding here. [ Footnote 9 ] The Court held in United States v. Johnson that a construction of the Fourth Amendment that did not constitute a "clear break with the past" is to be applied to all convictions not yet final when the decision was handed down. The limited holding, see 457 U.S. at 457 U. S. 562 , turned in part on the Court's judgment that "[f]ailure to accord any retroactive effect to Fourth Amendment rulings would 'encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach.'" Id. at 457 U. S. 561 (emphasis in original) (quoting Desist v. United States, 394 U. S. 244 , 394 U. S. 277 (1969) (Fortas, J., dissenting)). Contrary to respondents' assertions, nothing in Johnson precludes adoption of a good faith exception tailored to situations in which the police have reasonably relied on a warrant issued by a detached and neutral magistrate, but later found to be defective. [ Footnote 10 ] Our retroactivity decisions have, for the most part, turned on our assessments of "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall v. Denno, 388 U. S. 293 , 388 U. S. 297 (1967). As we observed earlier this Term: "In considering the reliance factor, this Court's cases have looked primarily to whether law enforcement authorities and state courts have justifiably relied on a prior rule of law said to be different from that announced by the decision whose retroactivity is at issue. Unjustified 'reliance' is no bar to retroactivity. This inquiry is often phrased in terms of whether the new decision was foreshadowed by earlier cases or was a 'clear break with the past.'" Solem v. Stumes, 465 U. S. 638 , 465 U. S. 645 -646 (1984). [ Footnote 11 ] Members of the Court have, however, urged reconsideration of the scope of the exclusionary rule. See, e.g., Stone v. Powell, 428 U. S. 465 , 428 U. S. 496 (1976) (BURGER, C.J., concurring); id. at 428 U. S. 536 (WHITE, J., dissenting); Illinois v. Gates, 462 U.S. at 462 U. S. 254 -267 (WHITE, J., concurring in judgment); Brown v. Illinois, 422 U. S. 590 , 422 U. S. 609 -612 (1975) (POWELL, J., concurring in part); Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 261 -271 (1973) (POWELL, J., concurring); California v. Minjares, 443 U. S. 916 (1979) (REHNQUIST, J., dissenting from denial of stay). One Court of Appeals, no doubt influenced by these individual urgings, has adopted a form of good faith exception to the exclusionary rule. United States v. Williams, 622 F.2d 830 (CA5 1980) (en banc), cert. denied, 449 U.S. 1127 (1981). [ Footnote 12 ] Indeed, "it would be an unthinkable imposition upon [the magistrate's] authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment." 438 U.S. at 438 U. S. 165 . [ Footnote 13 ] See also Beck v. Ohio, 379 U. S. 89 (1964), in which the Court concluded that "the record . . . does not contain a single objective fact to support a belief by the officers that the petitioner was engaged in criminal activity at the time they arrested him." Id. at 379 U. S. 95 . Although the Court was willing to assume that the arresting officers acted in good faith, it concluded: "'[G]ood faith on the part of the arresting officers is not enough.' Henry v. United States, 361 U. S. 98 , 361 U. S. 102 . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers, and effects,' only in the discretion of the police." Id. at 379 U. S. 97 . We adhere to this view and emphasize that nothing in this opinion is intended to suggest a lowering of the probable cause standard. On the contrary, we deal here only with the remedy to be applied to a concededly unconstitutional search. [ Footnote 14 ] Although there are assertions that some magistrates become rubber stamps for the police, and others may be unable effectively to screen police conduct, see, e.g., 2 W. LaFave, Search and Seizure § 4.1 (1978); Kamisar, Does (Did) (Should) The Exclusionary Rule Rest on a "Principled Basis" Rather than an "Empirical Proposition"?, 16 Creighton L.Rev. 565, 569-571 (1983); Schroeder, Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 Geo.L.J. 1361, 1412 (1981), we are not convinced that this is a problem of major proportions. See L. Tiffany, D. McIntyre, & D. Rotenberg, Detection of Crime 119 (1967); Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich.L.Rev. 1319, 1414, n. 396 (1977); P. Johnson, New Approaches to Enforcing the Fourth Amendment 8-10 (Working Paper, Sept.1978), quoted in Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal Procedure 229-230 (5th ed.1980); R. Van Duizend, L. Sutton, & C. Carter, The Search Warrant Process, ch. 7 (Review Draft, National Center for State Courts, 1983). [ Footnote 15 ] As the Supreme Judicial Court of Massachusetts recognized in Commonwealth v. Sheppard, 387 Mass. 488, 506, 441 N.E.2d 725 735 (1982): "The exclusionary rule may not be well tailored to deterring judicial misconduct. If applied to judicial misconduct, the rule would be just as costly as it is when it is applied to police misconduct, but it may be ill-fitted to the job-created motivations of judges. . . . [I]deally, a judge is impartial as to whether a particular piece of evidence is admitted or a particular defendant convicted. Hence, in the abstract, suppression of a particular piece of evidence may not be as effective a disincentive to a neutral judge as it would be to the police. It may be that a ruling by an appellate court that a search warrant was unconstitutional would be sufficient to deter similar conduct in the future by magistrates." But see United States v. Karathanos, 531 F.2d 26, 33-34 (CA2), cert. denied, 428 U.S. 910 (1976). [ Footnote 16 ] See, e.g., Stone v. Powell, 428 U.S. at 428 U. S. 498 (BURGER, C.J., concurring); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 709-710 (1970). [ Footnote 17 ] See, e.g., Dunaway v. New York, 442 U. S. 200 , 442 U. S. 221 (1979) (STEVENS, J., concurring); Mertens & Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo. L.J. 365, 399-401 (1981). [ Footnote 18 ] Limiting the application of the exclusionary sanction may well increase the care with which magistrates scrutinize warrant applications. We doubt that magistrates are more desirous of avoiding the exclusion of evidence obtained pursuant to warrants they have issued than of avoiding invasions of privacy. Federal magistrates, moreover, are subject to the direct supervision of district courts. They may be removed for "incompetency, misconduct, neglect of duty, or physical or mental disability." 28 U.S.C. § 631(i). If a magistrate serves merely as a "rubber stamp" for the police or is unable to exercise mature judgment, closer supervision or removal provides a more effective remedy than the exclusionary rule. [ Footnote 19 ] Our discussion of the deterrent effect of excluding evidence obtained in reasonable reliance on a subsequently invalidated warrant assumes, of course, that the officers properly executed the warrant and searched only those places and for those objects that it was reasonable to believe were covered by the warrant. Cf. Massachusetts v. Sheppard, post at 468 U. S. 989 , n. 6 ("[I]t was not unreasonable for the police in this case to rely on the judge's assurances that the warrant authorized the search they had requested"). [ Footnote 20 ] We emphasize that the standard of reasonableness we adopt is an objective one. Many objections to a good faith exception assume that the exception will turn on the subjective good faith of individual officers. "Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment." Illinois v. Gates, 462 U.S. at 462 U. S. 261 , n. 15 (WHITE, J., concurring in judgment); see Dunaway v. New York, 442 U.S. at 442 U. S. 221 (STEVENS, J., concurring). The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits. United States v. Peltier, 422 U. S. 531 , 422 U. S. 542 (1975). As Professor Jerold Israel has observed: "The key to the [exclusionary] rule's effectiveness as a deterrent lies, I believe, in the impetus it has provided to police training programs that make officers aware of the limits imposed by the fourth amendment and emphasize the need to operate within those limits. [An objective good faith exception] is not likely to result in the elimination of such programs, which are now viewed as an important aspect of police professionalism. Neither is it likely to alter the tenor of those programs; the possibility that illegally obtained evidence may be admitted in borderline cases is unlikely to encourage police instructors to pay less attention to fourth amendment limitations. Finally, [it] should not encourage officers to pay less attention to what they are taught, as the requirement that the officer act in 'good faith' is inconsistent with closing one's mind to the possibility of illegality." Israel, supra, n. 14, at 1412-1413 (footnotes omitted). [ Footnote 21 ] According to the Attorney General's Task Force on Violent Crime, Final Report (1981), the situation in which an officer relies on a duly authorized warrant "is a particularly compelling example of good faith. A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions. Accordingly, we believe that there should be a rule which states that evidence obtained pursuant to and within the scope of a warrant is prima facie the result of good faith on the part of the officer seizing the evidence." Id. at 55. [ Footnote 22 ] To the extent that JUSTICE STEVENS' conclusions concerning the integrity of the courts, post at 468 U. S. 976 -978, rest on a foundation other than his judgment, which we reject, concerning the effects of our decision on the deterrence of police illegality, we find his argument unpersuasive. "Judicial integrity clearly does not mean that the courts must never admit evidence obtained in violation of the Fourth Amendment." United States v. Janis, 428 U. S. 433 , 428 U. S. 458 , n. 35 (1976). "While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence." Stone v. Powell, 428 U.S. at 428 U. S. 485 . Our cases establish that the question whether the use of illegally obtained evidence in judicial proceedings represents judicial participation in a Fourth Amendment violation and offends the integrity of the courts "is essentially the same as the inquiry into whether exclusion would serve a deterrent purpose. . . . The analysis showing that exclusion in this case has no demonstrated deterrent effect and is unlikely to have any significant such effect shows, by the same reasoning, that the admission of the evidence is unlikely to encourage violations of the Fourth Amendment." United States v. Janis, supra, at 428 U. S. 459 , n. 35. Absent unusual circumstances, when a Fourth Amendment violation has occurred because the police have reasonably relied on a warrant issued by a detached and neutral magistrate but ultimately found to be defective, "the integrity of the courts is not implicated." Illinois v. Gates, supra, at 462 U. S. 259 , n. 14 (WHITE, J., concurring in judgment). See Stone v. Powell, 428 U.S. at 428 U. S. 485 , n. 23; id. at 428 U. S. 540 (WHITE, J., dissenting); United States v. Peltier, 422 U. S. 531 , 422 U. S. 536 -539 (1975). [ Footnote 23 ] In Harlow, we eliminated the subjective component of the qualified immunity public officials enjoy in suits seeking damages for alleged deprivations of constitutional rights. The situations are not perfectly analogous, but we also eschew inquiries into the subjective beliefs of law enforcement officers who seize evidence pursuant to a subsequently invalidated warrant. Although we have suggested that, "[o]n occasion, the motive with which the officer conducts an illegal search may have some relevance in determining the propriety of applying the exclusionary rule," Scott v. United States, 436 U. S. 128 , 436 U. S. 139 , n. 13 (1978), we believe that "sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources." Massachusetts v. Painten, 389 U. S. 560 , 389 U. S. 565 (1968) (WHITE, J., dissenting). Accordingly, our good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization. In making this determination, all of the circumstances -- including whether the warrant application had previously been rejected by a different magistrate -- may be considered. [ Footnote 24 ] References to "officer" throughout this opinion should not be read too narrowly. It is necessary to consider the objective reasonableness not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable cause determination. Nothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a "bare bones" affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search. See Whiteley v. Walden, 401 U. S. 560 , 401 U. S. 568 (191). [ Footnote 25 ] The argument that defendants will lose their incentive to litigate meritorious Fourth Amendment claims as a result of the good faith exception we adopt today is unpersuasive. Although the exception might discourage presentation of insubstantial suppression motions, the magnitude of the benefit conferred on defendants by a successful motion makes it unlikely that litigation of colorable claims will be substantially diminished. [ Footnote 26 ] It has been suggested, in fact, that "the recognition of a 'penumbral zone,' within which an inadvertent mistake would not call for exclusion, . . . will make it less tempting for judges to bend fourth amendment standards to avoid releasing a possibly dangerous criminal because of a minor and unintentional miscalculation by the police." Schroeder, supra, n. 14, at 1420-1421 (footnote omitted); see Ashdown, Good Faith, the Exclusionary Remedy, and Rule-Oriented Adjudication in the Criminal Process, 24 Wm. & Mary L.Rev. 335, 383-384 (1983). JUSTICE BLACKMUN, concurring. The Court today holds that evidence obtained in violation of the Fourth Amendment by officers acting in objectively reasonable reliance on a search warrant issued by a neutral and detached magistrate need not be excluded, as a matter of federal law, from the case in chief of federal and state criminal prosecutions. In so doing, the Court writes another chapter in the volume of Fourth Amendment law opened by Weeks v. United States, 232 U. S. 383 (1914). I join the Court's opinion in this case and the one in Massachusetts v. Sheppard, post, p. 468 U. S. 981 , because I believe that the rule announced today advances the legitimate interests of the criminal justice system without sacrificing the individual rights protected by the Fourth Amendment. I write separately, however, to underscore what I regard as the unavoidably provisional nature of today's decisions. As the Court's opinion in this case makes clear, the Court has narrowed the scope of the exclusionary rule because of an empirical judgment that the rule has little appreciable effect in cases where officers act in objectively reasonable reliance on search warrants. See ante at 468 U. S. 918 -921. Because I share the view that the exclusionary rule is not a constitutionally compelled corollary of the Fourth Amendment itself, see ante at 468 U. S. 905 -906, I see no way to avoid making an empirical judgment of this sort, and I am satisfied that the Court has made the correct one on the information before it. Like all courts, we face institutional limitations on our ability to gather information about "legislative facts," and the exclusionary rule itself has exacerbated the shortage of hard data concerning the behavior of police officers in the absence of such a rule. See United States v. Janis, 428 U. S. 433 , 428 U. S. 448 -453 (1976). Nonetheless, we cannot escape the responsibility to decide the question before us, however imperfect our information may be, and I am prepared to join the Court on the information now at hand. Page 468 U. S. 928 What must be stressed, however, is that any empirical judgment about the effect of the exclusionary rule in a particular class of cases necessarily is a provisional one. By their very nature, the assumptions on which we proceed today cannot be cast in stone. To the contrary, they now will be tested in the real world of state and federal law enforcement, and this Court will attend to the results. If it should emerge from experience that, contrary to our expectations, the good faith exception to the exclusionary rule results in a material change in police compliance with the Fourth Amendment, we shall have to reconsider what we have undertaken here. The logic of a decision that rests on untested predictions about police conduct demands no less. If a single principle may be drawn from this Court's exclusionary rule decisions, from Weeks through Mapp v. Ohio, 367 U. S. 643 (1961), to the decisions handed down today, it is that the scope of the exclusionary rule is subject to change in light of changing judicial understanding about the effects of the rule outside the confines of the courtroom. It is incumbent on the Nation's law enforcement officers, who must continue to observe the Fourth Amendment in the wake of today's decisions, to recognize the double-edged nature of that principle. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. * Ten years ago, in United States v. Calandra, 414 U. S. 338 (1974), I expressed the fear that the Court's decision "may signal that a majority of my colleagues have positioned themselves to reopen the door [to evidence secured by official lawlessness] still further and abandon altogether the exclusionary rule in search and seizure cases." Id. at 414 U. S. 365 (dissenting opinion). Since then, in case after case, I have witnessed the Court's gradual but determined strangulation Page 468 U. S. 929 of the rule. [ Footnote 2/1 ] It now appears that the Court's victory over the Fourth Amendment is complete. That today's decisions represent the piece de resistance of the Court's past efforts cannot be doubted, for today the Court sanctions the use in the prosecution's case in chief of illegally obtained evidence against the individual whose rights have been violated -- a result that had previously been thought to be foreclosed. The Court seeks to justify this result on the ground that the "costs" of adhering to the exclusionary rule in cases like those before us exceed the "benefits." But the language of deterrence and of cost/benefit analysis, if used indiscriminately, can have a narcotic effect. It creates an illusion of technical precision and ineluctability. It suggests that not only constitutional principle but also empirical data support the majority's result. When the Court's analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the "costs" of excluding illegally obtained evidence loom to exaggerated heights, and where the "benefits" of such exclusion are made to disappear with a mere wave of the hand. The majority ignores the fundamental constitutional importance of what is at stake here. While the machinery of law enforcement, and indeed the nature of crime itself, have changed dramatically since the Fourth Amendment became part of the Nation's fundamental law in 1791, what the Framers understood then remains true today -- that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our Page 468 U. S. 930 commitment to protecting individual liberty and privacy. It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms. In the constitutional scheme they ordained, the sometimes unpopular task of ensuring that the government's enforcement efforts remain within the strict boundaries fixed by the Fourth Amendment was entrusted to the courts. As James Madison predicted in his address to the First Congress on June 8, 1789: "If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." 1 Annals of Cong. 439. If those independent tribunals lose their resolve, however, as the Court has done today, and give way to the seductive call of expediency, the vital guarantees of the Fourth Amendment are reduced to nothing more than a "form of words." Silverthorne Lumber Co. v. United States, 251 U. S. 385 , 251 U. S. 392 (1920). A proper understanding of the broad purposes sought to be served by the Fourth Amendment demonstrates that the principles embodied in the exclusionary rule rest upon a far firmer constitutional foundation than the shifting sands of the Court's deterrence rationale. But even if I were to accept the Court's chosen method of analyzing the question posed by these cases, I would still conclude that the Court's decision cannot be justified. I The Court holds that physical evidence seized by police officers reasonably relying upon a warrant issued by a detached Page 468 U. S. 931 and neutral magistrate is admissible in the prosecution's case in chief, even though a reviewing court has subsequently determined either that the warrant was defective, No. 82-963, or that those officers failed to demonstrate when applying for the warrant that there was probable cause to conduct the search, No. 82-1771. I have no doubt that these decisions will prove in time to have been a grave mistake. But, as troubling and important as today's new doctrine may be for the administration of criminal justice in this country, the mode of analysis used to generate that doctrine also requires critical examination, for it may prove in the long run to pose the greater threat to our civil liberties. A At bottom, the Court's decision turns on the proposition that the exclusionary rule is merely a "'judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right.'" Ante at 468 U.S. 906 , quoting United States v. Calandra, 414 U.S. at 414 U. S. 348 . The germ of that idea is found in Wolf v. Colorado, 338 U. S. 25 (1949), and although I had thought that such a narrow conception of the rule had been forever put to rest by our decision in Mapp v. Ohio, 367 U. S. 643 (1961), it has been revived by the present Court and reaches full flower with today's decision. The essence of this view, as expressed initially in the Calandra opinion and as reiterated today, is that the sole "purpose of the Fourth Amendment is to prevent unreasonable governmental intrusions into the privacy of one's person, house, papers, or effects. The wrong condemned is the unjustified governmental invasion of these areas of an individual's life. That wrong . . . is fully accomplished by the original search without probable cause." 414 U.S. at 414 U. S. 354 (emphasis added); see also ante at 468 U.S. 906 . This reading of the Amendment implies that its proscriptions are directed solely at those government agents who may actually invade an individual's constitutionally Page 468 U. S. 932 protected privacy. The courts are not subject to any direct constitutional duty to exclude illegally obtained evidence, because the question of the admissibility of such evidence is not addressed by the Amendment. This view of the scope of the Amendment relegates the judiciary to the periphery. Because the only constitutionally cognizable injury has already been "fully accomplished" by the police by the time a case comes before the courts, the Constitution is not itself violated if the judge decides to admit the tainted evidence. Indeed, the most the judge can do is wring his hands and hope that perhaps, by excluding such evidence, he can deter future transgressions by the police. Such a reading appears plausible, because, as critics of the exclusionary rule never tire of repeating, [ Footnote 2/2 ] the Fourth Amendment makes no express provision for the exclusion of evidence secured in violation of its commands. A short answer to this claim, of course, is that many of the Constitution's most vital imperatives are stated in general terms, and the task of giving meaning to these precepts is therefore left to subsequent judicial decisionmaking in the context of concrete cases. The nature of our Constitution, as Chief Justice Marshall long ago explained, "requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 407 (1819). A more direct answer may be supplied by recognizing that the Amendment, like other provisions of the Bill of Rights, restrains the power of the government as a whole; it does not specify only a particular agency and exempt all others. The judiciary is responsible, no less than the executive, for ensuring that constitutional rights are respected. Page 468 U. S. 933 When that fact is kept in mind, the role of the courts and their possible involvement in the concerns of the Fourth Amendment comes into sharper focus. Because seizures are executed principally to secure evidence, and because such evidence generally has utility in our legal system only in the context of a trial supervised by a judge, it is apparent that the admission of illegally obtained evidence implicates the same constitutional concerns as the initial seizure of that evidence. Indeed, by admitting unlawfully seized evidence, the judiciary becomes a part of what is, in fact, a single governmental action prohibited by the terms of the Amendment. [ Footnote 2/3 ] Once that connection between the evidence-gathering role of the police and the evidence-admitting function of the courts is acknowledged, the plausibility of the Court's interpretation becomes more suspect. Certainly nothing in the language or history of the Fourth Amendment suggests that a recognition of this evidentiary link between the police and the courts was meant to be foreclosed. [ Footnote 2/4 ] It is difficult to give any meaning Page 468 U. S. 934 at all to the limitations imposed by the Amendment if they are read to proscribe only certain conduct by the police, but to allow other agents of the same government to take advantage of evidence secured by the police in violation of its requirements. [ Footnote 2/5 ] The Amendment therefore must be read to condemn not only the initial unconstitutional invasion of privacy -- which is done, after all, for the purpose of securing evidence -- but also the subsequent use of any evidence so obtained. Page 468 U. S. 935 The Court evades this principle by drawing an artificial line between the constitutional rights and responsibilities that are engaged by actions of the police and those that are engaged when a defendant appears before the courts. According to the Court, the substantive protections of the Fourth Amendment are wholly exhausted at the moment when police unlawfully invade an individual's privacy, and thus no substantive force remains to those protections at the time of trial when the government seeks to use evidence obtained by the police. I submit that such a crabbed reading of the Fourth Amendment casts aside the teaching of those Justices who first formulated the exclusionary rule, and rests ultimately on an impoverished understanding of judicial responsibility in our constitutional scheme. For my part, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" comprises a personal right to exclude all evidence secured by means of unreasonable searches and seizures. The right to be free from the initial invasion of privacy and the right of exclusion are coordinate components of the central embracing right to be free from unreasonable searches and seizures. Such a conception of the rights secured by the Fourth Amendment was unquestionably the original basis of what has come to be called the exclusionary rule when it was first formulated in Weeks v. United States, 232 U. S. 383 (1914). There the Court considered whether evidence seized in violation of the Fourth Amendment by a United States Marshal could be admitted at trial after the defendant had moved that the evidence be returned. Significantly, although the Court considered the Marshal's initial invasion of the defendant's home to be unlawful, it went on to consider a question that "involves the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused, seized in his house in his absence without his authority, by a United States Marshal holding no Page 468 U. S. 936 warrant for . . . the search of his premises." Id. at 232 U. S. 393 . In answering that question, Justice Day, speaking for a unanimous Court, expressly recognized that the commands of the Fourth Amendment were addressed to both the courts and the Executive Branch: "The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights." Id. at 232 U. S. 391 -392. The heart of the Weeks opinion, and for me the beginning of wisdom about the Fourth Amendment's proper meaning, is found in the following passage: "If letters and private documents can . . . be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and [federal] officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great Page 468 U. S. 937 principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution. . . . Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the Government, and, under color of his office, undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action. . . . To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution intended for the protection of the people against such unauthorized action." Id. at 232 U. S. 393 -394. What this passage succinctly captures is the essential recognition, ignored by the present Court, that seizures are generally executed for the purpose of bringing "proof to the aid of the Government," id. at 232 U. S. 393 , that the utility of such evidence in a criminal prosecution arises ultimately in the context of the courts, and that the courts therefore cannot be absolved of responsibility for the means by which evidence is obtained. As the Court in Weeks clearly recognized, the obligations cast upon government by the Fourth Amendment are not confined merely to the police. In the words of Justice Holmes: "If the search and seizure are unlawful as invading personal rights secured by the Constitution, those rights would be infringed yet further if the evidence were allowed to be used." Dodge v. United States, 272 U. S. 530 , 272 U. S. 32 (1926). As the Court further explained in Olmstead v. United States, 277 U. S. 438 (1928): "The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if obtained by government officers through a Page 468 U. S. 938 violation of the Amendment. Theretofore, many had supposed, under the ordinary common law rules, if the tendered evidence was pertinent, the method of obtaining it was unimportant. . . . But in the Weeks case and those which followed, this Court decided with great emphasis, and established as the law for the federal courts, that the protection of the Fourth Amendment would be much impaired unless it was held that not only was the official violator of the rights under the Amendment subject to an action at the suit of the injured defendant, but also that the evidence thereby obtained could not be received." Id. at 277 U. S. 462 -463. That conception of the rule, in my view, is more faithful to the meaning and purpose of the Fourth Amendment and to the judiciary's role as the guardian of the people's constitutional liberties. In contrast to the present Court's restrictive reading, the Court in Weeks recognized that, if the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other; because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual's Fourth Amendment rights may be undermined as completely by one as by the other. B From the foregoing, it is clear why the question whether the exclusion of evidence would deter future police misconduct was never considered a relevant concern in the early cases from Weeks to Olmstead. [ Footnote 2/6 ] In those formative decisions, the Court plainly understood that the exclusion of illegally obtained evidence was compelled not by judicially fashioned Page 468 U. S. 939 remedial purposes, but rather by a direct constitutional command. A new phase in the history of the rule, however, opened with the Court's decision in Wolf v. Colorado, 338 U. S. 25 (1949). Although that decision held that the security of one's person and privacy protected by the Fourth Amendment was "implicit in the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause" of the Fourteenth Amendment, id. at 338 U. S. 27 -28, quoting Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 (1937), the Court went on, in what can only be regarded as a tour de force of constitutional obfuscation, to say that the "ways of enforcing such a basic right raise questions of a different order," 338 U.S. at 338 U. S. 28 . Notwithstanding the force of the Weeks doctrine that the Fourth Amendment required exclusion, a state court was free to admit illegally seized evidence, according to the Court in Wolf, so long as the State had devised some other "effective" means of vindicating a defendant's Fourth Amendment rights. 338 U.S. at 338 U. S. 31 . Twelve years later, in Mapp v. Ohio, 367 U. S. 643 (1961), however, the Court restored the original understanding of the Weeks case by overruling the holding of Wolf and repudiating its rationale. Although, in the course of reaching this conclusion, the Court in Mapp responded at certain points to the question, first raised in Wolf, of whether the exclusionary rule was an "effective" remedy compared to alternative means of enforcing the right, see 367 U.S. at 367 U. S. 651 -653, it nevertheless expressly held that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." Id. at 367 U. S. 655 (emphasis added). In the Court's view, the exclusionary rule was not one among a range of options to be selected at the discretion of judges; it was "an essential part of both the Fourth and Fourteenth Amendments." Id. at 367 U. S. 657 . Rejection of the Wolf approach was constitutionally required, the Court explained, because "the admission of the new constitutional right by Wolf could not consistently tolerate denial of Page 468 U. S. 940 its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment." 367 U.S. at 367 U. S. 656 . Indeed, no other explanation suffices to account for the Court's holding in Mapp, since the only possible predicate for the Court's conclusion that the States were bound by the Fourteenth Amendment to honor the Weeks doctrine is that the exclusionary rule was "part and parcel of the Fourth Amendment's limitation upon [governmental] encroachment of individual privacy." 367 U.S. at 367 U. S. 651 . [ Footnote 2/7 ] Despite this clear pronouncement, however, the Court since Calandra has gradually pressed the deterrence rationale for the rule back to center stage. See, e.g., United States v. Peltier, 422 U. S. 531 (1975); United States v. Janis, 428 U. S. 433 (1976); Stone v. Powell, 428 U. S. 465 (1976). The various arguments advanced by the Court in this campaign have only strengthened my conviction that the deterrence theory is both misguided and unworkable. First, Page 468 U. S. 941 the Court has frequently bewailed the "cost" of excluding reliable evidence. In large part, this criticism rests upon a refusal to acknowledge the function of the Fourth Amendment itself. If nothing else, the Amendment plainly operates to disable the government from gathering information and securing evidence in certain ways. In practical terms, of course, this restriction of official power means that some incriminating evidence inevitably will go undetected if the government obeys these constitutional restraints. It is the loss of that evidence that is the "price" our society pays for enjoying the freedom and privacy safeguarded by the Fourth Amendment. Thus, some criminals will go free not, in Justice (then Judge) Cardozo's misleading epigram, "because the constable has blundered," People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926), but rather because official compliance with Fourth Amendment requirements makes it more difficult to catch criminals. Understood in this way, the Amendment directly contemplates that some reliable and incriminating evidence will be lost to the government; therefore, it is not the exclusionary rule, but the Amendment itself, that has imposed this cost. [ Footnote 2/8 ] Page 468 U. S. 942 In addition, the Court's decisions over the past decade have made plain that the entire enterprise of attempting to assess the benefits and costs of the exclusionary rule in various contexts is a virtually impossible task for the judiciary to perform honestly or accurately. Although the Court's language in those cases suggests that some specific empirical basis may support its analyses, the reality is that the Court's opinions represent inherently unstable compounds of intuition, hunches, and occasional pieces of partial and often inconclusive data. In Calandra, for example, the Court, in considering whether the exclusionary rule should apply in grand jury proceedings, had before it no concrete evidence whatever concerning the impact that application of the rule in such proceedings would have either in terms of the long-term costs or the expected benefits. To the extent empirical data are available regarding the general costs and benefits of the exclusionary rule, such data have shown, on the one hand, as the Court acknowledges today, that the costs are not as substantial as critics have asserted in the past, see ante at 468 U. S. 907 -908, n. 6, and, on the other hand, that, while the exclusionary rule may well have certain deterrent effects, it is extremely difficult to determine with any degree of precision whether the incidence of unlawful conduct by police is now lower than it was prior to Mapp. See United States v. Janis, 428 U.S. at 428 U. S. 449 -453, and n. 22; Stone v. Powell, 428 U.S. at 428 U. S. 492 , n. 32. [ Footnote 2/9 ] The Page 468 U. S. 943 Court has sought to turn this uncertainty to its advantage by casting the burden of proof upon proponents of the rule, see, e.g., United States v. Janis, supra, at 428 U. S. 453 -454. "Obviously," however, "the assignment of the burden of proof on an issue where evidence does not exist and cannot be obtained is outcome-determinative. [The] assignment of the burden is merely a way of announcing a predetermined conclusion. [ Footnote 2/10 ]" By remaining within its redoubt of empiricism and by basing the rule solely on the deterrence rationale, the Court has robbed the rule of legitimacy. A doctrine that is explained as if it were an empirical proposition, but for which there is only limited empirical support, is both inherently unstable and an easy mark for critics. The extent of this Court's fidelity to Fourth Amendment requirements, however, should not turn on such statistical uncertainties. I share the view, expressed by Justice Stewart for the Court in Faretta v. California, 422 U. S. 806 (1975), that "[p]ersonal liberties are not rooted in the law of averages." Id. at 422 U. S. 834 . Rather than seeking to give effect to the liberties secured by the Fourth Amendment through guesswork about deterrence, the Court should restore to its proper place the principle framed 70 years ago in Weeks that an individual whose privacy has been invaded in violation of the Fourth Amendment has a right grounded in that Amendment to prevent the government from subsequently making use of any evidence so obtained. Page 468 U. S. 944 II Application of that principle clearly requires affirmance in the two cases decided today. In the first, United States v. Leon, No. 82-1771, it is conceded by the Government and accepted by the Court that the affidavit filed by the police officers in support of their application for a search warrant failed to provide a sufficient basis on which a neutral and detached magistrate could conclude that there was probable cause to issue the warrant. Specifically, it is conceded that the officers' application for a warrant was based in part on information supplied by a confidential informant of unproven reliability that was over five months old by the time it was relayed to the police. Although the police conducted an independent investigation on the basis of this tip, both the District Court and the Court of Appeals concluded that the additional information gathered by the officers failed to corroborate the details of the informant's tip, and was "as consistent with innocence as . . . with guilt." App. to Pet. for Cert. 10a. The warrant, therefore, should never have issued. Stripped of the authority of the warrant, the conduct of these officers was plainly unconstitutional -- it amounted to nothing less than a naked invasion of the privacy of respondents' homes without the requisite justification demanded by the Fourth Amendment. In order to restore the Government to the position it would have occupied had this unconstitutional search not occurred, therefore, it was necessary that the evidence be suppressed. As we said in Coolidge v. New Hampshire, 403 U. S. 443 (1971), the Warrant Clause is not "an inconvenience to be somehow 'weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the 'well-intentioned but mistakenly overzealous executive officers' who are part of any system of law enforcement." Id. at 403 U. S. 481 (footnote omitted). A close examination of the facts of this case reveals that this is neither an extraordinary nor indeed a very costly step. Page 468 U. S. 945 The warrant had authorized a search for cocaine, methaqualone tablets, and miscellaneous narcotics paraphernalia at several locations: a condominium at 7902 Via Magdalena in Los Angeles; a residence at 620 Price Drive in Burbank; a residence at 716 South Sunset Canyon in Burbank; and four automobiles owned respectively by respondents Leon, Sanchez, Stewart, and Del Castillo. App. 31-33. Pursuant to this warrant, the officers seized approximately four pounds of cocaine and over 1,000 methaqualone tablets from the Via Magdalena condominium, nearly one pound of cocaine from the Sunset Canyon residence, about an ounce of cocaine from the Price Drive residence, and certain paraphernalia from Del Castillo's and Stewart's automobiles. On the basis of this and other evidence, the four respondents were charged with violating 21 U.S.C. § 846 for conspiring to possess and distribute cocaine, and § 841(a)(1) for possessing methaqualone and cocaine with intent to distribute. The indictment specifically alleged that respondents had maintained the Via Magdalena condominium as a storage area for controlled substances which they distributed to prospective purchasers. App. 27-28. At the suppression hearing, the District Court determined that none of the respondents had a sufficient expectation of privacy to contest the search of the Via Magdalena condominium, that respondents Stewart and Sanchez could challenge the search of their home at Price Drive, that respondent Leon was entitled to challenge the search of his home at Sunset Canyon, and that respondents Del Castillo and Stewart could contest the search of their cars. Given its finding that probable cause to issue the warrant was lacking, the District Court ruled that the evidence from the Price Drive residence could not be used against respondents Stewart and Sanchez, that evidence from the Sunset Canyon residence could not be used against Leon, and that evidence obtained from both Del Castillo's and Stewart's automobiles could not be used against them. App. to Pet. for Cert. 10a-13a. Page 468 U. S. 946 The tenor of the Court's opinion suggests that this order somehow imposed a grave and presumably unjustifiable cost on society. Such a suggestion, however, is a gross exaggeration. Since the indictment focused upon a conspiracy among all respondents to use the Via Magdalena condominium as a storage area for controlled substances, and since the bulk of the evidence seized was from that condominium and was plainly admissible under the District Court's order, the Government would clearly still be able to present a strong case to the jury following the court's suppression order. I emphasize these details not to suggest how the Government's case would fare before the jury, but rather to clarify a point that is lost in the Court's rhetorical excesses over the costs of the exclusionary rule -- namely, that the suppression of evidence will certainly tend to weaken the Government's position, but it will rarely force the Government to abandon a prosecution. Cf. infra, at 468 U. S. 950 -951, and n. 11. In my view, a doctrine that preserves intact the constitutional rights of the accused, and, at the same time, is sufficiently limited to permit society's legitimate and pressing interest in criminal law enforcement to be served should not be so recklessly discarded. It is a doctrine that gives life to the "very heart of the Fourth Amendment directive: that . . . a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises." United States v. United States District Court, 407 U. S. 297 , 407 U. S. 316 (1972). In the second case before the Court, Massachusetts v. Sheppard, No. 82-963, the State concedes and the Court accepts that the warrant issued to search respondent's home completely failed to state with particularity the things to be seized. Indeed, the warrant expressly and particularly described things such as "controlled substance[s]" and "other paraphernalia used in, for, or in connection with the unlawful possession or use of any controlled substance" that the police had no reason whatsoever to believe were to be found in Page 468 U. S. 947 respondent's home. App. 17a. Given the Fourth Amendment's requirement that "no Warrants shall issue, but upon probable cause . . . and particularly describing the . . . things to be seized," this warrant should never have been issued. The police who entered respondent's home, therefore, were without constitutional authority to do so. Although the Court's opinion tends to overlook this fact, the requirement of particularity is not a mere "technicality," it is an express constitutional command. Ybarra v. Illinois, 444 U. S. 85 , 444 U. S. 92 (1979); Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979); Stanford v. Texas, 379 U. S. 476 (1965); Marron v. United States, 275 U. S. 192 , 275 U. S. 196 (1927). The purpose of that requirement is to prevent precisely the kind of governmental conduct that the faulty warrant at issue here created a grave risk of permitting -- namely, a search that was not narrowly and particularly limited to the things that a neutral and detached magistrate had reason to believe might be found at respondent's home. Although it is true, as JUSTICE STEVENS observes, see post at 468 U. S. 964 , that the affidavit submitted by the police set forth with particularity those items that they sought authority to search for, it is nevertheless clear that the warrant itself -- the document which actually gave the officers legal authority to invade respondent's privacy -- made no mention of these items. And, although it is true that the particular officers who applied for the warrant also happened to execute it and did so in accordance with the limits proposed in their affidavit, this happenstance should have no bearing on the central question whether these officers secured that prior judicial authority to conduct their search required by the Fourth Amendment. As we made clear in United States v. United States District Court, supra, at 407 U. S. 317 (footnote omitted), "[t]he Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised." See also Katz v. United States, 389 U. S. 347 , 389 U. S. 356 -357 (1967) ("this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime Page 468 U. S. 948 and voluntarily confined their activities to the least intrusive means consistent with that end"). Had the warrant actually been enforced by officers other than those who prepared the affidavit, the same result might not have occurred; indeed, the wholly erroneous nature of the warrant might have led such officers to feel at liberty to roam throughout respondent's home in search of drugs. Cf. Whiteley v. Warden, 401 U. S. 560 (1971). I therefore fail to see how a search pursuant to such a fundamentally defective warrant can be characterized as "reasonable . " What the Framers of the Bill of Rights sought to accomplish through the express requirements of the Fourth Amendment was to define precisely the conditions under which government agents could search private property so that citizens would not have to depend solely upon the discretion and restraint of those agents for the protection of their privacy. Although the self-restraint and care exhibited by the officers in this case is commendable, that alone can never be a sufficient protection for constitutional liberties. I am convinced that it is not too much to ask that an attentive magistrate take those minimum steps necessary to ensure that every warrant he issues describes with particularity the things that his independent review of the warrant application convinces him are likely to be found in the premises. And I am equally convinced that it is not too much to ask that well-trained and experienced police officers take a moment to check that the warrant they have been issued at least describes those things for which they have sought leave to search. These convictions spring not from my own view of sound criminal law enforcement policy, but are instead compelled by the language of the Fourth Amendment and the history that led to its adoption. III Even if I were to accept the Court's general approach to the exclusionary rule, I could not agree with today's result. Page 468 U. S. 949 There is no question that, in the hands of the present Court, the deterrence rationale has proved to be a powerful tool for confining the scope of the rule. In Calandra, for example, the Court concluded that the "speculative and undoubtedly minimal advance in the deterrence of police misconduct," was insufficient to outweigh the "expense of substantially impeding the role of the grand jury." 414 U.S. at 414 U. S. 351 -352. In Stone v. Powell, the Court found that "the additional contribution, if any, of the consideration of search and seizure claims of state prisoners on collateral review is small in relation to the costs." 428 U.S. at 428 U. S. 493 . In United States v. Janis, 428 U. S. 433 (1976), the Court concluded that "exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion." Id. at 428 U. S. 454 . And in an opinion handed down today, the Court finds that the "balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings held by the [Immigration and Naturalization Service]." INS v. Lopez-Mendoza, post at 468 U. S. 1050 . Thus, in this bit of judicial stagecraft, while the sets sometimes change, the actors always have the same lines. Given this well-rehearsed pattern, one might have predicted with some assurance how the present case would unfold. First there is the ritual incantation of the "substantial social costs" exacted by the exclusionary rule, followed by the virtually foreordained conclusion that, given the marginal benefits, application of the rule in the circumstances of these cases is not warranted. Upon analysis, however, such a result cannot be justified even on the Court's own terms. At the outset, the Court suggests that society has been asked to pay a high price -- in terms either of setting guilty persons free or of impeding the proper functioning of trials -- as a result of excluding relevant physical evidence in cases Page 468 U. S. 950 where the police, in conducting searches and seizing evidence, have made only an "objectively reasonable" mistake concerning the constitutionality of their actions. See ante at 468 U. S. 907 -908. But what evidence is there to support such a claim? Significantly, the Court points to none, and, indeed, as the Court acknowledges, see ante at 468 U. S. 907 -908, n. 6, recent studies have demonstrated that the "costs" of the exclusionary rule -- calculated in terms of dropped prosecutions and lost convictions -- are quite low. Contrary to the claims of the rule's critics that exclusion leads to "the release of countless guilty criminals," Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388 , 403 U. S. 416 (1971) (BURGER, C.J., dissenting), these studies have demonstrated that federal and state prosecutors very rarely drop cases because of potential search and seizure problems. For example, a 1979 study prepared at the request of Congress by the General Accounting Office reported that only 0.4% of all cases actually declined for prosecution by federal prosecutors were declined primarily because of illegal search problems. Report of the Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 14 (1979). If the GAO data are restated as a percentage of all arrests, the study shows that only 0.2% of all felony arrests are declined for prosecution because of potential exclusionary rule problems. See Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NU Study and Other Studies of "Lost" Arrests, 1983 A.B.F.Res.J. 611, 635. [ Footnote 2/11 ] Of course, these data describe Page 468 U. S. 951 only the costs attributable to the exclusion of evidence in all cases; the costs due to the exclusion of evidence in the narrower category of cases where police have made objectively reasonable mistakes must necessarily be even smaller. The Court, however, ignores this distinction and mistakenly weighs the aggregated costs of exclusion in all cases, irrespective of the circumstances that led to exclusion, see ante at 468 U. S. 907 , against the potential benefits associated with only those cases in which evidence is excluded because police reasonably but mistakenly believe that their conduct does not violate the Fourth Amendment, see ante at 468 U. S. 915 -921. When such faulty scales are used, it is little wonder that the balance tips in favor of restricting the application of the rule. Page 468 U. S. 952 What then supports the Court's insistence that this evidence be admitted? Apparently, the Court's only answer is that, even though the costs of exclusion are not very substantial, the potential deterrent effect in these circumstances is so marginal that exclusion cannot be justified. The key to the Court's conclusion in this respect is its belief that the prospective deterrent effect of the exclusionary rule operates only in those situations in which police officers, when deciding whether to go forward with some particular search, have reason to know that their planned conduct will violate the requirements of the Fourth Amendment. See ante at 468 U. S. 919 -921. If these officers in fact understand (or reasonably should understand because the law is well settled) that their proposed conduct will offend the Fourth Amendment and that, consequently, any evidence they seize will be suppressed in court, they will refrain from conducting the planned search. In those circumstances, the incentive system created by the exclusionary rule will have the hoped-for deterrent effect. But in situations where police officers reasonably (but mistakenly) believe that their planned conduct satisfies Fourth Amendment requirements -- presumably either (a) because they are acting on the basis of an apparently valid warrant, or (b) because their conduct is only later determined to be invalid as a result of a subsequent change in the law or the resolution of an unsettled question of law -- then such officers will have no reason to refrain from conducting the search, and the exclusionary rule will have no effect. At first blush, there is some logic to this position. Undoubtedly, in the situation hypothesized by the Court, the existence of the exclusionary rule cannot be expected to have any deterrent effect on the particular officers at the moment they are deciding whether to go forward with the search. Indeed, the subsequent exclusion of any evidence seized under such circumstances appears somehow "unfair" to the particular officers involved. As the Court suggests, these officers have acted in what they thought was an appropriate Page 468 U. S. 953 and constitutionally authorized manner, but then the fruit of their efforts is nullified by the application of the exclusionary rule. Ante at 468 U. S. 920 -921. The flaw in the Court's argument, however, is that its logic captures only one comparatively minor element of the generally acknowledged deterrent purposes of the exclusionary rule. To be sure, the rule operates to some extent to deter future misconduct by individual officers who have had evidence suppressed in their own cases. But what the Court overlooks is that the deterrence rationale for the rule is not designed to be, nor should it be thought of as, a form of "punishment" of individual police officers for their failures to obey the restraints imposed by the Fourth Amendment. See United States v. Peltier, 422 U.S. at 422 U. S. 556 -557 (BRENNAN, J., dissenting). Instead, the chief deterrent function of the rule is its tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally. [ Footnote 2/12 ] Thus, as the Court has previously Page 468 U. S. 954 recognized, "over the long-term, [the] demonstration [provided by the exclusionary rule] that our society attaches serious consequences to violation of constitutional rights is thought to encourage those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system." Stone v. Powell, 428 U.S. at 428 U. S. 492 . It is only through such an institutionwide mechanism that information concerning Fourth Amendment standards can be effectively communicated to rank-and-file officers. [ Footnote 2/13 ] Page 468 U. S. 955 If the overall educational effect of the exclusionary rule is considered, application of the rule to even those situations in which individual police officers have acted on the basis of a reasonable but mistaken belief that their conduct was authorized can still be expected to have a considerable long-term deterrent effect. If evidence is consistently excluded in these circumstances, police departments will surely be prompted to instruct their officers to devote greater care and attention to providing sufficient information to establish probable cause when applying for a warrant, and to review with some attention the form of the warrant that they have been issued, rather than automatically assuming that whatever document the magistrate has signed will necessarily comport with Fourth Amendment requirements. After today's decisions, however, that institutional incentive will be lost. Indeed, the Court's "reasonable mistake" exception to the exclusionary rule will tend to put a premium on police ignorance of the law. Armed with the assurance provided by today's decisions that evidence will always be admissible whenever an officer has "reasonably" relied upon a warrant, police departments will be encouraged to train officers that, if a warrant has simply been signed, it is reasonable, without more, to rely on it. Since in close cases there will no longer be any incentive to err on the side of constitutional behavior, police would have every reason to adopt a "let's-wait-until-it's-decided" approach in situations in which there is a question about a warrant's validity or the basis for its issuance. Cf. United States v. Johnson, 457 U. S. 537 , 457 U. S. 561 (1982). [ Footnote 2/14 ] Page 468 U. S. 956 Although the Court brushes these concerns aside, a host of grave consequences can be expected to result from its decision to carve this new exception out of the exclusionary rule. A chief consequence of today's decisions will be to convey a clear and unambiguous message to magistrates that their decisions to issue warrants are now insulated from subsequent judicial review. Creation of this new exception for good faith reliance upon a warrant implicitly tells magistrates that they need not take much care in reviewing warrant applications, since their mistakes will, from now on, have virtually no consequence: if their decision to issue a warrant was correct, the evidence will be admitted; if their decision was incorrect but the police relied in good faith on the warrant, the evidence will also be admitted. Inevitably, the care and attention devoted to such an inconsequential chore will dwindle. Although the Court is correct to note that magistrates do not share the same stake in the outcome of a criminal case as the police, they nevertheless need to appreciate that their role is of some moment in order to continue performing the important task of carefully reviewing warrant applications. Today's decisions effectively remove that incentive. [ Footnote 2/15 ] Page 468 U. S. 957 Moreover, the good faith exception will encourage police to provide only the bare minimum of information in future warrant applications. The police will now know that, if they can secure a warrant, so long as the circumstances of its issuance are not "entirely unreasonable," ante at 468 U. S. 923 , all police conduct pursuant to that warrant will be protected from further judicial review. [ Footnote 2/16 ] The clear incentive that operated in the past to establish probable cause adequately because reviewing courts would examine the magistrate's judgment carefully, see, e.g., Franks v. Delaware, 438 U. S. 154 , 438 U. S. 169 -170 (1978); Jones v. United States, 362 U. S. 257 , 362 U. S. 271 -272 (1960); Giordenello v. United States, 357 U. S. 480 , 357 U. S. 483 (1958), has now been so completely vitiated that the police need only show that it was not "entirely unreasonable" under the circumstances Page 468 U. S. 958 of a particular case for them to believe that the warrant they were issued was valid. See ante at 468 U. S. 923 . The long-run effect unquestionably will be to undermine the integrity of the warrant process. Finally, even if one were to believe, as the Court apparently does, that police are hobbled by inflexible and hypertechnical warrant procedures, today's decisions cannot be justified. This is because, given the relaxed standard for assessing probable cause established just last Term in Illinois v. Gates, 462 U. S. 213 (1983), the Court's newly fashioned good faith exception, when applied in the warrant context, will rarely, if ever, offer any greater flexibility for police than the Gates standard already supplies. In Gates, the Court held that "[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 462 U. S. 238 . The task of a reviewing court is confined to determining whether "the magistrate had a substantial basis for . . . conclud[ing]' that probable cause existed." Ibid. Given such a relaxed standard, it is virtually inconceivable that a reviewing court, when faced with a defendant's motion to suppress, could first find that a warrant was invalid under the new Gates standard, but then, at the same time, find that a police officer's reliance on such an invalid warrant was nevertheless "objectively reasonable" under the test announced today. [ Footnote 2/17 ] Because the two standards overlap so completely, it is unlikely that a warrant could be found invalid under Gates and yet the police reliance upon it could be seen as objectively reasonable; otherwise, we would have to entertain the mind-boggling Page 468 U. S. 959 concept of objectively reasonable reliance upon an objectively unreasonable warrant. This paradox, as JUSTICE STEVENS suggests, see post at 468 U. S. 961 -962, perhaps explains the Court's unwillingness to remand No. 82-1771 for reconsideration in light of Gates, for it is quite likely that, on remand, the Court of Appeals would find no violation of the Fourth Amendment, thereby demonstrating that the supposed need for the good faith exception in this context is more apparent than real. Therefore, although the Court's decisions are clearly limited to the situation in which police officers reasonably rely upon an apparently valid warrant in conducting a search, I am not at all confident that the exception unleashed today will remain so confined. Indeed, the full impact of the Court's regrettable decisions will not be felt until the Court attempts to extend this rule to situations in which the police have conducted a warrantless search solely on the basis of their own judgment about the existence of probable cause and exigent circumstances. When that question is finally posed, I for one will not be surprised if my colleagues decide once again that we simply cannot afford to protect Fourth Amendment rights. IV When the public, as it quite properly has done in the past as well as in the present, demands that those in government increase their efforts to combat crime, it is all too easy for those government officials to seek expedient solutions. In contrast to such costly and difficult measures as building more prisons, improving law enforcement methods, or hiring more prosecutors and judges to relieve the overburdened court systems in the country's metropolitan areas, the relaxation of Fourth Amendment standards seems a tempting, costless means of meeting the public's demand for better law enforcement. In the long run, however, we as a society pay a heavy price for such expediency, because, as Justice Jackson observed, the rights guaranteed in the Fourth Amendment Page 468 U. S. 960 "are not mere second-class rights, but belong in the catalog of indispensable freedoms." Brinegar v. United States, 338 U. S. 160 , 338 U. S. 180 (1949) (dissenting opinion). Once lost, such rights are difficult to recover. There is hope, however, that in time this or some later Court will restore these precious freedoms to their rightful place as a primary protection for our citizens against overreaching officialdom. I dissent. * [This opinion applies also to No. 82-963, Massachusetts v. Sheppard, post, p. 468 U. S. 981 .] [ Footnote 2/1 ] See, e.g., United States v. Peltier, 422 U. S. 531 , 422 U. S. 544 (1975) (BRENNAN, J., dissenting); United States v. Janis, 428 U. S. 433 , 428 U. S. 460 (1976) (BRENNAN, J., dissenting); Stone v. Powell, 428 U. S. 465 , 428 U. S. 502 (1976) (BRENNAN, J., dissenting); Michigan v. DeFillippo, 443 U. S. 31 , 443 U. S. 41 (1979) (BRENNAN, J., dissenting); United States v. Havens, 446 U. S. 620 , 446 U. S. 629 (1980) (BRENNAN, J., dissenting). [ Footnote 2/2 ] See, e.g., Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62 Judicature 215 (1978); S. Schlesinger, Exclusionary Injustice (1977). [ Footnote 2/3 ] In deciding to enforce the exclusionary rule as a matter of state law, the California Supreme Court clearly recognized this point: "When, as in the present case, the very purpose of an illegal search and seizure is to get evidence to introduce at a trial, the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced. It is no answer to say that a distinction should be drawn between the government acting as law enforcer and the gatherer of evidence and the government acting as judge." People v. Cahan, 44 Cal. 2d 434 , 445, 282 P.2d 905, 912 (1955). For a thoughtful examination of this point, see Schrock & Welsh, Up from Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn.L.Rev. 251, 289-307 (1974). [ Footnote 2/4 ] Examination of the early state declarations of rights which formed the models for the Fourth Amendment reveals that they were aimed as much at explicitly limiting the manner in which government could gather evidence as at protecting individual privacy. For example, the Massachusetts Constitution of 1780 provided: "Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil Officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued, but in cases, and with the formalities prescribed by the laws." Art. XIV of the Declaration of Rights of 1780. See generally T. Taylor, Two Studies in Constitutional Interpretation 41-43 (1969); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 51-105 (1970); J. Lanynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 30-48 (1966); Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development, and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum.L.Rev. 1365, 1369 (1983). [ Footnote 2/5 ] In Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920), the Court expressly recognized this point in rejecting the Government's contention that it should be permitted to make use of knowledge obtained in violation of the Fourth Amendment: "The Government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means which otherwise it would not have had." "The proposition could not be presented more nakedly. It is that, although of course its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them. . . . In our opinion, such is not the law. It reduces the Fourth Amendment to a form of words. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. " Id. at 251 U. S. 391 -392 (citations omitted) (emphasis added). [ Footnote 2/6 ] See generally Kamisar, Does (Did) (Should) The Exclusionary Rule Rest on a "Principled Basis" Rather than an "Empirical Proposition"?, 16 Creighton L.Rev. 565, 598-599 (1983); Mertens & Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo. L.J. 365, 379-380 (1981). [ Footnote 2/7 ] Indeed, the Court in Mapp expressly noted that the "factual considerations" raised in Wolf concerning the effectiveness of alternative remedies "are not basically relevant to a decision that the exclusionary rule is an essential ingredient of the Fourth Amendment." 367 U.S. at 367 U. S. 651 . It is true that, in Linkletter v. Walker, 381 U. S. 618 (1965), in holding that Mapp was not to be applied retroactively, the Court described the exclusionary rule as the "only effective deterrent to lawless police action," 381 U.S. at 381 U. S. 636 , thereby suggesting that the rule rested on a deterrence rationale. But, as I have explained on another occasion, "[t]he emphasis upon deterrence in Linkletter must be understood in the light of the crucial fact that the States had justifiably relied from 1949 to 1961 upon Wolf . . . . , and consequently, that application of Mapp would have required the wholesale release of innumerable convicted prisoners, few of whom could have been successfully retried. In that circumstance, Linkletter held not only that retrospective application of Mapp would not further the goal of deterrence, but also that it would not further 'the administration of justice and the integrity of the judicial process.' 381 U.S. at 381 U. S. 637 ." United State v. Calandra, 414 U. S. 338 , 414 U. S. 359 -360 (1974) (dissenting opinion). [ Footnote 2/8 ] Justice Stewart has explained this point in detail in a recent article: "Much of the criticism leveled at the exclusionary rule is misdirected; it is more properly directed at the Fourth Amendment itself. It is true that, as many observers have charged, the effect of the rule is to deprive the courts of extremely relevant, often direct evidence of the guilt of the defendant. But these same critics fail to acknowledge that, in many instances, the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place. . . ." ". . . The exclusionary rule places no limitations on the actions of the police. The fourth amendment does. The inevitable result of the Constitution's prohibition against unreasonable searches and seizures and its requirement that no warrant shall issue but upon probable cause is that police officers who obey its strictures will catch fewer criminals. . . . [T]hat is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, the home, and property against unrestrained governmental power." Stewart, 83 Colum.L.Rev. at 1392-1393. See also Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1563 (1972) ("Under the exclusionary rule, a court attempts to maintain the status quo that would have prevailed if the constitutional requirement had been obeyed"). [ Footnote 2/9 ] See generally on this point, Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NU Study and Other Studies of"Lost" Arrests, 1983 A.B.F.Res.J. 611, 627-629; Canon, Ideology and Reality in the Debate over the Exclusionary Rule: A Conservative Argument for its Retention, 23 S.Tex.L.J. 559, 561-563 (1982); Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 NW.U.L.Rev. 740 (1974). [ Footnote 2/10 ] Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind.L.J. 329, 332-333 (1973). See also White, Forgotten Points in the "Exclusionary Rule" Debate, 81 Mich.L.Rev. 1273, 1281-1282 (1983) (balancing of deterrent benefits and costs is an "inquiry [that] can never be performed in an adequate way, and the reality is thus that the decision must rest not upon those grounds, but upon prior dispositions or unarticulated intuitions that are never justified"); Canon, supra, at 564; Kamisar, 16 Creighton L.Rev. at 646. [ Footnote 2/11 ] In a series of recent studies, researchers have attempted to quantify the actual costs of the rule. A recent National Institute of Justice study based on data for the 4-year period 1976-1979 gathered by the California Bureau of Criminal Statistics showed that 4.8% of all cases that were declined for prosecution by California prosecutors were rejected because of illegally seized evidence. National Institute of Justice, Criminal Justice Research Report -- The Effects of the Exclusionary Rule: A Study in California 1 (1982). However, if these data are calculated as a percentage of all arrests, they show that only 0.8% of all arrests were rejected for prosecution because of illegally seized evidence. See Davies, 1983 A.B.F.Res.J. at 619. In another measure of the rule's impact -- the number of prosecutions that are dismissed or result in acquittals in cases where evidence has been excluded -- the available data again show that the Court's past assessment of the rule's costs has generally been exaggerated. For example, a study based on data from nine mid-sized counties in Illinois, Michigan, and Pennsylvania reveals that motions to suppress physical evidence were filed in approximately 5% of the 7,500 cases studied, but that such motions were successful in only 0.7% of all these cases. Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 A.B.F.Res.J. 585, 596. The study also shows that only 0.6% of all cases resulted in acquittals because evidence had been excluded. Id. at 600. In the GAO study, suppression motions were filed in 10.5% of all federal criminal cases surveyed, but of the motions filed, approximately 80-90% were denied. GAO Report, at 8, 10. Evidence was actually excluded in only 1.3% of the cases studied, and only 0.7% of all cases resulted in acquittals or dismissals after evidence was excluded. Id. at 9-11. See Davies, supra, at 660. And in another study based on data from cases during 1978 and 1979 in San Diego and Jacksonville, it was shown that only 1% of all cases resulting in nonconviction were caused by illegal searches. F. Feeney, F. Dill, & A. Weir, Arrests Without Conviction: How Often They Occur and Why (National Institute of Justice 1983). See generally Davies, supra, at 663. [ Footnote 2/12 ] As Justice Stewart has observed: "[T]he exclusionary rule is not designed to serve a specific deterrence function; that is, it is not designed to punish the particular police officer for violating a person's fourth amendment rights. Instead, the rule is designed to produce a 'systematic deterrence:' the exclusionary rule is intended to create an incentive for law enforcement officials to establish procedures by which police officers are trained to comply with the fourth amendment because the purpose of the criminal justice system -- bringing criminals to justice -- can be achieved only when evidence of guilt may be used against defendants." Stewart, 83 Colum.L.Rev. at 1400. See also Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 709-710 (1970) ("The exclusionary rule is not aimed at special deterrence, since it does not impose any direct punishment on a law enforcement official who has broken the rule. . . . The exclusionary rule is aimed at affecting the wider audience of all law enforcement officials and society at large. It is meant to discourage violations by individuals who have never experienced any sanction for them"); Mertens & Wasserstrom, 70 Geo.L.J. at 399-401; Kamisar, 16 Creighton L.Rev. at 597, n. 204. [ Footnote 2/13 ] Although specific empirical data on the systemic deterrent effect of the rule are not conclusive, the testimony of those actually involved in law enforcement suggests that, at the very least, the Mapp decision had the effect of increasing police awareness of Fourth Amendment requirements and of prompting prosecutors and police commanders to work towards educating rank-and-file officers. For example, as former New York Police Commissioner Murphy explained the impact of the Mapp decision: "I can think of no decision in recent times in the field of law enforcement which had such a dramatic and traumatic effect. . . . I was immediately caught up in the entire program of reevaluating our procedures, which had followed the Defore rule, and modifying, amending, and creating new policies and new instructions for the implementation of Mapp. . . . Retraining sessions had to be held from the very top administrators down to each of the thousands of foot patrolmen." Murphy, Judicial Review of Police Methods in Law Enforcement: The Problem of Compliance by Police Departments, 44 Texas L.Rev. 939, 941 (1966). Further testimony about the impact of the Mapp decision can be found in the statement of Deputy Commissioner Reisman: "The Mapp case was a shock to us. We had to reorganize our thinking, frankly. Before this, nobody bothered to take out search warrants. Although the U.S. Constitution requires warrants in most cases, the U.S. Supreme Court had ruled that evidence obtained without a warrant -- illegally, if you will--was admissible in state courts. So the feeling was, why bother? Well, once that rule was changed, we knew we had better start teaching our men about it." N.Y. Times, Apr. 28, 1965, p. 50, col. 1. A former United States Attorney and now Attorney General of Maryland, Stephen Sachs, has described the impact of the rule on police practices in similar terms: "I have watched the rule deter, routinely, throughout my years as a prosecutor. . . . [P]olice-prosecutor consultation is customary in all our cases when Fourth Amendment concerns arise. . . . In at least three Maryland jurisdictions, for example, prosecutors are on twenty-four hour call to field search and seizure questions presented by police officers." Sachs, The Exclusionary Rule: A Prosecutor's Defense, 1 Crim. Justice Ethics 28, 30 (Summer/Fall 1982). See also LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith," 43 U.Pitt.L.Rev. 307, 319 (1982); Mertens & Wasserstrom, supra, at 394-401. [ Footnote 2/14 ] The authors of a recent study of the warrant process in seven cities concluded that application of a good faith exception where an officer relies upon a warrant "would further encourage police officers to seek out the less inquisitive magistrates and to rely on boilerplate formulae, thereby lessening the value of search warrants overall. Consequently, the benefits of adoption of a broad good faith exception in terms of a few additional prosecutions appears to be outweighed by the harm to the quality of the entire search warrant process and the criminal justice system in general." R. Van Duizend, L. Sutton, & C. Carter, The Search Warrant Process: Preconceptions, Perceptions, and Practices 8-12 (Review Draft, National Center for State Courts, 1983). See also Stewart, 83 Colum.L.Rev. at 1403. [ Footnote 2/15 ] Just last Term, in Illinois v. Gates, 462 U. S. 213 (1983), the Court noted: "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued." Id. at 462 U. S. 239 . After today's decisions, there will be little reason for reviewing courts to conduct such a conscientious review; rather, these courts will be more likely to focus simply on the question of police good faith. Despite the Court's confident prediction that such review will continue to be conducted, see ante at 468 U. S. 924 -925, it is difficult to believe that busy courts faced with heavy dockets will take the time to render essentially advisory opinions concerning the constitutionality of the magistrate's decision before considering the officer's good faith. [ Footnote 2/16 ] As the Court of Appeals for the Second Circuit has observed in this regard: "If a magistrate's issuance of a warrant were to be, as the government would have it, an all but conclusive determination of the validity of the search and of the admissibility of the evidence seized thereby, police officers might have a substantial incentive to submit their warrant applications to the least demanding magistrates, since, once the warrant was issued, it would be exceedingly difficult later to exclude any evidence seized in the resulting search even if the warrant was issued without probable cause. . . . For practical purposes, therefore, the standard of probable cause might be diluted to that required by the least demanding official authorized to issue warrants, even if this fell well below what the Fourth Amendment required." United States v. Karathanos, 53 F.2d 26, 34 (1976). [ Footnote 2/17 ] See Kamisar, Gates, "Probable Cause," "Good Faith," and Beyond, 69 Iowa L.Rev. 551, 588-589 (1984); Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am.Crim.L.Rev. 257 (1984); LaFave, 43 U.Pitt.L.Rev. at 307. JUSTICE STEVENS, concurring in the judgment in No. 82963, post, p. 468 U. S. 981 , and dissenting in No. 82-1771. It is appropriate to begin with the plain language of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Court assumes that the searches in these cases violated the Fourth Amendment, yet refuses to apply the exclusionary rule because the Court concludes that it was "reasonable" for the police to conduct them. In my opinion, an official search and seizure cannot be both "unreasonable" and "reasonable" at the same time. The doctrinal vice in the Court's holding is its failure to consider the separate purposes of the two prohibitory Clauses in the Fourth Amendment. The first Clause prohibits unreasonable searches and seizures, and the second prohibits the issuance of warrants that are not supported by probable cause or that do not particularly describe the place to be searched and the persons or things to be seized. We have, of course, repeatedly held that warrantless searches are presumptively unreasonable, [ Footnote 3/1 ] Page 468 U. S. 961 and that there are only a few carefully delineated exceptions to that basic presumption. [ Footnote 3/2 ] But when such an exception has been recognized, analytically we have necessarily concluded that the warrantless activity was not "unreasonable" within the meaning of the first Clause. Thus, any Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless "reasonable" within the meaning of the first. On these questions, the constitutional text requires that we speak with one voice. We cannot intelligibly assume, arguendo, that a search was constitutionally unreasonable but that the seized evidence is admissible because the same search was reasonable. I In No. 82-963, the Supreme Judicial Court of Massachusetts determined that a warrant which purported to authorize a search of respondent's home had been issued in violation of the Warrant Clause. In its haste to make new law, this Court does not tarry to consider this holding. Yet, as I will demonstrate, this holding is clearly wrong; I would reverse the judgment on that ground alone. In No. 82-1771, there is also a substantial question whether the warrant complied with the Fourth Amendment. There was a strong dissent on the probable cause issue when Leon was before the Court of Appeals, and that dissent has been given added force by this Court's intervening decision in Illinois v. Gates, 462 U. S. 213 (1983), which constituted a significant development in the law. It is probable, though admittedly not certain, that the Court of Appeals would now conclude that the warrant in Leon satisfied the Fourth Amendment if it were given the opportunity to reconsider the issue in the light of Gates. Adherence to our normal Page 468 U. S. 962 practice following the announcement of a new rule would therefore postpone, and probably obviate, the need for the promulgation of the broad new rule the Court announces today. [ Footnote 3/3 ] It is, of course, disturbing that the Court chooses one case in which there was no violation of the Fourth Amendment, and another in which there is grave doubt on the question, in order to promulgate a "good faith" exception to the Fourth Amendment's exclusionary rule. The Court's explanation for its failure to decide the merits of the Fourth Amendment question in No. 82-963 is that it "is a fact-bound issue of little importance," Massachusetts v. Sheppard, post at 468 U. S. 988 , n. 5. In No. 82-1771, the Court acknowledges that the case could be remanded to the Court of Appeals for reconsideration in light of Gates, yet does not bother to explain why it fails to do so except to note that it is "within our power" to decide the broader question in the case. United States v. Leon, ante at 468 U. S. 905 . The Court seems determined to decide these cases on the broadest possible grounds; such determination is utterly at odds with the Court's traditional practice, as well as any principled notion of judicial restraint. Decisions made in this manner are unlikely to withstand the test of time. Judges, more than most, should understand the value of adherence to settled procedures. By adopting a set of fair procedures, and then adhering to them, courts of law ensure that justice is administered with an even hand. "These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice." Offutt v. United States, 348 U. S. 11 , 348 U. S. 14 (1954). Of course, this Court has a duty to face questions of constitutional law when necessary to the disposition of an actual case or controversy. Marbury v. Madison , 1 Cranch Page 468 U. S. 963 137, 5 U. S. 177 (1803). But when the Court goes beyond what is necessary to decide the case before it, it can only encourage the perception that it is pursuing its own notions of wise social policy, rather than adhering to its judicial role. I do not believe the Court should reach out to decide what is undoubtedly a profound question concerning the administration of criminal justice before assuring itself that this question is actually and of necessity presented by the concrete facts before the Court. Although it may appear that the Court's broad holding will serve the public interest in enforcing obedience to the rule of law, for my part, I remain firmly convinced that "the preservation of order in our communities will be best ensured by adherence to established and respected procedures." Groppi v. Leslie, 436 F.2d 331, 336 (CA7 1971) (en banc) (Stevens, J., dissenting), rev'd, 404 U. S. 496 (1972). II In No. 82-963, there is no contention that the police officers did not receive appropriate judicial authorization for their search of respondent's residence. A neutral and detached judicial officer had correctly determined that there was probable cause to conduct a search. Nevertheless, the Supreme Judicial Court suppressed the fruits of the search because the warrant did not particularly describe the place to be searched and the things to be seized. The particularity requirement of the Fourth Amendment has a manifest purpose -- to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search is carefully tailored to its justification, and does not resemble the wide-ranging general searches that the Framers intended to prohibit. [ Footnote 3/4 ] In this Page 468 U. S. 964 case the warrant did not come close to authorizing a general search. [ Footnote 3/5 ] The affidavit supporting the application for the warrant correctly identified the things to be seized, and on its face the affidavit indicated that it had been presented to the judge who had issued the warrant. [ Footnote 3/6 ] Both the police officers and the judge were fully aware of the contents of the affidavit, and therefore knew precisely what the officers were authorized to search for. Since the affidavit was available for after-the-fact review, the Massachusetts courts could readily ascertain the limits of the officers' authority under the warrant. In short, the judge who issued the warrant, the police officers who executed it, and the reviewing courts all were able easily to ascertain the precise scope of the authorization provided by the warrant. All that our cases require is that a warrant contain a description sufficient to enable the officers who execute it to ascertain with reasonable effort where they are to search and what they are to seize. [ Footnote 3/7 ] The test is whether the executing officers' discretion has been limited in a way that forbids a general search. [ Footnote 3/8 ] Here there was no question that the Page 468 U. S. 965 executing officers' discretion had been limited -- they, as well as the reviewing courts, knew the precise limits of their authorization. There was simply no "occasion or opportunity for officers to rummage at large," Zurcher v. Stanford Daily, 436 U. S. 547 , 436 U. S. 566 (1978). [ Footnote 3/9 ] The only Fourth Amendment interest that is arguably implicated by the "defect" in the warrant is the citizen's interest in being able to ascertain the limits of the officers' authorization by examining the warrant. [ Footnote 3/10 ] Respondent, however, was not home at the time the warrant was executed, and therefore had no occasion to see the warrant. The two persons who were present when the warrant was executed, respondent's mother and sister, did not read the warrant or ask to have it read. "[T]he general rule [is] that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Alderman v. United States, 394 U. S. 165 , 394 U. S. 174 (1969). Thus, respondent, who has standing to assert only his own Fourth Amendment interests, [ Footnote 3/11 ] cannot complain that his interest in ascertaining the limits of the officers' authority under the search warrant was infringed. [ Footnote 3/12 ] In short, our Page 468 U. S. 966 precedents construing the particularity requirement of the Warrant Clause unambiguously demonstrate that this warrant did not violate the Fourth Amendment. III Even if it be assumed that there was a technical violation of the particularity requirement in No. 82-963, it by no means follows that the "warrantless" search in that case was "unreasonable" within the meaning of the Fourth Amendment. For this search posed none of the dangers to which the Fourth Amendment is addressed. It was justified by a neutral magistrate's determination of probable cause, and created no risk of a general search. It was eminently "reasonable." In No. 82-1771, however, the Government now admits -- at least for the tactical purpose of achieving what it regards as a greater benefit -- that the substance, as well as the letter, of the Fourth Amendment was violated. The Court therefore assumes that the warrant in that case was not supported by probable cause, but refuses to suppress the evidence obtained thereby because it considers the police conduct to satisfy a "newfangled" nonconstitutional standard of reasonableness. [ Footnote 3/13 ] Yet if the Court's assumption is correct -- if there was no probable cause -- it must follow that it was "unreasonable" Page 468 U. S. 967 for the authorities to make unheralded entries into and searches of private dwellings and automobiles. The Court's conclusion that such searches undertaken without probable cause can nevertheless be "reasonable" is totally without support in our Fourth Amendment jurisprudence. Just last Term, the Court explained what probable cause to issue a warrant means: "The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and the 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. at 462 U. S. 238 . Moreover, in evaluating the existence of probable cause, reviewing courts must give substantial deference to the magistrate's determination. [ Footnote 3/14 ] In doubtful cases, the warrant Page 468 U. S. 968 should be sustained. [ Footnote 3/15 ] The judgment as to whether there is probable cause must be made in a practical and nontechnical manner. [ Footnote 3/16 ] The probable cause standard therefore gives law enforcement officers ample room to engage in any reasonable law enforcement activity. What is more, the standard has been familiar to the law enforcement profession for centuries. [ Footnote 3/17 ] In an opinion written in 1949, and endorsed by the Court last Term in Gates, we explained: "These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Brinegar v. United States, 338 U. S. 160 , 338 U. S. 176 . Thus, if the majority's assumption is correct, that even after paying heavy deference to the magistrate's finding and resolving all doubt in its favor, there is no probable cause here, then by definition -- as a matter of constitutional law -- Page 468 U. S. 969 the officers' conduct was unreasonable. [ Footnote 3/18 ] The Court's own hypothesis is that there was no fair likelihood that the officers would find evidence of a crime, and hence there was no reasonable law enforcement justification for their conduct. [ Footnote 3/19 ] The majority's contrary conclusion rests on the notion that it must be reasonable for a police officer to rely on a magistrate's finding. Until today, that has plainly not been the law; it has been well settled that, even when a magistrate issues a warrant, there is no guarantee that the ensuing search and seizure is constitutionally reasonable. Law enforcement officers have long been on notice that, despite the magistrate's decision, a warrant will be invalidated if the officers did not provide sufficient facts to enable the magistrate to evaluate the existence of probable cause responsibly and independently. [ Footnote 3/20 ] Reviewing courts have always inquired into whether the magistrate acted properly in issuing the warrant -- not merely whether the officers acted properly in executing it. See Jones v. United States, 362 U. S. 257 , 362 U. S. 271 -272 (1960). [ Footnote 3/21 ] Indeed, just last Term, in Gates, after noting Page 468 U. S. 970 that ""the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for conclud[ing]' that probable cause existed,"" 462 U.S. at 462 U. S. 238 -239 (quoting Jones, 362 U.S. at 362 U. S. 271 ), the Court added: "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued." 462 U.S. at 462 U. S. 239 . [ Footnote 3/22 ] Thus, under our cases, it has never been "reasonable" for the police to rely on the mere fact that a warrant has issued; the police have always known that, if they fail to supply the magistrate with sufficient information, the warrant will be held invalid, and its fruits excluded. [ Footnote 3/23 ] The notion that a police officer's reliance on a magistrate's warrant is automatically appropriate is one the Framers of Page 468 U. S. 971 the Fourth Amendment would have vehemently rejected. The precise problem that the Amendment was intended to address was the unreasonable issuance of warrants. As we have often observed, the Amendment was actually motivated by the practice of issuing general warrants -- warrants which did not satisfy the particularity and probable cause requirements. [ Footnote 3/24 ] The resentments which led to the Amendment were directed at the issuance of warrants unjustified by particularized evidence of wrongdoing. [ Footnote 3/25 ] Those who sought to amend the Constitution to include a Bill of Rights repeatedly voiced the view that the evil which had to be addressed was the issuance of warrants on insufficient evidence. [ Footnote 3/26 ] As Professor Taylor has written: Page 468 U. S. 972 "[O]ur constitutional fathers were not concerned about warrantless searches, but about overreaching warrants. It is perhaps too much to say that they feared the warrant more than the search, but it is plain enough that the warrant was the prime object of their concern. Far from looking at the warrant as a protection against unreasonable searches, they saw it as an authority for unreasonable and oppressive searches. . . ." T. Taylor, Two Studies in Constitutional Interpretation 41 (1969). In short, the Framers of the Fourth Amendment were deeply suspicious of warrants; in their minds, the paradigm of an abusive search was the execution of a warrant not based on probable cause. The fact that colonial officers had magisterial authorization for their conduct when they engaged in general searches surely did not make their conduct "reasonable." The Court's view that it is consistent with our Constitution to adopt a rule that it is presumptively reasonable to rely on a defective warrant is the product of constitutional amnesia. [ Footnote 3/27 ] IV In Brinegar, Justice Jackson, after observing that "[i]ndications are not wanting that Fourth Amendment freedoms are tacitly marked as secondary rights, to be relegated to a deferred position," 338 U.S. at 338 U. S. 180 (dissenting opinion), continued: "These, I protest, are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and Page 468 U. S. 973 seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police." " * * * *" "Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear." "Courts can protect the innocent against such invasions only indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. . . . So a search against Brinegar's car must be regarded as a search of the car of Everyman." Id. at 338 U. S. 180 -181. Justice Jackson's reference to his experience at Nuremberg should remind us of the importance of considering the consequences of today's decision for "Everyman." The exclusionary rule is designed to prevent violations of the Fourth Amendment. [ Footnote 3/28 ] "Its purpose is to deter -- to compel Page 468 U. S. 974 respect for the constitutional guaranty in the only effectively available way, by removing the incentive to disregard it." Elkins v. United States, 364 U. S. 206 , 364 U. S. 217 (1960). [ Footnote 3/29 ] If the police cannot use evidence obtained through warrants issued on less than probable cause, they have less incentive to seek those warrants, and magistrates have less incentive to issue them. Today's decisions do grave damage to that deterrent function. Under the majority's new rule, even when the police know their warrant application is probably insufficient, they retain an incentive to submit it to a magistrate, on the chance that he may take the bait. No longer must they hesitate and seek additional evidence in doubtful cases. Thus, what we Page 468 U. S. 975 said two Terms ago about a rule that would prevent exclusion except in cases in which the authorities violate well-settled law applies fully to the rule the Court adopts today: "If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would 'encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach.'" United States v. Johnson, 457 U. S. 537 , 457 U. S. 561 (1982) (emphasis in original) (footnote omitted) (quoting Desist v. United States, 394 U. S. 244 , 394 U. S. 277 (1969) (Fortas, J., dissenting)). [ Footnote 3/30 ] The Court is, of course, correct that the exclusionary rule cannot deter when the authorities have no reason to know that their conduct is unconstitutional. But when probable cause is lacking, then by definition a reasonable person under the circumstances would not believe there is a fair likelihood that a search will produce evidence of a crime. Under such circumstances, well-trained professionals must know that they are violating the Constitution. The Court's approach -- Page 468 U. S. 976 which, in effect, encourages the police to seek a warrant even if they know the existence of probable cause is doubtful -- can only lead to an increased number of constitutional violations. Thus, the Court's creation of a double standard of reasonableness inevitably must erode the deterrence rationale that still supports the exclusionary rule. But we should not ignore the way it tarnishes the role of the judiciary in enforcing the Constitution. For the original rationale for the exclusionary rule retains its force as well as its relevance: "The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights." Weeks v. United States, 232 U. S. 383 , 232 U. S. 392 (1914). [ Footnote 3/31 ] Thus, "Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional Page 468 U. S. 977 rights of citizens by permitting unhindered governmental use of the fruits of such invasions. . . ." Terry v. Ohio, 392 U. S. 1 , 392 U. S. 13 (1968). [ Footnote 3/32 ] As the Court correctly notes, [ Footnote 3/33 ] we have refused to apply the exclusionary rule to collateral contexts in which its marginal efficacy is questionable; until today, however, every time the police have violated the applicable commands of the Fourth Amendment a court has been prepared to vindicate that Amendment by preventing the use of evidence so obtained in the prosecution's case in chief against those whose rights have been violated. [ Footnote 3/34 ] Today, for the first time, this Court holds that, although the Constitution has been violated, no court should do anything about it at any time and in any proceeding. [ Footnote 3/35 ] In my judgment, Page 468 U. S. 978 the Constitution requires more. Courts simply cannot escape their responsibility for redressing constitutional violations if they admit evidence obtained through unreasonable searches and seizures, since the entire point of police conduct that violates the Fourth Amendment is to obtain evidence for use at trial. If such evidence is admitted, then the courts become not merely the final and necessary link in an unconstitutional chain of events, but its actual motivating force. "If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 470 (1928) (Holmes, J., dissenting). Nor should we so easily concede the existence of a constitutional violation for which there is no remedy. [ Footnote 3/36 ] To do so is to convert a Bill of Rights into an unenforced honor code that the police may follow in their discretion. The Constitution requires more; it requires a remedy. [ Footnote 3/37 ] If the Court's new rule is to be followed, the Bill of Rights should be renamed. Page 468 U. S. 979 It is, of course, true that the exclusionary rule exerts a high price -- the loss of probative evidence of guilt. But that price is one courts have often been required to pay to serve important social goals. [ Footnote 3/38 ] That price is also one the Fourth Amendment requires us to pay, assuming as we must that the Framers intended that its strictures "shall not be violated." For in all such cases, as Justice Stewart has observed, "the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place. [ Footnote 3/39 ]" "[T]he forefathers thought this was not too great a price to pay for that decent privacy of home, papers and effects which is indispensable to individual dignity and self-respect. They may have overvalued privacy, but I am not disposed to set their command at naught." Harris v. United States, 331 U. S. 145 , 331 U. S. 198 (1947) (Jackson, J., dissenting). [ Footnote 3/40 ] We could, of course, facilitate the process of administering justice to those who violate the criminal laws by ignoring the commands of the Fourth Amendment -- indeed, by ignoring Page 468 U. S. 980 the entire Bill of Rights -- but it is the very purpose of a Bill of Rights to identify values that may not be sacrificed to expediency. In a just society, those who govern, as well as those who are governed, must obey the law. While I concur in the Court's judgment in No. 82-963, I would vacate the judgment in No. 82-1771 and remand the case to the Court of Appeals for reconsideration in the light of Gates. Accordingly, I respectfully dissent from the disposition in No. 82-1771. [ Footnote 3/1 ] See, e.g., Payton v. New York, 445 U. S. 573 , 445 U. S. 586 (1980); Chimel v. California, 395 U. S. 752 , 395 U. S. 762 -763 (1969). [ Footnote 3/2 ] See, e.g., Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 474 -475 (1971); Vale v. Louisiana, 399 U. S. 30 (1970). [ Footnote 3/3 ] In his petition for certiorari in Leon, the Solicitor General did not seek plenary review, but only that the petition "be disposed of as appropriate in light of the Court's decision in Illinois v. Gates, " Pet. for Cert. in United States v. Leon, No. 82-1771, p. 10. [ Footnote 3/4 ] See Andresen v. Maryland, 427 U. S. 463 , 427 U. S. 480 (1976); Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 569 -572 (1969) (Stewart, J., concurring in result); Stanford v. Texas, 379 U. S. 476 , 379 U. S. 481 -482, 485 (1965); Go-Bart Importing Co. v. United States, 282 U. S. 344 , 282 U. S. 357 (1931); Marron v. United States, 275 U. S. 192 , 275 U. S. 195 -196 (1927). [ Footnote 3/5 ] Indeed, the "defect" in the warrant was that it authorized -- albeit mistakenly -- a search for quite particular "things to be seized," controlled substances, rather than the evidence described in the affidavit supporting the warrant application. This "defect" posed no risk of a general search. On its face, the warrant correctly identified the place to be searched. Thus, the threshold invasion of privacy -- entry into respondent's home -- was properly and specifically authorized. Moreover, the four corners of the warrant plainly indicate that it was not intended to authorize a search for controlled substances. On the cover of the warrant the caption "Controlled Substances" had been crossed out, and an "addendum" to the warrant authorized a search for and seizure of a rifle and ammunition, indicating that the warrant was not limited to controlled substances. [ Footnote 3/6 ] The issuing judge attested to the affiant's signature on the affidavit. [ Footnote 3/7 ] See Steele v. United States, 267 U. S. 498 , 267 U. S. 503 (1925). [ Footnote 3/8 ] See Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 , 442 U. S. 325 (1979); Andresen v. Maryland, 427 U.S. at 427 U. S. 480 -482; Marcus v. Search Warrant, 367 U. S. 717 , 367 U. S. 732 -733 (1961). [ Footnote 3/9 ] See also Coolidge v. New Hampshire, 403 U.S. at 403 U. S. 467 . [ Footnote 3/10 ] See Illinois v. Gates, 462 U. S. 213 , 462 U. S. 236 (1983); United States v. Chadwick, 433 U. S. 1 , 433 U. S. 9 (1977); Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 532 (1967). [ Footnote 3/11 ] See, e.g., Rawlings v. Kentucky, 448 U. S. 98 , 448 U. S. 104 -106 (1980); Rakas v. Illinois, 439 U. S. 128 (1978). [ Footnote 3/12 ] Even if respondent had standing to assert his right to be able to ascertain the officers' authority from the four corners of the warrant, it is doubtful that he could succeed. On its face, the warrant authorized a search of respondent's residence, "42 Deckard Street." Had respondent read the warrant, he would have had no reason to question the officers' right to enter the premises. Moreover, the face of the warrant indicated that the caption "Controlled Substances" had been stricken, and at the bottom of the warrant an addendum authorized the search for and seizure of a rifle and ammunition. The supporting affidavit, which the police had with them when they executed the warrant, and which was attested by the same judge who had issued the warrant, described in detail the items which the police were authorized to search for and to seize. [ Footnote 3/13 ] I borrow the adjective from Justice Clark, who so characterized the warrants authorized by the Court in Camara v. Municipal Court, 387 U. S. 523 (1967), but not authorized by the Constitution itself. In an opinion joined by Justice Harlan and Justice Stewart, he wrote: "Today the Court renders this municipal experience, which dates back to Colonial days, for naught by overruling Frank v. Maryland [ 359 U.S. 360 (1959)] and by striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare, and safety of literally millions of people." "But this is not all. It prostitutes the command of the Fourth Amendment that 'no Warrants shall issue, but upon probable cause' and sets up in the health and safety codes area inspection a newfangled 'warrant' system that is entirely foreign to Fourth Amendment standards. It is regrettable that the Court wipes out such a long and widely accepted practice and creates in its place such enormous confusion in all of our towns and metropolitan cities in one fell swoop." See v. City of Seattle, 387 U. S. 541 , 387 U. S. 547 (1967) (dissenting in both Camara and See ). The kind of doctrinal difficulties in the two lines of cases engendered by the Court's creation of a newfangled warrant, compare Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), with Donovan v. Dewey, 452 U. S. 594 (1981), can be expected to grow out of the Court's creation of a new double standard of reasonableness today. Ironically, as I have previously suggested, the failure to consider both Clauses of the Amendment infects both lines of decision. See Michigan v. Clifford, 464 U. S. 287 , 464 U. S. 301 -303 (1984) (STEVENS, J., concurring in judgment); Dewey, 452 U.S. at 452 U. S. 606 -608 (STEVENS, J., concurring); Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 513 (1978) (STEVENS, J., concurring in part and concurring in judgment); Barlow's, 436 U.S. at 436 U. S. 325 -339 (STEVENS J., dissenting). [ Footnote 3/14 ] See Massachusetts v. Upton, 466 U. S. 727 , 466 U. S. 732 -733 (1984) (per curiam); Illinois v. Gates, 462 U.S. at 462 U. S. 236 ; United States v. Harris, 403 U. S. 573 , 403 U. S. 577 -583 (1971) (plurality opinion); Spinelli v. United States, 393 U. S. 410 , 393 U. S. 419 (1969); Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 111 (1964); Jones v. United States, 362 U. S. 257 , 362 U. S. 271 (1960). [ Footnote 3/15 ] See Illinois v. Gates, 462 U.S. at 462 U. S. 237 , n. 10; United States v. Ventresca, 380 U. S. 102 , 380 U. S. 109 (1965). [ Footnote 3/16 ] See Massachusetts v. Upton, 466 U.S. at 466 U. S. 732 (per curiam); Illinois v. Gates, 462 U.S. at 462 U. S. 231 ; United States v. Ventresca, 380 U.S. at 380 U. S. 108 . [ Footnote 3/17 ] See, e.g., 2 M. Hale, Pleas of the Crown 150 (1st Am. ed. 1847). [ Footnote 3/18 ] "[I]f nothing said under oath in the warrant application demonstrates the need for an unannounced search by force, the probable cause requirement is not satisfied. In the absence of some other showing of reasonableness, the ensuing search violates the Fourth Amendment." Zurcher v. Stanford Daily, 436 U. S. 547 , 436 U. S. 583 (1978) (STEVENS, J., dissenting). [ Footnote 3/19 ] As the majority recognizes, United States v. Leon, ante at 468 U. S. 915 , n. 13, an officer's good faith cannot make otherwise "unreasonable" conduct reasonable. See Terry v. Ohio, 392 U. S. 1 , 392 U. S. 22 (1968); Beck v. Ohio, 379 U. S. 89 , 379 U. S. 97 (1964); Henry v. United States, 361 U. S. 98 , 361 U. S. 102 (1959). The majority's failure to appreciate the significance of that recognition is inexplicable. [ Footnote 3/20 ] See Franks v. Delaware, 438 U. S. 154 , 438 U. S. 165 , 438 U. S. 169 -170 (1978), Whiteley v. Warden, 401 U. S. 560 , 401 U. S. 564 (1971); Spinelli v. United States, 393 U.S. at 393 U. S. 415 -416; United States v. Ventresca, 380 U.S. at 380 U. S. 108 -109; Aguilar v. Texas, 378 U.S. at 378 U. S. 113 -115; Nathanson v. United States, 290 U. S. 41 (1933); Byars v. United States, 273 U. S. 28 (1927). [ Footnote 3/21 ] In making this point in Franks v. Delaware, 438 U. S. 154 (1978), JUSTICE BLACKMUN wrote for the Court: "We see no principled basis for distinguishing between the question of the sufficiency of an affidavit, which is also subject to a post-search examination, and the question of its integrity." Id. at 438 U. S. 171 . Yet today the Court justifies its holding in part by distinguishing veracity claims, United States v. Leon, ante at 468 U. S. 922 -923, thereby distinguishing what we previously held could not be distinguished on a principled basis. Just why it should be less reasonable for an innocent officer to rely on a warrant obtained by another officer's fraud than for him to rely on a warrant that is not supported by probable cause is entirely unclear to me. [ Footnote 3/22 ] Judicial review of magisterial determinations is all the more necessary since the magistrate acts without benefit of adversarial presentation; his determination partakes of the unreliability inherent in any ex parte proceeding. See Franks v. Delaware, 438 U.S. at 438 U. S. 169 . [ Footnote 3/23 ] The majority seems to be captivated by a vision of courts invalidating perfectly reasonable police conduct because of "technical" violations of the Fourth Amendment. In my view, there is no such thing as a "technical" violation of the Fourth Amendment. No search or seizure can be unconstitutional unless it is "unreasonable." By definition, a Fourth Amendment violation cannot be reasonable. My analysis of No. 82-963 illustrates this point. [ Footnote 3/24 ] See, e.g., Steagald v. United States, 451 U. S. 204 , 451 U. S. 220 (1981); Payton v. New York, 445 U.S. at 445 U. S. 583 -584; Lo-Ji Sales, Inc. v. New York, 442 U.S. at 442 U. S. 325 ; Marshall v. Barlow's, Inc., 436 U.S. at 436 U. S. 327 -328 (STEVENS, J., dissenting); United States v. Chadwick, 433 U.S. at 433 U. S. 7 -8; Chimel v. California, 395 U.S. at 395 U. S. 760 -762; Stanford v. Texas, 379 U.S. at 379 U. S. 480 -485; Marcus v. Search Warrant, 367 U.S. at 367 U. S. 727 -729; Henry v. United States, 361 U.S. at 361 U. S. 100 -101; Frank v. Maryland, 359 U. S. 360 , 359 U. S. 363 -365 (1959); United States v. Rabinowitz, 339 U. S. 56 , 339 U. S. 69 -70 (1950) (Frankfurter, J., dissenting); Marron v. United States, 275 U.S. at 275 U. S. 195 -196; Weeks v. United States, 232 U. S. 383 , 232 U. S. 390 -391 (1914); Boyd v. United States, 116 U. S. 616 , 116 U. S. 624 -630 (1886). [ Footnote 3/25 ] See J. Landynski, Search and Seizure and the Supreme Court 19-47 (1966); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 53-98 (1937); R. Rutland, The Birth of the Bill of Rights 11 (rev. ed.1983); Marke, The Writs of Assistance Case and the Fourth Amendment, in Essays in Legal History in Honor of Felix Frankfurter 351 (M. Forkosch ed.1966). [ Footnote 3/26 ] See 1 The Bill of Rights: A Documentary History 473, 488-489, 508 (B. Schwartz ed.1971); 2 id. at 658, 665, 730, 733-734, 805-806, 815, 841-842, 913, 968. In fact, the original version of the Fourth Amendment contained only one clause providing that the right to be protected against unreasonable searches and seizures "shall not be violated by warrants issuing. . . ." The change to its present form broadened the coverage of the Amendment, but did not qualify the unequivocal prohibition against the issuance of warrants without probable cause. See 2 id. at 1112; N. Lasson, supra, 468 U.S. 897 fn3/25|>n. 25, at 101-103. [ Footnote 3/27 ] "It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper." United States v. Rabinowitz, 339 U.S. at 339 U. S. 69 (Frankfurter, J., dissenting). [ Footnote 3/28 ] For at least two reasons, the exclusionary rule is a better remedy than a civil action against an offending officer. Unlike the fear of personal liability, it should not create excessive deterrence; moreover, it avoids the obvious unfairness of subjecting the dedicated officer to the risk of monetary liability for a misstep while endeavoring to enforce the law. Society, rather than the individual officer, should accept the responsibility for inadequate training or supervision of officers engaged in hazardous police work. What THE CHIEF JUSTICE wrote, some two decades ago, remains true today: "It is the proud claim of a democratic society that the people are masters and all officials of the state are servants of the people. That being so, the ancient rule of respondeat superior furnishes us with a simple, direct and reasonable basis for refusing to admit evidence secured in violation of constitutional or statutory provisions. Since the policeman is society's servant, his acts in the execution of his duty are attributable to the master or employer. Society as a whole is thus responsible, and society is 'penalized' by refusing it the benefit of evidence secured by the illegal action. This satisfies me more than the other explanations because it seems to me that society -- in a country like ours -- is involved in and is responsible for what is done in its name and by its agents. Unlike the Germans of the 1930's and early '40's, we cannot say 'it is all The Leader's doing. I am not responsible.' In a representative democracy, we are responsible, whether we like it or not. And so each of us is involved and each is in this sense responsible when a police officer breaks rules of law established for our common protection." Burger, Who Will Watch the Watchman?, 14 Am.U.L.Rev. 1, 14 (1964) (emphasis in original) (footnote omitted). [ Footnote 3/29 ] See Stone v. Powell, 428 U. S. 465 , 428 U. S. 484 (1976); United States v. Janis, 428 U. S. 433 , 428 U. S. 443 , n. 12 (1976); United States v. Calandra, 414 U. S. 338 , 414 U. S. 347 -348 (1974); Terry v. Ohio, 392 U.S. at 392 U. S. 29 ; Tehan v. United States ex rel. Shott, 382 U. S. 406 , 382 U. S. 413 (1966); Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 656 (1961). [ Footnote 3/30 ] See also LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith," 43 U.Pitt.L.Rev. 307, 358 (1982); Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum.L.Rev. 1365, 1401-1403 (1983); Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am.Crim.L.Rev. 257, 395-397(1984). [ Footnote 3/31 ] The Court continued: "The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States Marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information and describing with reasonable particularity the things for which the search was to be made. Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the Government, and, under color of his office, undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action. Under such circumstances, without sworn information and particular description, not even an order of court would have justified such procedure. . . . To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action." 232 U.S. at 232 U. S. 393 -394. [ Footnote 3/32 ] See United States v. Peltier, 422 U. S. 531 , 422 U. S. 536 (1975); Lee v. Florida, 392 U. S. 378 , 392 U. S. 385 -386 (1968); Berger v. New York, 388 U. S. 41 , 388 U. S. 50 (1967); Mapp v. Ohio, 367 U.S. at 367 U. S. 647 -650; Byars v. United States, 273 U.S. at 273 U. S. 33 -34. [ Footnote 3/33 ] United States v. Leon, ante at 468 U. S. 908 -913. [ Footnote 3/34 ] Indeed, we have concluded that judicial integrity is not compromised by the refusal to apply the exclusionary rule to collateral contexts precisely because the defendant is able to vindicate his rights in the primary context -- his trial and direct appeal therefrom. See Stone v. Powell, 428 U.S. at 428 U. S. 485 -486. [ Footnote 3/35 ] As the majority recognizes, United States v. Leon, ante at 468 U. S. 922 -923, and n. 23, in all cases in which its "good faith" exception to the exclusionary rule would operate, there will also be immunity from civil damages. See also United States v. Ross, 456 U. S. 798 , 456 U. S. 823 , n. 32 (1982); Stadium Films, Inc. v. Baillargeon, 542 F.2d 577, 578 (CA1 1976); Madison v. Maner, 441 F.2d 537 (CA1 1971). See generally Pierson v. Ray, 386 U. S. 547 (1967). The Court amazingly suggests that, in some cases in which suppression would not be appropriate, courts should nevertheless adjudicate the merits of Fourth Amendment claims to provide guidance to police and magistrates, but not a remedy. United States v. Leon, ante at 468 U. S. 925 . Not only is the propriety of deciding constitutional questions in the absence of the strict necessity to do so open to serious question, see Bowen . United States, 422 U. S. 916 , 422 U. S. 920 (1975), but such a proceeding, in which a court would declare that the Constitution had been violated but that it was unwilling to do anything about it, seems almost a mockery: "[T]he assurance against unreasonable federal searches and seizures would be 'a form of words,' valueless and undeserving of mention in a perpetual charter of inestimable human liberties." Mapp v. Ohio, 367 U.S. at 367 U. S. 655 . See also Segura v. United States, ante at 468 U. S. 838 -840 (STEVENS, J., dissenting). [ Footnote 3/36 ] "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison , 1 Cranch 137, 5 U. S. 163 (1803). See generally Schrock & Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn.L.Rev. 251, 350-372 (1974). [ Footnote 3/37 ] See Stewart, 83 Colum.L.Rev. at 1383-1384 (footnotes omitted) ("In my opinion, however, the framers did not intend the Bill of Rights to be no more than unenforceable guiding principles -- no more than a code of ethics under an honor system. The proscriptions and guarantees in the amendments were intended to create legal rights and duties"). See also Ervin, The Exclusionary Rule: An Essential Ingredient of the Fourth Amendment, 1983 S.Ct.Rev. 283. In fact, if the Constitution of the United States does not compel use of the exclusionary rule, Mapp v. Ohio, 367 U. S. 643 (1961), which the majority does not purport to question, could not have been decided as it was. See id. at 367 U. S. 655 ("We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court"). [ Footnote 3/38 ] The exclusion of probative evidence in order to serve some other policy is by no means unique to the Fourth Amendment. In his famous treatise on evidence, Dean Wigmore devoted an entire volume to such exclusionary rules, which are common in the law of evidence. See 8 J. Wigmore, Evidence (J. McNaughton rev.1961) (discussing, inter alia, marital privilege, attorney-client privilege, communications among jurors, state secrets privilege, physician-patient privilege, priest-penitent privilege). [ Footnote 3/39 ] Stewart, 83 Colum.L.Rev. at 1392 (footnote omitted). See also Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 322 ("Ah, but surely the guilty should not go free? However grave the question, it seemed improperly directed at the exclusionary rule. The hard answer is in the United States Constitution, as well as in state constitutions. They make it clear that the guilty would go free if the evidence necessary to convict could only have been obtained illegally, just as they would go free if such evidence were lacking because the police had observed the constitutional restraints upon them"). [ Footnote 3/40 ] See also United States v. Di Re, 332 U. S. 581 , 332 U. S. 595 (1948).

Here is a summary of the United States v. Leon case: The Supreme Court held that evidence obtained by officers acting in reasonable reliance on a search warrant issued by a neutral judge but later found to be invalid may still be used in the prosecution's case. The Court weighed the costs and benefits of excluding such evidence and concluded that the truth-finding function of the criminal justice system and the risk of allowing guilty defendants to go free outweighed any potential Fourth Amendment violation. The Court recognized that the Fourth Amendment protects against unreasonable searches and seizures, but it also emphasized that the exclusionary rule, which prevents the use of illegally obtained evidence, is a judicially created remedy rather than a personal constitutional right. Therefore, the Court introduced a "good faith exception" to the exclusionary rule, meaning that evidence obtained in good faith reliance on a warrant would not be excluded, even if the warrant was later deemed invalid. This case set an important precedent for the application of the exclusionary rule and the consideration of the costs and benefits of its use in the criminal justice system.

Search & Seizure

California v. Carney

https://supreme.justia.com/cases/federal/us/471/386/

U.S. Supreme Court California v. Carney, 471 U.S. 386 (1985) California v. Carney No. 83-859 Argued October 30, 1984 Decided May 13, 1985 471 U.S. 386 CERTIORARI TO THE SUPREME COURT OF CALIFORNIA Syllabus A Drug Enforcement Administration (DEA) agent, who had information that respondent's mobile motor home was being used to exchange marihuana for sex, watched respondent approach a youth who accompanied respondent to the motor home, which was parked in a lot in downtown San Diego. The agent and other agents then kept the vehicle under surveillance, and stopped the youth after he left the vehicle. He told them that he had received marihuana in return for allowing respondent sexual contacts. At the agents' request, the youth returned to the motor home and knocked on the door; respondent stepped out. Without a warrant or consent, one agent then entered the motor home and observed marihuana. A subsequent search of the motor home at the police station revealed additional marihuana, and respondent was charged with possession of marihuana for sale. After his motion to suppress the evidence discovered in the motor home was denied, respondent was convicted in California Superior Court on a plea of nolo contendere. The California Court of Appeal affirmed. The California Supreme Court reversed, holding that the search of the motor home was unreasonable and that the motor vehicle exception to the warrant requirement of the Fourth Amendment did not apply, because expectations of privacy in a motor home are more like those in a dwelling than in an automobile. Held: The warrantless search of respondent's motor home did not violate the Fourth Amendment. Pp. 471 U. S. 390 -395. (a) When a vehicle is being used on the highways or is capable of such use and is found stationary in a place not regularly used for residential purposes, the two justifications for the vehicle exception come into play. First, the vehicle is readily mobile, and, second, there is a reduced expectation of privacy stemming from the pervasive regulation of vehicles capable of traveling on highways. Here, while respondent's vehicle possessed some attributes of a home, it clearly falls within the vehicle exception. To distinguish between respondent's motor home and an ordinary sedan for purposes of the vehicle exception would require that the exception be applied depending on the size of the vehicle and the quality of its appointments. Moreover, to fail to apply the exception to vehicles such as a motor home would ignore the fact that a motor home lends itself easily to use as an instrument of illicit drug traffic or other illegal activity. Pp. 471 U. S. 390 -394. Page 471 U. S. 387 (b) The search in question was not unreasonable. It was one that a magistrate could have authorized if presented with the facts. The DEA agents, based on uncontradicted evidence that respondent was distributing a controlled substance from the vehicle, had abundant probable cause to enter and search the vehicle. Pp. 471 U. S. 394 -395. 34 Cal. 3d 597 , 668 P.2d 807 , reversed and remanded. BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 471 U. S. 395 . CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether law enforcement agents violated the Fourth Amendment when they conducted a warrantless search, based on probable cause, of a fully mobile "motor home" located in a public place. I On May 31, 1979, Drug Enforcement Agency Agent Robert Williams watched respondent, Charles Carney, approach Page 471 U. S. 388 a youth in downtown San Diego. The youth accompanied Carney to a Dodge Mini Motor Home parked in a nearby lot. Carney and the youth closed the window shades in the motor home, including one across the front window. Agent Williams had previously received uncorroborated information that the same motor home was used by another person who was exchanging marihuana for sex. Williams, with assistance from other agents, kept the motor home under surveillance for the entire one and one-quarter hours that Carney and the youth remained inside. When the youth left the motor home, the agents followed and stopped him. The youth told the agents that he had received marihuana in return for allowing Carney sexual contacts. At the agents' request, the youth returned to the motor home and knocked on its door; Carney stepped out. The agents identified themselves as law enforcement officers. Without a warrant or consent, one agent entered the motor home and observed marihuana, plastic bags, and a scale of the kind used in weighing drugs on a table. Agent Williams took Carney into custody and took possession of the motor home. A subsequent search of the motor home at the police station revealed additional marihuana in the cupboards and refrigerator. Respondent was charged with possession of marihuana for sale. At a preliminary hearing, he moved to suppress the evidence discovered in the motor home. The Magistrate denied the motion, upholding the initial search as a justifiable search for other persons, and the subsequent search as a routine inventory search. Respondent renewed his suppression motion in the Superior Court. The Superior Court also rejected the claim, holding that there was probable cause to arrest respondent, that the search of the motor home was authorized under the automobile exception to the Fourth Amendment's warrant requirement, and that the motor home itself could be seized without a warrant as an instrumentality of the crime. Respondent Page 471 U. S. 389 then pleaded nolo contendere to the charges against him, and was placed on probation for three years. Respondent appealed from the order placing him on probation. The California Court of Appeal affirmed, reasoning that the vehicle exception applied to respondent's motor home. 117 Cal. App. 3d 36 , 172 Cal. Rptr. 430 (1981). The California Supreme Court reversed the conviction. 34 Cal. 3d 597 , 668 P.2d 807 (1983). The Supreme Court did not disagree with the conclusion of the trial court that the agents had probable cause to arrest respondent and to believe that the vehicle contained evidence of a crime; however, the court held that the search was unreasonable because no warrant was obtained, rejecting the State's argument that the vehicle exception to the warrant requirement should apply. [ Footnote 1 ] That court reached its decision by concluding that the mobility of a vehicle "is no longer the prime justification for the automobile exception; rather, the answer lies in the diminished expectation of privacy which surrounds the automobile.'" Id. at 605, 668 P.2d at 811. The California Supreme Court held that the expectations of privacy in a motor home are more like those in a dwelling than in an automobile because the primary function of motor homes is not to provide transportation but to "provide the occupant with living quarters." Id. at 606, 668 P.2d at 812. We granted certiorari, 465 U.S. 1098 (1984). We reverse. Page 471 U. S. 390 II The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer. There are, of course, exceptions to the general rule that a warrant must be secured before a search is undertaken; one is the so-called "automobile exception" at issue in this case. This exception to the warrant requirement was first set forth by the Court 60 years ago in Carroll v. United States, 267 U. S. 132 (1925). There, the Court recognized that the privacy interests in an automobile are constitutionally protected; however, it held that the ready mobility of the automobile justifies a lesser degree of protection of those interests. The Court rested this exception on a long-recognized distinction between stationary structures and vehicles: "[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Id. at 267 U. S. 153 (emphasis added). The capacity to be "quickly moved" was clearly the basis of the holding in Carroll, and our cases have consistently recognized ready mobility as one of the principal bases of the automobile exception. See, e.g., Cooper v. California, 386 U. S. 58 , 386 U. S. 59 (1967); Chambers v. Maroney, 399 U. S. 42 , 399 U. S. 52 (1970); Cady v. Dombrowski, 413 U. S. 433 , 413 U. S. 442 (1973); Page 471 U. S. 391 Cardwell v. Lewis, 417 U. S. 583 , 417 U. S. 588 (1974); South Dakota v. Opperman, 428 U. S. 364 , 428 U. S. 367 (1976). In Chambers, for example, commenting on the rationale for the vehicle exception, we noted that "the opportunity to search is fleeting since a car is readily movable." 399 U.S. at 399 U. S. 51 . More recently, in United States v. Ross, 456 U. S. 798 , 456 U. S. 806 (1982), we once again emphasized that "an immediate intrusion is necessary" because of "the nature of an automobile in transit. . . ." The mobility of automobiles, we have observed, "creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible." South Dakota v. Opperman, supra, at 429 U. S. 367 . However, although ready mobility alone was perhaps the original justification for the vehicle exception, our later cases have made clear that ready mobility is not the only basis for the exception. The reasons for the vehicle exception, we have said, are twofold. 428 U.S. at 428 U. S. 367 . "Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office." Ibid. Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception. See, e.g., Cady v. Dombrowski, supra. In some cases, the configuration of the vehicle contributed to the lower expectations of privacy; for example, we held in Cardwell v. Lewis, supra, at 9417 U.S. 590590, that, because the passenger compartment of a standard automobile is relatively open to plain view, there are lesser expectations of privacy. But even when enclosed "repository" areas have been involved, we have concluded that the lesser expectations of privacy warrant application of the exception. We have applied the exception in the context of a locked car trunk, Cady v. Dombrowski, supra, a sealed package in a car trunk, Ross, supra, a closed compartment under the dashboard, Chambers Page 471 U. S. 392 v. Maroney, supra, the interior of a vehicle's upholstery, Carroll, supra, or sealed packages inside a covered pickup truck, United States v. Johns, 469 U. S. 478 (1985). These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways. Cady v. Dombrowsk, supra, at 413 U. S. 440 -441. As we explained in South Dakota v. Opperman, an inventory search case: "Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order." 428 U.S. at 428 U. S. 368 . The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, "individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts." Ross, supra, at 456 U. S. 806 , n. 8. In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met. When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes -- temporary or otherwise -- the two justifications for the vehicle exception Page 471 U. S. 393 come into play. [ Footnote 2 ] First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable. While it is true that respondent's vehicle possessed some, if not many of the attributes of a home, it is equally clear that the vehicle falls clearly within the scope of the exception laid down in Carroll and applied in succeeding cases. Like the automobile in Carroll, respondent's motor home was readily mobile. Absent the prompt search and seizure, it could readily have been moved beyond the reach of the police. Furthermore, the vehicle was licensed to "operate on public streets; [was] serviced in public places; . . . and [was] subject to extensive regulation and inspection." Rakas v. Illinois, 439 U. S. 128 , 439 U. S. 154 , n. 2 (1978) (POWELL, J., concurring). And the vehicle was so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle. Respondent urges us to distinguish his vehicle from other vehicles within the exception because it was capable of functioning as a home. In our increasingly mobile society, many vehicles used for transportation can be and are being used not only for transportation but for shelter, i.e., as a "home" or "residence." To distinguish between respondent's motor home and an ordinary sedan for purposes of the vehicle exception would require that we apply the exception depending upon the size of the vehicle and the quality of its appointments. Moreover, to fail to apply the exception to vehicles Page 471 U. S. 394 such as a motor home ignores the fact that a motor home lends itself easily to use as an instrument of illicit drug traffic and other illegal activity. In United States v. Ross, 456 U.S. at 456 U. S. 822 , we declined to distinguish between "worthy" and "unworthy" containers, noting that "the central purpose of the Fourth Amendment forecloses such a distinction." We decline today to distinguish between "worthy" and "unworthy" vehicles which are either on the public roads and highways, or situated such that it is reasonable to conclude that the vehicle is not being used as a residence. Our application of the vehicle exception has never turned on the other uses to which a vehicle might be put. The exception has historically turned on the ready mobility of the vehicle, and on the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation. [ Footnote 3 ] These two requirements for application of the exception ensure that law enforcement officials are not unnecessarily hamstrung in their efforts to detect and prosecute criminal activity, and that the legitimate privacy interests of the public are protected. Applying the vehicle exception in these circumstances allows the essential purposes served by the exception to be fulfilled, while assuring that the exception will acknowledge legitimate privacy interests. III The question remains whether, apart from the lack of a warrant, this search was unreasonable. Under the vehicle exception to the warrant requirement, "[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize." Ross, supra, at 456 U. S. 823 . Page 471 U. S. 395 This search was not unreasonable; it was plainly one that the magistrate could authorize if presented with these facts. The DEA agents had fresh, direct, uncontradicted evidence that the respondent was distributing a controlled substance from the vehicle, apart from evidence of other possible offenses. The agents thus had abundant probable cause to enter and search the vehicle for evidence of a crime notwithstanding its possible use as a dwelling place. The judgment of the California Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] Respondent contends that the state court decision rests on an adequate and independent state ground, because the opinion refers to the State as well as the Federal Constitution. Respondent's argument is clearly foreclosed by our opinion in Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1040 -1041 (1983), in which we held, "when . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so." We read the opinion as resting on federal law. [ Footnote 2 ] With few exceptions, the courts have not hesitated to apply the vehicle exception to vehicles other than automobiles. See, e.g., United States v. Rollins, 699 F.2d 530 (CA11) (airplane), cert. denied, 464 U.S. 933 (1983). [ Footnote 3 ] We need not pass on the application of the vehicle exception to a motor home that is situated in a way or place that objectively indicates that it is being used as a residence. Among the factors that might be relevant in determining whether a warrant would be required in such a circumstance is its location, whether the vehicle is readily mobile or instead, for instance, elevated on blocks, whether the vehicle is licensed, whether it is connected to utilities, and whether it has convenient access to a public road. JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting. The character of "the place to be searched" [ Footnote 2/1 ] plays an important role in Fourth Amendment analysis. In this case, police officers searched a Dodge/Midas Mini Motor Home. The California Supreme Court correctly characterized this vehicle as a "hybrid" which combines "the mobility attribute of an automobile . . . with most of the privacy characteristics of a house." [ Footnote 2/2 ] The hybrid character of the motor home places it at the crossroads between the privacy interests that generally forbid warrantless invasions of the home, Payton v. New York, 445 U. S. 573 , 445 U. S. 585 -590 (1980), and the law enforcement interests that support the exception for warrantless searches of automobiles based on probable cause, United States v. Ross, 456 U. S. 798 , 456 U. S. 806 , 456 U. S. 820 (1982). By choosing to follow the latter route, the Court errs in three respects: it has entered new Page 471 U. S. 396 territory prematurely, it has accorded priority to an exception, rather than to the general rule, and it has abandoned the limits on the exception imposed by prior cases. I In recent Terms, the Court has displayed little confidence in state and lower federal court decisions that purport to enforce the Fourth Amendment. Unless an order suppressing evidence is clearly correct, a petition for certiorari is likely to garner the four votes required for a grant of plenary review -- as the one in this case did. Much of the Court's "burdensome" workload is a product of its own aggressiveness in this area. By promoting the Supreme Court of the United States as the High Magistrate for every warrantless search and seizure, this practice has burdened the argument docket with cases presenting fact-bound errors of minimal significance. [ Footnote 2/3 ] It has also encouraged state legal officers to file petitions for certiorari in even the most frivolous search and seizure cases. [ Footnote 2/4 ] The Court's lack of trust in lower judicial authority has resulted in another improvident exercise of discretionary Page 471 U. S. 397 jurisdiction. [ Footnote 2/5 ] In what is at most only a modest extension of our Fourth Amendment precedents, the California Supreme Court held that police officers may not conduct a nonexigent search of a motor home without a warrant supported by probable cause. The State of California filed a petition for certiorari contending that the decision below conflicted with the authority of other jurisdictions. [ Footnote 2/6 ] Even a cursory examination of the cases alleged to be in conflict revealed that they did not consider the question presented here. [ Footnote 2/7 ] Page 471 U. S. 398 This is not a case "in which an American citizen has been deprived of a right secured by the United States Constitution or a federal statute. Rather, . . . a state court has upheld a citizen's assertion of a right, finding the citizen to be protected under both federal and state law." Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1067 -1068 (1983) (STEVENS, J., dissenting). As an unusually perceptive study of this Court's docket stated with reference to California v. Ramos, 463 U. S. 992 (1983), "this . . . situation . . . rarely presents a compelling reason for Court review in the absence of a fully percolated conflict." [ Footnote 2/8 ] The Court's decision to forge ahead Page 471 U. S. 399 has established a rule for searching motor homes that is to be followed by the entire Nation. If the Court had merely allowed the decision below to stand, it would have only governed searches of those vehicles in a single State. The breadth of this Court's mandate counsels greater patience before we offer our binding judgment on the meaning of the Constitution. Premature resolution of the novel question presented has stunted the natural growth and refinement of alternative principles. Despite the age of the automobile exception and the countless cases in which it has been applied, we have no prior cases defining the contours of a reasonable search in the context of hybrids such as motor homes, house trailers, houseboats, or yachts. In this case, the Court can barely glimpse the diverse lifestyles associated with recreational vehicles and mobile living quarters. [ Footnote 2/9 ] The line or lines separating mobile homes from permanent structures might have been drawn in various ways, with consideration given to whether the home is moving or at rest, whether it rests on land or water, the form of the vehicle's attachment to its location, its potential speed of departure, its size and capacity to serve as a domicile, and its method of locomotion. Rational decisionmaking strongly counsels against divining the uses and abuses of these vehicles in the vacuum of the first case raising the question before us. Of course, we may not abdicate our responsibility to clarify the law in this field. Some caution, however, is justified when every decision requires us to resolve a vexing "conflict . . . between the individual's constitutionally protected interest in privacy and the public interest in effective law enforcement." United States v. Ross, 456 U.S. at 456 U. S. 804 . "The certainty that is supposed to come from speedy resolution Page 471 U. S. 400 may prove illusory if a premature decision raises more questions than it answers." [ Footnote 2/10 ] The only true rules governing search and seizure have been formulated and refined in the painstaking scrutiny of case-by-case adjudication. Consideration of this matter by the lower courts in a series of litigated cases would surely have facilitated a reasoned accommodation of the conflicting interests. To identify rules that will endure, we must rely on the state and lower federal courts to debate and evaluate the different approaches to difficult and unresolved questions of constitutional law. [ Footnote 2/11 ] Deliberation on the question over time winnows out the unnecessary Page 471 U. S. 401 and discordant elements of doctrine and preserves "whatever is pure and sound and fine." [ Footnote 2/12 ] II The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." We have interpreted this language to provide law enforcement officers with a bright-line standard: "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U. S. 347 , 389 U. S. 357 (1967) (footnotes omitted); Arkansas v. Sanders, 442 U. S. 753 , 442 U. S. 758 (1979). In United States v. Ross, the Court reaffirmed the primary importance of the general rule condemning warrantless searches, and emphasized that the exception permitting the search of automobiles without a warrant is a narrow one. 456 U.S. at 456 U. S. 824 -825. We expressly endorsed "the general rule," stated in Carroll v. United States, 267 U. S. 132 , 267 U. S. 156 (1925), that, " [i]n cases where the securing of a warrant is reasonably practicable, it must be used.'" 456 U.S. at 456 U. S. 807 . Given this warning and the presumption of regularity that attaches to a warrant, [ Footnote 2/13 ] it is hardly unrealistic to expect experienced law enforcement officers to obtain a search warrant when one can easily be secured. The ascendancy of the warrant requirement in our system of justice must not be bullied aside by extravagant claims of necessity: ""The warrant requirement . . . is not an inconvenience to be somehow weighed' against the claims of police efficiency. It is, or should be, an important working part Page 471 U. S. 402 of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement." [ Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 481 (1971).]" ". . . By requiring that conclusions concerning probable cause and the scope of a search" "be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime" " Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948), we minimize the risk of unreasonable assertions of executive authority." Arkansas v. Sanders, 442 U.S. at 442 U. S. 758 -759. If the motor home were parked in the exact middle of the intersection between the general rule and the exception for automobiles, priority should be given to the rule, rather than the exception. III The motor home, however, was not parked in the middle of that intersection. Our prior cases teach us that inherent mobility is not a sufficient justification for the fashioning of an exception to the warrant requirement, especially in the face of heightened expectations of privacy in the location searched. Motor homes, by their common use and construction, afford their owners a substantial and legitimate expectation of privacy when they dwell within. When a motor home is parked in a location that is removed from the public highway, I believe that society is prepared to recognize that the expectations of privacy within it are not unlike the expectations one has in a fixed dwelling. As a general rule, such places may only be searched with a warrant based upon probable cause. Warrantless searches of motor homes are only reasonable when the motor home is traveling on the public streets or highways, or when exigent circumstances otherwise require an immediate search without the expenditure of time necessary to obtain a warrant. Page 471 U. S. 403 As we explained in Ross, the automobile exception is the product of a long history: "[S]ince its earliest days, Congress had recognized the impracticability of securing a warrant in cases involving the transportation of contraband goods. It is this impracticability, viewed in historical perspective, that provided the basis for the Carroll decision. Given the nature of an automobile in transit, the Court recognized that an immediate intrusion is necessary if police officers are to secure the illicit substance. In this class of cases, the Court held that a warrantless search of an automobile is not unreasonable." 456 U.S. at 456 U. S. 806 -807 (footnotes omitted). [ Footnote 2/14 ] The automobile exception has been developed to ameliorate the practical problems associated with the search of vehicles that have been stopped on the streets or public highways because there was probable cause to believe they were transporting contraband. Until today, however, the Court has never decided whether the practical justifications that apply to a vehicle that is stopped in transit on a public way apply with the same force to a vehicle parked in a lot near a courthouse where it could easily be detained while a warrant is issued. [ Footnote 2/15 ] Page 471 U. S. 404 In this case, the motor home was parked in an off-the-street lot only a few blocks from the courthouse in downtown San Diego where dozens of magistrates were available to entertain a warrant application. [ Footnote 2/16 ] The officers clearly had the element of surprise with them, and with curtains covering the windshield, the motor home offered no indication of any imminent departure. The officers plainly had probable cause to arrest the respondent and search the motor home, and, on this record, it is inexplicable why they eschewed the safe harbor of a warrant. [ Footnote 2/17 ] In the absence of any evidence of exigency in the circumstances of this case, the Court relies on the inherent mobility of the motor home to create a conclusive presumption of exigency. This Court, however, has squarely held that mobility of the place to be searched is not a sufficient justification for abandoning the warrant requirement. In United States v. Chadwick, 433 U. S. 1 (1977), the Court held that a warrantless search of a footlocker violated the Fourth Amendment even Page 471 U. S. 405 though there was ample probable cause to believe it contained contraband. The Government had argued that the rationale of the automobile exception applied to movable containers in general, and that the warrant requirement should be limited to searches of homes and other "core" areas of privacy. See id. at 433 U. S. 7 . We categorically rejected the Government's argument, observing that there are greater privacy interests associated with containers than with automobiles, [ Footnote 2/18 ] and that there are less practical problems associated with the temporary detention of a container than with the detention of an automobile. See id. at 433 U. S. 13 , and n. 7. We again endorsed that analysis in Ross: "The Court in Chadwick specifically rejected the argument that the warrantless search was 'reasonable' because a footlocker has some of the mobile characteristics that support warrantless searches of automobiles. The Court recognized that 'a person's expectations of privacy in personal luggage are substantially greater than in an automobile,' [433 U.S. at 433 U. S. 13 ], and noted that the practical problems associated with the temporary detention of a piece of luggage during the period of time necessary to obtain a warrant are significantly less than those associated with the detention of an automobile. Id. at 433 U. S. 13 , n.7." 456 U.S. at 456 U. S. 811 . It is perfectly obvious that the citizen has a much greater expectation of privacy concerning the interior of a mobile home than of a piece of luggage such as a footlocker. If "inherent mobility" does not justify warrantless searches Page 471 U. S. 406 of containers, it cannot rationally provide a sufficient justification for the search of a person's dwelling place. Unlike a brick bungalow or a frame Victorian, a motor home seldom serves as a permanent lifetime abode. The motor home in this case, however, was designed to accommodate a breadth of ordinary everyday living. Photographs in the record indicate that its height, length, and beam provided substantial living space inside: stuffed chairs surround a table; cupboards provide room for storage of personal effects; bunk beds provide sleeping space; and a refrigerator provides ample space for food and beverages. [ Footnote 2/19 ] Moreover, curtains and large opaque walls inhibit viewing the activities inside from the exterior of the vehicle. The interior configuration of the motor home establishes that the vehicle's size, shape, and mode of construction should have indicated to the officers that it was a vehicle containing mobile living quarters. The State contends that officers in the field will have an impossible task determining whether or not other vehicles contain mobile living quarters. It is not necessary for the Court to resolve every unanswered question in this area in a single case, but common English usage suggests that we already distinguish between a "motor home" which is "equipped as a self-contained traveling home," a "camper" which is only equipped for "casual travel and camping," and an automobile which is "designed for passenger transportation." [ Footnote 2/20 ] Surely the exteriors of these vehicles contain clues about their different functions which could alert officers in the field to the necessity of a warrant. [ Footnote 2/21 ] Page 471 U. S. 407 The California Vehicle Code also refutes the State's argument that the exclusion of "motor homes" from the automobile exception would be impossible to apply in practice. In its definitional section, the Code distinguishes campers and house cars from station wagons, and suggests that they are special categories of the more general terms -- motor vehicles and passenger vehicles. [ Footnote 2/22 ] A "house car" is "a motor vehicle originally designed, or permanently altered, and equipped for human habitation, or to which a camper has been permanently attached. [ Footnote 2/23 ]" Alcoholic beverages may not be opened or consumed in motor vehicles traveling on the highways, except in the "living quarters of a housecar or camper." [ Footnote 2/24 ] The same definitions might not necessarily apply in the context of the Fourth Amendment, but they do indicate that descriptive distinctions are humanly possible. They also reflect the California Legislature's judgment that "house cars" entertain different kinds of activities than the ordinary passenger vehicle. In my opinion, searches of places that regularly accommodate a wide range of private human activity are fundamentally different from searches of automobiles which primarily serve a public transportation function. [ Footnote 2/25 ] Although it may not be a castle, a motor home is usually the functional equivalent of a hotel room, a vacation and retirement home, or a hunting and fishing cabin. These places may be as spartan Page 471 U. S. 408 as a humble cottage when compared to the most majestic mansion, 456 U.S. at 456 U. S. 822 ; ante at 471 U. S. 393 , but the highest and most legitimate expectations of privacy associated with these temporary abodes should command the respect of this Court. Stoner v. California, 376 U. S. 483 , 376 U. S. 490 (1964); Payton v. New York, 445 U.S. at 445 U. S. 585 ; United States v. Karo, 468 U. S. 705 , 468 U. S. 714 -715 (1984). [ Footnote 2/26 ] In my opinion, a warrantless search of living quarters in a motor home is "presumptively unreasonable absent exigent circumstances." Ibid. I respectfully dissent. [ Footnote 2/1 ] The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [ Footnote 2/2 ] 34 Cal. 3d 597 , 606, 668 P.2d 807 , 812 (1983). [ Footnote 2/3 ] E.g., United States v. Johns, 469 U. S. 478 (1985); United States v. Sharpe, 470 U. S. 675 (1985); Oklahoma v. Castleberry, ante p. 146. Cf. Florida v. Rodriguez, 469 U. S. 1 , 469 U. S. 12 -13 (1984) (STEVENS, J., dissenting, joined by BRENNAN, J.). [ Footnote 2/4 ] See, e.g., State v. Caponi, 12 Ohio St.3d 302, 466 N.E.2d 551 (1984), cert. denied, 469 U.S. 1209 (1985). The Court's inventiveness in the search and seizure area has also emboldened state legal officers to file petitions for certiorari from state court suppression orders that are explicitly based on independent state grounds. See, e.g., Jamison v. State, 455 So. 2d 1112 (Fla.App.1984), cert. denied, 469 U. S. 1127 (1985); Ex parte Gannaway, 448 So. 2d 413 (Ala.1984), cert. denied, 469 U.S. 1207 (1985); State v. Burkholder, 12 Ohio St.3d 205, 466 N.E.2d 176, cert. denied, 469 U. S. 1062 (1984); People v. Corr, 682 P.2d 20 (Colo.), cert. denied, 469 U.S. 855 (1984); State v. Von Bulow, 475 A.2d 995 (R.I.), cert. denied, 469 U.S. 875 (1984). [ Footnote 2/5 ] Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1065 (1983) (STEVENS, J., dissenting); California v. Ramos, 463 U. S. 992 , 463 U. S. 1029 (1983) (STEVENS, J., dissenting); Watt v. Western Nuclear, Inc., 462 U. S. 36 , 462 U. S. 72 -73 (1983) (STEVENS, J., dissenting); Watt v. Alaska, 451 U. S. 259 , 451 U. S. 273 (1981) (STEVENS, J., concurring). See also Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177, 182 (1982). [ Footnote 2/6 ] Pet. for Cert. 15-17, 21, 24-25. The petition acknowledged that the decision below was consistent with dictum in two recent Ninth Circuit decisions. See United States v. Wiga, 662 F.2d 1325, 1329 (1981), cert. denied, 456 U.S. 918 (1982); United States v. Williams, 630 F.2d 1322, 1326, cert. denied, 449 U.S. 865 (1980). [ Footnote 2/7 ] Only one case contained any reference to heightened expectations of privacy in mobile living quarters. United States v. Cadena, 588 F.2d 100, 101-102 (CA5 1979) (per curiam). Analogizing to automobile cases, the court upheld the warrantless search of an oceangoing ship while in transit. The court observed that the mobility "exception" required probable cause and exigency, and that "the increased measure of privacy that may be expected by those aboard a vessel mandates careful scrutiny both of probable cause for the search and the exigency of the circumstances excusing the failure to secure a warrant." Id. at 102. In all of the other cases, defendants challenged warrantless searches for vehicles claiming either no probable cause or the absence of exigency under Coolidge v. New Hampshire, 403 U. S. 443 (1971). United States v. Montgomery, 620 F.2d 753, 760 (CA10) ("camper"), cert. denied, 449 U.S. 882 (1980); United States v. Clark, 559 F.2d 420, 423-425 (CA5) ("camper pick-up truck"), cert. denied, 434 U.S. 969 (1977); United States v. Lovenguth, 514 F.2d 96, 97 (CA9 1975) ("pick up with . . . camper top"); United States v. Cusanelli, 472 F.2d 1204, 1206 (CA6) (per curiam) (two camper trucks), cert. denied, 412 U.S. 953 (1973); United States v. Miller, 460 F.2d 582, 585-586 (CA10 1972) ("motor home"); United States v. Rodgers, 442 F.2d 902, 904 (CA5 1971) ("camper truck"); State v. Million, 120 Ariz. 10, 15-16, 583 P.2d 897 , 902-903 (1978) ("motor home"); State v. Sardo, 112 Ariz. 509, 513-514, 543 P.2d 1138 , 1142 (1975) ("motor home"). Only Sardo involved a vehicle that was not in transit, but the motor home in that case was about to depart the premises. Two State Supreme Courts have upheld the warrantless search of mobile homes in transit, notwithstanding a claim of heightened privacy interests. See State v. Mower, 407 A.2d 729 , 732 (Me.1979); State v. Lepley, 343 N.W.2d 41 , 42-43 (Minn.1984). Those cases -- which were not cited in the petition for certiorari -- are factually distinguishable from the search of the parked motor home here. In any case, some conflict among state courts on novel questions of the kind involved here is desirable as a means of exploring and refining alternative approaches to the problem. [ Footnote 2/8 ] Estreicher & Sexton, New York University Supreme Court Project, A Managerial Theory of the Supreme Court's Responsibilities (1984) (to be published in 59 N.Y.U.L.Rev. 677, 761 (1984)). The study elaborated: "[T]he Court should not hear cases in which a state court has invalidated state action on a federal ground in the absence of a conflict or a decision to treat the case as a vehicle for a major pronouncement of federal law. Without further percolation, there is ordinarily little reason to believe that the issue is one of recurring national significance. In general, correction of error, even regarding a matter of constitutional law, is not a sufficient basis for Supreme Court intervention. This last category differs from a federal court's invalidation of state action in that a structural justification for intervention is generally missing, given the absence of vertical federalism difficulties and the built-in assurance that state courts functioning under significant political constraints are not likely to invalidate state action lightly, even on federal grounds. . . . [The Court] should not grant . . . merely to correct perceived error." Id. at 738-739 (footnote omitted). Chief Justice Samuel Roberts, Retired, of the Pennsylvania Supreme Court, has expressed similar concerns. Roberts, The Adequate and Independent State Ground: Some Practical Considerations, 17 IJA Rep. No. 2, pp. 1-2 (1985). [ Footnote 2/9 ] See generally 45 Trailer Life, No. 1 (1985); id. No. 2; 22 Motor Home, No. 1 (1985); id. No. 2; 1 RV Lifestyle Magazine, No. 3 (1985). [ Footnote 2/10 ] Hellman, The Proposed Intercircuit Tribunal: Do We Need It? Will It Work?, 11 Hastings Const.L.Q. 375, 405 (1984). [ Footnote 2/11 ] "Although one of the Court's roles is to ensure the uniformity of federal law, we do not think that the Court must act to eradicate disuniformity as soon as it appears. . . . Disagreement in the lower courts facilitates percolation -- the independent evaluation of a legal issue by different courts. The process of percolation allows a period of exploratory consideration and experimentation by lower courts before the Supreme Court ends the process with a nationally binding rule. The Supreme Court, when it decides a fully percolated issue, has the benefit of the experience of those lower courts. Irrespective of docket capacity, the Court should not be compelled to intervene to eradicate disuniformity when further percolation or experimentation is desirable." " * * * *" "Our system is already committed in substantial measure to the principle of percolation. This is one justification for the absence of intercircuit stare decisis. Similarly, state and federal courts daily engage in a process of 'dialectical federalism' wherein state courts are not bound by the holdings of lower federal courts in the same geographical area. But more than past practice and the structure of the judicial system supports a policy of awaiting percolation before Supreme Court intervention. A managerial conception of the Court's role embraces lower court percolation as an affirmative value. The views of the lower courts on a particular legal issue provide the Supreme Court with a means of identifying significant rulings as well as an experimental base and a set of doctrinal materials with which to fashion sound binding law. The occurrence of a conflict acts as a signaling device to help the Court identify important issues. Moreover, the principle of percolation encourages the lower courts to act as responsible agents in the process of development of national law." Estreicher & Sexton, supra, n. 8, at 716, 719 (footnotes omitted). [ Footnote 2/12 ] B. Cardozo, The Nature of the Judicial Process 179 (1921). [ Footnote 2/13 ] United States v. Leon, 468 U. S. 897 , 468 U. S. 913 -914 (1984); Illinois v. Gates, 462 U. S. 213 , 462 U. S. 236 -237 (1983). [ Footnote 2/14 ] "As we have stated, the decision in Carroll was based on the Court's appraisal of practical considerations viewed in the perspective of history." 456 U.S. at 456 U. S. 820 . [ Footnote 2/15 ] In Coolidge v. New Hampshire, 403 U. S. 443 (1971), a plurality refused to apply the automobile exception to an automobile that was seized while parked in the driveway of the suspect's house, towed to a secure police compound, and later searched: "The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United State -- no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where 'it is not practicable to secure a warrant.' [267 U.S. at 267 U. S. 153 ,] and the 'automobile exception,' despite its label, is simply irrelevant." Id. at 403 U. S. 461 -462 (opinion of Stewart, J., joined by Douglas, BRENNAN, and MARSHALL, JJ.). In Cardwell v. Lewis, 417 U. S. 583 (1974), a different plurality approved the seizure of an automobile from a public parking lot, and a later examination of its exterior. Id. at 417 U. S. 592 -594 (opinion of BLACKMUN, J.). Here, of course, we are concerned with the reasonableness of the search, not the seizure. Even if the diminished expectations of privacy associated with an automobile justify the warrantless search of a parked automobile notwithstanding the diminished exigency, the heightened expectations of privacy in the interior of a motor home require a different result. [ Footnote 2/16 ] See Suppression Hearing Tr. 7; Tr. of Oral Arg. 27. In addition, a telephonic warrant was only 20 cents and the nearest phone booth away. See Cal.Penal Code Ann. §§ 1526(b), 1528(b) (West 1982); People v. Morroniello, 145 Cal. App. 3d 1 , 9, 193 Cal. Rptr. 105 , 109 (1983). [ Footnote 2/17 ] This willingness to search first and later seek justification has properly been characterized as "a decision roughly comparable in prudence to determining whether an electrical wire is charged by grasping it." United States v. Mitchell, 538 F.2d 1230, 1233 (CA5 1976) (en banc), cert. denied, 430 U.S. 945 (1977). [ Footnote 2/18 ] "The factors which diminish the privacy aspects of an automobile do not apply to respondent's footlocker. Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person's expectations of privacy in personal luggage are substantially greater than in an automobile." 433 U.S. at 433 U. S. 13 . [ Footnote 2/19 ] Record, Ex. Nos. 102, 103. [ Footnote 2/20 ] Webster's Ninth New Collegiate Dictionary 118, 199, 775 (1983). [ Footnote 2/21 ] In refusing to extend the California Supreme Court's decision in Carney beyond its context, the California Courts of Appeal have had no difficulty in distinguishing the motor home involved there from a Ford van, People v. Chestnut, 151 Cal. App. 3d 721 , 726-727, 198 Cal. Rptr. 8 , 11 (1983), and a cab-high camper shell on the back of a pickup truck, People v. Gordon, 156 Cal. App. 3d 74 , 82 , 202 Cal. Rptr. 566 , 570 (1984). There is no reason to believe that trained officers could not make similar distinctions between different vehicles, especially when state vehicle laws already require them to do so. [ Footnote 2/22 ] Cal.Veh.Code Ann. §§ 243, 362, 415, 465, 585 (West 1971 and Supp.1985). [ Footnote 2/23 ] § 362 (West 1971). [ Footnote 2/24 ] §§ 23221, 23223, 23225, 23226, 23229 (West Supp.1985). [ Footnote 2/25 ] Cf. Cardwell v. Lewis, 417 U.S. at 417 U. S. 590 (opinion of BLACKMUN, J.): "One has a lesser expectation of privacy in a motor vehicle because its function is transportation, and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view." [ Footnote 2/26 ] "At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. Our cases have not deviated from this basic Fourth Amendment principle. Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances." United State v. Karo, 468 U.S. at 468 U. S. 714 -715.

Here is a summary of the case: The Supreme Court of the United States ruled that a warrantless search of a motor home by Drug Enforcement Administration (DEA) agents did not violate the Fourth Amendment. The case involved a motor home used for exchanging marijuana for sex, and the DEA agents had probable cause to believe that the respondent was distributing drugs from the vehicle. The Court applied the "motor vehicle exception" to the warrant requirement, reasoning that the vehicle was readily mobile and that there was a reduced expectation of privacy due to the pervasive regulation of vehicles capable of highway travel. The Court also noted that motor homes can easily be used for illicit activities, and distinguishing between different types of vehicles for the purpose of the exception would be impractical.

Search & Seizure

Dow Chemical Co. v. U.S.

https://supreme.justia.com/cases/federal/us/476/227/

U.S. Supreme Court Dow Chemical Co. v. United States, 476 U.S. 227 (1986) Dow Chemical Co. v. United States No. 84-1259 Argued December 10, 1985 Decided May 19, 1986 476 U.S. 227 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus Petitioner operates a 2,000-acre chemical plant consisting of numerous covered buildings, with outdoor manufacturing equipment and piping conduits located between the various buildings exposed to visual observation from the air. Petitioner maintains elaborate security around the perimeter of the complex, barring ground-level public views of the area. When petitioner denied a request by the Environmental Protection Agency (EPA) for an on-site inspection of the plant, EPA did not seek an administrative search warrant, but instead employed a commercial aerial photographer, using a standard precision aerial mapping camera, to take photographs of the facility from various altitudes, all of which were within lawful navigable airspace. Upon becoming aware of the aerial photography, petitioner brought suit in Federal District Court, alleging that EPA's action violated the Fourth Amendment and was beyond its statutory investigative authority. The District Court granted summary judgment for petitioner, but the Court of Appeals reversed, holding that EPA's aerial observation did not exceed its investigatory authority and that the aerial photography of petitioner's plant complex without a warrant was not a search prohibited by the Fourth Amendment. Held: 1. The fact that aerial photography by petitioner's competitors might be barred by state trade secrets law is irrelevant to the questions presented in this case. Governments do not generally seek to appropriate trade secrets of the private sector, and the right to be free of appropriation of trade secrets is protected by law. Moreover, state tort law governing unfair competition does not define the limits of the Fourth Amendment. Pp. 476 U. S. 231 -233. 2. The use of aerial observation and photography is within EPA's statutory authority. When Congress invests an agency such as EPA with enforcement and investigatory authority, it is not necessary to identify explicitly every technique that may be used in the course of executing the statutory mission. Although § 114(a) of the Clean Air Act, which provides for EPA's right of entry to premises for inspection purposes, Page 476 U. S. 228 does not authorize aerial observation, that section appears to expand, not restrict, EPA's general investigatory powers, and there is no suggestion in the statute that the powers conferred by § 114(a) are intended to be exclusive. EPA needs no explicit statutory provision to employ methods of observation commonly available to the public at large. Pp. 476 U. S. 233 -234. 3. EPA's taking, without a warrant, of aerial photographs of petitioner's plant complex from an aircraft lawfully in public navigable airspace was not a search prohibited by the Fourth Amendment. The open areas of an industrial plant complex such as petitioner's are not analogous to the "curtilage" of a dwelling, which is entitled to protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept. See California v. Ciraolo, ante, p. 476 U. S. 207 . The intimate activities associated with family privacy and the home and its curtilage simply do not reach the outdoor areas or spaces between structures and buildings of a manufacturing plant. For purposes of aerial surveillance, the open areas of an industrial complex are more comparable to an "open field" in which an individual may not legitimately demand privacy. Oliver v. United States, 466 U. S. 170 . Here, EPA was not employing some unique sensory device not available to the public, but rather was employing a conventional, albeit precise, commercial camera commonly used in mapmaking. The photographs were not so revealing of intimate details as to raise constitutional concerns. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems. Pp. 476 U. S. 234 -239. 749 F.2d 307, affirmed. BURGER, C.J., delivered the opinion of the Court, in which WHITE, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined, and in Part III of which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 476 U. S. 240 . Page 476 U. S. 229 CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to review the holding of the Court of Appeals (a) that the Environmental Protection Agency's aerial observation of petitioner's plant complex did not exceed EPA's statutory investigatory authority, and (b) that EPA's aerial photography of petitioner's 2,000-acre plant complex without a warrant was not a search under the Fourth Amendment. I Petitioner Dow Chemical Co. operates a 2,000-acre facility manufacturing chemicals at Midland, Michigan. The facility consists of numerous covered buildings, with manufacturing equipment and piping conduits located between the various buildings exposed to visual observation from the air. At all times, Dow has maintained elaborate security around the perimeter of the complex barring ground-level public views of these areas. It also investigates any low-level flights by aircraft over the facility. Dow has not undertaken, however, to conceal all manufacturing equipment within the complex from aerial views. Dow maintains that the cost of covering its exposed equipment would be prohibitive. In early 1978, enforcement officials of EPA, with Dow's consent, made an on-site inspection of two powerplants in this complex. A subsequent EPA request for a second inspection, however, was denied, and EPA did not thereafter seek an administrative search warrant. Instead, EPA employed a commercial aerial photographer, using a standard floor-mounted, precision aerial mapping camera, to take photographs of the facility from altitudes of 12,000, 3,000, and 1,200 feet. At all times, the aircraft was lawfully within navigable airspace. See 49 U.S.C.App. § 1304; 14 CFR § 91. 79 (1985). Page 476 U. S. 230 EPA did not inform Dow of this aerial photography, but when Dow became aware of it, Dow brought suit in the District Court, alleging that EPA's action violated the Fourth Amendment and was beyond EPA's statutory investigative authority. The District Court granted Dow's motion for summary judgment on the ground that EPA had no authority to take aerial photographs, and that doing so was a search violating the Fourth Amendment. EPA was permanently enjoined from taking aerial photographs of Dow's premises and from disseminating, releasing, or copying the photographs already taken. 536 F. Supp. 1355 (ED Mich.1982). The District Court accepted the parties' concession that EPA's " quest for evidence'" was a "search," id. at 1358, and limited its analysis to whether the search was unreasonable under Katz v. United States, 389 U. S. 347 (1967). Proceeding on the assumption that a search in Fourth Amendment terms had been conducted, the court found that Dow manifested an expectation of privacy in its exposed plant areas because it intentionally surrounded them with buildings and other enclosures. 536 F. Supp. at 1364-1366. The District Court held that this expectation of privacy was reasonable, as reflected in part by trade secret protections restricting Dow's commercial competitors from aerial photography of these exposed areas. Id. at 1366-1369. The court emphasized that use of "the finest precision aerial camera available" permitted EPA to capture on film "a great deal more than the human eye could ever see." Id. at 1367. The Court of Appeals reversed. 749 F.2d 307 (CA6 1984). It recognized that Dow indeed had a subjective expectation of privacy in certain areas from ground -level intrusions, but the court was not persuaded that Dow had a subjective expectation of being free from aerial surveillance, since Dow had taken no precautions against such observation, in contrast to its elaborate ground-level precautions. Id. at 313. The court rejected the argument that it was not feasible to shield any of the critical parts of the exposed plant areas from aerial surveys. Id. at 312-313. The Court of Appeals, Page 476 U. S. 231 however, did not explicitly reject the District Court's factual finding as to Dow's subjective expectations. Accepting the District Court finding of Dow's privacy expectation, the Court of Appeals held that it was not a reasonable expectation "[w]hen the entity observed is a multibuilding complex, and the area observed is the outside of these buildings and the spaces in between the buildings." Id. at 313. Viewing Dow's facility to be more like the "open field" in Oliver v. United States, 466 U. S. 170 (1984), than a home or an office, it held that the common law curtilage doctrine did not apply to a large industrial complex of closed buildings connected by pipes, conduits, and other exposed manufacturing equipment. 749 F.2d at 313-314. The Court of Appeals looked to "the peculiarly strong concepts of intimacy, personal autonomy and privacy associated with the home" as the basis for the curtilage protection. Id. at 314. The court did not view the use of sophisticated photographic equipment by EPA as controlling. The Court of Appeals then held that EPA clearly acted within its statutory powers even absent express authorization for aerial surveillance, concluding that the delegation of general investigative authority to EPA, similar to that of other law enforcement agencies, was sufficient to support the use of aerial photography. Id. at 315. II The photographs at issue in this case are essentially like those commonly used in mapmaking. Any person with an airplane and an aerial camera could readily duplicate them. In common with much else, the technology of photography has changed in this century. These developments have enhanced industrial processes, and indeed all areas of life; they have also enhanced law enforcement techniques. Whether they may be employed by competitors to penetrate trade secrets is not a question presented in this case. Governments do not generally seek to appropriate trade secrets of the private Page 476 U. S. 232 sector, and the right to be free of appropriation of trade secrets is protected by law. Dow nevertheless relies heavily on its claim that trade secret laws protect it from any aerial photography of this industrial complex by its competitors, and that this protection is relevant to our analysis of such photography under the Fourth Amendment. That such photography might be barred by state law with regard to competitors, however, is irrelevant to the questions presented here. State tort law governing unfair competition does not define the limits of the Fourth Amendment. Cf. Oliver v. United States, supra, (trespass law does not necessarily define limits of Fourth Amendment). The Government is seeking these photographs in order to regulate, not to compete with, Dow. If the Government were to use the photographs to compete with Dow, Dow might have a Fifth Amendment "taking" claim. Indeed, Dow alleged such a claim in its complaint, but the District Court dismissed it without prejudice. But even trade secret laws would not bar all forms of photography of this industrial complex; rather, only photography with an intent to use any trade secrets revealed by the photographs may be proscribed. Hence, there is no prohibition of photographs taken by a casual passenger on an airliner, or those taken by a company producing maps for its mapmaking purposes. Dow claims first that EPA has no authority to use aerial photography to implement its statutory authority for "site inspection" under § 114(a) of the Clean Air Act, 42 U.S.C. § 7414(a); [ Footnote 1 ] second, Dow claims EPA's use of aerial photography Page 476 U. S. 233 was a "search" of an area that, notwithstanding the large size of the plant, was within an "industrial curtilage," rather than an "open field," and that it had a reasonable expectation of privacy from such photography protected by the Fourth Amendment. III Congress has vested in EPA certain investigatory and enforcement authority, without spelling out precisely how this authority was to be exercised in all the myriad circumstances that might arise in monitoring matters relating to clean air and water standards. When Congress invests an agency with enforcement and investigatory authority, it is not necessary to identify explicitly each and every technique that may be used in the course of executing the statutory mission. Aerial observation authority, for example, is not usually expressly extended to police for traffic control, but it could hardly be thought necessary for a legislative body to tell police that aerial observation could be employed for traffic control of a metropolitan area, or to expressly authorize police to send messages to ground highway patrols that a particular over-the-road truck was traveling in excess of 55 miles per hour. Common sense and ordinary human experience teach that traffic violators are apprehended by observation. Regulatory or enforcement authority generally carries with it all the modes of inquiry and investigation traditionally employed or useful to execute the authority granted. Environmental standards such as clean air and clean water cannot be enforced only in libraries and laboratories, helpful as those institutions may be. Under § 114(a)(2), the Clean Air Act provides that "upon presentation of . . . credentials," EPA has a "right of entry to, upon, or through any premises." 42 U.S.C. § 7414(a)(2)(A). Dow argues this limited grant of authority to enter does not Page 476 U. S. 234 authorize any aerial observation. In particular, Dow argues that unannounced aerial observation deprives Dow of its right to be informed that an inspection will be made or has occurred, and its right to claim confidentiality of the information contained in the places to be photographed, as provided in §§ 114(a) and (c), 42 U.S.C. §§ 7414(a) and (c). It is not claimed that EPA has disclosed any of the photographs outside the agency. Section 114(a), however, appears to expand, not restrict, EPA's general powers to investigate. Nor is there any suggestion in the statute that the powers conferred by this section are intended to be exclusive. There is no claim that EPA is prohibited from taking photographs from a ground-level location accessible to the general public. EPA, as a regulatory and enforcement agency, needs no explicit statutory provision to employ methods of observation commonly available to the public at large: we hold that the use of aerial observation and photography is within EPA's statutory authority. [ Footnote 2 ] IV We turn now to Dow's contention that taking aerial photographs constituted a search without a warrant, thereby violating Dow's rights under the Fourth Amendment. In making this contention, however, Dow concedes that a simple flyover with naked-eye observation, or the taking of a photograph from a nearby hillside overlooking such a facility, would give rise to no Fourth Amendment problem. In California v. Ciraolo, ante p. 476 U. S. 207 , decided today, we hold that naked-eye aerial observation from an altitude of Page 476 U. S. 235 1,000 feet of a backyard within the curtilage of a home does not constitute a search under the Fourth Amendment. In the instant case, two additional Fourth Amendment claims are presented: whether the common law "curtilage" doctrine encompasses a large industrial complex such as Dow's, and whether photography employing an aerial mapping camera is permissible in this context. Dow argues that an industrial plant, even one occupying 2,000 acres, does not fall within the "open fields" doctrine of Oliver v. United States, but rather is an "industrial curtilage" having constitutional protection equivalent to that of the curtilage of a private home. Dow further contends that any aerial photography of this "industrial curtilage" intrudes upon its reasonable expectations of privacy. Plainly, a business establishment or an industrial or commercial facility enjoys certain protections under the Fourth Amendment. See Marshall v. Barlow's, Inc., 436 U. S. 307 (1978); See v. City of Seattle, 387 U. S. 541 (1967). Two lines of cases are relevant to the inquiry: the curtilage doctrine and the "open fields" doctrine. The curtilage area immediately surrounding a private house has long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept. See Ciraolo, supra. As the curtilage doctrine evolved to protect much the same kind of privacy as that covering the interior of a structure, the contrasting "open fields" doctrine evolved as well. From Hester v. United States, 265 U. S. 57 (1924), to Oliver v. United States, 466 U. S. 170 (1984), the Court has drawn a line as to what expectations are reasonable in the open areas beyond the curtilage of a dwelling: "open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from governmental interference or surveillance." Oliver, 466 U.S. at 466 U. S. 179 . In Oliver, we held that "an individual may not legitimately demand privacy for activities out of doors in fields, except in the area Page 476 U. S. 236 immediately surrounding the home." Id. at 466 U. S. 178 . To fall within the "open fields" doctrine, the area "need be neither open' nor a `field' as those terms are used in common speech." Id. at 466 U. S. 180 , n. 11. Dow plainly has a reasonable, legitimate, and objective expectation of privacy within the interior of its covered buildings, and it is equally clear that expectation is one society is prepared to observe. E.g., See v. City of Seattle, supra. Moreover, it could hardly be expected that Dow would erect a huge cover over a 2,000-acre tract. In contending that its entire enclosed plant complex is an "industrial curtilage," Dow argues that its exposed manufacturing facilities are analogous to the curtilage surrounding a home, because it has taken every possible step to bar access from ground level. The Court of Appeals held that whatever the limits of an "industrial curtilage" barring ground -level intrusions into Dow's private areas, the open areas exposed here were more analogous to "open fields" than to a curtilage for purposes of aerial observation. 749 F.2d at 312-314. In Oliver, the Court described the curtilage of a dwelling as "the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life.'" 466 U.S. at 466 U. S. 180 (quoting Boyd v. United States, 116 U. S. 616 , 116 U. S. 630 (1886)). See California v. Ciraolo, supra. The intimate activities associated with family privacy and the home and its curtilage simply do not reach the outdoor areas or spaces between structures and buildings of a manufacturing plant. Admittedly, Dow's enclosed plant complex, like the area in Oliver, does not fall precisely within the "open fields" doctrine. The area at issue here can perhaps be seen as falling somewhere between "open fields" and curtilage, but lacking some of the critical characteristics of both. [ Footnote 3 ] Dow's inner Page 476 U. S. 237 manufacturing areas are elaborately secured to ensure they are not open or exposed to the public from the ground. Any actual physical entry by EPA into any enclosed area would raise significantly different questions, because "[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property." See v. City of Seattle, supra, at 387 U. S. 543 . The narrow issue raised by Dow's claim of search and seizure, however, concerns aerial observation of a 2,000-acre outdoor manufacturing facility without physical entry. [ Footnote 4 ] We pointed out in Donovan v. Dewey, 452 U. S. 594 , 452 U. S. 598 -599 (1981), that the Government has "greater latitude to conduct warrantless inspections of commercial property" because "the expectation of privacy that the owner of commercial property enjoys in such property differs significantly Page 476 U. S. 238 from the sanctity accorded an individual's home." We emphasized that, unlike a homeowner's interest in his dwelling, "[t]he interest of the owner of commercial property is not one in being free from any inspections." Id. at 452 U. S. 599 . And with regard to regulatory inspections, we have held that "[w]hat is observable by the public is observable, without a warrant, by the Government inspector as well." Marshall v. Barlow's, Inc., 436 U.S. at 436 U. S. 315 (footnote omitted). Oliver recognized that, in the open field context, "the public and police lawfully may survey lands from the air." 466 U.S. at 466 U. S. 179 (footnote omitted). Here, EPA was not employing some unique sensory device that, for example, could penetrate the walls of buildings and record conversations in Dow's plants, offices, or laboratories, but rather a conventional, albeit precise, commercial camera commonly used in mapmaking. The Government asserts it has not yet enlarged the photographs to any significant degree, but Dow points out that simple magnification permits identification of objects such as wires as small as 1/2-inch in diameter. It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional concerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of the facility's buildings and equipment. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems. [ Footnote 5 ] Page 476 U. S. 239 An electronic device to penetrate walls or windows so as to hear and record confidential discussions of chemical formulae or other trade secrets would raise very different and far more serious questions; other protections such as trade secret laws are available to protect commercial activities from private surveillance by competitors. [ Footnote 6 ] We conclude that the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the "curtilage" of a dwelling for purposes of aerial surveillance; [ Footnote 7 ] such an industrial complex is more comparable to an open field, and, as such, it is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras. We hold that the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment. Affirmed. [ Footnote 1 ] Section 114(a)(2) provides: "(2) the Administrator or his authorized representative, upon presentation of his credentials -- " "(A) shall have a right of entry to, upon, or through any premises of such person or in which any records required to be maintained under paragraph (1) of this section are located, and" "(B) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under paragraph (1), and sample any emissions which such person is required to sample under paragraph (1)." [ Footnote 2 ] Assuming the Clean Air Act's explicit provisions for protecting trade secrets obtained by EPA as the result of its investigative efforts is somehow deemed inapplicable to the information obtained here, see 42 U.S.C. § 7414(c), Dow's fear that EPA might disclose trade secrets revealed in these photographs appears adequately addressed by federal law prohibiting such disclosure generally under the Trade Secrets Act. 18 U.S.C. § 1905, and the Freedom of Information Act, 5 U.S.C. § 552(b)(4). See Chrysler Corp. v. Brown, 441 U. S. 281 (1979). [ Footnote 3 ] In Oliver, we observed that, "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage -- as the area around the home to which the activity of home life extends -- is a familiar one easily understood from our daily experience." 466 U.S. at 466 U. S. 182 , n. 12. While we did not attempt to definitively mark the boundaries of what constitutes an open field, we noted that "[i]t is clear . . . that the term open fields' may include any unoccupied or undeveloped area outside of the curtilage." Id. at 466 U. S. 180 , n. 11. As Oliver recognized, the curtilage surrounding a home is generally a well-defined, limited area. In stark contrast, the areas for which Dow claims enhanced protection cover the equivalent of a half-dozen family farms. [ Footnote 4 ] We find it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened. Nor is this an area where Dow has made any effort to protect against aerial surveillance. Contrary to the partial dissent's understanding, post at 476 U. S. 241 -242, the Court of Appeals emphasized: "Dow did not take any precautions against aerial intrusions, even though the plant was near an airport and within the pattern of planes landing and taking off. If elaborate and expensive measures for Found security show that Dow has an actual expectation of privacy in ground security, as Dow argues, then taking no measure for aerial security should say something about its actual privacy expectation in being free from aerial observation." 749 F.2d 307, 312 (CA6 1984) (emphasis added). Simply keeping track of the identification numbers of any planes flying overhead, with a later followup to see if photographs were taken, does not constitute a "procedur[e] designed to protect the facility from aerial photography." Post at 476 U. S. 241 . [ Footnote 5 ] The partial dissent emphasizes Dow's claim that, under magnification, power lines as small as 1/2-inch in diameter can be observed. Post at 476 U. S. 243 . But a glance at the photographs in issue shows that those power lines are observable only because of their stark contrast with the snow-white background. No objects as small as 1/2-inch in diameter such as a class ring, for example, are recognizable, nor are there any identifiable human faces or secret documents captured in such a fashion as to implicate more serious privacy concerns. Fourth Amendment cases must be decided on the facts of each case, not by extravagant generalizations. "[W]e have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment." United States v. Karo, 468 U. S. 705 , 468 U. S. 712 (1984). On these facts, nothing in these photographs suggests that any reasonable expectations of privacy have been infringed. [ Footnote 6 ] The partial dissent relies heavily on Dow's claim that aerial photography of its facility is proscribed by trade secret laws. Post at 476 U. S. 248 -249, and n. 11. While such laws may protect against use of photography by competitors in the same trade to advance their commercial interests, in no manner do "those laws constitute society's express determination" that all photography of Dow's facility violates reasonable expectations of privacy. Post at 476 U. S. 249 . No trade secret law cited to us by Dow proscribes the use of aerial photography of Dow's facilities for law enforcement purposes, let alone photography for private purposes unrelated to competition such as mapmaking or simple amateur snapshots. See supra at 476 U. S. 232 . [ Footnote 7 ] Our holding here does not reach the issues raised by the Court of Appeals for the Seventh Circuit's holding regarding a "business curtilage" in United States v. Swart, 679 F.2d 698 (CA7 1982); that case involved actual physical entry onto the business premises. JUSTICE POWELL, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, concurring in part, and dissenting in part. The Fourth Amendment protects private citizens from arbitrary surveillance by their Government. For nearly 20 years, this Court has adhered to a standard that ensured that Fourth Amendment rights would retain their vitality as technology expanded the Government's capacity to commit unsuspected intrusions into private areas and activities. Today, in the context of administrative aerial photography of commercial premises, the Court retreats from that standard. It holds that the photography was not a Fourth Amendment "search" because it was not accompanied by a physical trespass and because the equipment used was not the most highly sophisticated form of technology available to the Government. Under this holding, the existence of an asserted privacy interest apparently will be decided solely by reference to the manner of surveillance used to intrude on that interest. Such an inquiry will not protect Fourth Amendment rights, but rather will permit their gradual decay as technology advances. I Since the 1890's, petitioner Dow Chemical Company (Dow) has been manufacturing chemicals at a facility in Midland, Michigan. Its complex covers 2,000 acres, and contains a number of chemical process plants. Many of these are "open-air" plants, with reactor equipment, loading and storage facilities, transfer lines, and motors located in the open areas between buildings. Dow claims that the technology used in these plants constitutes confidential business information, and that the design and configuration of the equipment located there reveal details of Dow's secret manufacturing processes. [ Footnote 2/1 ] Page 476 U. S. 241 Short of erecting a roof over the Midland complex, Dow has, as the Court states, undertaken "elaborate" precautions to secure the facility from unwelcome intrusions. Ante at 476 U. S. 229 . In fact, Dow appears to have done everything commercially feasible to protect the confidential business information and property located within the borders of the facility. Security measures include an 8-foot-high chain link fence completely surrounding the facility that is guarded by security personnel and monitored by closed-circuit television, alarm systems that are triggered by unauthorized entry into the facility, motion detectors that indicate movement of persons within restricted areas, a prohibition on use of camera equipment by anyone other than authorized Dow personnel, and a strict policy under which no photographs of the facility may be taken or released without prior management review and approval. [ Footnote 2/2 ] In addition to these precautions, the open-air plants were placed within the internal portion of the 2,000-acre complex to conceal them from the view of members of the public outside the perimeter fence. Dow's security program also includes procedures designed to protect the facility from aerial photography. Dow has instructed its employees that it is "concerned when other than commercial passenger flights pass over the plant property." App. 14. When "suspicious" overflights occur, such as where a plane makes several passes over the facility, employees try to obtain the plane's identification number and description. Page 476 U. S. 242 Working with personnel from the State Police and local airports, Dow employees then locate the pilot to determine if he has photographed the facility. If Dow learns that he has done so, Dow takes steps to prevent dissemination of photographs that show details of its proprietary technology. [ Footnote 2/3 ] The controversy underlying this litigation arose out of the efforts of the Environmental Protection Agency (EPA) to check emissions from the power houses located within Dow's Midland complex for violations of federal air quality standards. After making one ground-level inspection with Dow's consent, and obtaining schematic drawings of the power houses from Dow, EPA requested Dow's permission to conduct a second inspection during which EPA proposed to photograph the facility. Dow objected to EPA's decision to take photographs, and denied the request. EPA then informed Dow that it was considering obtaining a search warrant to gain entry to the plant. Inexplicably, EPA did not follow that procedure, but instead hired a private firm to take aerial photographs of the facility. Using a sophisticated aerial mapping camera, [ Footnote 2/4 ] this firm took approximately 75 color photographs of various parts of Page 476 U. S. 243 the plant. The District Court found that "some of the photographs taken from directly above the plant at 1,200 feet are capable of enlargement to a scale of 1 inch equals 20 feet or greater, without significant loss of detail or resolution. When enlarged in this manner, and viewed under magnification, it is possible to discern equipment, pipes, and power lines as small as 1/2-inch in diameter." 536 F. Supp. 1355 , 1357 (ED Mich.1982) (emphasis in original). Observation of these minute details is, as the District Court found, "a near physical impossibility" from anywhere "but directly above " the complex. Ibid. (emphasis in original). Because of the complicated details captured in the photographs, the District Court concluded, "the camera saw a great deal more than the human eye could ever see," even if the observer was located directly above the facility. [ Footnote 2/5 ] Id. at 1367. Several weeks later, Dow learned about the EPA-authorized overflight from an independent source. Dow filed this lawsuit, alleging that the aerial photography was an unreasonable search under the Fourth Amendment and constituted an inspection technique outside the scope of EPA's authority under the Clean Air Act, 42 U.S.C. §§ 7413, 7414. [ Footnote 2/6 ] The District Court upheld Dow's position on both issues, and entered a permanent injunction restraining EPA from conducting future aerial surveillance and photography of the Midland facility. The Court of Appeals for the Sixth Circuit reversed. 749 F.2d 307 (1984). It concluded that, while Dow had a reasonable expectation of privacy with respect to Page 476 U. S. 244 ground-level intrusion into the enclosed buildings within its facility, it did not have such an expectation with respect to aerial observation and photography. [ Footnote 2/7 ] The court also held that EPA's use of aerial photography did not exceed its authority under § 114 of the Clean Air Act, 42 U.S.C. § 7414. We granted certiorari to review both of these holdings. 472 U.S. 1007 (1985). The Court rejects Dow's constitutional claim on the ground that "the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment." Ante at 476 U. S. 239 . [ Footnote 2/8 ] The Court does not explicitly reject application of the reasonable expectation of privacy standard of Katz v. United States, 389 U. S. 347 (1967), in this context; nor does it explain how its result squares with Katz and its progeny. Instead, the Court relies on questionable assertions concerning the manner of the surveillance, and on its conclusion that the Midland facility more closely resembles an "open field" than it does the "curtilage" of a private home. The Court's decision marks a drastic reduction in the Fourth Amendment protections previously afforded to private commercial premises under our decisions. Along with California v. Ciraolo, ante p. 476 U. S. 207 , also decided today, the decision may signal a significant retreat from the rationale of prior Fourth Amendment decisions. Page 476 U. S. 245 II Fourth Amendment protection of privacy interests in business premises "is . . . based upon societal expectations that have deep roots in the history of the Amendment." Oliver v. United States, 466 U. S. 170 , 466 U. S. 178 , n. 8 (1984). In Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), we observed that the "particular offensiveness" of the general warrant and writ of assistance, so despised by the Framers of the Constitution, "was acutely felt by the merchants and businessmen whose premises and products were inspected" under their authority. Id. at 436 U. S. 311 . Against that history, "it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence." Id. at 436 U. S. 312 . Our precedents therefore leave no doubt that proprietors of commercial premises, including corporations, have the right to conduct their business free from unreasonable official intrusion. See G. M. Leasing Corp. v. United States, 429 U. S. 338 , 429 U. S. 353 (1977); See v. City of Seattle, 387 U. S. 541 , 387 U. S. 543 (1967). In the context of administrative inspections of business premises, the Court has recognized an exception to the Fourth Amendment rule that warrantless searches of property not accessible to members of the public are presumptively unreasonable. Since the interest of the owner of commercial property is "in being free from unreasonable intrusions onto his property by agents of the government," not in being free from any inspections whatsoever, the Court has held that "the assurance of regularity provided by a warrant may be unnecessary under certain inspection schemes." Donovan v. Dewey, 452 U. S. 594 , 452 U. S. 599 (1981) (emphasis in original). Thus, where Congress has made a reasonable determination that a system of warrantless inspections is necessary to enforce its regulatory purpose, and where "the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections, " Page 476 U. S. 246 warrantless inspections may be permitted. Id. at 452 U. S. 600 . This exception does not apply here. The Government does not contend, nor does the Court hold, that the Clean Air Act authorizes a warrantless inspection program that adequately protects the privacy interests of those whose premises are subject to inspection. Instead, the Court characterizes our decisions in this area simply as giving the Government " greater latitude to conduct warrantless inspections of commercial property'" because privacy interests in such property differ significantly from privacy interests in the home. Ante at 476 U. S. 237 (citation omitted). This reasoning misunderstands the relevant precedents. The exception we have recognized for warrantless inspections, limited to pervasively regulated businesses, see Donovan v. Dewey, supra; United States v. Biswell, 406 U. S. 311 (1972); Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970), is not founded solely on the differences between the premises occupied by such businesses and homes, or on a conclusion that administrative inspections do not intrude on protected privacy interests, and therefore do not implicate Fourth Amendment concerns. Rather, the exception is based on a determination that the reasonable expectation of privacy that the owner of a business does enjoy may be adequately protected by the regulatory scheme itself. Donovan v. Dewey, supra, at 452 U. S. 599 . We have never held that warrantless intrusions on commercial property generally are acceptable under the Fourth Amendment. On the contrary, absent a sufficiently defined and regular program of warrantless inspections, the Fourth Amendment's warrant requirement is fully applicable in the commercial context. Marshall v. Barlow's, Inc., supra, at 436 U. S. 312 -315, 436 U. S. 324 ; G.M. Leasing Corp. v. United States, supra, at 429 U. S. 358 ; See v. City of Seattle, supra, at 387 U. S. 543 -546. III Since our decision in Katz v. United States, the question whether particular governmental conduct constitutes a Page 476 U. S. 247 Fourth Amendment "search" has turned on whether that conduct intruded on a constitutionally protected expectation of privacy. Smith v. Maryland, 442 U. S. 735 (1979); United States v. United States District Court, 407 U. S. 297 (1972). In the context of governmental inspection of commercial property, the Court has relied on the standard of Katz to determine whether an inspection violated the Fourth Amendment rights of the owner of the property. See Marshall v. Barlow's, Inc., supra, at 436 U. S. 313 , 436 U. S. 315 . Today, while purporting to consider the Fourth Amendment question raised here under the rubric of Katz, the Court's analysis of the issue ignores the heart of the Katz standard. A The Court correctly observes that Dow has an expectation of privacy in the buildings located on the Midland property, and that society is prepared to recognize that expectation as reasonable. Ante at 476 U. S. 236 . Similarly, in view of the numerous security measures protecting the entire Dow complex from intrusion on the ground, the Court properly concludes that Dow has a reasonable expectation in being free from such intrusion. Ante at 476 U. S. 236 -237. Turning to the issue presented in this case, however, the Court erroneously states that the Fourth Amendment protects Dow only from "actual physical entry" by the Government "into any enclosed area." Ibid. This statement simply repudiates Katz. The reasonable expectation of privacy standard was designed to ensure that the Fourth Amendment continues to protect privacy in an era when official surveillance can be accomplished without any physical penetration of or proximity to the area under inspection. Writing for the Court in Katz, Justice Stewart explained that Fourth Amendment protections would mean little in our modern world if the reach of the Amendment "turn[ed] upon the presence or absence of a physical intrusion into any given enclosure." 389 U.S. at 389 U. S. 353 . Thus, the Court's observation that the aerial photography was not accompanied by a physical trespass is irrelevant to the analysis Page 476 U. S. 248 of the Fourth Amendment issue raised here, just as it was irrelevant in Katz. Since physical trespass no longer functions as a reliable proxy for intrusion on privacy, it is necessary to determine if the surveillance, whatever its form, intruded on a reasonable expectation that a certain activity or area would remain private. B An expectation of privacy is reasonable for Fourth Amendment purposes if it is rooted in a "source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. [ Footnote 2/9 ]" Rakas v. Illinois, 439 U. S. 128 , 439 U. S. 143 -144, n. 12 (1978). Dow argues that, by enacting trade secret laws, society has recognized that it has a legitimate interest in preserving the privacy of the relevant portions of its open-air plants. As long as Dow takes reasonable steps to protect its secrets, the law should enforce its right against theft or disclosure of those secrets. [ Footnote 2/10 ] As discussed above, our cases holding that Fourth Amendment protections extend to business property have expressly relied on our society's historical understanding that owners Page 476 U. S. 249 of such property have a legitimate interest in being free from unreasonable governmental inspection. Marshall v. Barlow's, Inc., 436 U.S. at 436 U. S. 311 -313; see Oliver v. United States, 466 U.S. at 466 U. S. 178 , n. 8. Moreover, despite the Court's misconception of the nature of Dow's argument concerning the laws protecting the trade secrets within its open-air plants, [ Footnote 2/11 ] Dow plainly is correct to argue that those laws constitute society's express determination that commercial entities have a legitimate interest in the privacy of certain kinds of property. Dow has taken every feasible step to protect information claimed to constitute trade secrets from the public, and particularly from its competitors. Accordingly, Dow has a reasonable expectation of privacy in its commercial facility in the sense required by the Fourth Amendment. EPA's conduct in this case intruded on that expectation because the aerial photography captured information that Dow had taken reasonable steps to preserve as private. C In this case, the Court does not claim that Dow's expectation of privacy is unreasonable because members of the public fly in airplanes. Whatever the merits of this position in California v. Ciraolo, ante p. 476 U. S. 207 , it is inapplicable here, for it is not the case that "[a]ny member of the public flying in this airspace who cared to glance down" could have obtained the information captured by the aerial photography of Dow's facility. California v. Ciraolo, ante at 476 U. S. 213 . As the District Court expressly found, the camera used to photograph the facility "saw a great deal more than the human eye could Page 476 U. S. 250 ever see." [ Footnote 2/12 ] 536 F. Supp. at 1367. See supra at 476 U. S. 242 -243, and n. 5. Thus, the possibility of casual observation by passengers on commercial or private aircraft provides no support for the Court's rejection of Dow's privacy interests. The Court nevertheless asserts that Dow has no constitutionally protected privacy interests in its open-air facility because the facility more closely resembles an "open field" than a "curtilage." Of course, the Dow facility resembles neither. The purpose of the curtilage doctrine is to identify the limited outdoor area closely associated with a home. See Oliver v. United States, supra, at 466 U. S. 180 . The doctrine is irrelevant here since Dow makes no argument that its privacy interests are equivalent to those in the home. Moreover, the curtilage doctrine has never been held to constitute a limit on Fourth Amendment protection. Yet, the Court applies the doctrine, which affords heightened protection to homeowners, in a manner that eviscerates the protection traditionally given to the owner of commercial property. The Court offers no convincing explanation for this application. Nor does the open field doctrine have a role to play in this case. Open fields, as we held in Oliver, are places in which people do not enjoy reasonable expectations of privacy, and therefore are open to warrantless inspections from ground Page 476 U. S. 251 and air alike. Oliver v. United States, supra, at 466 U. S. 180 -181. Here, the Court concedes that Dow was constitutionally protected against warrantless intrusion by the Government on the ground. The complex bears no resemblance to an open field, either in fact or within the meaning of our cases. The other basis for the Court's judgment -- assorted observations concerning the technology used to photograph Dow's plant -- is even less convincing. The Court notes that EPA did not use "some unique sensory device that, for example, could penetrate the walls of buildings and record conversations." Ante at 476 U. S. 238 . Nor did EPA use "satellite technology" or another type of "equipment not generally available to the public." Ibid. Instead, as the Court states, the surveillance was accomplished by using "a conventional, albeit precise, commercial camera commonly used in mapmaking." Ibid. These observations shed no light on the antecedent question whether Dow had a reasonable expectation of privacy. Katz measures Fourth Amendment rights by reference to the privacy interests that a free society recognizes as reasonable, not by reference to the method of surveillance used in the particular case. If the Court's observations were to become the basis of a new Fourth Amendment standard that would replace the rule in Katz, privacy rights would be seriously at risk as technological advances become generally disseminated and available in our society. [ Footnote 2/13 ] Page 476 U. S. 252 IV I would reverse the decision of the Court of Appeals. EPA's aerial photography penetrated into a private commercial enclave, an area in which society has recognized that privacy interests legitimately may be claimed. The photographs captured highly confidential information that Dow had taken reasonable and objective steps to preserve as private. Since the Clean Air Act does not establish a defined and regular program of warrantless inspections, see Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), EPA should have sought a warrant from a neutral judicial officer. [ Footnote 2/14 ] The Court's holding that the warrantless photography does not constitute an unreasonable search within the meaning of the Fourth Amendment is based on the absence of any physical trespass -- a theory disapproved in a line of cases beginning with the decision in Katz v. United States. E.g., United States v. United States District Court, 407 U. S. 297 (1972). These cases have provided a sensitive and reasonable means of preserving interests in privacy cherished by our society. The Court's decision today cannot be reconciled with our precedents or with the purpose of the Fourth Amendment. [ Footnote 2/1 ] The record establishes that Dow used the open-air design primarily for reasons of safety. Dow determined that, if an accident were to occur and hazardous chemicals were inadvertently released, the concentration of toxic and explosive fumes within enclosed plants would constitute an intolerable risk to employee health and safety. Moreover, as the Court correctly observes, Dow found that the cost of enclosing the facility would be prohibitive. Ante at 229, 236. The record reflects that the cost of roofing just one of the open-air plants would have been approximately $15 million in 1978. The record further shows that enclosing the plants would greatly increase the cost of routine maintenance. App. 74-75. [ Footnote 2/2 ] On these and other security measures protecting the Midland facility, the District Court found that Dow has "spent at least 3.25 million dollars in each of the last ten years" preceding this litigation. 536 F. Supp. 1355 , 1365 (ED Mich 1982). [ Footnote 2/3 ] When Dow discovers that aerial photographs have been taken, it requests the photographer to turn over the film. Dow then develops the film and reviews the photographs. If the photographs depict private business information, Dow retains them and the negatives. In the event that the photographer refuses to cooperate, Dow commences litigation to protect its trade secrets. [ Footnote 2/4 ] The District Court believed it was "important to an understanding of this case to provide a description of the highly effective equipment used" in photographing Dow's facility. Id. at 1357, n. 2. "The aircraft used was a twin engine Beechcraft," which is "able to provide photographic stability, fast mobility and flight endurance required for precision photography.'" Ibid. (citation omitted). The camera used "cost in excess of $22,000.00, and is described by the company as the 'finest precision aerial camera available.' . . . The camera was mounted to the floor inside the aircraft, and was capable of taking several photographs in precise and rapid succession." Ibid. (citation omitted). This technique facilitates stereoscopic examination, a type of examination that permits depth perception. [ Footnote 2/5 ] As the District Court explained, when a person is "flying at 1,200 or 6,000 feet, [his] eye can discern only the basic sizes, shapes, outlines, and colors of the objects blow." Id. at 1367. The aerial camera used in this case, on the other hand, "successfully captured vivid images of Dow's plant which EPA could later analyze under enlarged and magnified conditions." Ibid. [ Footnote 2/6 ] Dow also claimed that the aerial photography constituted a "taking" of its property without due process of law in violation of the Fifth Amendment. The District Court dismissed that claim without prejudice, and it is not before us. [ Footnote 2/7 ] The Court of Appeals' holding rested in part on its erroneous observation that Dow had taken no steps to protect its privacy from aerial intrusions. See 749 F.2d at 312-313. Moreover, the court apparently assumed that Dow would have to build some kind of barrier against aerial observation in order to have an actual expectation of privacy from aerial surveillance. Ibid. The court did not explain the basis for this assumption or discuss why it disagreed with the District Court's conclusion that commercial overflights posed virtually no risk to Dow's privacy interests. [ Footnote 2/8 ] I agree with the Court's determination that the use of aerial photography as an inspection technique, absent Fourth Amendment constraints, does not exceed the scope of EPA's authority under the Clean Air Act, 42 U.S.C. § 7414(a), and to this extent, I join Part III of the Court's opinion. [ Footnote 2/9 ] Our decisions often use the words "reasonable" and "legitimate" interchangeably to describe a privacy interest entitled to Fourth Amendment protection. See California v. Ciraolo, ante at 476 U. S. 219 -220, n. 4 (POWELL, J., dissenting). [ Footnote 2/10 ] As the District Court observed: "Society has spoken in this area through Congress, the State Legislatures, and the courts. Federal law, under the Trade Secrets Act, 18 U.S.C. § 1905, makes it a crime for government employees to disclose trade secret information. The Clean Air Act itself, in Section 114(c), 42 U.S.C. § 7414(c), addresses this concern for [proprietary] information. Moreover, EPA has adopted regulations providing for protection of trade secrets. 40 CFR 2.201-2.309. Michigan law, in addition to recognizing a tort action, also makes it a crime to appropriate trade secrets, M.C.L.A. § 752.772, as well as to invade one's privacy by means of surveillance. M.C.L.A. §§ 750.539a-539b. These legislative and judicial pronouncements are reflective of a societal acceptance of Dow's privacy expectation as reasonable." 536 F. Supp. at 1367. [ Footnote 2/11 ] Contrary to the Court's assertion, Dow does not claim that Fourth Amendment protection of its facility is coextensive with the scope of trade secret statutes. Ante at 476 U. S. 232 . Rather, Dow argues that the existence of those statutes provides support for its claim that society recognizes commercial privacy interests as reasonable. [ Footnote 2/12 ] The Court disregards the fact that photographs taken by the sophisticated camera used in this case can be significantly enlarged without loss of acuity. As explained in 476 U.S. 227 fn2/4|>n. 4, supra, the technique used in taking these pictures facilitates stereoscopic examination, which provides the viewer of the photographs with depth perception. Moreover, if the photographs were taken on transparent slides, they could be projected on a large screen. These possibilities illustrate the intrusive nature of aerial surveillance ignored by the Court today. The only Fourth Amendment limitation on such surveillance under today's decision apparently is based on the means of surveillance. The Court holds that Dow had no reasonable expectation of privacy from surveillance accomplished by means of a $22,000 mapping camera, but that it does have a reasonable expectation of privacy from satellite surveillance and photography. This type of distinction is heretofore wholly unknown in Fourth Amendment jurisprudence. [ Footnote 2/13 ] With all respect, the Court's purported distinction -- for purposes of Fourth Amendment analysis -- between degrees of sophistication in surveillance equipment simply cannot be supported in fact or by the reasoning of any prior Fourth Amendment decision of this Court. The camera used by the firm hired by EPA is described by the Court as a "conventional" camera commonly used in mapmaking. Ante at 476 U. S. 238 . The Court suggests, if not holds, that its decision would have been different if EPA had used "satellite technology" or other equipment not "available to the public." Ibid. But the camera used in this case was highly sophisticated in terms of its capability to reveal minute details of Dow's confidential technology and equipment. The District Court found that the photographs revealed details as "small as 1/2-inch in diameter." See supra at 476 U. S. 243 . Satellite photography hardly could have been more informative about Dow's technology. Nor are "members of the public" likely to purchase $22,000 cameras. [ Footnote 2/14 ] Our cases have explained that an administrative agency need not demonstrate "[p]robable cause in the criminal law sense" to obtain a warrant to inspect property for compliance with a regulatory scheme. Marshall v. Barlow's, Inc., 436 U.S. at 436 U. S. 320 . Rather, an administrative warrant may issue "not only on specific evidence of an existing violation, but also on a showing that 'reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].'" Ibid. (footnote omitted; quoting Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 538 (1967)).

Here is a summary of the case: In Dow Chemical Co. v. United States, the Supreme Court ruled that the Environmental Protection Agency (EPA) did not violate the Fourth Amendment or exceed its statutory authority when it took aerial photographs of a chemical company's plant without a warrant. The Court held that aerial observation and photography are within the EPA's investigative powers and that the company had no reasonable expectation of privacy from aerial surveillance in lawful navigable airspace. The Court also noted that the EPA did not need an explicit statutory provision to employ methods of observation available to the public. Additionally, the Court rejected the argument that state trade secrets law or tort law governing unfair competition defined the limits of the Fourth Amendment.

Search & Seizure

Maryland v. Buie

https://supreme.justia.com/cases/federal/us/494/325/

U.S. Supreme Court Maryland v. Buie, 494 U.S. 325 (1990) Maryland v. Buie No. 88-1369 Argued Dec. 4, 1989 Decided Feb. 28, 1990 494 U.S. 325 CERTIORARI TO THE COURT OF APPEALS OF MARYLAND Syllabus Following a Maryland armed robbery by two men, one of whom was wearing a red running suit, police obtained arrest warrants for respondent Buie and his suspected accomplice and executed the warrant for Buie at his house. After Buie was arrested upon emerging from the basement, one of the officers entered the basement "in case there was someone else" there and seized a red running suit lying in plain view. The trial court denied Buie's motion to suppress the running suit, the suit was introduced into evidence, and Buie was convicted of armed robbery and a weapons offense. The intermediate appellate court affirmed the denial of the suppression motion, but the State Court of Appeals reversed, ruling that the running suit was inadmissible because the officer who conducted the "protective sweep" of the basement did not have probable cause to believe that a serious and demonstrable potentiality for danger existed. Held: The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable Page 494 U. S. 326 facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1049 -1050; Terry v. Ohio, 392 U. S. 1 , 392 U. S. 21 . Pp. 494 U. S. 330 -337. (a) In holding that, respectively, an on-the-street "frisk" and a roadside search of an automobile's passenger compartment were reasonable despite the absence of a warrant or probable cause, Terry and Long balanced the Fourth Amendment interests of the persons with whom they were dealing against the immediate interests of the police in protecting themselves from the danger posed by hidden weapons. Here, the police had an analogous interest in taking steps to assure themselves that Buie's house was not harboring other person's who were dangerous and who could unexpectedly launch an attack, and the fact that Buie had an expectation of privacy in rooms that were not examined by the police prior to the arrest does not mean that such rooms were immune from entry. No warrant was required, and as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be launched. Beyond that, however, just as in Terry and Long, there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger. Such a protective sweep is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Pp. 494 U. S. 331 -336. (b) Chimel v. California, 395 U. S. 752 -- which held that, in the absence of a search warrant, the justifiable search incident to an in-home arrest could not extend beyond the arrestee's person and the area from within which he might have obtained a weapon -- is distinguished. First, Chimel was concerned with a full-blown, top-to-bottom search of an entire house for evidence of the crime for which the arrest was made, not the more limited intrusion contemplated by a protective sweep. Second, the justification for the search incident to arrest in Chimel was the threat posed by the arrestee, not the safety threat posed by the house, or more properly by unseen third parties in the house. P. 494 U. S. 336 . (c) The Court of Appeals applied an unnecessarily strict Fourth Amendment standard in requiring a protective sweep to be justified by probable cause. The case is remanded for application of the proper standard. Pp. 494 U. S. 336 -337. 314 Md. 151, 550 A.2d 79, vacated and remanded. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., post, p. 494 U. S. 337 , and KENNEDY, J., post, p. 494 U. S. 339 , filed concurring opinions. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 494 U. S. 339 . Page 494 U. S. 327 Justice WHITE delivered the opinion of the Court. A "protective sweep" is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. In this case we must decide what level of justification is required by the Fourth and Fourteenth Amendments before police officers, while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective sweep of all or part of the premises. The Court of Appeals of Maryland held that a running suit seized in plain view during such a protective sweep should have been suppressed at respondent's armed robbery trial because the officer who conducted the sweep did not have probable cause to believe that a serious and demonstrable potentiality for danger existed. 314 Md. 151, 166, 550 A.2d 79, 86 (1988). We conclude that the Fourth Amendment would permit the protective sweep undertaken here if the searching officer "possesse[d] a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]' the officer in believing," Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1049 -1050 (1983) (quoting Terry v. Ohio, 392 U. S. 1 , 392 U. S. 21 (1968)), that the area swept harbored an individual posing a danger to the officer or others. We accordingly Page 494 U. S. 328 vacate the judgment below and remand for application of this standard. I On February 3, 1986, two men committed an armed robbery of a Godfather's Pizza restaurant in Prince George's County, Maryland. One of the robbers was wearing a red running suit. That same day, Prince George's County police obtained arrest warrants for respondent Jerome Edward Buie and his suspected accomplice in the robbery, Lloyd Allen. Buie's house was placed under police surveillance. On February 5, the police executed the arrest warrant for Buie. They first had a police department secretary telephone Buie's house to verify that he was home. The secretary spoke to a female first, then to Buie himself. Six or seven officers proceeded to Buie's house. Once inside, the officers fanned out through the first and second floors. Corporal James Rozar announced that he would "freeze" the basement so that no one could come up and surprise the officers. With his service revolver drawn, Rozar twice shouted into the basement, ordering anyone down there to come out. When a voice asked who was calling, Rozar announced three times: "this is the police, show me your hands." App. 5. Eventually, a pair of hands appeared around the bottom of the stairwell and Buie emerged from the basement. He was arrested, searched, and handcuffed by Rozar. Thereafter, Detective Joseph Frolich entered the basement "in case there was someone else" down there. Id. at 14. He noticed a red running suit lying in plain view on a stack of clothing and seized it. The trial court denied Buie's motion to suppress the running suit, stating in part: "The man comes out from a basement, the police don't know how many other people are down there. He is charged with a serious offense." Id. at 19. The State introduced the running suit into evidence at Buie's trial. A jury convicted Buie of robbery with a deadly weapon and using a handgun in the commission of a felony. Page 494 U. S. 329 The Court of Special Appeals of Maryland affirmed the trial court's denial of the suppression motion. The court stated that Detective Frolich did not go into the basement to search for evidence, but to look for the suspected accomplice or anyone else who might pose a threat to the officers on the scene. 72 Md.App. 562, 571-572, 531 A.2d 1290 , 1295 (1987). "Traditionally, the sanctity of a person's home -- his castle -- requires that the police may not invade it without a warrant except under the most exigent of circumstances. But once the police are lawfully within the home, their conduct is measured by a standard of reasonableness. . . . [I]f there is reason to believe that the arrestee had accomplices who are still at large, something less than probable cause -- reasonable suspicion -- should be sufficient to justify a limited additional intrusion to investigate the possibility of their presence." Id. at 575-576, 531 A.2d at 1297 (emphasis in original). The Court of Appeals of Maryland reversed by a 4 to 3 vote. 314 Md. 151, 550 A.2d 79 (1988). The court acknowledged that "when the intrusion is slight, as in the case of a brief stop and frisk on a public street, and the public interest in prevention of crime is substantial, reasonable articulable suspicion may be enough to pass constitutional muster . . . ." id. at 159, 550 A.2d at 83. The court, however, stated that when the sanctity of the home is involved, the exceptions to the warrant requirement are few, and held: "[T]o justify a protective sweep of a home, the government must show that there is probable cause to believe that "a serious and demonstrable potentiality for danger"' exists." Id. at 159-160, 550 A.2d at 83 (citation omitted). The court went on to find that the State had not satisfied that probable-cause requirement. Id. at 165-166, 550 A.2d at 86. We granted certiorari, 490 U.S. 1097 (1989). Page 494 U. S. 330 II It is not disputed that until the point of Buie's arrest the police had the right, based on the authority of the arrest warrant, to search anywhere in the house that Buie might have been found, including the basement. "If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law." Payton v. New York, 445 U. S. 573 , 445 U. S. 602 -603 (1980). There is also no dispute that if Detective Frolich's entry into the basement was lawful, the seizure of the red running suit, which was in plain view and which the officer had probable cause to believe was evidence of a crime, was also lawful under the Fourth Amendment. See Arizona v. Hicks, 480 U. S. 321 , 480 U. S. 326 (1987). The issue in this case is what level of justification the Fourth Amendment required before Detective Frolich could legally enter the basement to see if someone else was there. Petitioner, the State of Maryland, argues that, under a general reasonableness balancing test, police should be permitted to conduct a protective sweep whenever they make an in-home arrest for a violent crime. As an alternative to this suggested brightline rule, the State contends that protective sweeps fall within the ambit of the doctrine announced in Terry v. Ohio, 392 U. S. 1 (1968), and that such sweeps may be conducted in conjunction with a valid in-home arrest whenever the police reasonably suspect a risk of danger to the officers or others at the arrest scene. The United States, as amicus curiae, supporting the State, also argues for a Terry -type standard of reasonable, articulable suspicion of risk to the officer, and contends that that standard is met here. Respondent argues that a protective sweep may not be undertaken without a warrant unless the exigencies of the situation render such warrantless search objectively reasonable. According to Buie, because the State has shown neither exigent circumstances to immediately enter Buie's house Page 494 U. S. 331 nor an unforeseen danger that arose once the officers were in the house, there is no excuse for the failure to obtain a search warrant to search for dangerous persons believed to be on the premises. Buie further contends that, even if the warrant requirement is inapplicable, there is no justification for relaxing the probable-cause standard. If something less than probable cause is sufficient, respondent argues that it is no less than individualized suspicion -- specific, articulable facts supporting a reasonable belief that there are persons on the premises who are a threat to the officers. According to Buie, there were no such specific, articulable facts to justify the search of his basement. III It goes without saying that the Fourth Amendment bars only unreasonable searches and seizures, Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989). Our cases show that in determining reasonableness, we have balanced the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. United States v. Villamonte-Marquez, 462 U. S. 579 , 462 U. S. 588 (1983); Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 654 (1979). Under this test, a search of the house or office is generally not reasonable without a warrant issued on probable cause. There are other contexts, however, where the public interest is such that neither a warrant nor probable cause is required. Skinner, supra, 489 U.S. at 494 U. S. 619 -620; Griffin v. Wisconsin, 483 U. S. 868 , 483 U. S. 873 (1987); New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 340 -341 (1985); Terry v. Ohio, 392 U.S. at 392 U. S. 20 . The Terry case is most instructive for present purposes. There we held that an on-the-street "frisk" for weapons must be tested by the Fourth Amendment's general proscription against unreasonable searches because such a frisk involves "an entire rubric of police conduct -- necessarily swift action predicated upon the on-the-spot observations of the officer on the beat -- which historically has not been, and as a practical Page 494 U. S. 332 matter could not be, subjected to the warrant procedure." Ibid. We stated that there is " no ready test for determining reasonableness other than by balancing the need to search . . . against the invasion which the search . . . entails.'" Id. at 392 U. S. 21 (quoting Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 536 -537 (1967)). Applying that balancing test, it was held that although a frisk for weapons "constitutes a severe, though brief, intrusion upon cherished personal security," 392 U.S. at 392 U. S. 24 -25, such a frisk is reasonable when weighed against the "need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest." Id. at 392 U. S. 24 . We therefore authorized a limited patdown for weapons where a reasonably prudent officer would be warranted in the belief, based on "specific and articulable facts," id. at 392 U. S. 21 , and not on a mere "inchoate and unparticularized suspicion or hunch,'" id. at 392 U. S. 27 , "that he is dealing with an armed and dangerous individual." Ibid. In Michigan v. Long, 463 U. S. 1032 (1983), the principles of Terry were applied in the context of a roadside encounter: "the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Id. at 463 U. S. 1049 -1050 (quoting Terry, supra, 392 U.S. at 392 U. S. 21 ). The Long Court expressly rejected the contention that Terry restricted preventative searches to the person of a detained suspect. 463 U.S. at 463 U. S. 1047 . In a sense, Long authorized a "frisk" of an automobile for weapons. The ingredients to apply the balance struck in Terry and Long are present in this case. Possessing an arrest warrant and probable cause to believe Buie was in his home, the officers Page 494 U. S. 333 were entitled to enter and to search anywhere in the house in which Buie might be found. Once he was found, however, the search for him was over, and there was no longer that particular justification for entering any rooms that had not yet been searched. That Buie had an expectation of privacy in those remaining areas of his house, however, does not mean such rooms were immune from entry. In Terry and Long we were concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with or able to gain immediate control of a weapon that could unexpectedly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being or has just been arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry or Long frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's "turf." An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings. We recognized in Terry that "[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." Terry, supra, 392 U.S. at 392 U. S. 24 -25. But we permitted the intrusion, which was no more than necessary to protect the officer from harm. Nor do we here suggest, as the State Page 494 U. S. 334 does, that entering rooms not examined prior to the arrest is a de minimis intrusion that may be disregarded. We are quite sure, however, that the arresting officers are permitted in such circumstances to take reasonable steps to ensure their safety after, and while making, the arrest. That interest is sufficient to outweigh the intrusion such procedures may entail. We agree with the State, as did the court below, that a warrant was not required. [ Footnote 1 ] We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one. [ Footnote 2 ] Page 494 U. S. 335 We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. [ Footnote 3 ] The sweep lasts no longer Page 494 U. S. 336 than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. IV Affirmance is not required by Chimel v. California, 395 U. S. 752 (1969), where it was held that in the absence of a search warrant, the justifiable search incident to an in-home arrest could not extend beyond the arrestee's person and the area from within which the arrestee might have obtained a weapon. First, Chimel was concerned with a full-blown search of the entire house for evidence of the crime for which the arrest was made, see id. at 395 U. S. 754 , 395 U. S. 763 , not the more limited intrusion contemplated by a protective sweep. Second, the justification for the search incident to arrest considered in Chimel was the threat posed by the arrestee, not the safety threat posed by the house, or more properly by unseen third parties in the house. To reach our conclusion today, therefore, we need not disagree with the Court's statement in Chimel, id. at 395 U. S. 766 -767, n. 12, that "the invasion of privacy that results from a top-to-bottom search of a man's house [cannot be characterized] as minor,'" nor hold that "simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require," ibid. The type of search we authorize today is far removed from the "top-to-bottom" search involved in Chimel ; moreover, it is decidedly not "automati[c]," but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene. V We conclude that, by requiring a protective sweep to be justified by probable cause to believe that a serious and demonstrable potentiality for danger existed, the Court of Appeals Page 494 U. S. 337 of Maryland applied an unnecessarily strict Fourth Amendment standard. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. We therefore vacate the judgment below and remand this case to the Court of Appeals of Maryland for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] Buie suggests that because the police could have sought a warrant to search for dangerous persons in the house, they were constitutionally required to do so. But the arrest warrant gave the police every right to enter the home to search for Buie. Once inside, the potential for danger justified a standard of less than probable cause for conducting a limited protective sweep. [ Footnote 2 ] The State's argument that no level of objective justification should be required because of "the danger that inheres in the in-home arrest for a violent crime," Brief for Petitioner 23, is rebutted by Terry v. Ohio, 392 U. S. 1 (1968), itself. The State argues that "[o]fficers facing the life-threatening situation of arresting a violent criminal in the home should not be forced to pause and ponder the legal subtleties associated with a quantum of proof analysis," Brief for Petitioner 23. But despite the danger that inheres in on-the-street encounters and the need for police to act quickly for their own safety, the Court in Terry did not adopt a bright-line rule authorizing frisks for weapons in all confrontational encounters. Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted. That approach is applied to the protective sweep of a house. We reject the State's attempts to analogize this case to Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam), and Michigan v. Summers, 452 U. S. 692 (1981). The intrusion in Mimms -- requiring the driver of a lawfully stopped vehicle to exit the car -- was " de minimis, " 434 U.S. at 434 U. S. 111 . Summers held that a search warrant for a house carries with it the authority to detain its occupants until the search is completed. The State contends that this case is the "mirror image" of Summers and that the arrest warrant carried with it the authority to search for persons who could interfere with the arrest. In that case, however, the search warrant implied a judicial determination that police had probable cause to believe that someone in the home was committing a crime. Here, the existence of the arrest warrant implies nothing about whether dangerous third parties will be found in the arrestee's house. Moreover, the intrusion in Summers was less severe and much less susceptible to exploitation than a protective sweep. A more analogous case is Ybarra v. Illinois, 444 U. S. 85 (1979), in which we held that, although armed with a warrant to search a bar and bartender, the police could not frisk the bar's patrons absent individualized, reasonable suspicion that the person to be frisked was armed and presently dangerous. Here, too, the reasonable suspicion standard -- "one of the relatively simple concepts embodied in the Fourth Amendment," United States v. Sokolow, 490 U. S. 1 (1989) -- strikes the proper balance between officer safety and citizen privacy. [ Footnote 3 ] Our reliance on the cursory nature of the search is not inconsistent with our statement in Arizona v. Hicks, 480 U. S. 321 (1987), that "[a] search is a search," id. at 480 U. S. 325 , or with our refusal in Hicks to sanction a standard less than probable cause on the ground that the search of the stereo was a "cursory inspection," rather than a "full-blown search," id. at 480 U. S. 328 . When the officer in Hicks moved the turntable to look at its serial number, he was searching for evidence plain and simple. There was no interest in officer safety or other exigency at work in that search. A protective sweep is without question a "search," as was the patdown in Terry, 392 U.S. at 392 U. S. 16 ; they are permissible on less than probable cause only because they are limited to that which is necessary to protect the safety of officers and others. Justice STEVENS, concurring. Today the Court holds that reasonable suspicion, rather than probable cause, is necessary to support a protective sweep while an arrest is in progress. I agree with that holding and with the Court's opinion, but I believe it is important to emphasize that the standard applies only to protective sweeps. Officers conducting such a sweep must have a reasonable basis for believing that their search will reduce the danger of harm to themselves or of violent interference with their mission; in short, the search must be protective. In this case, to justify Officer Frolich's entry into the basement, it is the State's burden to demonstrate that the officers had a reasonable basis for believing not only that someone in the basement might attack them or otherwise try to interfere with the arrest, but also that it would be safer to go down the stairs instead of simply guarding them from above until respondent had been removed from the house. The fact that respondent offered no resistance when he emerged from the basement is somewhat inconsistent with the hypothesis that the danger of an attack by a hidden confederate persisted after the arrest. Moreover, Officer Rozar testified that he was not worried about any possible danger when he arrested Buie. App. 9. [ Footnote 2/1 ] Officer Frolich, who conducted the search, Page 494 U. S. 338 supplied no explanation for why he might have thought another person was in the basement. He said only that he "had no idea who lived there." Id. at 15. This admission is made telling by Officer Frolich's participation in the three-day pre-arrest surveillance of Buie's home. Id. at 4. The Maryland Supreme Court was under the impression that the search took place after "Buie was safely outside the house, handcuffed and unarmed." 314 Md. 151, 166, 550 A.2d 79, 86 (1988). All of this suggests that no reasonable suspicion of danger justified the entry into the basement. Indeed, were the officers concerned about safety, one would expect them to do what Officer Rozar did before the arrest: guard the basement door to prevent surprise attacks. App. 5. As the Court indicates, Officer Frolich might, at the time of the arrest, reasonably have "looked in" the already open basement door, ante at 494 U. S. 334 , to ensure that no accomplice had followed Buie to the stairwell. But Officer Frolich did not merely "look in" the basement; he entered it. [ Footnote 2/2 ] That strategy is sensible if one wishes to search the basement. It is a surprising choice for an officer, worried about safety, who need not risk entering the stairwell at all. The State may thus face a formidable task on remand. However, the Maryland courts are better equipped than are we to review the record. See, e.g., Buie v. State, 314 Md., at 155, n. 2, 550 A.2d at 81, n. 2 (discussing state law rules restricting review of the record on appeal of suppression decisions); Cf. United States v. Hasting, 461 U. S. 499 , 461 U. S. 516 -518 (1983) (STEVENS, J., dissenting) (This Court should avoid undertaking record review functions that can "better be performed by other judges"). Moreover, the Maryland Court of Special Page 494 U. S. 339 Appeals suggested that Officer Frolich's search could survive a "reasonable suspicion" test, Buie v. State, 72 Md.App. 562, 576, 531 A.2d 1290 , 1297 (1987), and the Maryland Court of Appeals has not reviewed this conclusion. I therefore agree that a remand is appropriate. [ Footnote 2/1 ] Buie's attorney asked, "'You weren't worried about there being any danger or anything like that?'" Officer Rozar answered, " No.'" App. 9. [ Footnote 2/2 ] What more the officers might have done to protect themselves against threats from other places is obviously a question not presented on the facts of this case, and so is not one we can answer. Indeed, the peculiarity of Officer Frolich's search is that it appears to have concentrated upon the part of the house least likely to make the departing officers vulnerable to attack. Justice KENNEDY, concurring. The Court adopts the prudent course of explaining the general rule and permitting the state court to apply it in the first instance. The concurrence by JUSTICE STEVENS, however, makes the gratuitous observation that the State has a formidable task on remand. My view is quite to the contrary. Based on my present understanding of the record, I should think the officers' conduct here was in full accord with standard police safety procedure, and that the officers would have been remiss if they had not taken these precautions. This comment is necessary, lest by acquiescence the impression be left that JUSTICE STEVENS views can be interpreted as authoritative guidance for application of our ruling to the facts of the case. Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. Today the Court for the first time extends Terry v. Ohio, 392 U. S. 1 (1968), into the home, dispensing with the Fourth Amendment's general requirements of a warrant and probable cause and carving a "reasonable suspicion" exception for protective sweeps in private dwellings. In Terry, supra, the Court held that a police officer may briefly detain a suspect based on a reasonable suspicion of criminal activity and may conduct a limited "frisk" of the suspect for concealed weapons in order to protect herself from personal danger. The Court deemed such a frisk "reasonable" under the Fourth Amendment in light of the special "need for law enforcement officers to protect themselves and other prospective victims of violence" during investigative detentions, id. at 392 U. S. 24 , and the Page 494 U. S. 340 brief, though far from inconsiderable, intrusion upon the sanctity of the person." Id. at 392 U. S. 26 . Terry and its early progeny "permit[ted] only brief investigative stops and extremely limited searches based on reasonable suspicion." United States v. Place, 462 U. S. 696 , 462 U. S. 714 (1983) (BRENNAN, J., concurring in result). But this Court more recently has applied the rationale underlying Terry to a wide variety of more intrusive searches and seizures, [ Footnote 3/1 ] prompting my continued criticism of the " emerging tendency on the part of the Court to convert the Terry decision'" from a narrow exception into one that "`swallow[s] the general rule that [searches] are "reasonable" only if based on probable cause.'" Place, supra, at 462 U. S. 719 (BRENNAN, J., concurring in result) (citations omitted). The Court today holds that Terry 's "reasonable suspicion" standard "strikes the proper balance between officer safety and citizen privacy" for protective sweeps in private dwellings. Ante at 494 U. S. 335 , n. 2. I agree with the majority that officers executing an arrest warrant within a private dwelling have an interest in protecting themselves against potential ambush by third parties, see ante at 494 U. S. 333 , but the majority offers no support for its assumption that the danger of ambush during planned home arrests approaches the danger of unavoidable "on-the-beat" confrontations in "the myriad daily situations in which policemen and citizens confront each other on the street." Terry, supra, 392 U.S. at 392 U. S. 12 . [ Footnote 3/2 ] In any event, Page 494 U. S. 341 the Court's implicit judgment that a protective sweep constitutes a "minimally intrusive" search akin to that involved in Terry markedly undervalues the nature and scope of the privacy interests involved. While the Fourth Amendment protects a person's privacy interests in a variety of settings, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U. S. 297 , 407 U. S. 313 (1972). [ Footnote 3/3 ] The Court discounts the nature of the intrusion because it believes that the scope of the intrusion is limited. The Court explains that a protective sweep's scope is "narrowly confined to a cursory visual inspection of those places in which a person might be hiding," ante at 494 U. S. 327 , and confined in duration to a period "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Ante at 494 U. S. 335 -336. [ Footnote 3/4 ] But these spatial and temporal Page 494 U. S. 342 restrictions are not particularly limiting. A protective sweep would bring within police purview virtually all personal possessions within the house not hidden from view in a small enclosed space. Police officers searching for potential ambushers might enter every room including basements and attics; open up closets, lockers, chests, wardrobes, and cars; and peer under beds and behind furniture. The officers will view letters, documents and personal effects that are on tables or desks or are visible inside open drawers; books, records, tapes, and pictures on shelves; and clothing, medicines, toiletries and other paraphernalia not carefully stored in dresser drawers or bathroom cupboards. While perhaps not a "full-blown" or "top-to-bottom" search, ante at 494 U. S. 336 , a protective sweep is much closer to it than to a "limited patdown for weapons" or a " frisk' of an automobile." Ante at 494 U. S. 332 . [ Footnote 3/5 ] Because the nature and scope of the intrusion sanctioned here are far greater than those upheld in Terry and Long, the Court's conclusion that "[t]he ingredients to apply the balance struck in Terry and Long are present in this case," ibid., is unwarranted. The "ingredient" of a minimally intrusive search is absent, and the Court's holding today therefore unpalatably deviates from Terry and its progeny. [ Footnote 3/6 ] Page 494 U. S. 343 In light of the special sanctity of a private residence and the highly intrusive nature of a protective sweep, I firmly believe that police officers must have probable cause to fear that their personal safety is threatened by a hidden confederate of an arrestee before they may sweep through the entire home. Given the state court determination that the officers searching Buie's home lacked probable cause to perceive such a danger and therefore were not lawfully present in the basement, I would affirm the state court's decision to suppress the incriminating evidence. I respectfully dissent. [ Footnote 3/1 ] The Court has recently relied on Terry to relax the warrant and probable requirements for both searches of places, e.g., New York v. Class, 475 U. S. 106 (1986) (search of car interior); Michigan v. Long, 463 U. S. 1032 (1983) (same); and seizures of personal effects, e.g., New Jersey v. T.L.O., 469 U. S. 325 (1985) (search of student's purse); United States v. Place, 462 U. S. 696 (1983) (seizure of luggage). [ Footnote 3/2 ] Individual police officers necessarily initiate street encounters without advance planning "for a wide variety of purposes." Terry v. Ohio, 392 U.S. at 392 U. S. 13 . But officers choosing to execute an arrest warrant in the suspect's house may minimize any risk of ambush by, for example, a show of force; in this case, at least six armed officers secured the premises. And of course, officers could select a safer venue for making their arrest. [ Footnote 3/3 ] Here the officers' arrest warrant for Buie and their probable cause to believe he was present in the house authorized their initial entry. But, as the majority concedes, "[o]nce he was found . . . the search for him was over," and "Buie had an expectation of privacy in those remaining areas of his house." Ante at 494 U. S. 333 . The fact that some areas were necessarily exposed to the police during Buie's arrest thus does not diminish his privacy interest in the remaining rooms. See Chimel v. California, 395 U. S. 752 , 395 U. S. 767 , n. 12 (1969) ("[W]e can see no reason why, simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require"). [ Footnote 3/4 ] The protective sweep in this case may have exceeded the permissible temporal scope defined by the Court. The Court of Appeals of Maryland expressly noted that "at the time of the warrantless search, Buie was safely outside the house, handcuffed and unarmed." 314 Md. 151, 166, 550 A.2d 79, 86 (1988). On remand, therefore, the state court need not decide whether the "reasonable suspicion" standard is satisfied in this case should it determine that the sweep of the basement took place after the police had sufficient time to "complete the arrest and depart the premises." Ante at 494 U. S. 336 . [ Footnote 3/5 ] Indeed, a protective sweep is sufficiently broad in scope that today's ruling might encourage police officers to execute arrest warrants in suspects' homes so as to take advantage of the opportunity to peruse the premises for incriminating evidence left in "plain view." This incentive runs directly counter to our central tenet that "in [no setting] is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home -- a zone that finds its roots in clear and specific constitutional terms." Payton v. New York, 445 U. S. 573 , 445 U. S. 589 (1980). [ Footnote 3/6 ] The Court's decision also to expand the "search incident to arrest" exception previously recognized in Chimel v. California, supra, allowing police officers without any requisite level of suspicion to look into "closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched," ante at 494 U. S. 334 , is equally disquieting. Chimel established that police officers may presume as a matter of law, without need for factual support in a particular case, that arrestees might take advantage of weapons or destroy evidence in the area "within [their] immediate control"; therefore, a protective search of that area is per se reasonable under the Fourth Amendment. Chimel, supra, 395 U.S. at 395 U. S. 763 . I find much less plausible the Court's implicit assumption today that arrestees are likely to sprinkle hidden allies throughout the rooms in which they might be arrested. Hence there is no comparable justification for permitting arresting officers to presume as a matter of law that they are threatened by ambush from "immediately adjoining" spaces.

Here is a summary of the case: In Maryland v. Buie, the U.S. Supreme Court held that a protective sweep of a house during an in-home arrest is permitted under the Fourth Amendment if the searching officer has a reasonable belief, based on specific facts, that there might be a potential danger from individuals hiding in the house. The Court balanced the privacy interests of the individual with the safety interests of the police officers executing the arrest warrant. The facts of the case are that Buie was arrested at his home for armed robbery, and one of the officers conducted a "protective sweep" of the basement, during which he seized a red running suit (matching the description of one worn by one of the robbers) in plain view. The Court ruled that the protective sweep was justified due to the potential danger posed by other individuals in the house, and that the running suit was admissible as evidence. However, the Court also noted that the protective sweep must be limited in scope and duration, and that it is not an opportunity for officers to search for incriminating evidence. The sweep may only extend to a cursory inspection of spaces where a person could be hiding and pose a danger.

Search & Seizure

New York v. Harris

https://supreme.justia.com/cases/federal/us/495/14/

U.S. Supreme Court New York v. Harris, 495 U.S. 14 (1990) New York v. Harris No. 88-1000 Argued Jan. 10, 1990 Decided April 18,1990 495 U.S. 14 CERTIORARI TO THE COURT OF APPEALS OF NEW YORK Syllabus Police officers, having probable cause to believe that respondent Harris committed murder, entered his home without first obtaining a warrant, read him his Miranda rights, and reportedly secured an admission of guilt. After he was arrested, taken to the police station, and again given his Miranda rights, he signed a written inculpatory statement. The New York trial court suppressed the first statement under Payton v. New York, 445 U. S. 573 , which held that the Fourth Amendment prohibits the police from effecting a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. However, the court admitted the second statement, and Harris was convicted of second-degree murder. The Appellate Division affirmed, but the State Court of Appeals reversed. Applying the rule of Brown v. Illinois, 422 U. S. 590 , and its progeny that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality, the court deemed the second statement inadmissible because its connection with the arrest was not sufficiently attenuated. Held: Where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton. The penalties imposed on the Government where its officers have violated the law must bear some relation to the purposes which the law serves. United States v. Ceccolini, 435 U. S. 268 , 435 U. S. 279 . The rule in Payton was designed to protect the physical integrity of the home, not to grant criminal suspects protection for statements made outside their premises where the police have probable cause to make an arrest. Brown v. Illinois, supra, and its progeny are distinguishable, since attenuation analysis is only appropriate where, as a threshold matter, courts determine that the challenged evidence is in some sense the product of illegal governmental activity. Here, the police had a justification to question Harris prior to his arrest; therefore, his subsequent statement was not an exploitation of the illegal entry into his home. Cf. United States v. Crews, 445 U. S. 463 . Suppressing that statement would not serve the purpose of the Payton rule, since anything incriminating gathered from Harris' in-home arrest has already been excluded. The principal incentive to obey Page 495 U. S. 15 Payton still obtains: the police know that a warrantless entry will lead to the suppression of evidence found or statements taken inside the home. Moreover, the incremental deterrent value of suppressing statements like Harris' would be minimal, since it is doubtful that the desire to secure a statement from a suspect whom the police have probable cause to arrest would motivate them to violate Payton. Pp. 495 U. S. 17 -21. 72 N.Y.2d 614, 536 N.Y.S.2d 1, 532 N.E.2d 1229 (1988), reversed. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 495 U. S. 21 . Justice WHITE delivered the opinion of the Court. On January 11, 1984, New York City police found the body of Ms. Thelma Staton murdered in her apartment. Various facts gave the officers probable cause to believe that the respondent in this case, Bernard Harris, had killed Ms. Staton. As a result, on January 16, 1984, three police officers went to Harris's apartment to take him into custody. They did not first obtain an arrest warrant. When the police arrived, they knocked on the door, displaying their guns and badges. Harris let them enter. Page 495 U. S. 16 Once inside, the officers read Harris his Miranda rights. Harris acknowledged that he understood the warnings, and agreed to answer the officers' questions. At that point, he reportedly admitted that he had killed Ms. Staton. Harris was arrested, taken to the station house, and again informed of his Miranda rights. He then signed a written inculpatory statement. The police subsequently read Harris the Miranda warnings a third time and videotaped an incriminating interview between Harris and a district attorney, even though Harris had indicated that he wanted to end the interrogation. The trial court suppressed Harris' first and third statements; the State does not challenge those rulings. The sole issue in this case is whether Harris's second statement -- the written statement made at the station house -- should have been suppressed because the police, by entering Harris' home without a warrant and without his consent, violated Payton v. New York, 445 U. S. 573 (1980), which held that the Fourth Amendment prohibits the police from effecting a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. The New York trial court concluded that the statement was admissible. Following a bench trial, Harris was convicted of second-degree murder. The Appellate Division affirmed, 124 A.D.2d 472, 507 N.Y.S.2d 823 (1986). A divided New York Court of Appeals reversed, 72 N.Y.2d 614, 536 N.Y.S.2d 1, 532 N.E.2d 1229 (1988). That court first accepted the trial court's finding that Harris did not consent to the police officers' entry into his home, and that the warrantless arrest therefore violated Payton even though there was probable cause. Applying Brown v. Illinois, 422 U. S. 590 (1975), and its progeny, the court then determined that the station house statement must be deemed to be the inadmissible fruit of the illegal arrest because the connection between the statement and the arrest was not sufficiently attenuated. Page 495 U. S. 17 The Court noted that some courts had reasoned that the "wrong in Payton cases . . . lies not in the arrest, but in the unlawful entry into a dwelling without proper judicial authorization,'" and had therefore declined to suppress confessions that were made following Payton violations. 72 N.Y.2d at 623, 536 N.Y.S.2d at 6, 532 N.E.2d at 1234. The New York Court disagreed with this analysis, finding it contrary to Payton and its own decisions interpreting Payton 's scope. We granted certiorari to resolve the admissibility of the station house statement. 490 U.S. 1018 (1989). For present purposes, we accept the finding below that Harris did not consent to the police officers' entry into his home and the conclusion that the police had probable cause to arrest him. It is also evident, in light of Payton, that arresting Harris in his home without an arrest warrant violated the Fourth Amendment. But, as emphasized in earlier cases, "we have declined to adopt a "per se or but for' rule" that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest." United States v. Ceccolini, 435 U. S. 268 , 435 U. S. 276 (1978). Rather, in this context, we have stated that "[t]he penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve." Id. at 435 U. S. 279 . In light of these principles, we decline to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime. Payton itself emphasized that our holding in that case stemmed from the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic." 445 U.S. at 445 U. S. 601 . Although it had Page 495 U. S. 18 long been settled that a warrantless arrest in a public place was permissible as long as the arresting officer had probable cause, see United States v. Watson, 423 U. S. 411 (1976), Payton nevertheless drew a line at the entrance to the home. This special solicitude was necessary because " physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" 445 U.S. at 445 U. S. 585 (citation omitted). The arrest warrant was required to "interpose the magistrate's determination of probable cause" to arrest before the officers could enter a house to effect an arrest. Id. at 445 U. S. 602 -603. Nothing in the reasoning of that case suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house. There could be no valid claim here that Harris was immune from prosecution because his person was the fruit of an illegal arrest. United States v. Crews, 445 U. S. 463 , 445 U. S. 474 (1980). Nor is there any claim that the warrantless arrest required the police to release Harris, or that Harris could not be immediately rearrested if momentarily released. Because the officers had probable cause to arrest Harris for a crime, Harris was not unlawfully in custody when he was removed to the station house, given Miranda warnings and allowed to talk. For Fourth Amendment purposes, the legal issue is the same as it would be had the police arrested Harris on his doorstep, illegally entered his home to search for evidence, and later interrogated Harris at the station house. Similarly, if the police had made a warrantless entry into Harris' home, not found him there, but arrested him on the street when he returned, a later statement made by him after proper warnings would no doubt be admissible. This case is therefore different from Brown v. Illinois, 422 U. S. 590 (1975), Dunaway v. New York, 442 U. S. 200 (1979), and Taylor v. Alabama, 457 U. S. 687 (1982). In each of those cases, evidence obtained from a criminal defendant Page 495 U. S. 19 following arrest was suppressed because the police lacked probable cause. The three cases stand for the familiar proposition that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality. See also Wong Sun v. United States, 371 U. S. 471 (1963). We have emphasized, however, that attenuation analysis is only appropriate where, as a threshold matter, courts determine that "the challenged evidence is in some sense the product of illegal governmental activity." United States v. Crews, supra, 445 U.S. at 445 U. S. 471 . As Justice Titone, concurring in the judgment on the basis of New York State precedent, cogently argued below, "[i]n cases such as Brown v. Illinois (supra) and its progeny, an affirmative answer to that preliminary question may be assumed, since the 'illegality' is the absence of probable cause and the wrong consists of the police's having control of the defendant's person at the time he made the challenged statement. In these cases, the 'challenged evidence' -- i.e., the post-arrest confession -- is unquestionably 'the product of [the] illegal governmental activity' -- i.e., the wrongful detention." 72 N.Y.2d at 625, 536 N.Y.S.2d at 8, 532 N.E.2d at 1235. Harris's statement taken at the police station was not the product of being in unlawful custody. Neither was it the fruit of having been arrested in the home rather than someplace else. The case is analogous to United States v. Crews, supra. In that case, we refused to suppress a victim's in-court identification despite the defendant's illegal arrest. The Court found that the evidence was not " come at by exploitation' of . . . the defendant's Fourth Amendment rights," and that it was not necessary to inquire whether the "taint" of the Fourth Amendment violation was sufficiently attenuated to permit the introduction of the evidence. 445 U.S. at 445 U. S. 471 . Here, likewise, the police had a justification to question Harris prior to his arrest; therefore, his subsequent statement was not an exploitation of the illegal entry into Harris' home. Page 495 U. S. 20 We do not hold, as the dissent suggests, that a statement taken by the police while a suspect is in custody is always admissible as long as the suspect is in legal custody. Statements taken during legal custody would of course be inadmissible for example, if, they were the product of coercion, if Miranda warnings were not given, or if there was a violation of the rule of Edwards v. Arizona, 451 U. S. 477 (1981). We do hold that the station-house statement in this case was admissible because Harris was in legal custody, as the dissent concedes, and because the statement, while the product of an arrest and being in custody, was not the fruit of the fact that the arrest was made in the house, rather than someplace else. To put the matter another way, suppressing the statement taken outside the house would not serve the purpose of the rule that made Harris's in-house arrest illegal. The warrant requirement for an arrest in the home is imposed to protect the home, and anything incriminating the police gathered from arresting Harris in his home, rather than elsewhere, has been excluded, as it should have been; the purpose of the rule has thereby been vindicated. We are not required by the Constitution to go further and suppress statements later made by Harris in order to deter police from violating Payton. "As cases considering the use of unlawfully obtained evidence in criminal trials themselves make clear, it does not follow from the emphasis on the exclusionary rule's deterrent value that 'anything which deters illegal searches is thereby commanded by the Fourth Amendment.'" United States v. Leon, 468 U. S. 897 , 468 U. S. 910 (1984) (citation omitted). Even though we decline to suppress statements made outside the home following a Payton violation, the principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found or statements taken inside the home. If we did suppress statements like Harris', moreover, the incremental deterrent value would be minimal. Given that the police have probable cause to arrest a suspect in Harris' position, they need Page 495 U. S. 21 not violate Payton in order to interrogate the suspect. It is doubtful therefore that the desire to secure a statement from a criminal suspect would motivate the police to violate Payton. As a result, suppressing a station-house statement obtained after a Payton violation will have little effect on the officers' actions, one way or another. We hold that, where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton. The judgment of the court below is accordingly Reversed. Justice MARSHALL, with whom Justices BRENNAN, BLACKMUN and STEVENS join, dissenting. Police officers entered Bernard Harris' home and arrested him there. They did not have an arrest warrant, he did not consent to their entry, and exigent circumstances did not exist. An arrest in such circumstances violates the Fourth Amendment. See Payton v. New York, 445 U. S. 573 (1980); see also ante at 495 U. S. 16 , 495 U. S. 17 . About an hour after his arrest, Harris made an incriminating statement, which the government subsequently used at his trial. The majority concedes that "[t]he fruits of that illegal entry" must be suppressed. Ante at 495 U. S. 20 . The sole question before us is whether Harris' statement falls within that category. The majority answers this question by adopting a broad and unprecedented principle, holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton. " Ante this page. The majority's conclusion is wrong. Its reasoning amounts to nothing more than an analytical sleight-of-hand, resting on errors in logic, misreadings of our cases, and an apparent blindness to the incentives the Court's Page 495 U. S. 22 ruling creates for knowing and intentional constitutional violations by the police. I dissent. I In recent years, this Court has repeatedly stated that the principal purpose of the Fourth Amendment's exclusionary rule is to eliminate incentives for police officers to violate that Amendment. See, e.g., United States v. Leon, 468 U. S. 897 , 468 U. S. 906 (1984). A police officer who violates the Constitution usually does so to obtain evidence that he could not secure lawfully. The best way to deter him is to provide that any evidence so obtained will not be admitted at trial. Deterrence of constitutional violations thus requires the suppression not only of evidence seized during an unconstitutional search but also of "derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search." Murray v. United States, 487 U. S. 533 , 487 U. S. 536 -537 (1988) (citing Nardone v. United States, 308 U. S. 338 , 308 U. S. 341 (1939)); see also Wong Sun v. United States, 371 U. S. 471 , 371 U. S. 488 (1963). Not all evidence connected to a constitutional violation is suppressible, however. Rather, the Court has asked "'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun, supra, at 371 U. S. 488 (quoting J. Maguire, Evidence of Guilt, 221 (1959)). Accord, Brown v. Illinois, 422 U. S. 590 , 422 U. S. 599 (1975); Dunaway v. New York, 442 U. S. 200 , 442 U. S. 217 -218 (1979); Taylor v. Alabama, 457 U. S. 687 , 457 U. S. 690 (1982). Because deterrence is a principal purpose of the exclusionary rule, our attenuation analysis must be driven by an understanding of how extensive exclusion must be to deter violations of the Fourth Amendment. We have long held that, where police have obtained a statement after violating the Fourth Amendment, the interest in deterrence does not Page 495 U. S. 23 disappear simply because the statement was voluntary, as required by the Fifth Amendment. See, e.g., Brown, supra, 422 U.S. at 422 U. S. 601 -602; Dunaway, supra, 442 U.S. at 442 U. S. 216 -217; Taylor, supra, 457 U.S. at 457 U. S. 690 . Police officers are well aware that simply because a statement is "voluntary" does not mean that it was entirely unaffected by the Fourth Amendment violation. See Brown, supra, 422 U.S. at 422 U. S. 601 -602. Indeed, if the Fourth Amendment required exclusion only of statements taken in violation of the Fifth Amendment, the Fourth Amendment would serve no independent purpose. A regime that suppresses only some fruits of constitutional violations is a regime that barely begins to eliminate the incentives to violate the Constitution. When faced with a statement obtained after an illegal arrest, then, a court will have occasion to engage in the attenuation inquiry only if it first determines that the statement is "voluntary," for involuntary statements are suppressible in any event. Attenuation analysis assumes that the statement is "voluntary," and asks whether the connection between the illegal police conduct and the statement nevertheless requires suppression to deter Fourth Amendment violations. That question cannot be answered with a set of per se rules. An inquiry into whether a suspect's statement is properly treated as attributable to a Fourth Amendment violation or to the suspect's independent act of will has an irreducibly psychological aspect, and irrebutable presumptions are peculiarly unhelpful in such a context. Accordingly, we have identified several factors as relevant to the issue of attenuation: the length of time between the arrest and the statement, the presence of intervening circumstances, and the "purpose and flagrancy" of the violation. See, e.g., Brown, supra, 422 U.S. at 422 U. S. 603 -604. We have identified the last factor as "particularly" important. 422 U.S. at 422 U. S. 604 . When a police officer intentionally violates what he knows to be a constitutional command, exclusion is essential to conform police behavior to the law. Such a "flagrant" violation is in marked contrast to a violation Page 495 U. S. 24 that is the product of a good-faith misunderstanding of the relevant constitutional requirements. This Court has suggested that excluding evidence that is the product of the latter variety of violation may result in deterrence of legitimate law enforcement efforts. See Leon, supra, 468 U.S. at 468 U. S. 918 -920. Underlying this view is the theory that officers fear that if their judgment as to the constitutionality of their conduct turns out to be wrong, the consequences of their misjudgments may be too costly to justify the possible law enforcement benefits. Any doubt concerning the constitutionality of a course of action will therefore be resolved against that course of action. Whatever the truth of that theory, [ Footnote 1 ] the concern that officers who act in good faith will be overdeterred is nonexistent when, based on a cynical calculus of the likely results of a suppression hearing, an officer intentionally decides to violate what he knows to be a constitutional command. An application of the Brown factors to this case compels the conclusion that Harris' statement at the station house must be suppressed. About an hour elapsed between the illegal arrest and Harris' confession, without any intervening factor other than the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). This Court has held, however, that " Miranda warnings, alone and per se, . . . cannot assure in every case that the Fourth Amendment violation has not been unduly exploited." Brown, supra, 422 U.S. at 422 U. S. 603 (citing Westover v. United States, decided with Miranda v. Arizona, supra, 384 U.S. at 384 U. S. 496 -497). See also supra at 495 U. S. 22 -23. Indeed, in Brown, we held that a statement made almost two hours after an illegal arrest, and after Miranda warnings had Page 495 U. S. 25 been given, was not sufficiently removed from the violation so as to dissipate the taint. 422 U.S. at 422 U. S. 604 . As to the flagrancy of the violation, petitioner does not dispute that the officers were aware that the Fourth Amendment prohibited them from arresting Harris in his home without a warrant. Notwithstanding the officers' knowledge that a warrant is required for a routine arrest in the home, "the police went to defendant's apartment to arrest him and, as the police conceded, if defendant refused to talk to them there, they intended to take him into custody for questioning. Nevertheless, they made no attempt to obtain a warrant, although five days had elapsed between the killing and the arrest and they had developed evidence of probable cause early in their investigation. Indeed, one of the officers testified that it was departmental policy not to get warrants before making arrests in the home. From this statement a reasonable inference can be drawn . . . that the department's policy was a device used to avoid restrictions on questioning a suspect until after the police had strengthened their case with a confession. Thus, the police illegality was knowing and intentional, in the language of Brown, it 'had a quality of purposefulness,' and the linkage between the illegality and the confession is clearly established." 72 N.Y.2d 614, 622, 536 N.Y.S.2d 1, 6, 532 N.E.2d 1229, 1233-1234 (1988) (citation omitted). [ Footnote 2 ] Page 495 U. S. 26 In short, the officers decided, apparently consistent with a "departmental policy," to violate Harris' Fourth Amendment rights so they could get evidence that they could not otherwise obtain. As the trial court held, "No more clear violation of [ Payton ], in my view, could be established." App. 20. Where, as here, there is a particularly flagrant constitutional violation and little in the way of elapsed time or intervening circumstances, the statement in the police station must be suppressed. II Had the Court analyzed this case as our precedents dictate that it should, I could end my discussion here -- the dispute would reduce to an application of the Brown factors to the constitutional wrong and the inculpatory statement that followed. But the majority chooses no such unremarkable battleground. Instead, the Court redrafts our cases in the service of conclusions they straightforwardly and explicitly reject. Specifically, the Court finds suppression unwarranted on the authority of its newly fashioned per se rule. In the majority's view, when police officers make a warrantless home arrest in violation of Payton, their physical exit from the suspect's home necessarily breaks the causal chain between the illegality and any subsequent statement by the suspect, such that the statement is admissible regardless of the Brown factors. [ Footnote 3 ] Page 495 U. S. 27 The Court purports to defend its new rule on the basis of the self-evident proposition that the Fourth Amendment does not necessarily require the police to release or to forego the prosecution of a suspect arrested in violation of Payton. Ante at 495 U. S. 18 . To the Court, it follows as a matter of course from this proposition that a Payton violation cannot in any way be the "cause" of a statement obtained from the suspect after he has been forced from his home and is being lawfully detained. Because an attenuation inquiry presupposes some connection between the illegality and the statement, the Court concludes that no such inquiry is necessary here. Ibid. Neither logic nor precedent supports that conclusion. A Certainly, the police were not required to release Harris or forego his prosecution simply because officers arrested him in violation of Payton. But it is a dramatic leap from that unexceptionable proposition to the suggestion that the Payton violation thus had no effect once the police took Harris from his home. The Court's view to the contrary appears to rest on a cramped understanding of the purposes underlying Payton. The home is a private place, more private than any other. An invasion into the home is therefore the worst kind of invasion of privacy. An intrusion into that sanctum is an assault on the individual's solitude and on the family's communal bonds. As we said in Payton : "The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by Page 495 U. S. 28 the unambiguous physical dimensions of an individual's home -- a zone that finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their . . . houses . . . shall not be violated.' That language unequivocally establishes the proposition that" "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." 445 U.S. at 445 U. S. 589 -590 (ellipses in original) (quoting Silverman v. United States, 365 U. S. 505 , 365 U. S. 511 (1961)). See also California v. Ciraolo, 476 U. S. 207 , 476 U. S. 212 -213 (1986) ("The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened"). The majority's per se rule in this case fails to take account of our repeated holdings that violations of privacy in the home are especially invasive. Rather, its rule is necessarily premised on the proposition that the effect of a Payton violation magically vanishes once the suspect is dragged from his home. But the concerns that make a warrantless home arrest a violation of the Fourth Amendment are nothing so evanescent. A person who is forcibly separated from his family and home in the dark of night after uniformed officers have broken down his door, handcuffed him, and forced him at gunpoint to accompany them to a police station does not suddenly breathe a sigh of relief at the moment he is dragged across his doorstep. Rather, the suspect is likely to be so frightened and rattled that he will say something incriminating. These effects, of course, extend far beyond the moment the physical occupation of the home ends. The entire focus of the Brown factors is to fix the point at which those effects are sufficiently dissipated that deterrence is not meaningfully advanced by suppression. The majority's assertion, as though the proposition were axiomatic, that the effects of such an intrusion must end when the violation ends is both Page 495 U. S. 29 undefended and indefensible. The Court's saying it may make it law, but it does not make it true. B The majority's reading of our cases similarly lacks foundation. In the majority's view, our attenuation cases are not concerned with the lingering taint of an illegal arrest; rather, they focus solely on whether a subsequently obtained statement is made during an illegal detention of the suspect. Ante at 495 U. S. 18 -19 (quoting 72 N.Y.2d at 625, 536 N.Y.S.2d at 7, 532 N.E.2d at 1235 (Titone, J., concurring)). In the Court's view, if (and only if) the detention is illegal at the moment the statement is made will it be suppressed. Unlike an arrest without probable cause, a Payton violation alone does not make the subsequent detention of the suspect illegal. Thus, the Court argues, no statement made after a Payton violation has ended is suppressible by reason of the Fourth Amendment violation as long as the police have probable cause. [ Footnote 4 ] The majority's theory lacks any support in our cases. In each case presenting issues similar to those here, we have asked the same question: whether the invasion of privacy occasioned by the illegal arrest taints a statement made after the violation has ended -- stated another way, whether the arrest caused the statement. See, e.g., Wong Sun, 371 U.S. at 371 U. S. 485 , 371 U. S. 488 ; Brown, 422 U.S. at 422 U. S. 591 -592, 422 U. S. 599 , 422 U. S. 603 ; Dunaway, Page 495 U. S. 30 442 U.S. at 442 U. S. 217 , 442 U. S. 218 ; Taylor, 457 U.S. at 457 U. S. 690 , 457 U. S. 694 . Never before today has this Court asked whether the illegality itself was continuing at the time the evidence was secured. See Leon, 468 U.S. at 468 U. S. 911 (WHITE, J., for the Court) ("In short, the dissipation of the taint' concept that the Court has applied in deciding whether exclusion is appropriate in a particular case `attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost'") (citation omitted). Indeed, such an approach would render irrelevant the first and second of the Brown factors, which focus, respectively, on the passage of time and the existence of intervening factors between the illegality and the subsequently obtained statement. If, as the majority claims, the Brown analysis does not even apply unless the illegality is ongoing at the time the evidence is secured, no time would ever pass and no circumstance would ever intervene between the illegality and the statement. The only Supreme Court case in which the majority even attempts to find support is United States v. Crews, 445 U. S. 463 (1980). Crews, however, is inapposite. In that case, the defendant moved to suppress a witness's in-court identification of him on the ground that he had been illegally arrested. Crews' theory was that he was the fruit of his own illegal arrest -- that he himself should have been "suppressed." Because no identification of him could have been made if he were not in the courtroom, his argument proceeded, that identification had to be suppressed in turn. The Court rejected Crews' argument: "Insofar as [Crews] challenges his own presence at trial, he cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. The exclusionary Page 495 U. S. 31 principle of Wong Sun and Silverthorne Lumber Co. [v. United States, 251 U. S. 385 (1920)] delimits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. [Crews] is not himself a suppressible 'fruit,' and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct." 445 U.S. at 445 U. S. 474 (citations omitted; footnote omitted; emphases added). Seen in context, the majority's misuse of Crews is apparent. As in Wong Sun, Brown , and Taylor, Harris seeks to suppress evidence -- a statement he made one hour after his arrest. He does not contend that he cannot be tried because he was arrested illegally, nor does he in any way link his demand for suppression of his statement to a claim that his presence at trial, or anywhere else, should somehow be suppressed. Crews is therefore irrelevant. The only authority the majority cites that directly supports its novel view of Brown is a concurring opinion in the New York Court of Appeals, ante at 495 U. S. 19 , which is hardly a sufficient basis on which to reject almost 30 years of cases. C Perhaps the most alarming aspect of the Court's ruling is its practical consequences for the deterrence of Payton violations. Imagine a police officer who has probable cause to arrest a suspect but lacks a warrant. The officer knows if he were to break into the home to make the arrest without first securing a warrant, he would violate the Fourth Amendment and any evidence he finds in the house would be suppressed. Of course, if he does not enter the house, he will not be able to use any evidence inside the house either, for the simple reason that he will never see it. The officer also knows, though, that waiting for the suspect to leave his house before arresting him could entail a lot of waiting, and the time he Page 495 U. S. 32 would spend getting a warrant would be better spent arresting criminals. The officer could leave the scene to obtain a warrant, thus avoiding some of the delay, but that would entail giving the suspect an opportunity to flee. More important, the officer knows that, if he breaks into the house without a warrant and drags the suspect outside, the suspect, shaken by the enormous invasion of privacy he has just undergone, may say something incriminating. Before today's decision, the government would only be able to use that evidence if the Court found that the taint of the arrest had been attenuated; after the decision, the evidence will be admissible regardless of whether it was the product of the unconstitutional arrest. [ Footnote 5 ] Thus, the officer envisions the following best-case scenario if he chooses to violate the Constitution: he avoids a major expenditure of time and effort, ensures that the suspect will not escape, and procures the most damaging evidence of all, a confession. His worst-case scenario is that he will avoid a major expenditure of effort, ensure that the suspect will not escape, and will see evidence in the house (which would have remained unknown absent the constitutional violation) that cannot be used in the prosecution's case-in-chief. The Court thus creates powerful incentives for police officers to violate the Fourth Amendment. In the context of our constitutional rights and the sanctity of our homes, we cannot afford to presume that officers will be entirely impervious to those incentives. * * * * I dissent. [ Footnote 1 ] This Court has never held that an officer's good-faith misunderstanding of the law justifies the admission of unconstitutionally seized evidence except in the limited context of the officer's good-faith and objectively reasonable reliance on a facially valid warrant issued by a neutral and detached magistrate. United States v. Leon, 468 U. S. 897 , 468 U. S. 925 -926 (1984). Even in that limited context, I think that suppression is required. See id. at 468 U. S. 928 -960 (BRENNAN, J., dissenting). [ Footnote 2 ] The "restrictions on questioning" to which the court refers are restrictions imposed by New York law. New York law provides that an arrest warrant may not issue until an "accusatory instrument" has been filed against the suspect. N.Y.Crim.Proc.Law § 120.20 (McKinney 1981). The New York courts have held that police officers may not question a suspect in the absence of an attorney once such an accusatory instrument has been filed. People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344 (1980). These two rules operate to prohibit police from questioning a suspect after arresting him in his home unless his lawyer is present. If the police comply with Payton, the suspect's lawyer will likely tell him not to say anything, and the police will get nothing. On the other hand, if they violate Payton by refusing to obtain a warrant, the suspect's right to counsel will not have attached at the time of the arrest, and the police may be able to question him without interference by a lawyer. The lower court's inference that a departmental policy of violating the Fourth Amendment existed was thus fully justified. [ Footnote 3 ] The Court has a caveat of sorts. It holds that " where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton. " Ante at 495 U. S. 21 (emphasis added). But the caveat adds nothing. As the Court concedes, it is unconstitutional for the police to hold a suspect without probable cause, and any statement made during a detention for which probable cause is lacking "is unquestionably the product of [the] illegal governmental activity -- i.e., the wrongful detention." Ante at 495 U. S. 19 (internal quotation marks omitted; citation omitted). Thus, the Court concedes that any statement taken from a suspect who is in custody without probable cause must be suppressed, irrespective of whether there was an antecedent Payton violation. [ Footnote 4 ] The Court assures us that it does not hold "that a statement taken by the police while a suspect is in custody is always admissible as long as the suspect is in legal custody." Ante at 495 U. S. 20 . Rather, such statements "would of course be inadmissible if, for example, they were the product of coercion, if Miranda warnings were not given, or if there was a violation of the rule of Edwards v. Arizona, 451 U. S. 477 (1981)." Ibid. As the majority is no doubt well aware, each of these examples constitutes a violation of the Fifth Amendment. But suppressing the consequences of a violation of the Fifth Amendment does nothing to deter violations of the Fourth. See supra, at 495 U. S. 23 . The Court's disclaimer thus only serves to reinforce the conclusion that its ruling rests on the still-undefended premise that the effects of Payton violations end at the suspect's doorstep. [ Footnote 5 ] Indeed, if the officer, as here, works in New York State, the Court's assertion that "[i]t is doubtful therefore that the desire to secure a statement from a criminal suspect would motivate the police to violate Payton, " ante at 495 U. S. 21 , takes on a singularly ironic cast. The court below found as a matter of fact that the officers in this case had intentionally violated Payton for precisely the reason the Court identifies as "doubtful." See n 2, supra, and accompanying text.

In New York v. Harris, the US Supreme Court ruled that the exclusionary rule doesn't bar the use of a statement made by a defendant outside their home, even if the arrest was made inside the home without a warrant, as long as the police had probable cause. The Court reasoned that the purpose of the Payton rule is to protect the physical integrity of the home, not to grant suspects protection for statements made outside their premises with probable cause. The ruling emphasizes the importance of adhering to the Fourth Amendment while also considering the practical implications of deterring illegal entries into homes.

Search & Seizure

Illinois v. Krull

https://supreme.justia.com/cases/federal/us/480/340/

U.S. Supreme Court Illinois v. Krull, 480 U.S. 340 (1987) Illinois v. Krull No. 85-608 Argued November 5, 1986 Decided March 9, 1987 480 U.S. 340 CERTIORARI TO THE SUPREME COURT OF ILLINOIS Syllabus An Illinois statute, as it existed in 1981, required licensed motor vehicle and vehicular parts sellers to permit state officials to inspect certain required records. In 1981, pursuant to the statute, a police detective entered respondents' automobile wrecking yard and asked to see records of vehicle purchases. He was told that the records could not be located, but was given a list of approximately five purchases. After receiving permission to look at the cars in the yard, he ascertained that three were stolen and that a fourth had had its identification number removed. He then seized the cars, and respondents were arrested and charged with various crimes. The state trial court granted respondents' motion to suppress the evidence seized from the yard, agreeing with a federal court ruling, issued the day after the search, that the state statute violated the Fourth Amendment because it permitted officers unbridled discretion in their warrantless searches. The State Supreme Court affirmed, rejecting petitioner's argument that the seized evidence was admissible because the detective had acted in good faith reliance on the statute in making the search. Held: 1. The Fourth Amendment exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but which is subsequently found to violate the Fourth Amendment. Pp. 480 U. S. 349 -355. (a) Application of the exclusionary rule in these circumstances would have little deterrent effect on future police misconduct, which is the basic purpose of the rule. Officers conducting such searches are simply fulfilling their responsibility to enforce the statute as written. If a statute is not clearly unconstitutional, officers cannot be expected to question the judgment of the legislature that passed the law. Pp. 480 U. S. 349 -350. (b) Application of the exclusionary rule cannot be justified on the basis of deterring legislative misconduct. Police, not legislators, are the focus of the rule. Furthermore, there is no evidence to suggest that legislatures are inclined to ignore or subvert the Fourth Amendment. There is also no indication that the exclusion of evidence seized pursuant to a statute subsequently declared unconstitutional would have a significant deterrent effect on the enactment of similar laws. Legislators Page 480 U. S. 341 enact statutes for broad programmatic purposes, not for the purpose of procuring evidence in particular cases. The greatest deterrent to unconstitutional enactments is the courts' power to invalidate such statutes. Even if the exclusionary rule provided some incremental deterrent, its benefit would be outweighed by the substantial social costs exacted by the rule. Pp. 480 U. S. 350 -353. (c) The contention that the application of the exclusionary rule is required because large numbers of people are affected by a warrantless administrative search statute is not persuasive. Although the number of individuals affected may be considered in weighing the costs and benefits of applying the rule, the fact that many are affected will not require the rule's application if such application will not have a meaningful deterrent effect. P. 480 U. S. 353 . (d) The contention that the exception to the exclusionary rule recognized here will discourage criminal defendants from presenting meritorious Fourth Amendment claims is also not persuasive. Defendants will always be able to argue in a suppression motion that the officer's reliance on the warrantless search statute was not objectively reasonable, and therefore was not in good faith. Furthermore, persons covered by a statute may bring an action seeking a declaration of the statute's unconstitutionality and an injunction barring its implementation. Pp. 480 U. S. 353 -354. (e) Under the exception to the exclusionary rule recognized here, a statute cannot support objectively reasonable reliance if, in passing it, the legislature wholly abandoned its responsibility to enact constitutional laws, or if the statutory provisions are such that a reasonable law enforcement officer should have known that the statute was unconstitutional. P. 480 U. S. 355 . 2. The detective's reliance on the Illinois statute was objectively reasonable. Even assuming that the statute was unconstitutional because it vested state officials with too much discretion, this constitutional defect would not have been obvious to a police officer acting in good faith. Pp. 480 U. S. 356 -360. 107 Ill. 2d 107 , 481 N.E.2d 703 , reversed and remanded. BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, POWELL, and SCALIA, JJ., joined. MARSHALL, J., filed a dissenting opinion, post, p. 480 U. S. 361 . O'CONNOR, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 480 U. S. 361 . Page 480 U. S. 342 JUSTICE BLACKMUN delivered the opinion of the Court. In United States v. Leon, 468 U. S. 897 (1984), this Court ruled that the Fourth Amendment exclusionary rule does not apply to evidence obtained by police officers who acted in objectively reasonable reliance upon a search warrant issued by a neutral magistrate, but where the warrant was ultimately found to be unsupported by probable cause. See also Massachusetts v. Sheppard, 468 U. S. 981 (1984). The present case presents the question whether a similar exception to the exclusionary rule should be recognized when officers act in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but where the statute is ultimately found to violate the Fourth Amendment. I The State of Illinois, as part of its Vehicle Code, has a comprehensive statutory scheme regulating the sale of motor vehicles and vehicular parts. See Ill.Rev.Stat., ch. 951/2, �� 5-100 to 5-801 (1985). A person who sells motor vehicles, or deals in automotive parts, or processes automotive scrap metal, or engages in a similar business must obtain a license from the Illinois Secretary of State. �� 5-101, 5-102, 5-301. Page 480 U. S. 343 A licensee is required to maintain a detailed record of all motor vehicles and parts that he purchases or sells, including the identification numbers of such vehicles and parts, and the dates of acquisition and disposition. � 5-401.2. In 1981, the statute in its then form required a licensee to permit state officials to inspect these records "at any reasonable time during the night or day" and to allow "examination of the premises of the licensee's established place of business for the purpose of determining the accuracy of required records." Ill.Rev.Stat., ch. 95 1/2, 115-401(e) (1981). [ Footnote 1 ] Respondents in 1981 operated Action Iron & Metal, Inc., an automobile wrecking yard located in the city of Chicago. Detective Leilan K. McNally of the Chicago Police Department regularly inspected the records of wrecking yards pursuant to the state statute. Tr. 12. [ Footnote 2 ] On the morning of July 5, 1981, he entered respondents' yard. Id. at 7. He identified himself as a police officer to respondent Lucas, who was working at the yard, and asked to see the license and records of vehicle purchases. Lucas could not locate the license or records, but he did produce a paper pad on which approximately five vehicle purchases were listed. Id. at 25-26. McNally then requested and received permission from Lucas to look at the cars in the yard. Upon checking with his mobile computer the serial numbers of several of the vehicles, McNally ascertained that three of them were stolen. Also, the identification number of a fourth had been removed. McNally seized the four vehicles and placed Lucas under arrest. Id. at 8-9, 16-17. Respondent Krull, the holder of the license, and respondent Mucerino, who was present at the yard the day of the search, were arrested later. Respondents Page 480 U. S. 344 were charged with various criminal violations of the Illinois motor vehicle statutes. The state trial court (the Circuit Court of Cook County) granted respondents' motion to suppress the evidence seized from the yard. App. 20-21. Respondents had relied on a federal court ruling, issued the day following the search, that 115-401(e), authorizing warrantless administrative searches of licensees, was unconstitutional. See Bionic Auto Parts & Sales, Inc. v. Fahner, 518 F. Supp. 582 (ND Ill. 1981), aff'd, in part, vacated in part, and remanded in part, 721 F.2d 1072 Page 480 U. S. 345 (CA7 1983). The Federal District Court in that case had concluded that the statute permitted officers unbridled discretion in their searches and was therefore not " a constitutionally adequate substitute for a warrant.'" 518 F. Supp. at 585-586, quoting Donovan v. Dewey, 452 U. S. 594 , 452 U. S. 603 (1981). The state trial court in the instant case agreed that the statute was invalid, and concluded that its unconstitutionality "affects all pending prosecutions not completed." App. 20. On that basis, the trial court granted respondents' motion to suppress the evidence. Id. at 20-21. [ Footnote 3 ] The Appellate Court of Illinois, First Judicial District, vacated the trial court's ruling and remanded the case for further proceedings. Id. at 22. It observed that recent developments in the law indicated that Detective McNally's good faith reliance on the state statute might be relevant in assessing the admissibility of evidence, but that the trial court should first make a factual determination regarding McNally's good faith. Id. at 25. It also observed that the trial court might wish to reconsider its holding regarding the unconstitutionality of the statute in light of the decision by the United States Court of Appeals for the Seventh Circuit upholding the amended form of the Illinois statute. See Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d 1072 (CA7 1983). [ Footnote 4 ] On remand, however, the state trial court adhered to its decision to grant respondents' motion to suppress. It stated that the relevant statute was the one in effect at the time McNally searched respondents' yard, and that this statute was unconstitutional for the reasons stated by the Federal District Court in Bionic. It further concluded that, because the good faith of an officer is relevant, if at all, only when he acts pursuant to a warrant, Detective McNally's possible good faith reliance upon the statute had no bearing on the case. App. 32-35. [ Footnote 5 ] The Supreme Court of Illinois affirmed. [ Footnote 6 ] 107 Ill. 2d 107 , 481 N.E.2d 703 (1985). It first ruled that the state statute, as it existed at the time McNally searched respondents' yard, was unconstitutional. It noted that statutes authorizing Page 480 U. S. 346 warrantless administrative searches in heavily regulated industries had been upheld where such searches were necessary to promote enforcement of a substantial state interest, and where the statute, " in terms of [the] certainty and regularity of its application, provide[d] a constitutionally adequate substitute for a warrant.'" Id. at 116, 481 N.E.2d at 707, quoting Donovan v. Dewey, 452 U.S. at 452 U. S. 603 . Although acknowledging that the statutory scheme authorizing warrantless searches of licensees furthered a strong public interest in preventing the theft of automobiles and the trafficking in stolen automotive parts, the Illinois Supreme Court concluded that the statute violated the Fourth Amendment because it "vested State officials with too much discretion to decide who, when, and how long to search." 107 Ill. 2d at 116, 481 N.E.2d at 707. The court rejected the State's argument that the evidence seized from respondents' wrecking yard should nevertheless be admitted because the police officer had acted in good faith reliance on the statute authorizing such searches. The court observed that, in Michigan v. DeFillippo, 443 U. S. 31 (1979), this Court had upheld an arrest and search made pursuant to an ordinance defining a criminal offense, where the ordinance was subsequently held to violate the Fourth Amendment. The Illinois court noted that this Court, in DeFillippo, had contrasted the ordinance then before it, defining a substantive criminal offense, with a procedural statute directly authorizing searches without a warrant or probable cause, and had stated that evidence obtained in searches conducted pursuant to the latter type of statute traditionally had not been admitted. 107 Ill. 2d at 118, 481 N.E.2d.at 708. Because the Illinois statute did not define a substantive criminal offense, but, instead, was a procedural statute directly authorizing warrantless searches, the Illinois Supreme Court concluded that good faith reliance upon that statute could not be used to justify the admission of evidence under an exception to the exclusionary rule. Id. at 118-119, 481 N.E.2d at 708. We granted certiorari, 475 U.S. 1080 (1986), to consider whether a good faith exception to the Fourth Amendment exclusionary rule applies when an officer's reliance on the constitutionality of a statute is objectively reasonable, but the statute is subsequently declared unconstitutional. Page 480 U. S. 347 II A When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure. Weeks v. United States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961). The Court has stressed that the "prime purpose" of the exclusionary rule "is to deter future unlawful police conduct, and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures." United States v. Calandra, 414 U. S. 338 , 414 U. S. 347 (1974). Application of the exclusionary rule "is neither intended nor able to cure the invasion of the defendant's rights which he has already suffered.'" United States v. Leon, 468 U.S. at 468 U. S. 906 , quoting Stone v. Powell, 428 U. S. 465 , 428 U. S. 540 (1976) (WHITE, J., dissenting). Rather, the rule "operates as 'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.'" 468 U.S. at 468 U. S. 906 , quoting United States v. Calandra, 414 U.S. at 414 U. S. 348 . As with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced. Thus, in various circumstances, the Court has examined whether the rule's deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process. See, e.g., United States v. Janis, 428 U. S. 433 , 428 U. S. 454 (1976) (evidence obtained by state officers in violation of Fourth Amendment may be used in federal civil proceeding because likelihood of deterring conduct of state officers does not outweigh societal costs imposed by exclusion); United States v. Calandra, 414 U.S. at 351-352 (evidence obtained in contravention of Fourth Amendment may be used in grand jury proceedings because minimal advance in deterrence of police Page 480 U. S. 348 misconduct is outweighed by expense of impeding role of grand jury). In Leon, the Court held that the exclusionary rule should not be applied to evidence obtained by a police officer whose reliance on a search warrant issued by a neutral magistrate was objectively reasonable, even though the warrant was ultimately found to be defective. On the basis of three factors, the Court concluded that there was no sound reason to apply the exclusionary rule as a means of deterring misconduct on the part of judicial officers who are responsible for issuing warrants. First, the exclusionary rule was historically designed "to deter police misconduct, rather than to punish the errors of judges and magistrates." 468 U.S. at 468 U. S. 916 . Second, there was "no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion." Ibid. Third, and of greatest importance to the Court, there was no basis "for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate." Ibid. The Court explained: "Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions." Id. at 468 U. S. 917 . Thus, the threat of exclusion of evidence could not be expected to deter such individuals from improperly issuing warrants, and a judicial ruling that a warrant was defective was sufficient to inform the judicial officer of the error made. The Court then considered whether application of the exclusionary rule in that context could be expected to alter the behavior of law enforcement officers. In prior cases, the Court had observed that, because the purpose of the exclusionary rule is to deter police officers from violating the Fourth Amendment, evidence should be suppressed "only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the Page 480 U. S. 349 search was unconstitutional under the Fourth Amendment." United States v. Peltier, 422 U. S. 531 , 422 U. S. 542 (1975); see also Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 447 (1974). Where the officer's conduct is objectively reasonable, the Court explained in Leon, "'[e]xcluding the evidence will not further the ends of the exclusionary rule in any appreciable way, for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.'" United States v. Leon, 468 U.S. at 468 U. S. 920 , quoting Stone v. Powell, 428 U.S. at 428 U. S. 539 -540 (WHITE, J., dissenting). The Court in Leon concluded that a deterrent effect was particularly absent when an officer, acting in objective good faith, obtained a search warrant from a magistrate and acted within its scope. "In most such cases, there is no police illegality, and thus nothing to deter." 468 U.S. at 468 U. S. 920 -921. It is the judicial officer's responsibility to determine whether probable cause exists to issue a warrant, and, in the ordinary case, police officers cannot be expected to question that determination. Because the officer's sole responsibility after obtaining a warrant is to carry out the search pursuant to it, applying the exclusionary rule in these circumstances could have no deterrent effect on a future Fourth Amendment violation by the officer. Id. at 468 U. S. 921 . B The approach used in Leon is equally applicable to the present case. The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer's actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional, an Page 480 U. S. 350 officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written. To paraphrase the Court's comment in Leon : "Penalizing the officer for the [legislature's] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." Ibid. [ Footnote 7 ] Any difference between our holding in Leon and our holding in the instant case, therefore, must rest on a difference between the effect of the exclusion of evidence on judicial officers and the effect of the exclusion of evidence on legislators. Although these two groups clearly serve different functions in the criminal justice system, those differences are not controlling for purposes of this case. We noted in Leon, as an initial matter, that the exclusionary rule was aimed at deterring police misconduct. 468 U.S. at 468 U. S. 916 . Thus, legislators, like judicial officers, are not the focus of the rule. Moreover, to the extent we consider the rule's effect on legislators, our initial inquiry, as set out in Leon, is whether there is evidence to suggest that legislators "are inclined to ignore or subvert the Fourth Amendment." Ibid. Although legislators are not "neutral judicial officers," as are judges and magistrates, id. at 468 U. S. 917 , neither are they "adjuncts to the Page 480 U. S. 351 law enforcement team." Ibid. The role of legislators in the criminal justice system is to enact laws for the purpose of establishing and perpetuating that system. In order to fulfill this responsibility, legislators' deliberations of necessity are significantly different from the hurried judgment of a law enforcement officer "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948). Before assuming office, state legislators are required to take an oath to support the Federal Constitution. See U.S. Const., Art. VI, cl. 3. Indeed, by according laws a presumption of constitutional validity, courts presume that legislatures act in a constitutional manner. See e.g., McDonald v. Board of Election Comm'rs of Chicago, 394 U. S. 802 , 394 U. S. 808 -809 (1969); see generally 1 N. Singer, Sutherland on Statutory Construction § 2.01 (4th ed.1985). There is no evidence suggesting that Congress or state legislatures have enacted a significant number of statutes permitting warrantless administrative searches violative of the Fourth Amendment. Legislatures generally have confined their efforts to authorizing administrative searches of specific categories of businesses that require regulation, and the resulting statutes usually have been held to be constitutional. See, e.g., Donovan v. Dewey, 452 U. S. 594 (1981); United States v. Biswell, 406 U. S. 311 (1972); Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970); United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532 (CA8 1981), cert. denied, 455 U.S. 1016 (1982); see also 3 W. LaFave, Search and Seizure § 10.2, pp. 132-134, n. 89.1 (Supp. 1986) (collecting cases). Thus, we are given no basis for believing that legislators are inclined to subvert their oaths and the Fourth Amendment and that "lawlessness among these actors requires application of the extreme sanction of exclusion." United States v. Leon, 468 U.S. at 468 U. S. 916 . Even if we were to conclude that legislators are different in certain relevant respects from magistrates, because legislators are not officers of the judicial system, the next inquiry Page 480 U. S. 352 necessitated by Leon is whether exclusion of evidence seized pursuant to a statute subsequently declared unconstitutional will "have a significant deterrent effect," ibid., on legislators enacting such statutes. Respondents have offered us no reason to believe that applying the exclusionary rule will have such an effect. Legislators enact statutes for broad, programmatic purposes, not for the purpose of procuring evidence in particular criminal investigations. Thus, it is logical to assume that the greatest deterrent to the enactment of unconstitutional statutes by a legislature is the power of the courts to invalidate such statutes. Invalidating a statute informs the legislature of its constitutional error, affects the admissibility of all evidence obtained subsequent to the constitutional ruling, and often results in the legislature's enacting a modified and constitutional version of the statute, as happened in this very case. There is nothing to indicate that applying the exclusionary rule to evidence seized pursuant to the statute prior to the declaration of its invalidity will act as a significant, additional deterrent. [ Footnote 8 ] Moreover, to the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against the "substantial social costs exacted by the exclusionary rule." Page 480 U. S. 353 Id. at 468 U. S. 907 . [ Footnote 9 ] When we indulge in such weighing, we are convinced that applying the exclusionary rule in this context is unjustified. Respondents argue that the result in this case should be different from that in Leon because a statute authorizing warrantless administrative searches affects an entire industry and a large number of citizens, while the issuance of a defective warrant affects only one person. This distinction is not persuasive. In determining whether to apply the exclusionary rule, a court should examine whether such application will advance the deterrent objective of the rule. Although the number of individuals affected may be considered when "weighing the costs and benefits," ibid., of applying the exclusionary rule, the simple fact that many are affected by a statute is not sufficient to tip the balance if the deterrence of Fourth Amendment violations would not be advanced in any meaningful way. [ Footnote 10 ] We also do not believe that defendants will choose not to contest the validity of statutes if they are unable to benefit directly by the subsequent exclusion of evidence, thereby resulting in statutes that evade constitutional review. First, in Leon, we explicitly rejected the argument that the good faith exception adopted in that case would "preclude review Page 480 U. S. 354 of the constitutionality of the search or seizure" or would cause defendants to lose their incentive to litigate meritorious Fourth Amendment claims. We stated that "the magnitude of the benefit conferred on defendants by a successful [suppression] motion makes it unlikely that litigation of colorable claims will be substantially diminished." Id. at 468 U. S. 924 , and n. 25. In an effort to suppress evidence, a defendant has no reason not to argue that a police officer's reliance on a warrant or statute was not objectively reasonable and therefore cannot be considered to have been in good faith. Second, unlike a person searched pursuant to a warrant, a person subject to a statute authorizing searches without a warrant or probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its implementation. Indeed, that course of action was followed with respect to the statute at issue in this case. Several businesses brought a declaratory judgment suit in Federal District Court challenging � 5-401(e) of the Illinois Vehicle Code (1981), and the provision was declared unconstitutional. See Bionic Auto Parts & Sales, Inc. v. Fahner, 518 F. Supp. at 585. Subsequent to that declaration, respondents, in their state court criminal trial, challenged the admissibility of evidence obtained pursuant to the statute. App. 13-17. [ Footnote 11 ] Page 480 U. S. 355 The Court noted in Leon that the "good faith" exception to the exclusionary rule would not apply "where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979)," or where the warrant was so facially deficient "that the executing officers cannot reasonably presume it to be valid." 468 U.S. at 468 U. S. 923 . Similar constraints apply to the exception to the exclusionary rule we recognize today. A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. Cf. Harlow v. Fitzgerald, 457 U. S. 800 , 457 U. S. 818 (1982) ("[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known"). As we emphasized in Leon, the standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers. See United States v. Leon, 468 U.S. at 468 U. S. 919 , n. 20. [ Footnote 12 ] Page 480 U. S. 356 III Applying the principle enunciated in this case, we necessarily conclude that Detective McNally's reliance on the Page 480 U. S. 357 Illinois statute was objectively reasonable. [ Footnote 13 ] On several occasions, this Court has upheld legislative schemes that authorized warrantless administrative searches of heavily regulated industries. See Donovan v. Dewey, 452 U. S. 594 (1981) (inspections of underground and surface mines pursuant to Federal Mine Safety and Health Act of 1977); United States v. Biswell, 406 U. S. 311 (1972) (inspections of firearms dealers under Gun Control Act of 1968); Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970) (inspections of liquor dealers under 26 U.S.C. §§ 5146(b) and 7606 (1964 ed.)). It has recognized that an inspection program may be a necessary component of regulation in certain industries, and has acknowledged that unannounced, warrantless inspections may be necessary "if the law is to be properly enforced and inspection made effective." United States v. Biswell, 406 U.S. at 406 U. S. 316 ; Donovan v. Dewey, 452 U.S. at 452 U. S. 603 . Thus, the Court explained in Donovan that its prior decisions "make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his Page 480 U. S. 358 property will be subject to periodic inspections undertaken for specific purposes." Id. at 452 U. S. 600 . In Donovan, the Court pointed out that a valid inspection scheme must provide, "in terms of the certainty and regularity of its application . . . a constitutionally adequate substitute for a warrant." Id. at 452 U. S. 603 . In Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), to be sure, the Court held that a warrantless administrative Page 480 U. S. 359 search under § 8(a) of the Occupational Safety and Health Act of 1970 was invalid, partly because the "authority to make warrantless searches devolve[d] almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search." Id. at 436 U. S. 323 . [ Footnote 14 ] In contrast, the Court in Donovan concluded that the Federal Mine Safety and Health Act of 1977 imposed a system of inspection that was sufficiently tailored to the problems of unsafe conditions in mines, and was sufficiently pervasive that it checked the discretion of Government officers and established "a predictable and guided federal regulatory presence." 452 U.S. at 452 U. S. 604 . Under the standards established in these cases, Detective McNally's reliance on the Illinois statute authorizing warrantless inspections of licensees was objectively reasonable. In ruling on the statute's constitutionality, the Illinois Supreme Court recognized that the licensing and inspection scheme furthered a strong public interest, for it helped to "facilitate the discovery and prevention of automobile thefts." 107 Ill. 2d at 116, 481 N.E.2d at 707. The court further concluded that it was "reasonable to assume that warrantless administrative searches are necessary in order to adequately control the theft of automobiles and automotive parts." Ibid. The Court of Appeals for the Seventh Circuit, upholding the amended version of the statute, pointed out that used car and automotive parts dealers in Illinois "are put on notice that they are entering a field subject to extensive state regulation." See Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d at 1079. The Illinois statute was thus directed at one specific and heavily regulated industry, the authorized warrantless searches were necessary to the effectiveness of the inspection system, and licensees were put on notice that their businesses would be subject to inspections pursuant to the state administrative scheme. According to the Illinois Supreme Court, the statute failed to pass constitutional muster solely because the statute "vested State officials with too much discretion to decide who, when, and how long to search." 107 Ill. 2d at 116, 481 N.E.2d at 707. Assuming, as we do for purposes of this case, that the Illinois Supreme Court was correct in its constitutional analysis, this defect in the statute was not sufficiently obvious so as to render a police officer's reliance upon the statute objectively unreasonable. The statute provided that searches could be conducted "at any reasonable time during the night or day," and seemed to limit the scope of the inspections to the records the businesses were required to maintain and to the business premises "for the purposes of determining the accuracy of required records." Ill.Rev.Stat., ch. 95 1/2, � 5-401(e) (1981). While statutory provisions that circumscribe officers' discretion may be important in establishing a statute's constitutionality, [ Footnote 15 ] the additional restrictions on discretion Page 480 U. S. 360 that might have been necessary are not so obvious that an objectively reasonable police officer would have realized the statute was unconstitutional without them. [ Footnote 16 ] We therefore conclude that Detective McNally relied, in objective good faith, on a statute that appeared legitimately to allow a warrantless administrative search of respondents' business. [ Footnote 17 ] Page 480 U. S. 361 Accordingly, the judgment of the Supreme Court of Illinois is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] Paragraph 6-401 of the 1981 compilation was repealed by 1983 Ill.Laws No. 83-1473, § 2, effective Jan. 1, 1986. Its current compilation replacement bears the same paragraph number. [ Footnote 2 ] Citations to the transcript refer to the Sept. 26, 1981, hearing on respondents' suppression motion held in the Circuit Court of Cook County. 2 Record 24. [ Footnote 3 ] The trial court also concluded that Lucas had not consented to the search. App. 20. That ruling is not now at issue here. [ Footnote 4 ] Following the decision of the District Court in Bionic Auto Parts & Sales, Inc. v. Fahner, 518 F. Supp. 582 (ND Ill.1981), the Illinois Legislature amended the statute to limit the timing, frequency, and duration of the administrative search. 1982 Ill.Laws No. 82-984, codified, as amended, at Ill.Rev.Stat., ch. 95 1/2, � 5-403 (1985). See n 1, supra. On appeal, the Court of Appeals for the Seventh Circuit did not address the validity of the earlier form of the statute, for it held that the amended statute satisfied the requirements of the Fourth Amendment. See Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d 1072, 1075 (1983). [ Footnote 5 ] The trial court also indicated that McNally may have acted outside the scope of his statutory authority when he examined vehicles other than those listed on the pad offered by Lucas. App. 29; 5 Record 2, 8. [ Footnote 6 ] The State bypassed the Illinois intermediate appellate court and appealed directly to the Supreme Court of Illinois pursuant to Illinois Supreme Court Rule 603. [ Footnote 7 ] Indeed, the possibility of a deterrent effect may be even less when the officer acts pursuant to a statute rather than a warrant. In Leon, the Court pointed out: "One could argue that applying the exclusionary rule in cases where the police failed to demonstrate probable cause in the warrant application deters future inadequate presentations or 'magistrate shopping,' and thus promotes the ends of the Fourth Amendment." 468 U.S. at 468 U. S. 918 . Although the Court in Leon dismissed that argument as speculative, ibid., the possibility that a police officer might modify his behavior does not exist at all when the officer relies on an existing statute that authorizes warrantless inspections and does not require any pre-inspection action, comparable to seeking a warrant, on the part of the officers. [ Footnote 8 ] It is possible, perhaps, that there are some legislators who, for political purposes, are possessed with a zeal to enact a particular unconstitutionally restrictive statute, and who will not be deterred by the fact that a court might later declare the law unconstitutional. But we doubt whether a legislator possessed with such fervor, and with such disregard for his oath to support the Constitution, would be significantly deterred by the possibility that the exclusionary rule would preclude the introduction of evidence in a certain number of prosecutions. Moreover, and of equal importance, just as we were not willing to assume in Leon that the possibility of magistrates' acting as "rubber stamps for the police" was a problem of major proportions, see 468 U.S. at 468 U. S. 916 , n. 14, we are not willing to assume now that there exists a significant problem of legislators who perform their legislative duties with indifference to the constitutionality of the statutes they enact. If future empirical evidence ever should undermine that assumption, our conclusions may be revised accordingly. See United States v. Leon, 468 U.S. at 468 U. S. 927 -928 (concurring opinion). [ Footnote 9 ] In Leon, the Court pointed out: "An objectionable collateral consequence of this interference with the criminal justice system's truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains." Id. at 468 U. S. 907 . [ Footnote 10 ] Moreover, it is not always true that the issuance of defective warrants will affect only a few persons. For example, it is possible that, before this Court's rather controversial decision in Aguilar v. Texas, 378 U. S. 108 (1964), see Illinois v. Gates, 462 U. S. 213 , 462 U. S. 238 , and n. 11 (1983), a number of magistrates believed that probable cause could be established solely on the uncorroborated allegations of a police officer, and a significant number of warrants may have been issued on that basis. Until that view was adjusted by this Court's ruling, many persons may have been affected by the systematic granting of warrants based on erroneous views of the standards necessary to establish probable cause. [ Footnote 11 ] Other plaintiffs have challenged state statutes on Fourth Amendment grounds in declaratory judgment actions. See California Restaurant Assn. v. Henning, 173 Cal. App. 3d 1069 , 219 Cal. Rptr. 630 (1985) (organization of restaurant owners challenged constitutionality of state statute vesting authority in State Labor Commissioner to issue subpoenas compelling production of books and records); Hawaii Psychiatric Soc. v. Ariyoshi, 481 F. Supp. 1028 (Haw. 1979) (action to enjoin enforcement of state statute that authorized issuance of administrative inspection warrants to search records of Medicaid providers); Bilbrey v. Brown, 738 F.2d 1462 (CA9 1984) (parents sought declaration that school board guidelines authorizing warrantless searches by school principal and teacher were unconstitutional); see also Mid-Atlantic Accessories Trade Assn. v. Maryland, 500 F. Supp. 834 , 848-849 (Md. 1980) (challenging constitutionality of Maryland Drug Paraphernalia Act as violative of the Fourth Amendment and other constitutional provisions). The dissent takes issue with the rule announced in this case because it can result in having a defendant, who has successfully challenged the constitutionality of a statute, denied the benefits of suppression of evidence. Post at 480 U. S. 368 -369. As the dissent itself recognizes, however, this identical concern was present in Leon. The dissent offers no reason why this concern should be different when a defendant challenges the constitutionality of a statute, rather than of a warrant. [ Footnote 12 ] The Illinois Supreme Court did not consider whether an officer's objectively reasonable reliance upon a statute justifies an exception to the exclusionary rule. Instead, as noted above, the court rested its holding on the existence of a "substantive-procedural dichotomy," which it would derive from this Court's opinion in Michigan v. DeFillippo, 443 U. S. 31 (1979). See 107 Ill. 2d 107 , 118, 481 N.E.2d 703 , 708 (1985). We do not believe the distinction relied upon by the Illinois court is relevant in deciding whether the exclusionary rule should be applied in this case. This Court in DeFillippo, which was decided before Leon, drew a distinction between evidence obtained when officers rely upon a statute that defines a substantive crime, and evidence obtained when officers rely upon a statute that authorizes searches without a warrant or probable cause. The Court stated that evidence obtained in searches conducted pursuant to the latter type of statute traditionally had been excluded. 443 U.S. at 443 U. S. 39 . None of the cases cited in DeFillippo in support of the distinction, however, addressed the question whether a good faith exception to the exclusionary rule should be recognized when an officer's reliance on a statute was objectively reasonable. Rather, those cases simply evaluated the constitutionality of particular statutes, or their application, that authorized searches without a warrant or probable cause. See Torres v. Puerto Rico, 442 U. S. 465 (1979) (statute that allowed police to search luggage of any person arriving at an airport or pier in Puerto Rico, without any requirement of probable cause, violated Fourth Amendment); Almeida-Sanchez v. United States, 413 U. S. 266 (1973) (search pursuant to statute that allowed United States Border Patrol to conduct warrantless searches within a "reasonable distance" from border, and regulation that defined such distance as 100 air miles, and without any requirement of probable cause violated Fourth Amendment); Berger v. New York, 388 U. S. 41 (1967) (statute that authorized court-ordered eavesdropping without requirement that information to be seized be particularized violated Fourth Amendment). See also Sibron v. New York, 392 U. S. 40 (1968) (search pursuant to statute that allowed officers to search an individual upon "reasonable suspicion" that he was engaged in criminal activity was unreasonable because it was conducted without probable cause). See United States v. Leon, 468 U.S. at 468 U. S. 912 , n. 8. For purposes of deciding whether to apply the exclusionary rule, we see no valid reason to distinguish between statutes that define substantive criminal offenses and statutes that authorize warrantless administrative searches. In either situation, application of the exclusionary rule will not deter a violation of the Fourth Amendment by police officers, because the officers are merely carrying out their responsibilities in implementing the statute. Similarly, in either situation, there is no basis for assuming that the exclusionary rule is necessary or effective in deterring a legislature from passing an unconstitutional statute. There is no basis for applying the exclusionary rule to exclude evidence obtained when a law enforcement officer acts in objectively reasonable reliance upon a statute, regardless of whether the statute may be characterized as "substantive" or "procedural." [ Footnote 13 ] The question whether the Illinois statute in effect at the time of McNally's search was, in fact, unconstitutional is not before us. We are concerned here solely with whether the detective acted in good faith reliance upon an apparently valid statute. The constitutionality of a statutory scheme authorizing warrantless searches of automobile junkyards will be considered in No. 86-80, New York v. Burger, cert. granted, 479 U.S. 812 (1986). [ Footnote 14 ] The Court expressly limited its holding in Barlow's to the inspection provisions of the Act. It noted that the "reasonableness of a warrantless search . . . will depend upon the specific enforcement needs and privacy guarantees of each statute," and that some statutes "apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply." 436 U.S. at 436 U. S. 321 . [ Footnote 15 ] For example, the amended version of the Illinois statute, upheld by the Court of Appeals for the Seventh Circuit, incorporated the following: (1) the inspections were to be initiated while business was being conducted; (2) each inspection was not to last more than 24 hours; (3) the licensee or his representative was entitled to be present during the inspection; and (4) no more than six inspections of one business location could be conducted within any 6-month period except pursuant to a search warrant or in response to public complaints about violations. Ill.Rev.Stat., ch. 95 1/2, � 5-403 (1985). [ Footnote 16 ] Indeed, less than a year and a half before the search of respondents' yard, the Supreme Court of Indiana upheld an Indiana statute, authorizing warrantless administrative searches of automobile businesses, that was similar to the Illinois statute and did not include extensive restrictions on police officers' discretion. See State v. Tindell, 272 Ind. 479, 399 N.E.2d 746 (1980). [ Footnote 17 ] Respondents also argue that Detective McNally acted outside the scope of the statute, and that such action constitutes an alternative ground for suppressing the evidence even if we recognize, as we now do, a good faith exception when officers reasonably rely on statutes and act within the scope of those statutes. We have observed, see n 5, supra, that the trial court indicated that McNally may have acted outside the scope of his statutory authority. In its brief to the Illinois Supreme Court, the State commented that "[McNally's] search was properly limited to examining the records and inventory of the Action Iron and Metal Company." Brief for Appellant in No. 60629 (Sup.Ct.Ill.), p. 26. The Illinois Supreme Court, however, made no reference to the trial court's discussion regarding the scope of McNally's authority; instead, it affirmed the suppression of the evidence on the ground that a good faith exception was not applicable in the context of the statute before it. We anticipate that the Illinois Supreme Court, on remand, will consider whether the trial court made a definitive ruling regarding the scope of the statute, whether the State preserved its objection to any such ruling, and, if so, whether the trial court properly interpreted the statute. At this juncture, we decline the State's invitation to recognize an exception for an officer who erroneously, but in good faith, believes he is acting within the scope of a statute. Not only would such a ruling be premature, but it does not follow inexorably from today's decision. As our opinion makes clear, the question whether the exclusionary rule is applicable in a particular context depends significantly upon the actors who are making the relevant decision that the rule is designed to influence. The answer to this question might well be different when police officers act outside the scope of a statute, albeit in good faith. In that context, the relevant actors are not legislators or magistrates, but police officers, who concededly are "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948). JUSTICE MARSHALL, dissenting. While I join in JUSTICE O'CONNOR'S dissenting opinion, I do not find it necessary to discuss the Court's holdings in United States v. Calandra, 414 U. S. 338 (1974), Stone v. Powell, 428 U. S. 465 (1976), and United States v. Janis, 428 U. S. 433 (1976). See post at 480 U. S. 368 -369. Accordingly, I do not subscribe to that portion of the opinion. JUSTICE O'CONNOR, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. The Court today extends the good faith exception to the Fourth Amendment exclusionary rule, United States v. Leon, 468 U. S. 897 (1984), in order to provide a grace period for unconstitutional search and seizure legislation during which the State is permitted to violate constitutional requirements with impunity. Leon's rationale does not support this extension of its rule, and the Court is unable to give any independent reason in defense of this departure from established precedent. Accordingly, I respectfully dissent. The Court, ante at 480 U. S. 348 , accurately summarizes Leon's holding: "In Leon, the Court held that the exclusionary rule should not be applied to evidence obtained by a police officer whose reliance on a search warrant issued by a neutral magistrate was objectively reasonable, even though the warrant was ultimately found to be defective. Page 480 U. S. 362 The Court also accurately summarizes the reasoning supporting this conclusion as based upon three factors: the historic purpose of the exclusionary rule, the absence of evidence suggesting that judicial officers are inclined to ignore Fourth Amendment limitations, and the absence of any basis for believing that the exclusionary rule significantly deters Fourth Amendment violations by judicial officers in the search warrant context. Ibid. In my view, application of Leon's stated rationales leads to a contrary result in this case." I agree that the police officer involved in this case acted in objective good faith in executing the search pursuant to Ill.Rev.Stat., ch. 95 1/2, � 5-401(e) (1981) (repealed 1985). Ante at 480 U. S. 360 . And, as the Court notes, ante at 480 U. S. 357 , n. 13, the correctness of the Illinois Supreme Court's finding that this statute violated the Fourth Amendment is not in issue here. Thus, this case turns on the effect to be given to statutory authority for an unreasonable search. Unlike the Court, I see a powerful historical basis for the exclusion of evidence gathered pursuant to a search authorized by an unconstitutional statute. Statutes authorizing unreasonable searches were the core concern of the framers of the Fourth Amendment. This Court has repeatedly noted that reaction against the ancient Act of Parliament authorizing indiscriminate general searches by writ of assistance, 7 & 8 Wm. III, c. 22, § 6 (1696), was the moving force behind the Fourth Amendment. Payton v. New York, 445 U. S. 573 , 445 U. S. 583 -584, and n. 21 (1980); Stanford v. Texas, 379 U. S. 476 , 379 U. S. 481 -482 (1965); Boyd v. United States, 116 U. S. 616 , 116 U. S. 624 -630 (1886). James Otis' argument to the royal Superior Court in Boston against such overreaching laws is as powerful today as it was in 1761: ". . . I will to my dying day oppose with all the powers and faculties God has given me, all such instruments of Page 480 U. S. 363 slavery on the one hand, and villainy on the other, as this writ of assistance is. . . ." " * * * *" ". . . It is a power, that places the liberty of every man in the hands of every petty officer. . . ." ". . . No Acts of Parliament can establish such a writ; though it should be made in the very words of the petition, it would be void. An act against the constitution is void." 2 Works of John Adams 523-525 (C. Adams ed.1850). See Paxton's Case, Quincy 51 (Mass. 1761). James Otis lost the case he argued; and, even had he won it, no exclusionary rule existed to prevent the admission of evidence gathered pursuant to a writ of assistance in a later trial. But history's court has vindicated Otis. The principle that no legislative Act can authorize an unreasonable search became embodied in the Fourth Amendment. Almost 150 years after Otis' argument, this Court determined that evidence gathered in violation of the Fourth Amendment would be excluded in federal court. Weeks v. United States, 232 U. S. 383 (1914). In Mapp v. Ohio, 367 U. S. 643 (1961), the rule was further extended to state criminal trials. This exclusionary rule has, of course, been regularly applied to evidence gathered under statutes that authorized unreasonable searches. See, e.g., Ybarra v. Illinois, 444 U. S. 85 (1979) (statute authorized search and detention of persons found on premises being searched pursuant to warrant); Torres v. Puerto Rico, 442 U. S. 465 (1979) (statute authorized search of luggage of persons entering Puerto Rico); Almeida-Sanchez v. United States, 413 U. S. 266 (1973) (statute authorized search of automobiles without probable cause within border areas); Sibron v. New York, 392 U. S. 40 (1968) (statute authorized frisk absent constitutionally required suspicion that officer was in danger); Berger v. New York, 388 U. S. 41 (1967) (permissive eavesdrop statute). Page 480 U. S. 364 Indeed, Weeks itself made clear that the exclusionary rule was intended to apply to evidence gathered by officers acting under "legislative . . . sanction." Weeks v. United States, supra, at 232 U. S. 394 . Leon, on its face, did not purport to disturb these rulings. "'Those decisions involved statutes which, by their own terms, authorized searches under circumstances which did not satisfy the traditional warrant and probable cause requirements of the Fourth Amendment.' Michigan v. DeFillippo, 443 U.S. at 443 U. S. 39 . The substantive Fourth Amendment principles announced in those cases are fully consistent with our holding here." United States v. Leon, 468 U.S. at 468 U. S. 912 , n. 8. In short, both the history of the Fourth Amendment and this Court's later interpretations of it support application of the exclusionary rule to evidence gathered under the 20th-century equivalent of the Act authorizing the writ of assistance. This history also supplies the evidence that Leon demanded for the proposition that the relevant state actors, here legislators, might pose a threat to the values embodied in the Fourth Amendment. Legislatures have, upon occasion, failed to adhere to the requirements of the Fourth Amendment, as the cited cases illustrate. Indeed, as noted, the history of the Amendment suggests that legislative abuse was precisely the evil the Fourth Amendment was intended to eliminate. In stark contrast, the framers did not fear that judicial officers, the state actors at issue in Leon, posed a serious threat to Fourth Amendment values. James Otis is as clear on this point as he was in denouncing the unconstitutional Act of Parliament: "In the first place, may it please your Honors, I will admit that writs of one kind may be legal; that is, special writs, directed to special officers, and to search certain houses, &c. specially set forth in the writ, may be granted by the Court of Exchequer at home, upon oath made before the Lord Treasurer by the person who asks it, that Page 480 U. S. 365 he suspects such goods to be concealed in those very places he desires to search." 2 Works of John Adams 524 (C. Adams ed.1850). The distinction drawn between the legislator and the judicial officer is sound. The judicial role is particularized, fact-specific, and nonpolitical. Judicial authorization of a particular search does not threaten the liberty of everyone, but rather authorizes a single search under particular circumstances. The legislative Act, on the other hand, sweeps broadly, authorizing whole classes of searches, without any particularized showing. A judicial officer's unreasonable authorization of a search affects one person at a time; a legislature's unreasonable authorization of searches may affect thousands or millions, and will almost always affect more than one. Certainly the latter poses a greater threat to liberty. Moreover, the Leon Court relied explicitly on the tradition of judicial independence in concluding that, until it was presented with evidence to the contrary, there was relatively little cause for concern that judicial officers might take the opportunity presented by the good faith exception to authorize unconstitutional searches. "Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions." United States v. Leon, supra, at 468 U. S. 917 . Unlike police officers, judicial officers are not "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948). The legislature's objective in passing a law authorizing unreasonable searches, however, is explicitly to facilitate law enforcement. Fourth Amendment rights have at times proved unpopular; it is a measure of the framers' fear that a passing majority might find it expedient to compromise Fourth Amendment values that these values were embodied in the Constitution itself. Bram v. United States, 168 U. S. 532 , 168 U. S. 544 (1897). Legislators, by virtue of their political role, are more often subjected Page 480 U. S. 366 to the political pressures that may threaten Fourth Amendment values than are judicial officers. Finally, I disagree with the Court that there is "no reason to believe that applying the exclusionary rule" will deter legislation authorizing unconstitutional searches. Ante at 480 U. S. 352 -352. "The inevitable result of the Constitution's prohibition against unreasonable searches and seizures and its requirement that no warrant shall issue but upon probable cause is that police officers who obey its strictures will catch fewer criminals." Stewart, 83 Colum.L.Rev. 1365, 1393 (1983). Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws. Cf. Weeks v. United States, 232 U.S. at 232 U. S. 392 -393. While I heartily agree with the Court that legislators ordinarily do take seriously their oaths to uphold the Constitution and that it is proper to presume that legislative Acts are constitutional, ante at 480 U. S. 351 , it cannot be said that there is no reason to fear that a particular legislature might yield to the temptation offered by the Court's good faith exception. Accordingly, I find that none of Leon's stated rationales, see ante at 480 U. S. 348 , supports the Court's decision in this case. History suggests that the exclusionary rule ought to apply to the unconstitutional legislatively authorized search, and this historical experience provides a basis for concluding that legislatures may threaten Fourth Amendment values. Even conceding that the deterrent value of the exclusionary rule in this context is arguable, I am unwilling to abandon both history and precedent weighing in favor of suppression. And if I were willing, I still could not join the Court's opinion, because the rule it adopts is both difficult to administer and anomalous. The scope of the Court's good faith exception is unclear. Officers are to be held not "to have acted in good faith reliance upon a statute if its provisions are such that a reasonable Page 480 U. S. 367 officer should have known that the statute was unconstitutional. Cf. Harlow v. Fitzgerald, 457 U. S. 800 , 457 U. S. 818 (1982)." Ante at 480 U. S. 355 . I think the Court errs in importing Harlow's "clearly established law" test into this area, because it is not apparent how much constitutional law the reasonable officer is expected to know. In contrast, Leon simply instructs courts that police officers may rely upon a facially valid search warrant. Each case is a fact-specific, self-terminating episode. Courts need not inquire into the officer's probable understanding of the state of the law except in the extreme instance of a search warrant upon which no reasonable officer would rely. Under the decision today, however, courts are expected to determine at what point a reasonable officer should be held to know that a statute has, under evolving legal rules, become "clearly" unconstitutional. The process of clearly establishing constitutional rights is a long, tedious, and uncertain one. Indeed, as the Court notes, ante at 480 U. S. 357 , n. 13, the unconstitutionality of the Illinois statute is not clearly established to this day. The Court has granted certiorari on the question of the constitutionality of a similar statutory scheme in New York v. Burger, 479 U. S. 482 (1986). Thus, some six years after the events in question in this case, the constitutionality of statutes of this kind remains a fair ground for litigation. Nothing justifies a grace period of such extraordinary length for an unconstitutional legislative act. The difficulties in determining whether a particular statute violates clearly established rights are substantial. See 5 K. Davis, Administrative Law Treatise § 27:24, p. 130 (2d ed. 1984) ("The most important effect of [ Davis v. Scherer, 468 U. S. 183 (1984)] on future law relates to locating the line between established constitutional rights and clearly established constitutional rights. In assigning itself the task of drawing such a line, the Court may be attempting the impossible. Law that can be clearly stated in the abstract usually becomes unclear when applied to variable and imperfectly Page 480 U. S. 368 understood facts. . . ."). The need for a rule so difficult of application outside the civil damages context is, in my view, dubious. The Court has determined that fairness to the defendant, as well as public policy, dictates that individual government officers ought not be subjected to damages suits for arguable constitutional violations. Harlow v. Fitzgerald, 457 U. S. 800 , 457 U. S. 807 (1982) (citing Butz v. Economou, 438 U. S. 478 , 438 U. S. 506 (1978)). But suppression of illegally obtained evidence does not implicate this concern. Finally, I find the Court's ruling in this case at right angles, if not directly at odds, with the Court's recent decision in Griffith v. Kentucky, 479 U. S. 314 (1987). In Griffith, the Court held that "basic norms of constitutional adjudication" and fairness to similarly situated defendants, id. at 479 U. S. 322 , require that we give our decisions retroactive effect to all cases not yet having reached final, and unappealable, judgment. While the extent to which our decisions ought to be applied retroactively has been the subject of much debate among members of the Court for many years, id. at 479 U. S. 320 -326, there has never been any doubt that our decisions are applied to the parties in the case before the Court. Stovall v. Denno, 388 U. S. 293 , 388 U. S. 301 (1967). The novelty of the approach taken by the Court in this case is illustrated by the fact that, under its decision today, no effective remedy is to be provided in the very case in which the statute at issue was held unconstitutional. I recognize that the Court today, as it has done in the past, divorces the suppression remedy from the substantive Fourth Amendment right. See United States v. Leon, 468 U.S. at 468 U. S. 905 -908. This Court has held that the exclusionary rule is a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra , 414 U. S. 338 , 414 U. S. 348 (1974). Moreover, the exclusionary remedy is not made available in all instances when Fourth Amendment rights are implicated. See, e.g., 428 U. S. S. 369� v. Powell, 428 U. S. 465 (1976) (barring habeas corpus review of Fourth Amendment suppression claims); United States v. Janis, 428 U. S. 433 (1976) (no suppression remedy for state Fourth Amendment violations in civil proceedings by or against the United States). Nevertheless, the failure to apply the exclusionary rule in the very case in which a state statute is held to have violated the Fourth Amendment destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights. In my view, whatever "basic norms of constitutional adjudication," Griffith v. Kentucky, supra, at 479 U. S. 322 , otherwise require, surely they mandate that a party appearing before the Court might conceivably benefit from a judgment in his favor. The Court attempts to carve out a proviso to its good faith exception for those cases in which "the legislature wholly abandoned its responsibility to enact constitutional laws." Ante@ at 480 U. S. 355 . Under what circumstances a legislature can be said to have "wholly abandoned" its obligation to pass constitutional laws is not apparent on the face of the Court's opinion. Whatever the scope of the exception, the inevitable result of the Court's decision to deny the realistic possibility of an effective remedy to a party challenging statutes not yet declared unconstitutional is that a chill will fall upon enforcement and development of Fourth Amendment principles governing legislatively authorized searches. For all these reasons, I respectfully dissent.

In Illinois v. Krull, the U.S. Supreme Court held that the Fourth Amendment exclusionary rule does not apply when police officers conduct a warrantless search in reasonable reliance on a statute authorizing such searches, even if the statute is subsequently found to violate the Fourth Amendment. The Court reasoned that excluding evidence in such cases would have little deterrent effect on police misconduct, as officers are simply fulfilling their duty to enforce the law. Additionally, the Court noted that the exclusionary rule is not intended to deter legislative misconduct and that there is no evidence to suggest that legislatures frequently ignore or subvert the Fourth Amendment. The Court also weighed the social costs of excluding reliable evidence and potentially putting criminals back on the streets against the minimal benefits of deterrence.

Search & Seizure

Minnesota v. Dickerson

https://supreme.justia.com/cases/federal/us/508/366/

OCTOBER TERM, 1992 Syllabus MINNESOTA v. DICKERSON CERTIORARI TO THE SUPREME COURT OF MINNESOTA No. 91-2019. Argued March 3, 1993-Decided June 7, 1993 Based upon respondent's seemingly evasive actions when approached by police officers and the fact that he had just left a building known for cocaine traffic, the officers decided to investigate further and ordered respondent to submit to a patdown search. The search revealed no weapons, but the officer conducting it testified that he felt a small lump in respondent's jacket pocket, believed it to be a lump of crack cocaine upon examining it with his fingers, and then reached into the pocket and retrieved a small bag of cocaine. The state trial court denied respondent's motion to suppress the cocaine, and he was found guilty of possession of a controlled substance. The Minnesota Court of Appeals reversed. In affirming, the State Supreme Court held that both the stop and the frisk of respondent were valid under Terry v. Ohio, 392 U. S. 1, but found the seizure of the cocaine to be unconstitutional. Refusing to enlarge the "plain-view" exception to the Fourth Amendment's warrant requirement, the court appeared to adopt a categorical rule barring the seizure of any contraband detected by an officer through the sense of touch during a patdown search. The court further noted that, even if it recognized such a "plain-feel" exception, the search in this case would not qualify because it went far beyond what is permissible under Terry. Held: 1. The police may seize nonthreatening contraband detected through the sense of touch during a protective patdown search of the sort permitted by Terry, so long as the search stays within the bounds marked by Terry. pp.372-377. (a) Terry permits a brief stop of a person whose suspicious conduct leads an officer to conclude in light of his experience that criminal activity may be afoot, and a patdown search of the person for weapons when the officer is justified in believing that the person may be armed and presently dangerous. This protective search-permitted without a warrant and on the basis of reasonable suspicion less than probable cause-is not meant to discover evidence of crime, but must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others. If the protective search goes beyond what is necessary to determine if the suspect is armed, it 367 is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York, 392 U. S. 40 , 65-66. pp. 372-373. (b) In Michigan v. Long, 463 U. S. 1032 , 1050, the seizure of contraband other than weapons during a lawful Terry search was justified by reference to the Court's cases under the "plain-view" doctrine. That doctrine-which permits police to seize an object without a warrant if they are lawfully in a position to view it, if its incriminating character is immediately apparent, and if they have a lawful right of access to it-has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. Thus, if an officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons. Cf., e. g., Illinois v. Andreas, 463 U. S. 765 , 771. If the object is contraband, its warrantless seizure would be justified by the realization that resort to a neutral magistrate under such circumstances would be impracticable and would do little to promote the Fourth Amendment's objectives. Cf., e. g., Arizona v. Hicks, 480 U. S. 321 , 326-327. Pp. 374-377. 2. Application of the foregoing principles to the facts of this case demonstrates that the officer who conducted the search was not acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent's jacket was contraband. Under the State Supreme Court's interpretation of the record, the officer never thought that the lump was a weapon, but did not immediately recognize it as cocaine. Rather, he determined that it was contraband only after he squeezed, slid, and otherwise manipulated the pocket's contents. While Terry entitled him to place his hands on respondent's jacket and to feel the lump in the pocket, his continued exploration of the pocket after he concluded that it contained no weapon was unrelated to the sole justification for the search under Terry. Because this further search was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional. Pp. 377-379. 481 N. W. 2d 840, affirmed. WHITE, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III and IV, in which STEVENS, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 379. REHNQUIST, C. J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN and THOMAS, JJ., joined, post, p. 383. 368 Michael O. Freeman argued the cause for petitioner. With him on the briefs were Hubert H. Humphrey III, Attorney General of Minnesota, Patrick C. Diamond, and Beverly J. Wolfe. Richard H. Seamon argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Kathleen A. Felton. Peter W Gorman argued the cause for respondent. With him on the brief were William R. Kennedy, David H. Knutson, Warren R. Sagstuen, and Renee J. Bergeron. * JUSTICE WHITE delivered the opinion of the Court. In this case, we consider whether the Fourth Amendment permits the seizure of contraband detected through a police officer's sense of touch during a protective patdown search. I On the evening of November 9, 1989, two Minneapolis police officers were patrolling an area on the city's north side in a marked squad car. At about 8:15 p.m., one of the officers observed respondent leaving a 12-unit apartment building on Morgan Avenue North. The officer, having previously responded to complaints of drug sales in the building's hallways and having executed several search warrants on the premises, considered the building to be a notorious "crack house." According to testimony credited by the trial court, respondent began walking toward the police but, upon spot- * Fred E. Inbau, Wayne W Schmidt, James P. Manak, and Robert H. Macy filed a brief for Americans for Effective Law Enforcement, Inc., et al. urging reversal. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by John F. Savarese, Steven R. Shapiro, and Deborah Gilman; and for the National Association of Criminal Defense Lawyers by David M. Eldridge. 369 ting the squad car and making eye contact with one of the officers, abruptly halted and began walking in the opposite direction. His suspicion aroused, this officer watched as respondent turned and entered an alley on the other side of the apartment building. Based upon respondent's seemingly evasive actions and the fact that he had just left a building known for cocaine traffic, the officers decided to stop respondent and investigate further. The officers pulled their squad car into the alley and ordered respondent to stop and submit to a patdown search. The search revealed no weapons, but the officer conducting the search did take an interest in a small lump in respondent's nylon jacket. The officer later testified: "[A]s I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane." Tr. 9 (Feb. 20, 1990). The officer then reached into respondent's pocket and retrieved a small plastic bag containing one fifth of one gram of crack cocaine. Respondent was arrested and charged in Hennepin County District Court with possession of a controlled substance. Before trial, respondent moved to suppress the cocaine. The trial court first concluded that the officers were justified under Terry v. Ohio, 392 U. S. 1 (1968), in stopping respondent to investigate whether he might be engaged in criminal activity. The court further found that the officers were justified in frisking respondent to ensure that he was not carrying a weapon. Finally, analogizing to the "plain-view" doctrine, under which officers may make a warrantless seizure of contraband found in plain view during a lawful search for other items, the trial court ruled that the officers' seizure of the cocaine did not violate the Fourth Amendment: "To this Court there is no distinction as to which sensory perception the officer uses to conclude that the ma- 370 terial is contraband. An experienced officer may rely upon his sense of smell in DWI stops or in recognizing the smell of burning marijuana in an automobile. The sound of a shotgun being racked would clearly support certain reactions by an officer. The sense of touch, grounded in experience and training, is as reliable as perceptions drawn from other senses. 'Plain feel,' therefore, is no different than plain view and will equally support the seizure here." App. to Pet. for Cert. C-5. His suppression motion having failed, respondent proceeded to trial and was found guilty. On appeal, the Minnesota Court of Appeals reversed. The court agreed with the trial court that the investigative stop and protective patdown search of respondent were lawful under Terry because the officers had a reasonable belief based on specific and articulable facts that respondent was engaged in criminal behavior and that he might be armed and dangerous. The court concluded, however, that the officers had overstepped the bounds allowed by Terry in seizing the cocaine. In doing so, the Court of Appeals "decline[d] to adopt the plain feel exception" to the warrant requirement. 469 N. W. 2d 462, 466 (1991). The Minnesota Supreme Court affirmed. Like the Court of Appeals, the State Supreme Court held that both the stop and the frisk of respondent were valid under Terry, but found the seizure of the cocaine to be unconstitutional. The court expressly refused "to extend the plain view doctrine to the sense of touch" on the grounds that "the sense of touch is inherently less immediate and less reliable than the sense of sight" and that "the sense of touch is far more intrusive into the personal privacy that is at the core of the [F]ourth [A]mendment." 481 N. W. 2d 840, 845 (1992). The court thus appeared to adopt a categorical rule barring the seizure of any contraband detected by an officer through the sense of touch during a patdown search for weapons. The court further noted that "[e]ven if we recognized a 'plain feel' ex- 371 ception, the search in this case would not qualify" because "[t]he pat search of the defendant went far beyond what is permissible under Terry." Id., at 843, 844, n. 1. As the State Supreme Court read the record, the officer conducting the search ascertained that the lump in respondent's jacket was contraband only after probing and investigating what he certainly knew was not a weapon. See id., at 844. We granted certiorari, 506 U. S. 814 (1992), to resolve a conflict among the state and federal courts over whether contraband detected through the sense of touch during a patdown search may be admitted into evidence.1 We now affirm.2 1 Most state and federal courts have recognized a so-called "plain-feel" or "plain-touch" corollary to the plain-view doctrine. See United States v. Coleman, 969 F.2d 126 , 132 (CA5 1992); United States v. Salazar, 945 F. 2d 47, 51 (CA2 1991), cert. denied, 504 U. S. 923 (1992); United States v. Buchannon, 878 F.2d 1065 , 1067 (CA8 1989); United States v. Williams, 262 U. S. App. D. C. 112, 119-124, 822 F.2d 1174 , 1181-1186 (1987); United States v. Norman, 701 F.2d 295 , 297 (CA4), cert. denied, 464 U. S. 820 (1983); People v. Chavers, 33 Cal. 3d 462, 471-473, 658 P. 2d 96, 102-104 (1983); Dickerson v. State, No. 228, 1993 Del. LEXIS 12, *3-*4 (Jan. 26, 1993); State v. Guy, 172 Wis. 2d 86, 101-102,492 N. W. 2d 311, 317-318 (1992). Some state courts, however, like the Minnesota court in this case, have rejected such a corollary. See People v. Diaz, 81 N. Y. 2d 106, 612 N. E. 2d 298 (1993); State v. Collins, 139 Ariz. 434, 435-438, 679 P. 2d 80, 81-84 (Ct. App. 1983); People v. McCarty, 11 Ill. App. 3d 421, 422, 296 N. E. 2d 862, 863 (1973); State v. Rhodes, 788 P. 2d 1380, 1381 (Okla. Crim. App. 1990); State v. Broadnax, 98 Wash. 2d 289, 296-301, 654 P. 2d 96, 101-103 (1982); cf. Commonwealth v. Marconi, 408 Pa. Super. 601, 611-615, and n. 17,597 A. 2d 616, 621-623, and n. 17 (1991), appeal denied, 531 Pa. 638, 611 A. 2d 711 (1992). 2 Before reaching the merits of the Fourth Amendment issue, we must address respondent's contention that the case is moot. After respondent was found guilty of the drug possession charge, the trial court sentenced respondent under a diversionary sentencing statute to a 2-year period of probation. As allowed by the diversionary scheme, no judgment of conviction was entered and, upon respondent's successful completion of probation, the original charges were dismissed. See Minn. Stat. § 152.18 (1992). Respondent argues that the case has been rendered moot by the dismissal of the original criminal charges. We often have observed, however, that 372 II A The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961), guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Time and again, this Court has observed that searches and seizures" 'conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions.'" Thompson v. Louisiana, 469 U. S. 17 , 19-20 (1984) (per curiam) (quoting Katz v. United States, 389 U. S. 347 , 357 (1967) (footnotes omitted)); Mincey v. Arizona, 437 U. S. 385 , 390 (1978); see also United States v. Place, 462 U. S. 696 , 701 (1983). One such exception was "the possibility of a criminal defendant's suffering 'collateral legal consequences' from a sentence already served" precludes a finding of mootness. Pennsylvania v. Mimms, 434 U. S. 106 , 108, n. 3 (1977) (per curiam); see also Evitts v. Lucey, 469 U. S. 387 , 391, n. 4 (1985); Sibron v. New York, 392 U. S. 40 , 53-58 (1968). In this case, Minnesota law provides that the proceeding which culminated in finding respondent guilty "shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose." Minn. Stat. § 152.18 (1992). The statute also provides, however, that a nonpublic record of the charges dismissed pursuant to the statute "shall be retained by the department of public safety for the purpose of use by the courts in determining the merits of subsequent proceedings" against the respondent. Ibid. Construing this provision, the Minnesota Supreme Court has held that "[t]he statute contemplates use of the record should [a] defendant have 'future difficulties with the law.''' State v. Goodrich, 256 N. W. 2d 506, 512 (1977). Moreover, the Court of Appeals for the Eighth Circuit has held that a diversionary disposition under § 152.18 may be included in calculating a defendant's criminal history category in the event of a subsequent federal conviction. United States v. Frank, 932 F.2d 700 , 701 (1991). Thus, we must conclude that reinstatement of the record of the charges against respondent would carry collateral legal consequences and that, therefore, a live controversy remains. 373 recognized in Terry v. Ohio, 392 U. S. 1 (1968), which held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ... ," the officer may briefly stop the suspicious person and make "reasonable inquiries" aimed at confirming or dispelling his suspicions. Id., at 30; see also Adams v. Williams, 407 U. S. 143 , 145146 (1972). Terry further held that "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a patdown search "to determine whether the person is in fact carrying a weapon." 392 U. S., at 24. "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence .... " Adams, supra, at 146. Rather, a protective search-permitted without a warrant and on the basis of reasonable suspicion less than probable cause-must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Terry, supra, at 26; see also Michigan v. Long, 463 U. S. 1032 , 1049, and 1052, n. 16 (1983); Ybarra v. Illinois, 444 U. S. 85 , 93-94 (1979). If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York, 392 U. S. 40 , 65-66 (1968). These principles were settled 25 years ago when, on the same day, the Court announced its decisions in Terry and Sibron. The question presented today is whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry. We think the answer is clearly that they may, so long as the officers' search stays within the bounds marked by Terry. 374 B We have already held that police officers, at least under certain circumstances, may seize contraband detected during the lawful execution of a Terry search. In Michigan v. Long, supra, for example, police approached a man who had driven his car into a ditch and who appeared to be under the influence of some intoxicant. As the man moved to reenter the car from the roadside, police spotted a knife on the floorboard. The officers stopped the man, subjected him to a patdown search, and then inspected the interior of the vehicle for other weapons. During the search of the passenger compartment, the police discovered an open pouch containing marijuana and seized it. This Court upheld the validity of the search and seizure under Terry. The Court held first that, in the context of a roadside encounter, where police have reasonable suspicion based on specific and articulable facts to believe that a driver may be armed and dangerous, they may conduct a protective search for weapons not only of the driver's person but also of the passenger compartment of the automobile. 463 U. S., at 1049. Of course, the protective search of the vehicle, being justified solely by the danger that weapons stored there could be used against the officers or bystanders, must be "limited to those areas in which a weapon may be placed or hidden." Ibid. The Court then held: "If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances." Id., at 1050; accord, Sibron, 392 U. S., at 69-70 (WHITE, J., concurring); id., at 79 (Harlan, J., concurring in result). The Court in Long justified this latter holding by reference to our cases under the "plain-view" doctrine. See Long, supra, at 1050; see also United States v. Hensley, 469 U. S. 221, 235 (1985) (upholding plain-view seizure in context 375 of Terry stop). Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Horton v. California, 496 U. S. 128 , 136-137 (1990); Texas v. Brown, 460 U. S. 730 , 739 (1983) (plurality opinion). If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object-i. e., if "its incriminating character [is not] 'immediately apparent,'" Horton, supra, at 136-the plain-view doctrine cannot justify its seizure. Arizona v. Hicks, 480 U. S. 321 (1987). We think that this doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no "search" within the meaning of the Fourth Amendment-or at least no search independent of the initial intrusion that gave the officers their vantage point. See Illinois v. Andreas, 463 U. S. 765 , 771 (1983); Texas v. Brown, supra, at 740. The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. See Hicks, supra, at 326-327; Coolidge v. New Hampshire, 403 U. S. 443 , 467468, 469-470 (1971) (opinion of Stewart, J.). The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure 376 would be justified by the same practical considerations that inhere in the plain-view context.3 The Minnesota Supreme Court rejected an analogy to the plain-view doctrine on two grounds: first, its belief that "the sense of touch is inherently less immediate and less reliable than the sense of sight," and second, that "the sense of touch is far more intrusive into the personal privacy that is at the core of the [F]ourth [A]mendment." 481 N. W. 2d, at 845. We have a somewhat different view. First, Terry itself demonstrates that the sense of touch is capable of revealing the nature of an object with sufficient reliability to support a seizure. The very premise of Terry, after all, is that officers will be able to detect the presence of weapons through the sense of touch and Terry upheld precisely such a seizure. Even if it were true that the sense of touch is generally less reliable than the sense of sight, that only suggests that officers will less often be able to justify seizures of unseen contraband. Regardless of whether the officer detects the contraband by sight or by touch, however, the Fourth Amendment's requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures.4 The 3 "[T]he police officer in each [case would have] had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification ... and permits the warrantless seizure." Coolidge v. New Hampshire, 403 U. S. 443 , 466 (1971) (opinion of Stewart, J.). 4 We also note that this Court's opinion in Ybarra v. Illinois, 444 U. S. 85 (1979), appeared to contemplate the possibility that police officers could obtain probable cause justifying a seizure of contraband through the sense of touch. In that case, police officers had entered a tavern and subjected its patrons to patdown searches. While patting down the petitioner Ybarra, an "officer felt what he described as 'a cigarette pack with objects in it,'" seized it, and discovered heroin inside. Id., at 88-89. The State argued that the seizure was constitutional on the grounds that the officer obtained probable cause to believe that Ybarra was carrying contraband during the course of a lawful Terry frisk. Ybarra, supra, at 92. This 377 court's second concern-that touch is more intrusive into privacy than is sight-is inapposite in light of the fact that the intrusion the court fears has already been authorized by the lawful search for weapons. The seizure of an item whose identity is already known occasions no further invasion of privacy. See Soldal v. Cook County, 506 U. S. 56 , 66 (1992); Horton, supra, at 141; United States v. Jacobsen, 466 U. S. 109, 120 (1984). Accordingly, the suspect's privacy interests are not advanced by a categorical rule barring the seizure of contraband plainly detected through the sense of touch. III It remains to apply these principles to the facts of this case. Respondent has not challenged the finding made by the trial court and affirmed by both the Court of Appeals and the State Supreme Court that the police were justified under Terry in stopping him and frisking him for weapons. Thus, the dispositive question before this Court is whether the officer who conducted the search was acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent's jacket was contraband. The State District Court did not make precise findings on this point, instead finding simply that the officer, after feeling "a small, hard object wrapped in plastic" in respondent's pocket, "formed the opinion that the object ... was crack ... cocaine." App. to Pet. for Cert. C-2. The Court rejected that argument on the grounds that "[t]he initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous," as required by Terry. 444 U. S., at 92-93. The Court added: "[s]ince we conclude that the initial patdown of Ybarra was not justified under the Fourth and Fourteenth Amendments, we need not decide whether or not the presence on Ybarra's person of 'a cigarette pack with objects in it' yielded probable cause to believe that Ybarra was carrying any illegal substance." Id., at 93, n. 5. The Court's analysis does not suggest, and indeed seems inconsistent with, the existence of a categorical bar against seizures of contraband detected manually during a Terry patdown search. 378 District Court also noted that the officer made "no claim that he suspected this object to be a weapon," id., at C-5, a finding affirmed on appeal, see 469 N. W. 2d, at 464 (the officer "never thought the lump was a weapon"). The Minnesota Supreme Court, after "a close examination of the record," held that the officer's own testimony "belies any notion that he 'immediately'" recognized the lump as crack cocaine. See 481 N. W. 2d, at 844. Rather, the court concluded, the officer determined that the lump was contraband only after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket"-a pocket which the officer already knew contained no weapon. Ibid. Under the State Supreme Court's interpretation of the record before it, it is clear that the court was correct in holding that the police officer in this case overstepped the bounds of the "strictly circumscribed" search for weapons allowed under Terry. See Terry, 392 U. S., at 26. Where, as here, "an officer who is executing a valid search for one item seizes a different item," this Court rightly "has been sensitive to the danger ... that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will." Texas v. Brown, 460 U. S., at 748 (STEVENS, J., concurring in judgment). Here, the officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to "[t]he sole justification of the search [under Terry:] ... the protection of the police officer and others nearby." 392 U. S., at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, see id., at 26, and that we have condemned in subsequent cases. See Michigan v. Long, 463 U. S., at 1049, n. 14; Sibron, 392 U. S., at 65-66. Once again, the analogy to the plain-view doctrine is apt. In Arizona v. Hicks, 480 U. S. 321 (1987), this Court held invalid the seizure of stolen stereo equipment found by police while executing a valid search for other evidence. Although 379 the police were lawfully on the premises, they obtained probable cause to believe that the stereo equipment was contraband only after moving the equipment to permit officers to read its serial numbers. The subsequent seizure of the equipment could not be justified by the plain-view doctrine, this Court explained, because the incriminating character of the stereo equipment was not immediately apparent; rather, probable cause to believe that the equipment was stolen arose only as a result of a further search-the moving of the equipment-that was not authorized by a search warrant or by any exception to the warrant requirement. The facts of this case are very similar. Although the officer was lawfully in a position to feel the lump in respondent's pocket, because Terry entitled him to place his hands upon respondent's jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of respondent's pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional. Horton, 496 U. S., at 140. IV For these reasons, the judgment of the Minnesota Supreme Court is Affirmed. JUSTICE SCALIA, concurring. I take it to be a fundamental principle of constitutional adjudication that the terms in the Constitution must be given the meaning ascribed to them at the time of their ratification. Thus, when the Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (emphasis added), it "is 380 to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted," Carroll v. United States, 267 U. S. 132 , 149 (1925); see also California v. Acevedo, 500 U. S. 565 , 583-584 (1991) (SCALIA, J., concurring in judgment). The purpose of the provision, in other words, is to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted-even if a later, less virtuous age should become accustomed to considering all sorts of intrusion "reasonable." My problem with the present case is that I am not entirely sure that the physical search-the "frisk"-that produced the evidence at issue here complied with that constitutional standard. The decision of ours that gave approval to such searches, Terry v. Ohio, 392 U. S. 1 (1968), made no serious attempt to determine compliance with traditional standards, but rather, according to the style of this Court at the time, simply adjudged that such a search was "reasonable" by current estimations. Id., at 22-27. There is good evidence, I think, that the "stop" portion of the Terry "stop-and-frisk" holding accords with the common law-that it had long been considered reasonable to detain suspicious persons for the purpose of demanding that they give an account of themselves. This is suggested, in particular, by the so-called night-walker statutes, and their common-law antecedents. See Statute of Winchester, 13 Edw. I, Stat. 2, ch. 4 (1285); Statute of 5 Edw. III, ch. 14 (1331); 2 W. Hawkins, Pleas of the Crown, ch. 13, § 6, p. 129 (8th ed. 1824) ("It is holden that this statute was made in affirmance of the common law, and that every private person may by the common law arrest any suspicious night-walker, and detain him till he give a good account of himself"); 1 E. East, Pleas of the Crown, ch. 5, § 70, p. 303 (1803) ("It is said ... that every private person may by the common law arrest any suspicious night-walker, and detain him till he give a good account of himself"); see also M. Dalton, The Country 381 Justice, ch. 104, pp. 352-353 (1727); A. Costello, Our Police Protectors: History of the New York Police 25 (1885) (citing 1681 New York City regulation); 2 Perpetual Laws of Massachusetts 1788-1798, ch. 82, §2, p. 410 (1797 Massachusetts statute). I am unaware, however, of any precedent for a physical search of a person thus temporarily detained for questioning. Sometimes, of course, the temporary detention of a suspicious character would be elevated to a full custodial arrest on probable cause-as, for instance, when a suspect was unable to provide a sufficient accounting of himself. At that point, it is clear that the common law would permit not just a protective "frisk," but a full physical search incident to the arrest. When, however, the detention did not rise to the level of a full-blown arrest (and was not supported by the degree of cause needful for that purpose), there appears to be no clear support at common law for physically searching the suspect. See Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 324 (1942) ("At common law, if a watchman came upon a suspiciously acting nightwalker, he might arrest him and then search him for weapons, but he had no right to search before arrest"); Williams, Police Detention and Arrest Privileges-England, 51 J. Crim. L., C. & P. S. 413, 418 (1960) ("Where a suspected criminal is also suspected of being offensively armed, can the police search him for arms, by tapping his pockets, before making up their minds whether to arrest him? There is no English authority ... "). I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity-which is described as follows in a police manual: "Check the subject's neck and collar. A check should be made under the subject's arm. Next a check should be made of the upper back. The lower back should also be checked. 382 "A check should be made of the upper part of the man's chest and the lower region around the stomach. The belt, a favorite concealment spot, should be checked. The inside thigh and crotch area also should be searched. The legs should be checked for possible weapons. The last items to be checked are the shoes and cuffs of the subject." J. Moynahan, Police Searching Procedures 7 (1963) (citations omitted). On the other hand, even if a "frisk" prior to arrest would have been considered impermissible in 1791, perhaps it was considered permissible by 1868, when the Fourteenth Amendment (the basis for applying the Fourth Amendment to the States) was adopted. Or perhaps it is only since that time that concealed weapons capable of harming the interrogator quickly and from beyond arm's reach have become common-which might alter the judgment of what is "reasonable" under the original standard. But technological changes were no more discussed in Terry than was the original state of the law. If I were of the view that Terry was (insofar as the power to "frisk" is concerned) incorrectly decided, I might-even if I felt bound to adhere to that case-vote to exclude the evidence incidentally discovered, on the theory that half a constitutional guarantee is better than none. I might also vote to exclude it if I agreed with the original-meaning-isirrelevant, good-policy-is-constitutional-Iaw school of jurisprudence that the Terry opinion represents. As a policy matter, it may be desirable to permit "frisks" for weapons, but not to encourage "frisks" for drugs by admitting evidence other than weapons. I adhere to original meaning, however. And though I do not favor the mode of analysis in Terry, I cannot say that its result was wrong. Constitutionality of the "frisk" in the present case was neither challenged nor argued. Assuming, therefore, that the search was lawful, I agree with the Court's premise that any evidence incidentally discovered in 383 the course of it would be admissible, and join the Court's opinion in its entirety. CHIEF JUSTICE REHNQUIST, with whom JUSTICE BLACKMUN and JUSTICE THOMAS join, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion. Unlike the Court, however, I would vacate the judgment of the Supreme Court of Minnesota and remand the case to that court for further proceedings. The Court, correctly in my view, states that "the dispositive question before this Court is whether the officer who conducted the search was acting within the lawful bounds marked by Terry [v. Ohio, 392 U. S. 1 (1968),] at the time he gained probable cause to believe that the lump in respondent's jacket was contraband." Ante, at 377. The Court then goes on to point out that the state trial court did not make precise findings on this point, but accepts the appellate findings made by the Supreme Court of Minnesota. I believe that these findings, like those of the trial court, are imprecise and not directed expressly to the question of the officer's probable cause to believe that the lump was contraband. Because the Supreme Court of Minnesota employed a Fourth Amendment analysis which differs significantly from that now adopted by this Court, I would vacate its judgment and remand the case for further proceedings there in the light of this Court's opinion.

The Supreme Court ruled that police may seize non-threatening contraband detected through touch during a protective pat-down search, as long as the search stays within the bounds set by Terry v. Ohio (1968). The Court upheld the "plain-feel" exception to the Fourth Amendment's warrant requirement, allowing officers to seize contraband if they are lawfully in a position to feel it and it is immediately apparent that the object is contraband. However, the Court emphasized that the protective search must be strictly limited to ensuring the safety of the officer and others. Justice Scalia concurred, noting the originalist approach to the Fourth Amendment and questioning the "frisk" aspect of Terry. He agreed with the Court's premise that any evidence discovered during a lawful search would be admissible. Chief Justice Rehnquist, joined by Justices Blackmun and Thomas, concurred in part and dissented in part. They agreed with the Court's analysis but disagreed with the findings of the Minnesota Supreme Court, believing they were imprecise. They would have vacated the judgment and remanded the case for further proceedings.

Search & Seizure

Florida v. Riley

https://supreme.justia.com/cases/federal/us/488/445/

U.S. Supreme Court Florida v. Riley, 488 U.S. 445 (1989) Florida v. Riley No. 87-764 Argued October 3, 1988 Decided January 23, 1989 488 U.S. 445 CERTIORARI TO THE SUPREME COURT OF FLORIDA Syllabus A Florida county sheriff's office received an anonymous tip that marijuana was being grown on respondent's property. When an investigating officer discovered that he could not observe from Found level the contents of a greenhouse on the property -- which was enclosed on two sides and obscured from view on the other, open sides by trees, shrubs, and respondent's nearby home -- he circled twice over the property in a helicopter at the height of 400 feet and made naked-eye observations through openings in the greenhouse roof and its open sides of what he concluded were marijuana plants. After a search pursuant to a warrant obtained on the basis of these observations revealed marijuana growing in the greenhouse, respondent was charged with possession of that substance under Florida law. The trial court granted his motion to suppress the evidence. Although reversing, the State Court of Appeals certified the case to the State Supreme Court on the question whether the helicopter surveillance from 400 feet constituted a "search" for which a warrant was required under the Fourth Amendment. Answering that question in the affirmative, the court quashed the Court of Appeals' decision and reinstated the trial court's suppression order. Held: The judgment is reversed. 511 So. 2d 282 , reversed. JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded that the Fourth Amendment does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant in order to observe what is visible to the naked eye. California v. Ciraolo, 476 U. S. 207 -- which held that a naked-eye police inspection of the backyard of a house from a fixed-wing aircraft at 1,000 feet was not a "search" -- is controlling. Thus, respondent could not reasonably have expected that the contents of his greenhouse were protected from public or official inspection from the air, since he left the greenhouse's sides and roof partially open. The fact that the inspection was made from a helicopter is irrelevant, since, as in the case of fixed-wing planes, private and commercial flight by helicopter is routine. Nor, on the facts of this case, does it make a difference for Fourth Amendment purposes that the helicopter was flying below 500 feet, the Federal Aviation Administration's lower limit upon the navigable airspace for fixed-wing craft. Since the FAA permits helicopters to fly Page 488 U. S. 446 below that limit, the helicopter here was not violating the law, and any member of the public or the police could legally have observed respondent's greenhouse from that altitude. Although an aerial inspection of a house's curtilage may not always pass muster under the Fourth Amendment simply because the aircraft is within the navigable airspace specified by law, there is nothing in the record here to suggest that helicopters flying at 400 feet are sufficiently rare that respondent could have reasonably anticipated that his greenhouse would not be observed from that altitude. Moreover, there is no evidence that the helicopter interfered with respondent's normal use of his greenhouse or other parts of the curtilage, that intimate details connected with the use of the home or curtilage were observed, or that there was undue noise, wind, dust, or threat of injury. Pp. 488 U. S. 449 -452. JUSTICE O'CONNOR concluded that the plurality's approach rests the scope of Fourth Amendment protection too heavily on compliance with FAA regulations, which are intended to promote air safety, and not to protect the right to be secure against unreasonable searches and seizures. Whether respondent had a reasonable expectation of privacy from aerial observation of his curtilage does not depend on whether the helicopter was where it had a right to be, but, rather, on whether it was in the public airways at an altitude at which members of the public travel with sufficient regularity that respondent's expectation was not one that society is prepared to recognize as "reasonable." Because there is reason to believe that there is considerable public use of airspace at altitudes of 400 feet and above, and because respondent introduced no evidence to the contrary before the state courts, it must be concluded that his expectation of privacy here was not reasonable. However, public use of altitudes lower than 400 feet -- particularly public observations from helicopters circling over the curtilage of a home -- may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA regulations. Pp. 488 U. S. 452 -455. WHITE, J., announced the judgment of the Court and delivered an opinion in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 488 U. S. 452 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 488 U. S. 456 . BLACKMUN, J., filed a dissenting opinion, post, p. 488 U. S. 467 . Page 488 U. S. 447 JUSTICE WHITE announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join. On certification to it by a lower state court, the Florida Supreme Court addressed the following question: "Whether surveillance of the interior of a partially covered greenhouse Page 488 U. S. 448 in a residential backyard from the vantage point of a helicopter located 400 feet above the greenhouse constitutes a 'search' for which a warrant is required under the Fourth Amendment and Article I, § 12 of the Florida Constitution." 511 So. 2d 282 (1987). The court answered the question in the affirmative, and we granted the State's petition for certiorari challenging that conclusion. 484 U.S. 1058 (1988). [ Footnote 1 ] Respondent Riley lived in a mobile home located on five acres of rural property. A greenhouse was located 10 to 20 feet behind the mobile home. Two sides of the greenhouse were enclosed. The other two sides were not enclosed, but the contents of the greenhouse were obscured from view from surrounding property by trees, shrubs, and the mobile home. The greenhouse was covered by corrugated roofing panels, some translucent and some opaque. At the time relevant to this case, two of the panels, amounting to approximately 10% of the roof area, were missing. A wire fence surrounded the mobile home and the greenhouse, and the property was posted with a "DO NOT ENTER" sign. This case originated with an anonymous tip to the Pasco County Sheriff's office that marijuana was being grown on respondent's property. When an investigating officer discovered that he could not see the contents of the greenhouse from the road, he circled twice over respondent's property in a helicopter at the height of 400 feet. With his naked eye, he was able to see through the openings in the roof and one or more of the open sides of the greenhouse and to identify what he thought was marijuana growing in the structure. A warrant Page 488 U. S. 449 was obtained based on these observations, and the ensuing search revealed marijuana growing in the greenhouse. Respondent was charged with possession of marijuana under Florida law. The trial court granted his motion to suppress; the Florida Court of Appeals reversed, but certified the case to the Florida Supreme Court, which quashed the decision of the Court of Appeals and reinstated the trial court's suppression order. We agree with the State's submission that our decision in California v. Ciraolo, 476 U. S. 207 (1986), controls this case. There, acting on a tip, the police inspected the backyard of a particular house while flying in a fixed-wing aircraft at 1,000 feet. With the naked eye the officers saw what they concluded was marijuana growing in the yard. A search warrant was obtained on the strength of this airborne inspection, and marijuana plants were found. The trial court refused to suppress this evidence, but a state appellate court held that the inspection violated the Fourth and Fourteenth Amendments to the United States Constitution, and that the warrant was therefore invalid. We in turn reversed, holding that the inspection was not a search subject to the Fourth Amendment. We recognized that the yard was within the curtilage of the house, that a fence shielded the yard from observation from the street, and that the occupant had a subjective expectation of privacy. We held, however, that such an expectation was not reasonable, and not one "that society is prepared to honor." Id. at 476 U. S. 214 . Our reasoning was that the home and its curtilage are not necessarily protected from inspection that involves no physical invasion. " What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.'" Id. at 213, quoting Katz v. United States, 389 U. S. 347 , 389 U. S. 351 (1967). As a general proposition, the police may see what may be seen "from a public vantagepoint where [they have] a right to be," 476 U.S. at 476 U. S. 213 . Thus the police, like the public, would have been free to inspect the backyard garden from Page 488 U. S. 450 the street if their view had been unobstructed. They were likewise free to inspect the yard from the vantage point of an aircraft flying in the navigable airspace as this plane was. "In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye." Id. at 476 U. S. 215 . We arrive at the same conclusion in the present case. In this case, as in Ciraolo, the property surveyed was within the curtilage of respondent's home. Riley no doubt intended and expected that his greenhouse would not be open to public inspection, and the precautions he took protected against ground-level observation. Because the sides and roof of his greenhouse were left partially open, however, what was growing in the greenhouse was subject to viewing from the air. Under the holding in Ciraolo, Riley could not reasonably Page 488 U. S. 451 have expected the contents of his greenhouse to be immune from examination by an officer seated in a fixed-wing aircraft flying in navigable airspace at an altitude of 1,000 feet or, as the Florida Supreme Court seemed to recognize, at an altitude of 500 feet, the lower limit of the navigable airspace for such an aircraft. 511 So. 2d at 288. Here, the inspection was made from a helicopter, but, as is the case with fixed-wing planes, "private and commercial flight [by helicopter] in the public airways is routine" in this country, Ciraolo, supra, at 476 U. S. 215 , and there is no indication that such flights are unheard of in Pasco County, Florida. [ Footnote 2 ] Riley could not reasonably have expected that his greenhouse was protected from public or official observation from a helicopter had it been flying within the navigable airspace for fixed-wing aircraft. Nor on the facts before us, does it make a difference for Fourth Amendment purposes that the helicopter was flying at 400 feet when the officer saw what was growing in the greenhouse through the partially open roof and sides of the structure. We would have a different case if flying at that altitude had been contrary to law or regulation. But helicopters are not bound by the lower limits of the navigable airspace allowed to other aircraft. [ Footnote 3 ] Any member of the public could legally have been flying over Riley's property in a helicopter at the altitude of 400 feet, and could have observed Riley's greenhouse. The police officer did no more. This is not to say that an inspection of the curtilage of a house from an aircraft will always pass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law. But it is of obvious importance that the helicopter in this case was not violating the law, and there is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent's claim that he reasonably anticipated that his greenhouse would not be subject to Page 488 U. S. 452 observation from that altitude. Neither is there any intimation here that the helicopter interfered with respondent's normal use of the greenhouse or of other parts of the curtilage. As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment. The judgment of the Florida Supreme Court is accordingly reversed. So ordered. [ Footnote 1 ] The Florida Supreme Court mentioned the State Constitution in posing the question, once in the course of its opinion, and again in finally concluding that the search violated the Fourth Amendment and the State Constitution. The bulk of the discussion, however, focused exclusively on federal cases dealing with the Fourth Amendment, and there being no indication that the decision "clearly and expressly . . . is alternatively based on bona fide separate, adequate, and independent grounds," we have jurisdiction. Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1041 (1983). [ Footnote 2 ] The first use of the helicopter by police was in New York in 1947, and today every State in the country uses helicopters in police work. As of 1980, there were 1,500 such aircraft used in police work. E. Brown, The Helicopter in Civil Operations 79 (1981). More than 10,000 helicopters, both public and private, are registered in the United States. Federal Aviation Administration, Census of U.S. Civil Aircraft, Calendar Year 1987, p. 12. See also 1988 Helicopter Annual 9. And there are an estimated 31,697 helicopter pilots. Federal Aviation Administration, Statistical Handbook of Aviation, Calendar Year 1986, p. 147. [ Footnote 3 ] While Federal Aviation Administration (FAA) regulations permit fixed-wing aircraft to be operated at an altitude of 1,000 feet while flying over congested areas and at an altitude of 500 feet above the surface in other than congested areas, helicopters may be operated at less than the minimums for fixed-wing aircraft "if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specifically prescribed for helicopters by the [FAA] Administrator." 14 CFR § 91.79 (1988). JUSTICE O'CONNOR, concurring in the judgment. I concur in the judgment reversing the Supreme Court of Florida because I agree that police observation of the greenhouse in Riley's curtilage from a helicopter passing at an altitude of 400 feet did not violate an expectation of privacy "that society is prepared to recognize as reasonable.'" Katz v. United States, 389 U. S. 347 , 389 U. S. 361 (1967) (Harlan, J., concurring). I write separately, however, to clarify the standard I believe follows from California v. Ciraolo, 476 U. S. 207 (1986). In my view, the plurality's approach rests the scope of Fourth Amendment protection too heavily on compliance with FAA regulations whose purpose is to promote air safety, not to protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S.Const., Amdt. 4. Ciraolo involved observation of curtilage by officers flying in an airplane at an altitude of 1,000 feet. In evaluating whether this observation constituted a search for which a warrant was required, we acknowledged the importance of curtilage in Fourth Amendment doctrine: "The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." 476 U.S. at 476 U. S. 212 -213. Although the curtilage is an area to which the private activities Page 488 U. S. 453 of the home extend, all police observation of the curtilage is not necessarily barred by the Fourth Amendment. As we observed: "The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares." Id. at 476 U. S. 213 . In Ciraolo, we likened observation from a plane traveling in "public navigable airspace" at 1,000 feet to observation by police "passing by a home on public thoroughfares." We held that "[i]n an age where private and commercial flight in the public airways is routine," it is unreasonable to expect the curtilage to be constitutionally protected from aerial observation with the naked eye from an altitude of 1,000 feet. Id. at 476 U. S. 215 . Ciraolo's expectation of privacy was unreasonable not because the airplane was operating where it had a "right to be," but because public air travel at 1,000 feet is a sufficiently routine part of modern life that it is unreasonable for persons on the ground to expect that their curtilage will not be observed from the air at that altitude. Although "helicopters are not bound by the lower limits of the navigable airspace allowed to other aircraft," ante at 488 U. S. 451 , there is no reason to assume that compliance with FAA regulations alone determines " whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.'" Ciraolo, supra, at 476 U. S. 212 (quoting Oliver v. United States, 466 U. S. 170 , 466 U. S. 182 -183 (1984)). Because the FAA has decided that helicopters can lawfully operate at virtually any altitude so long as they pose no safety hazard, it does not follow that the expectations of privacy "society is prepared to recognize as `reasonable'" simply mirror the FAA's safety concerns. Observations of curtilage from helicopters at very low altitudes are not perfectly analogous to ground-level observations from public roads or sidewalks. While in both cases the police may have a legal right to occupy the physical space from which their observations are made, the two situations Page 488 U. S. 454 are not necessarily comparable in terms of whether expectations of privacy from such vantage points should be considered reasonable. Public roads, even those less traveled by, are clearly demarked public thoroughfares. Individuals who seek privacy can take precautions, tailored to the location of the road, to avoid disclosing private activities to those who pass by. They can build a tall fence, for example, and thus ensure private enjoyment of the curtilage without risking public observation from the road or sidewalk. If they do not take such precautions, they cannot reasonably expect privacy from public observation. In contrast, even individuals who have taken effective precautions to ensure against ground-level observations cannot block off all conceivable aerial views of their outdoor patios and yards without entirely giving up their enjoyment of those areas. To require individuals to completely cover and enclose their curtilage is to demand more than the "precautions customarily taken by those seeking privacy." Rakas v. Illinois, 439 U. S. 128 , 439 U. S. 152 (1978) (Powell, J., concurring). The fact that a helicopter could conceivably observe the curtilage at virtually any altitude or angle, without violating FAA regulations, does not in itself mean that an individual has no reasonable expectation of privacy from such observation. In determining whether Riley had a reasonable expectation of privacy from aerial observation, the relevant inquiry after Ciraolo is not whether the helicopter was where it had a right to be under FAA regulations. Rather, consistent with Katz, we must ask whether the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regularity that Riley's expectation of privacy from aerial observation was not "one that society is prepared to recognize as reasonable.'" Katz, supra, at 361. Thus, in determining "`whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment,'" Ciraolo, supra, at 476 U. S. 212 (quoting Oliver, supra, at 466 U. S. 182 -183), it is not conclusive to observe, Page 488 U. S. 455 as the plurality does, that "[a]ny member of the public could legally have been flying over Riley's property in a helicopter at the altitude of 400 feet, and could have observed Riley's greenhouse." Ante at 451. Nor is it conclusive that police helicopters may often fly at 400 feet. If the public rarely, if ever, travels overhead at such altitudes, the observation cannot be said to be from a vantage point generally used by the public, and Riley cannot be said to have "knowingly expose[d]" his greenhouse to public view. However, if the public can generally be expected to travel over residential backyards at an altitude of 400 feet, Riley cannot reasonably expect his curtilage to be free from such aerial observation. In my view, the defendant must bear the burden of proving that his expectation of privacy was a reasonable one, and thus that a "search" within the meaning of the Fourth Amendment even took place. Cf. Jones v. United States, 362 U. S. 257 , 362 U. S. 261 (1960) ("Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy"); Nardone v. United States, 308 U. S. 338 , 308 U. S. 341 (1939). Because there is reason to believe that there is considerable public use of airspace at altitudes of 400 feet and above, and because Riley introduced no evidence to the contrary before the Florida courts, I conclude that Riley's expectation that his curtilage was protected from naked-eye aerial observation from that altitude was not a reasonable one. However, public use of altitudes lower than that -- particularly public observations from helicopters circling over the curtilage of a home -- may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations Page 488 U. S. 456 JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, dissenting. The Court holds today that police officers need not obtain a warrant based on probable cause before circling in a helicopter 400 feet above a home in order to investigate what is taking place behind the walls of the curtilage. I cannot agree that the Fourth Amendment to the Constitution, which safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," tolerates such an intrusion on privacy and personal security. I The opinion for a plurality of the Court reads almost as if Katz v. United States, 389 U. S. 347 (1967), had never been decided. Notwithstanding the disclaimers of its final paragraph, the opinion relies almost exclusively on the fact that the police officer conducted his surveillance from a vantage point where, under applicable Federal Aviation Administration regulations, he had a legal right to be. Katz teaches, however, that the relevant inquiry is whether the police surveillance "violated the privacy upon which [the defendant] justifiably relied," id. at 389 U. S. 353 -- or, as Justice Harlan put it, whether the police violated an "expectation of privacy . . . that society is prepared to recognize as reasonable.'" Id. at 389 U. S. 361 (concurring opinion). The result of that inquiry in any given case depends ultimately on the judgment "whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society." Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 403 (1974); see also 1 W. LaFave, Search and Seizure § 2.1(d), pp. 310-314 (2d ed.1987). The plurality undertakes no inquiry into whether low-level helicopter surveillance by the police of activities in an enclosed Page 488 U. S. 457 backyard is consistent with the "aims of a free and open society." Instead, it summarily concludes that Riley's expectation of privacy was unreasonable because "[a]ny member of the public could legally have been flying over Riley's property in a helicopter at the altitude of 400 feet and could have observed Riley's greenhouse." Ante at 488 U. S. 451 . This observation is, in turn, based solely on the fact that the police helicopter was within the airspace within which such craft are allowed by federal safety regulations to fly. I agree, of course, that "[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." Katz, supra, at 389 U. S. 351 . But I cannot agree that one "knowingly exposes [an area] to the public" solely because a helicopter may legally fly above it. Under the plurality's exceedingly grudging Fourth Amendment theory, the expectation of privacy is defeated if a single member of the public could conceivably position herself to see into the area in question without doing anything illegal. It is defeated whatever the difficulty a person would have in so positioning herself, and however infrequently anyone would in fact do so. In taking this view, the plurality ignores the very essence of Katz. The reason why there is no reasonable expectation of privacy in an area that is exposed to the public is that little diminution in "the amount of privacy and freedom remaining to citizens" will result from police surveillance of something that any passerby readily sees. To pretend, as the plurality opinion does, that the same is true when the police use a helicopter to peer over high fences is, at best, disingenuous. Notwithstanding the plurality's statistics about the number of helicopters registered in this country, can it seriously be questioned that Riley enjoyed virtually complete privacy in his backyard greenhouse, and that that privacy was invaded solely by police helicopter surveillance? Is the theoretical possibility that any member of the public (with sufficient means) could also have hired a helicopter and looked over Riley's fence of any relevance at all in determining Page 488 U. S. 458 whether Riley suffered a serious loss of privacy and personal security through the police action? In California v. Ciraolo, 476 U. S. 207 (1986), we held that whatever might be observed from the window of an airplane flying at 1,000 feet could be deemed unprotected by any reasonable expectation of privacy. That decision was based on the belief that airplane traffic at that altitude was sufficiently common that no expectation of privacy could inure in anything on the ground observable with the naked eye from so high. Indeed, we compared those airways to "public thoroughfares," and made the obvious point that police officers passing by a home on such thoroughfares were not required by the Fourth Amendment to "shield their eyes." Id. at 476 U. S. 213 . Seizing on a reference in Ciraolo to the fact that the police officer was in a position "where he ha[d] a right to be," ibid., today's plurality professes to find this case indistinguishable because FAA regulations do not impose a minimum altitude requirement on helicopter traffic; thus, the officer in this case too made his observations from a vantage point where he had a right to be. [ Footnote 2/1 ] It is a curious notion that the reach of the Fourth Amendment can be so largely defined by administrative regulations issued for purposes of flight safety. [ Footnote 2/2 ] It is more curious still Page 488 U. S. 459 that the plurality relies to such an extent on the legality of the officer's act, when we have consistently refused to equate police violation of the law with infringement of the Fourth Amendment. [ Footnote 2/3 ] But the plurality's willingness to end its inquiry when it finds that the officer was in a position he had a right to be in is misguided for an even more fundamental reason. Finding determinative the fact that the officer was where he had a right to be is, at bottom, an attempt to analogize surveillance from a helicopter to surveillance by a police officer standing on a public road and viewing evidence of crime through an open window or a gap in a fence. In such a situation, the occupant of the home may be said to lack any Page 488 U. S. 460 reasonable expectation of privacy in what can be seen from that road -- even if, in fact, people rarely pass that way. The police officer positioned 400 feet above Riley's backyard was not, however, standing on a public road. The vantage point he enjoyed was not one any citizen could readily share. His ability to see over Riley's fence depended on his use of a very expensive and sophisticated piece of machinery to which few ordinary citizens have access. In such circumstances, it makes no more sense to rely on the legality of the officer's position in the skies than it would to judge the constitutionality of the wiretap in Katz by the legality of the officer's position outside the telephone booth. The simple inquiry whether the police officer had the legal right to be in the position from which he made his observations cannot suffice, for we cannot assume that Riley's curtilage was so open to the observations of passersby in the skies that he retained little privacy or personal security to be lost to police surveillance. The question before us must be not whether the police were where they had a right to be, but whether public observation of Riley's curtilage was so commonplace that Riley's expectation of privacy in his backyard could not be considered reasonable. To say that an invasion of Riley's privacy from the skies was not impossible is most emphatically not the same as saying that his expectation of privacy within his enclosed curtilage was not "one that society is prepared to recognize as reasonable.'" Katz, 389 U.S. at 389 U. S. 361 (Harlan, J., concurring). [ Footnote 2/4 ] While, as we held in Ciraolo, air traffic at elevations of 1,000 feet or more may be so common that whatever could be seen with the naked eye from that elevation is unprotected by the Fourth Amendment, it is a large step from there to say that the Amendment offers no protection against low-level helicopter surveillance of enclosed curtilage Page 488 U. S. 461 areas. To take this step is error enough. That the plurality does so with little analysis beyond its determination that the police complied with FAA regulations is particularly unfortunate. Equally disconcerting is the lack of any meaningful limit to the plurality's holding. It is worth reiterating that the FAA regulations the plurality relies on as establishing that the officer was where he had a right to be set no minimum flight altitude for helicopters. It is difficult, therefore, to see what, if any, helicopter surveillance would run afoul of the plurality's rule that there exists no reasonable expectation of privacy as long as the helicopter is where it has a right to be. Only in its final paragraph does the plurality opinion suggest that there might be some limits to police helicopter surveillance beyond those imposed by FAA regulations: "Neither is there any intimation here that the helicopter interfered with respondent's normal use of the greenhouse or of other parts of the curtilage. As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment." Ante at 488 U. S. 452 . [ Footnote 2/5 ] I will deal with the "intimate details" below. For the rest, one wonders what the plurality believes the purpose of the Fourth Amendment to be. If through noise, wind, dust, and threat of injury from helicopters the State "interfered with respondent's normal use of the greenhouse or of other parts Page 488 U. S. 462 of the curtilage," Riley might have a cause of action in inverse condemnation, but that is not what the Fourth Amendment is all about. Nowhere is this better stated than in JUSTICE WHITE's opinion for the Court in Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 528 (1967): "The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." See also Marshall v. Barlow's, Inc., 436 U. S. 307 , 436 U. S. 312 (1978) (same); Schmerber v. California, 384 U. S. 757 , 384 U. S. 767 (1966) ("The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State"); Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 27 (1949) ("The security of one's privacy against arbitrary intrusion by the police . . . is at the core of the Fourth Amendment . . ."), overruled on other grounds, Mapp v. Ohio, 367 U. S. 643 (1961); Boyd v. United States, 116 U. S. 616 , 116 U. S. 630 (1886) ("It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security. . . ."). If indeed the purpose of the restraints imposed by the Fourth Amendment is to "safeguard the privacy and security of individuals," then it is puzzling why it should be the helicopter's noise, wind, and dust that provides the measure of whether this constitutional safeguard has been infringed. Imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind, or dust at all -- and, for good measure, without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses, but also what books they were reading and who their dinner guests were. Suppose, finally, that the FAA regulations remained unchanged, so that the police were undeniably "where they had a right to be." Would today's Page 488 U. S. 463 plurality continue to assert that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" was not infringed by such surveillance? Yet that is the logical consequence of the plurality's rule that, so long as the police are where they have a right to be under air traffic regulations, the Fourth Amendment is offended only if the aerial surveillance interferes with the use of the backyard as a garden spot. Nor is there anything in the plurality's opinion to suggest that any different rule would apply were the police looking from their helicopter, not into the open curtilage, but through an open window into a room viewable only from the air. III Perhaps the most remarkable passage in the plurality opinion is its suggestion that the case might be a different one had any "intimate details connected with the use of the home or curtilage [been] observed." Ante at 488 U. S. 452 . What, one wonders, is meant by "intimate details"? If the police had observed Riley embracing his wife in the backyard greenhouse, would we then say that his reasonable expectation of privacy had been infringed? Where in the Fourth Amendment or in our cases is there any warrant for imposing a requirement that the activity observed must be "intimate" in order to be protected by the Constitution? It is difficult to avoid the conclusion that the plurality has allowed its analysis of Riley's expectation of privacy to be colored by its distaste for the activity in which he was engaged. It is indeed easy to forget, especially in view of current concern over drug trafficking, that the scope of the Fourth Amendment's protection does not turn on whether the activity disclosed by a search is illegal or innocuous. But we dismiss this as a "drug case" only at the peril of our own liberties. Justice Frankfurter once noted that "[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very Page 488 U. S. 464 nice people," United States v. Rabinowitz, 339 U. S. 56 , 339 U. S. 69 (1950) (dissenting opinion), and nowhere is this observation more apt than in the area of the Fourth Amendment, whose words have necessarily been given meaning largely through decisions suppressing evidence of criminal activity. The principle enunciated in this case determines what limits the Fourth Amendment imposes on aerial surveillance of any person, for any reason. If the Constitution does not protect Riley's marijuana garden against such surveillance, it is hard to see how it will forbid the government from aerial spying on the activities of a law-abiding citizen on her fully enclosed outdoor patio. As Professor Amsterdam has eloquently written: "The question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not." Amsterdam, 58 Minn.L.Rev. at 403. [ Footnote 2/6 ] IV I find little to disagree with in the concurring opinion of JUSTICE O'CONNOR, apart from its closing paragraphs. A majority of the Court thus agrees that the fundamental inquiry is not whether the police were where they had a right to be under FAA regulations, but rather whether Riley's expectation of privacy was rendered illusory by the extent of Page 488 U. S. 465 public observation of his backyard from aerial traffic at 400 feet. What separates me from JUSTICE O'CONNOR is essentially an empirical matter concerning the extent of public use of the airspace at that altitude, together with the question of how to resolve that issue. I do not think the constitutional claim should fail simply because "there is reason to believe" that there is "considerable" public flying this close to earth or because Riley "introduced no evidence to the contrary before the Florida courts." Ante at 488 U. S. 455 (O'CONNOR, J., concurring in judgment). I should think that this might be an apt occasion for the application of Professor Davis' distinction between "adjudicative" and "legislative" facts. See Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv.L.Rev. 364, 402-410 (1942); see also Advisory Committee's Notes on Fed.Rule Evid. 201, 28 U.S.C.App. pp. 683-684. If so, I think we could take judicial notice that, while there may be an occasional privately owned helicopter that flies over populated areas at an altitude of 400 feet, such flights are a rarity, and are almost entirely limited to approaching or leaving airports or to reporting traffic congestion near major roadways. And, as the concurrence agrees, ante at 488 U. S. 455 , the extent of police surveillance traffic cannot serve as a bootstrap to demonstrate public use of the airspace. If, however, we are to resolve the issue by considering whether the appropriate party carried its burden of proof, I again think that Riley must prevail. Because the State has greater access to information concerning customary flight patterns, and because the coercive power of the State ought not be brought to bear in cases in which it is unclear whether the prosecution is a product of an unconstitutional, warrantless search, cf. Bumper v. North Carolina, 391 U. S. 543 , 391 U. S. 548 (1968) (prosecutor has burden of proving consent to search), the burden of proof properly rests with the State, and Page 488 U. S. 466 not with the individual defendant. The State quite clearly has not carried this burden. [ Footnote 2/7 ] V The issue in this case is, ultimately, "how tightly the fourth amendment permits people to be driven back into the recesses of their lives by the risk of surveillance." Amsterdam, supra, at 402. The Court today approves warrantless helicopter surveillance from an altitude of 400 feet. While JUSTICE O'CONNOR's opinion gives reason to hope that this altitude may constitute a lower limit, I find considerable cause for concern in the fact that a plurality of four Justices would remove virtually all constitutional barriers to police surveillance from the vantage point of helicopters. The Fourth Amendment demands that we temper our efforts to apprehend criminals with a concern for the impact on our fundamental liberties of the methods we use. I hope it will be a matter of concern to my colleagues that the police surveillance methods they would sanction were among those described forty years ago in George Orwell's dread vision of life in the 1980's: "The black-mustachio'd face gazed down from every commanding corner. There was one on the house front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said. . . . In the far distance, a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people's windows." G. Orwell, Nineteen Eighty-Four 4 (1949) Page 488 U. S. 467 Who can read this passage without a shudder, and without the instinctive reaction that it depicts life in some country other than ours? I respectfully dissent. [ Footnote 2/1 ] What the plurality now states as a firm rule of Fourth Amendment jurisprudence appeared in Ciraolo, 476 U.S. at 476 U. S. 213 , as a passing comment: "Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible. E.g., United States v. Knotts, 460 U. S. 276 , 460 U. S. 282 (1983)." This rule for determining the constitutionality of aerial surveillance thus derives ultimately from Knotts, a case in which the police officers' feet were firmly planted on the ground. What is remarkable is not that one case builds on another, of course, but rather that a principle based on terrestrial observation was applied to airborne surveillance without any consideration whether that made a difference. [ Footnote 2/2 ] The plurality's use of the FAA regulations as a means for determining whether Riley enjoyed a reasonable expectation of privacy produces an incredible result. Fixed-wing aircraft may not be operated below 500 feet (1,000 feet over congested areas), while helicopters may be operated below those levels. See ante at 488 U. S. 451 , n. 3. Therefore, whether Riley's expectation of privacy is reasonable turns on whether the police officer at 400 feet above his curtilage is seated in an airplane or a helicopter. This cannot be the law. [ Footnote 2/3 ] In Oliver v. United States, 466 U. S. 170 (1984), for example, we held that police officers who trespassed upon posted and fenced private land did not violate the Fourth Amendment, despite the fact that their action was subject to criminal sanctions. We noted that the interests vindicated by the Fourth Amendment were not identical with those served by the common law of trespass. See id. at 466 U. S. 183 -184, and n. 15; see also Nester v. United States, 265 U. S. 57 (1924) (trespass in "open fields" does not violate the Fourth Amendment). In Olmstead v. United States, 277 U. S. 438 , 277 U. S. 466 -469 (1928), the illegality under state law of a wiretap that yielded the disputed evidence was deemed irrelevant to its admissibility. And of course Katz v. United States, 389 U. S. 347 (1967), which overruled Olmstead, made plain that the question whether or not the disputed evidence had been procured by means of a trespass was irrelevant. Recently, in Dow Chemical Co. v. United States, 476 U. S. 227 , 476 U. S. 239 , n. 6 (1986), we declined to consider trade secret laws indicative of a reasonable expectation of privacy. Our precedent thus points not toward the position adopted by the plurality opinion, but rather toward the view on this matter expressed some years ago by the Oregon Court of Appeals: "We . . . find little attraction in the idea of using FAA regulations, because they were not formulated for the purpose of defining the reasonableness of citizens' expectations of privacy. They were designed to promote air safety." State v. Davis, 51 Ore.App. 827, 831, 627 P.2d 492 , 494 (1981). [ Footnote 2/4 ] Cf. California v. Greenwood, 486 U. S. 35 , 486 U. S. 64 (1988) (BRENNAN, J., dissenting) ("The mere possibility that unwelcome meddlers might open and rummage through the containers does not negate the expectation of privacy in their contents. . . ."). [ Footnote 2/5 ] Without actually stating that it makes any difference, the plurality also notes that "there is nothing in the record or before us to suggest" that helicopter traffic at the 400-foot level is so rare as to justify Riley's expectation of privacy. Ante at 488 U. S. 451 . The absence of anything "in the record or before us" to suggest the opposite, however, seems not to give the plurality pause. It appears, therefore, that it is the FAA regulation, rather than any empirical inquiry, that is determinative. [ Footnote 2/6 ] See also United States v. White, 401 U. S. 745 , 401 U. S. 789 -790 (1971) (Harlan, J., dissenting): "By casting its 'risk analysis' solely in terms of the expectations and risks that 'wrongdoers' or 'one contemplating illegal activities' ought to bear, the plurality opinion, I think, misses the mark entirely. . . . The interest [protected by the Fourth Amendment] is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously. . . . Interposition of a warrant requirement is designed not to shield 'wrongdoers,' but to secure a measure of privacy and a sense of personal security throughout our society." [ Footnote 2/7 ] The issue in Jones v. United States, 362 U. S. 257 , 362 U. S. 261 (1960), cited by JUSTICE O'CONNOR, was whether the defendant had standing to raise a Fourth Amendment challenge. While I would agree that the burden of alleging and proving facts necessary to show standing could ordinarily be placed on the defendant, I fail to see how that determination has any relevance to the question of where the burden should lie on the merits of the Fourth Amendment claim. JUSTICE BLACKMUN, dissenting. The question before the Court is whether the helicopter surveillance over Riley's property constituted a "search" within the meaning of the Fourth Amendment. Like JUSTICE BRENNAN, JUSTICE MARSHALL, JUSTICE STEVENS, and JUSTICE O'CONNOR, I believe that answering this question depends upon whether Riley has a "reasonable expectation of privacy" that no such surveillance would occur, and does not depend upon the fact that the helicopter was flying at a lawful altitude under FAA regulations. A majority of this Court thus agrees to at least this much. The inquiry then becomes how to determine whether Riley's expectation was a reasonable one. JUSTICE BRENNAN, the two Justices who have joined him, and JUSTICE O'CONNOR all believe that the reasonableness of Riley's expectation depends, in large measure, on the frequency of nonpolice helicopter flights at an altitude of 400 feet. Again, I agree. How is this factual issue to be decided? JUSTICE BRENNAN suggests that we may resolve it ourselves without any evidence in the record on this point. I am wary of this approach. While I, too, suspect that, for most American communities, it is a rare event when nonpolice helicopters fly over one's curtilage at an altitude of 400 feet, I am not convinced that we should establish a per se rule for the entire Nation based on judicial suspicion alone. See Coffin, Judicial Balancing, 63 N.Y.U.L.Rev. 16, 37 (1988). But we need not abandon our judicial intuition entirely. The opinions of both JUSTICE BRENNAN and JUSTICE O'CONNOR, by their use of "cf." citations, implicitly recognize that none of our prior decisions tells us who has the burden of proving whether Riley's expectation of privacy was reasonable. In the absence of precedent on the point, it is appropriate for us to take into account our estimation of the Page 488 U. S. 468 frequency of nonpolice helicopter flights. See 4 W. LaFave, Search and Seizure § 11.2(b), p. 228 (2d ed.1987) (burdens of proof relevant to Fourth Amendment issues may be based on a judicial estimate of the probabilities involved). Thus, because I believe that private helicopters rarely fly over curtilages at an altitude of 400 feet, I would impose upon the prosecution the burden of proving contrary facts necessary to show that Riley lacked a reasonable expectation of privacy. Indeed, I would establish this burden of proof for any helicopter surveillance case in which the flight occurred below 1,000 feet -- in other words, for any aerial surveillance case not governed by the Court's decision in California v. Ciraolo, 476 U. S. 207 (1986). In this case, the prosecution did not meet this burden of proof, as JUSTICE BRENNAN notes. This failure should compel a finding that a Fourth Amendment search occurred. But because our prior cases gave the parties little guidance on the burden of proof issue, I would remand this case to allow the prosecution an opportunity to meet this burden. The order of this Court, however, is not to remand the case in this manner. Rather, because JUSTICE O'CONNOR would impose the burden of proof on Riley, and because she would not allow Riley an opportunity to meet this burden, she joins the plurality's view that no Fourth Amendment search occurred. The judgment of the Court, therefore, is to reverse outright on the Fourth Amendment issue. Accordingly, for the reasons set forth above, I respectfully dissent.

In Florida v. Riley, the Supreme Court held that police observation of a greenhouse from a helicopter at 400 feet, which revealed marijuana plants, did not constitute a Fourth Amendment search, as the contents of the greenhouse were visible to the naked eye and the helicopter was within public airspace. The Court reversed the Florida Supreme Court's decision, which had found the helicopter surveillance to be a search requiring a warrant.

Search & Seizure

California v. Greenwood

https://supreme.justia.com/cases/federal/us/486/35/

U.S. Supreme Court California v. Greenwood, 486 U.S. 35 (1988) California v. Greenwood No. 86-684 Argued January 11, 1988 Decided May 16, 1988 486 U.S. 35 CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT Syllabus Acting on information indicating that respondent Greenwood might be engaged in narcotics trafficking, police twice obtained from his regular trash collector garbage bags left on the curb in front of his house. On the basis of items in the bags which were indicative of narcotics use, the police obtained warrants to search the house, discovered controlled substances during the searches, and arrested respondents on felony narcotics charges. Finding that probable cause to search the house would not have existed without the evidence obtained from the trash searches, the State Superior Court dismissed the charges under People v. Krivda, 5 Cal. 3d 357 , 486 P.2d 1262, which held that warrantless trash searches violate the Fourth Amendment and the California Constitution. Although noting a post- Krivda state constitutional amendment eliminating the exclusionary rule for evidence seized in violation of state, but not federal, law, the State Court of Appeal affirmed on the ground that Krivda was based on federal, as well as state, law. Held: 1. The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. Pp. 486 U. S. 39 -44. (a) Since respondents voluntarily left their trash for collection in an area particularly suited for public inspection, their claimed expectation of privacy in the inculpatory items they discarded was not objectively reasonable. It is common knowledge that plastic garbage bags left along a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through it or permitted others, such as the police, to do so. The police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Pp. 486 U. S. 43 -44. (b) Greenwood's alternative argument that his expectation of privacy in his garbage should be deemed reasonable as a matter of federal constitutional law because the warrantless search and seizure of his garbage was impermissible as a matter of California law under Krivda, Page 486 U. S. 36 which he contends survived the state constitutional amendment, is without merit. The reasonableness of a search for Fourth Amendment purposes does not depend upon privacy concepts embodied in the law of the particular State in which the search occurred; rather, it turns upon the understanding of society as a whole that certain areas deserve the most scrupulous protection from government invasion. There is no such understanding with respect to garbage left for collection at the side of a public street. Pp. 486 U. S. 43 -44. 2. Also without merit is Greenwood's contention that the California constitutional amendment violates the Due Process Clause of the Fourteenth Amendment. Just as this Court's Fourth Amendment exclusionary rule decisions have not required suppression where the benefits of deterring minor police misconduct were overbalanced by the societal costs of exclusion, California was not foreclosed by the Due Process Clause from concluding that the benefits of excluding relevant evidence of criminal activity do not outweigh the costs when the police conduct at issue does not violate federal law. Pp. 486 U. S. 44 -45. 182 Cal. App. 3d 729 , 227 Cal. Rptr. 539 , reversed and remanded. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 486 U. S. 45 . KENNEDY, J., took no part in the consideration or decision of the case. Page 486 U. S. 37 JUSTICE WHITE delivered the opinion of the Court. The issue here is whether the Fourth Amendment prohibits the warrantless search and seizure of garbage left for collection outside the curtilage of a home. We conclude, in accordance with the vast majority of lower courts that have addressed the issue, that it does not. I In early 1984, Investigator Jenny Stracner of the Laguna Beach Police Department received information indicating that respondent Greenwood might be engaged in narcotics trafficking. Stracner learned that a criminal suspect had informed a federal drug enforcement agent in February, 1984, that a truck filled with illegal drugs was en route to the Laguna Beach address at which Greenwood resided. In addition, a neighbor complained of heavy vehicular traffic late at night in front of Greenwood's single-family home. The neighbor reported that the vehicles remained at Greenwood's house for only a few minutes. Stracner sought to investigate this information by conducting a surveillance of Greenwood's home. She observed several vehicles make brief stops at the house during the late-night and early-morning hours, and she followed a truck from the house to a residence that had previously been under investigation as a narcotics trafficking location. On April 6, 1984, Stracner asked the neighborhood's regular trash collector to pick up the plastic garbage bags that Greenwood had left on the curb in front of his house and to turn the bags over to her without mixing their contents with garbage from other houses. The trash collector cleaned his truck bin of other refuse, collected the garbage bags from the street in front of Greenwood's house, and turned the bags over to Stracner. The officer searched through the rubbish Page 486 U. S. 38 and found items indicative of narcotics use. She recited the information that she had gleaned from the trash search in an affidavit in support of a warrant to search Greenwood's home. Police officers encountered both respondents at the house later that day when they arrived to execute the warrant. The police discovered quantities of cocaine and hashish during their search of the house. Respondents were arrested on felony narcotics charges. They subsequently posted bail. The police continued to receive reports of many late-night visitors to the Greenwood house. On May 4, Investigator Robert Rahaeuser obtained Greenwood's garbage from the regular trash collector in the same manner as had Stracner. The garbage again contained evidence of narcotics use. Rahaeuser secured another search warrant for Greenwood's home based on the information from the second trash search. The police found more narcotics and evidence of narcotics trafficking when they executed the warrant. Greenwood was again arrested. The Superior Court dismissed the charges against respondents on the authority of People v. Krivda, 5 Cal. 3d 357 , 486 P.2d 1262 (1971), which held that warrantless trash searches violate the Fourth Amendment and the California Constitution. The court found that the police would not have had probable cause to search the Greenwood home without the evidence obtained from the trash searches. The Court of Appeal affirmed. 182 Cal. App. 3d 729 , 227 Cal. Rptr. 539 (1986). The court noted at the outset that the fruits of warrantless trash searches could no longer be suppressed if Krivda were based only on the California Constitution, because, since 1982, the State has barred the suppression of evidence seized in violation of California law but not federal law. See Cal.Const., Art. I, § 28(d); In re Lance W., 37 Cal. 3d 873 , 694 P.2d 744 (1985). But Krivda, a decision binding on the Court of Appeal, also held that the fruits of warrantless trash searches were to be excluded under federal Page 486 U. S. 39 law. Hence, the Superior Court was correct in dismissing the charges against respondents. 182 Cal. App. 3d at 735, 227 Cal.Rptr, at 542. [ Footnote 1 ] The California Supreme Court denied the State's petition for review of the Court of Appeal's decision. We granted certiorari, 483 U.S. 1019, and now reverse. II The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. O'Connor v. Ortega, 480 U. S. 709 , 480 U. S. 715 (1987); California v. Ciraolo, 476 U. S. 207 , 476 U. S. 211 (1986); Oliver v. United States, 466 U. S. 170 , 466 U. S. 177 (1984); Katz v. United States, 389 U. S. 347 , 389 U. S. 361 (1967) (Harlan, J., concurring). Respondents do not disagree with this standard. They assert, however, that they had, and exhibited, an expectation of privacy with respect to the trash that was searched by the police: the trash, which was placed on the street for collection at a fixed time, was contained in opaque plastic bags, which the garbage collector was expected to pick up, mingle with the trash of others, and deposit at the garbage dump. The trash was only temporarily on the street, and there was little likelihood that it would be inspected by anyone. It may well be that respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, Page 486 U. S. 40 however, unless society is prepared to accept that expectation as objectively reasonable. Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, [ Footnote 2 ] children, scavengers, [ Footnote 3 ] snoops, [ Footnote 4 ] and other members of the public. See Krivda, 5 Cal. 3d at 367, 486 P.2d at 1269. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage "in an area particularly suited for Page 486 U. S. 41 public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it," United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded. Furthermore, as we have held, the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Hence, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, supra, at 389 U. S. 351 . We held in Smith v. Maryland, 442 U. S. 735 (1979), for example, that the police did not violate the Fourth Amendment by causing a pen register to be installed at the telephone company's offices to record the telephone numbers dialed by a criminal suspect. An individual has no legitimate expectation of privacy in the numbers dialed on his telephone, we reasoned, because he voluntarily conveys those numbers to the telephone company when he uses the telephone. Again, we observed that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Id. at 442 U. S. 743 -744. Similarly, we held in California v. Ciraolo, supra, that the police were not required by the Fourth Amendment to obtain a warrant before conducting surveillance of the respondent's fenced backyard from a private plane flying at an altitude of 1,000 feet. We concluded that the respondent's expectation that his yard was protected from such surveillance was unreasonable, because "[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed." Id. at 476 U. S. 213 -214. Our conclusion that society would not accept as reasonable respondents' claim to an expectation of privacy in trash left for collection in an area accessible to the public is reinforced by the unanimous rejection of similar claims by the Federal Courts of Appeals. See United States v. Dela Espriella, Page 486 U. S. 42 781 F.2d 1432, 1437 (CA9 1986); United States v. O'Bryant, 775 F.2d 1528, 1533-1534 (CA11 1985); United States v. Michaels, 726 F.2d 1307, 1312-1313 (CA8), cert. denied, 469 U.S. 820 (1984); United States v. Kramer, 711 F.2d 789, 791-794 (CA7), cert. denied, 464 U.S. 962 (1983); United States v. Terry, 702 F.2d 299, 308-309 (CA2), cert. denied sub nom. Williams v. United States, 461 U.S. 931 (1983); United States v. Reicherter, supra, at 399; United States v. Vahalik, 606 F.2d 99, 100-101 (CA5 1979) (per curiam), cert. denied, 444 U.S. 1081 (1980); United States v. Crowell, 586 F.2d 1020, 1025 (CA4 1978), cert. denied, 440 U.S. 959 (1979); Magda v. Benson, 536 F.2d 111, 112-113 (CA6 1976) (per curiam); United States v. Mustone, 469 F.2d 970, 972-974 (CA1 1972). In United States v. Thornton, 241 U.S.App.D.C. 46, 56, and n. 11, 746 F.2d 39, 49, and n. 11 (1984), the court observed that "the overwhelming weight of authority rejects the proposition that a reasonable expectation of privacy exists with respect to trash discarded outside the home and the curtilege [ sic ] thereof." In addition, of those state appellate courts that have considered the issue, the vast majority have held that the police may conduct warrantless searches and seizures of garbage discarded in public areas. See Commonwealth v. Chappee, 397 Mass. 508, 512-513, 492 N.E.2d 719 , 721-722 (1986); Cooks v. State, 699 P.2d 653 , 656 (Okla. Crim.), cert. denied, 474 U.S. 935 (1985); State v. Stevens, 123 Wis.2d 303, 314-317, 367 N.W.2d 788 , 794-797, cert. denied, 474 U.S. 852 (1985); State v. Ronngren, 361 N.W.2d 224 , 228-230 (N.D.1985); State v. Brown, 20 Ohio App.3d 36, 37-38, 484 N.E.2d 215, 217-218 (1984); State v. Oquist, 327 N.W.2d 587 (Minn.1982); People v. Whotte, 113 Mich.App. 12, 317 N.W.2d 266 (1982); Commonwealth v. Minton, 288 Pa.Super. 381, 391, 432 A.2d 212 , 217 (1981); State v. Schultz, 388 So. 2d 1326 (Fla.App.1980); People v. Huddleston, 38 Ill.App.3d 277, 347 N.E.2d 76 (1976); Willis v. State, 518 S.W.2d 247 , 249 (Tex.Crim.App.1975); Smith v. State, 510 P.2d 793 (Alaska), cert. denied, Page 486 U. S. 43 414 U.S. 1086 (1973); State v. Fassler, 108 Ariz. 586, 592-593, 503 P.2d 807 , 813-814 (1972); Croker v. State, 477 P.2d 122 , 125-126 (Wyo.1970); State v. Purvis, 249 Ore. 404, 411, 438 P.2d 1002 , 1005 (1968). But see State v. Tanaka, 67 Haw. 658, 701 P.2d 1274 (1985); People v. Krivda, 5 Cal. 3d 729, 486 P.2d 1262 (1971). [ Footnote 5 ] III We reject respondent Greenwood's alternative argument for affirmance: that his expectation of privacy in his garbage should be deemed reasonable as a matter of federal constitutional law because the warrantless search and seizure of his garbage was impermissible as a matter of California law. He urges that the state law right of Californians to privacy in their garbage, announced by the California Supreme Court in Krivda, supra, survived the subsequent state constitutional amendment eliminating the suppression remedy as a means of enforcing that right. See In re Lance W., 37 Cal. 3d at 886-887, 694 P.2d at 752-753. Hence, he argues that the Fourth Amendment should itself vindicate that right. Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution. We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs. We have emphasized instead that the Fourth Amendment analysis must turn on such factors as "our societal understanding that certain areas deserve the most scrupulous protection from government invasion." Oliver v. United States, 466 U.S. at 466 U. S. 178 (emphasis added). See also Rakas v. Illinois, 439 U. S. 128 , 439 U. S. 143 -144, n. 12 (1978). We have already concluded that society as a whole possesses no such understanding Page 486 U. S. 44 with regard to garbage left for collection at the side of a public street. Respondent's argument is no less than a suggestion that concepts of privacy under the laws of each State are to determine the reach of the Fourth Amendment. We do not accept this submission. IV Greenwood finally urges as an additional ground for affirmance that the California constitutional amendment eliminating the exclusionary rule for evidence seized in violation of state but not federal law violates the Due Process Clause of the Fourteenth Amendment. In his view, having recognized a state law right to be free from warrantless searches of garbage, California may not under the Due Process Clause deprive its citizens of what he describes as "the only effective deterrent" to violations of this right. Greenwood concedes that no direct support for his position can be found in the decisions of this Court. He relies instead on cases holding that individuals are entitled to certain procedural protections before they can be deprived of a liberty or property interest created by state law. See Hewitt v. Helms, 459 U. S. 460 (1983); Vitek v. Jones, 445 U. S. 480 (1980). We see no merit in Greenwood's position. California could amend its Constitution to negate the holding in Krivda that state law forbids warrantless searches of trash. We are convinced that the State may likewise eliminate the exclusionary rule as a remedy for violations of that right. At the federal level, we have not required that evidence obtained in violation of the Fourth Amendment be suppressed in all circumstances. See, e.g., United States v. Leon, 468 U. S. 897 (1984); United States v. Janis, 428 U. S. 433 (1976); United States v. Calandra, 414 U. S. 338 (1974). Rather, our decisions concerning the scope of the Fourth Amendment exclusionary rule have balanced the benefits of deterring police misconduct against the costs of excluding reliable evidence of criminal activity. See Leon, 468 U.S. at 468 U. S. 908 -913. We Page 486 U. S. 45 have declined to apply the exclusionary rule indiscriminately "when law enforcement officers have acted in objective good faith or their transgressions have been minor," because "the magnitude of the benefit conferred on . . . guilty defendants [in such circumstances] offends basic concepts of the criminal justice system." Id. at 468 U. S. 908 (citing Stone v. Powell, 428 U. S. 465 , 428 U. S. 490 (1976)). The States are not foreclosed by the Due Process Clause from using a similar balancing approach to delineate the scope of their own exclusionary rules. Hence, the people of California could permissibly conclude that the benefits of excluding relevant evidence of criminal activity do not outweigh the costs when the police conduct at issue does not violate federal law. V The judgment of the California Court of Appeal is therefore reversed, and this case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case. [ Footnote 1 ] The Court of Appeal also held that respondent Van Houten had standing to seek the suppression of evidence discovered during the April 4 search of Greenwood's home. 182 Cal. App. 3d at 735, 227 Cal. Rptr. at 542-543. [ Footnote 2 ] For example, State v. Ronngren, 361 N.W.2d 224 (N. D.1985), involved the search of a garbage bag that a dog, acting "at the behest of no one," id. at 228, had dragged from the defendants' yard into the yard of a neighbor. The neighbor deposited the bag in his own trash can, which he later permitted the police to search. The North Dakota Supreme Court held that the search of the garbage bag did not violate the defendants' Fourth Amendment rights. [ Footnote 3 ] It is not only the homeless of the Nation's cities who make use of others' refuse. For example, a nationally syndicated consumer columnist has suggested that apartment dwellers obtain cents-off coupons by "mak[ing] friends with the fellow who handles the trash" in their buildings, and has recounted the tale of "the 'Rich lady' from Westmont who, once a week, puts on rubber gloves and hip boots and wades into the town garbage dump looking for labels and other proofs of purchase" needed to obtain manufacturers' refunds. M. Sloane, "The Supermarket Shopper's" 1980 Guide to Coupons and Refunds 74, 161 (1980). [ Footnote 4 ] Even the refuse of prominent Americans has not been invulnerable. In 1975, for example, a reporter for a weekly tabloid seized five bags of garbage from the sidewalk outside the home of Secretary of State Henry Kissinger. Washington Post, July 9, 1975, p. A1, col. 8. A newspaper editorial criticizing this journalistic "trash-picking" observed that "[e]vidently . . . everybody does it.'" Washington Post, July 10, 1975, p. A18, col. 1. We of course do not, as the dissent implies, "bas[e] [our] conclusion" that individuals have no reasonable expectation of privacy in their garbage on this "sole incident." Post at 486 U. S. 51 . [ Footnote 5 ] Given that the dissenters are among the tiny minority of judges whose views are contrary to ours, we are distinctly unimpressed with the dissent's prediction that "society will be shocked to learn" of today's decision. Post at 486 U. S. 46 . JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. Every week for two months, and at least once more a month later, the Laguna Beach police clawed through the trash that respondent Greenwood left in opaque, sealed bags on the curb outside his home. Record 113. Complete strangers minutely scrutinized their bounty, undoubtedly dredging up intimate details of Greenwood's private life and habits. The intrusions proceeded without a warrant, and no court before or since has concluded that the police acted on probable cause to believe Greenwood was engaged in any criminal activity. Scrutiny of another's trash is contrary to commonly accepted notions of civilized behavior. I suspect, therefore, Page 486 U. S. 46 that members of our society will be shocked to learn that the Court, the ultimate guarantor of liberty, deems unreasonable our expectation that the aspects of our private lives that are concealed safely in a trash bag will not become public. I "A container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant." United States v. Jacobsen, 466 U. S. 109 , 120, n. 466 U. S. 17 (1984) (citations omitted). Thus, as the Court observes, if Greenwood had a reasonable expectatlon that the contents of the bags that he placed on the curb would remain private, the warrantless search of those bags violated the Fourth Amendment. Ante at 486 U. S. 39 . The Framers of the Fourth Amendment understood that "unreasonable searches" of "paper[s] and effects" -- no less than "unreasonable searches" of "person[s] and houses" -- infringe privacy. As early as 1878, this Court acknowledged that the contents of "[l]etters and sealed packages . . . in the mail are as fully guarded from examination and inspection . . . as if they were retained by the parties forwarding them in their own domiciles." Ex parte Jackson, 96 U. S. 727 , 96 U. S. 733 . In short, so long as a package is "closed against inspection," the Fourth Amendment protects its contents, "wherever they may be," and the police must obtain a warrant to search it just "as is required when papers are subjected to search in one's own household." Ibid. Accord, United States v. Van Leeuwen, 397 U. S. 249 (1970). With the emergence of the reasonable-expectation-o-privacy analysis, see Katz v. United States, 389 U. S. 347 , 389 U. S. 361 (1967) (Harlan, J., concurring); Smith v. Maryland, 442 U. S. 735 , 442 U. S. 740 (1979), we have reaffirmed this fundamental principle. In Robbins v. California, 453 U. S. 420 (1981), for example, Justice Stewart, writing for a plurality of four, pronounced that, "unless the container is such that its contents may be said to be in plain view, those contents are fully Page 486 U. S. 47 protected by the Fourth Amendment," id. at 453 U. S. 427 , and soundly rejected any distinction for Fourth Amendment purposes among various opaque, sealed containers: "[E]ven if one wished to import such a distinction into the Fourth Amendment, it is difficult if not impossible to perceive any objective criteria by which that task might be accomplished. What one person may put into a suitcase, another may put into a paper bag. . . . And . . . no court, no constable, no citizen, can sensibly be asked to distinguish the relative 'privacy interests' in a closed suitcase, briefcase, portfolio, duffelbag, or box." Id. at 453 U. S. 426 -427. See also id. at 453 U. S. 428 (expectation of privacy attaches to any container unless it "so clearly announce[s] its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer"). With only one exception, every Justice who wrote in that case eschewed any attempt to distinguish "worthy" from "unworthy" containers. [ Footnote 2/1 ] More recently, in United States v. Ross, 456 U. S. 798 (1982), the Court, relying on the "virtually unanimous agreement Page 486 U. S. 48 in Robbins . . . that a constitutional distinction between 'worthy' and 'unworthy' containers would be improper," held that a distinction among "paper bags, locked trunks, lunch buckets, and orange crates" would be inconsistent with "the central purpose of the Fourth Amendment. . . . [A] traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf [may] claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case." "As Justice Stewart stated in Robbins, the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view. " Id. at 456 U. S. 822 -823 (emphasis added; footnote and citation omitted). See also Jacobsen, 466 U.S. at 466 U. S. 129 (opinion of WHITE, J.). Accordingly, we have found a reasonable expectation of privacy in the contents of a 200-pound "double-locked footlocker," United States v. Chadwick, 433 U. S. 1 , 433 U. S. 11 (1977); a "comparatively small, unlocked suitcase," Arkansas v. Sanders, 442 U. S. 753 , 442 U. S. 762 , n. 9 (1979); a "totebag," Robbins, 453 U.S. at 453 U. S. 422 ; and "packages wrapped in green opaque plastic," ibid. See also Ross, supra, at 456 U. S. 801 , 456 U. S. 822 -823 (suggesting that a warrant would have been required to search a " lunchtype' brown paper bag" and a "zippered red leather pouch" had they not been found in an automobile); Jacobsen, supra, at 466 U. S. 111 , 466 U. S. 114 -115 (suggesting that a warrantless search of an "ordinary cardboard box wrapped in brown paper" would have violated the Fourth Amendment had a private party not already opened it). Our precedent, therefore, leaves no room to doubt that, had respondents been carrying their personal effects in opaque, sealed plastic bags -- identical to the ones they placed on the curb -- their privacy would have been protected from warrantless police intrusion. So far as Fourth Amendment protection is concerned, opaque plastic bags are every bit as Page 486 U. S. 49 worthy as "packages wrapped in green opaque plastic" and "double-locked footlocker[s]." Cf. Robbins, supra, at 453 U. S. 441 (REHNQUIST, J., dissenting) (objecting to Court's discovery of reasonable expectation of privacy in contents of "two plastic garbage bags"). II Respondents deserve no less protection just because Greenwood used the bags to discard, rather than to transport, his personal effects. Their contents are not inherently any less private, and Greenwood's decision to discard them, at least in the manner in which he did, does not diminish his expectation of privacy. [ Footnote 2/2 ] Page 486 U. S. 50 A trash bag, like any of the above-mentioned containers, "is a common repository for one's personal effects" and, even more than many of them, is "therefore . . . inevitably associated with the expectation of privacy." Sanders, supra, at 442 U. S. 762 (citing Chadwick, supra, at 433 U. S. 13 ). "[A]lmost every human activity ultimately manifests itself in waste products. . . ." Smith v. State, 510 P.2d 793 , 798 (Alaska), cert. denied, 414 U.S. 1086 (1973). See California v. Rooney, 483 U. S. 307 , 483 U. S. 320 -321, n. 3 (1987) (WHITE, J., dissenting) (renowned archaeologist Emil Haury once said, "[i]f you want to know what is really going on in a community, look at its garbage") (quoted by W. Rathje, Archaeological Ethnography . . . Because Sometimes It Is Better to Give Than to Receive, in Explorations in Ethnoarchaeology 49, 54 (R. Gould ed.1978)); Weberman, The Art of Garbage Analysis: You Are What You Throw Away, 76 Esquire 113 (1971) (analyzing trash of various celebrities and drawing conclusions about their private lives). A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target's financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests. It cannot be doubted that a sealed trash bag harbors telling evidence of the "intimate activity associated with the sanctity of a man's home and the privacies of life,'" which the Fourth Amendment is designed Page 486 U. S. 51 to protect. Oliver v. United States, 466 U. S. 170 , 466 U. S. 180 (1984) (quoting Boyd v. United States, 116 U. S. 616 , 116 U. S. 630 (1886)). See also United States v. Dunn, 480 U. S. 294 , 480 U. S. 300 (1987). The Court properly rejects the State's attempt to distinguish trash searches from other searches on the theory that trash is abandoned, and therefore not entitled to an expectation of privacy. As the author of the Court's opinion observed last Term, a defendant's "property interest [in trash] does not settle the matter for Fourth Amendment purposes, for the reach of the Fourth Amendment is not determined by state property law." Rooney, supra, at 483 U. S. 320 (WHITE, J., dissenting). In evaluating the reasonableness of Greenwood's expectation that his sealed trash bags would not be invaded, the Court has held that we must look to "understandings that are recognized and permitted by society." [ Footnote 2/3 ] Most of us, I believe, would be incensed to discover a meddler -- whether a neighbor, a reporter, or a detective -- scrutinizing our sealed trash containers to discover some detail of our personal lives. See State v. Schultz, 388 So. 2d 1326, 1331 (Fla. App.1980) (Anstead, J., dissenting). That was, quite naturally, the reaction to the sole incident on which the Court bases its conclusion that "snoops" and the like defeat the expectation of privacy in trash. Ante at 486 U. S. 40 , and n. 4. When a tabloid reporter examined then-Secretary of State Page 486 U. S. 52 Henry Kissinger's trash and published his findings, Kissinger was "really revolted" by the intrusion, and his wife suffered "grave anguish." N.Y. Times, July 9, 1975, p. A1, col. 8. The public response roundly condemning the reporter demonstrates that society not only recognized those reactions as reasonable, but shared them as well. Commentators variously characterized his conduct as "a disgusting invasion of personal privacy," Flieger, Investigative Trash, U.S. News & World Report, July 28, 1975, p. 72 (editor's page); "indefensible . . . as civilized behavior," Washington Post, July 10, 1975, p. A18, col. 1 (editorial); and contrary to "the way decent people behave in relation to each other," ibid. Beyond a generalized expectation of privacy, many municipalities, whether for reasons of privacy, sanitation, or both, reinforce confidence in the integrity of sealed trash containers by "prohibit[ing] anyone, except authorized employees of the Town . . . to rummage into, pick up, collect, move or otherwise interfere with articles or materials placed on . . . any public street for collection." United States v. Dzialak, 441 F.2d 212, 215 (CA2 1971) (paraphrasing ordinance for town of Cheektowaga, New York). See also United States v. Vahalik, 606 F.2d 99, 100 (CA5 1979) (per curiam); Magda v. Benson, 536 F.2d 111, 112 (CA6 1976) (per curiam); People v. Rooney, 175 Cal. App. 3d 634 , 645, 221 Cal. Rptr. 49 , 56 (1985), cert. dism'd, 483 U. S. 307 (1987); People v. Krivda, 5 Cal. 3d 357 , 366, 486 P.2d 1262, 1268 (1971), vacated and remanded, 409 U. S. 33 (1972); State v. Brown, 20 Ohio App.3d 36, 38, n. 3, 484 N.E.2d 215, 218, n. 3 (1984). In fact, the California Constitution, as interpreted by the State's highest court, guarantees a right of privacy in trash vis-a-vis government officials.2 See Krivda, supra, (recognizing right); In re Lance W., 37 Cal. 3d 873 , 886-887, 694 P.2d 744 , 752-753 (1985) (later constitutional amendment abolished exclusionary remedy, but left intact the substance of the right). Page 486 U. S. 53 That is not to deny that isolated intrusions into opaque, sealed trash containers occur. When, acting on their own, "animals, children, scavengers, snoops, [or] other members of the public," ante at 486 U. S. 40 (footnotes omitted), actually rummage through a bag of trash and expose its contents to plain view, "police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public," ante at 486 U. S. 41 . That much follows from cases like Jacobsen, 466 U.S. at 466 U. S. 117 , 120, n. 17 (emphasis added), which held that police may constitutionally inspect a package whose "integrity" a private carrier has already "compromised," because "[t]he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated," and California v. Ciraolo, 476 U. S. 207 , 476 U. S. 213 -214 (1986) (emphasis added), which held that the Fourth Amendment does not prohibit police from observing what "[a]ny member of the public flying in this airspace who glanced down could have seen." Had Greenwood flaunted his intimate activity by strewing his trash all over the curb for all to see, or had some nongovernmental intruder invaded his privacy and done the same, I could accept the Court's conclusion that an expectation of privacy would have been unreasonable. Similarly, had police searching the city dump run across incriminating evidence that, despite commingling with the trash of others, still retained its identity as Greenwood's, we would have a different case. But all that Greenwood "exposed . . . to the public," ante at 486 U. S. 40 , were the exteriors of several opaque, sealed containers. Until the bags were opened by police, they hid their contents from the public's view every bit as much as did Chadwick's double-locked footlocker and Robbins' green plastic wrapping. Faithful application of the warrant requirement does not require police to "avert their eyes from evidence of criminal activity that could have been observed by any member of the public." Rather, it only requires them Page 486 U. S. 54 to adhere to norms of privacy that members of the public plainly acknowledge. The mere possibility that unwelcome meddlers might open and rummage through the containers does not negate the expectation of privacy in their contents any more than the possibility of a burglary negates an expectation of privacy in the home; or the possibility of a private intrusion negates an expectation of privacy in an unopened package; or the possibility that an operator will listen in on a telephone conversation negates an expectation of privacy in the words spoken on the telephone. "What a person . . . seeks to preserve as private, even in an area aceessible to the public, may be constitutionally protected." Katz, 389 U.S. at 389 U. S. 351 -352. We have therefore repeatedly rejected attempts to justify a State's invasion of privacy on the ground that the privacy is not absolute. See Chapman v. United States, 365 U. S. 610 , 365 U. S. 616 -617 (1961) (search of a house invaded tenant's Fourth Amendment rights even though landlord had authority to enter house for some purposes); Stoner v. California, 376 U. S. 483 , 376 U. S. 487 -490 (1964) (implicit consent to janitorial personnel to enter motel room does not amount to consent to police search of room); O'Connor v. Ortega, 480 U. S. 709 , 480 U. S. 717 (1987) (a government employee has a reasonable expectation of privacy in his office, even though "it is the nature of government offices that others -- such as fellow employees, supervisors, consensual visitors, and the general public -- may have frequent access to an individual's office"). As JUSTICE SCALIA aptly put it, the Fourth Amendment protects "privacy . . . not solitude." O'Connor, supra, at 480 U. S. 730 (opinion concurring in judgment). Nor is it dispositive that "respondents placed their refuse at the curb for the express purpose of conveying it to a third party, . . . who might himself have sorted through respondents' trash or permitted others, such as the police, to do so." Ante at 486 U. S. 40 . In the first place, Greenwood can hardly be faulted for leaving trash on his curb when a county ordinance Page 486 U. S. 55 commanded him to do so, Orange County Code § 4-3-45(a) (1986) (must "remov[e] from the premises at least once each week" all "solid waste created, produced or accumulated in or about [his] dwelling house"), and prohibited him from disposing of it in any other way, see Orange County Code § 3-3-85 (1988) (burning trash is unlawful). Unlike in other circumstances where privacy is compromised, Greenwood could not "avoid exposing personal belongings . . . by simply leaving them at home." O'Connor, supra, at 480 U. S. 725 . More importantly, even the voluntary relinquishment of possession or control over an effect does not necessarily amount to a relinquishment of a privacy expectation in it. Were it otherwise, a letter or package would lose all Fourth Amendment protection when placed in a mailbox or other depository with the "express purpose" of entrusting it to the postal officer or a private carrier; those bailees are just as likely as trash collectors (and certainly have greater incentive) to "sor[t] through" the personal effects entrusted to them, "or permi[t] others, such as police to do so." Yet it has been clear for at least 110 years that the possibility of such an intrusion does not justify a warrantless search by police in the first instance. See Ex parte Jackson, 96 U. S. 727 (1878); United States v. Van Leeuwen, 397 U. S. 249 (1970); United States v. Jacobsen, 466 U. S. 109 (1984). [ Footnote 2/4 ] III In holding that the warrantless search of Greenwood's trash was consistent with the Fourth Amendment, the Court paints a grim picture of our society. It depicts a society in which local authorities may command their citizens to dispose of their personal effects in the manner least protective of the Page 486 U. S. 56 "sanctity of [the] home and the privacies of life," Boyd v. United States, 116 U.S. at 116 U. S. 630 , and then monitor them arbitrarily and without judicial oversight -- a society that is not prepared to recognize as reasonable an individual's expectation of privacy in the most private of personal effects sealed in an opaque container and disposed of in a manner designed to commingle it imminently and inextricably with the trash of others. Ante at 486 U. S. 39 . The American society with which I am familiar "chooses to dwell in reasonable security and freedom from surveillance," Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948), and is more dedicated to individual liberty and more sensitive to intrusions on the sanctity of the home than the Court is willing to acknowledge. I dissent. [ Footnote 2/1 ] See 453 U.S. at 453 U. S. 436 (BLACKMUN, J., dissenting); id. at 437 (REHNQUIST, J., dissenting); id. at 444 (STEVENS, J., dissenting). But see id. at 436 U. S. 433 -434 (Powell, J., concurring in judgment) (rejecting position that all containers, even "the most trivial," like "a cigar box or a Dixie cup," are entitled to the same Fourth Amendment protection). Cf. New York v. Belton, 453 U. S. 454 , 453 U. S. 460 -461, n. 4 (1981) (defining "container," for purposes of search incident to a lawful custodial arrest, as "any object capable of holding another object," including "luggage, boxes, bags, clothing, and the like"). In addition to finding that Robbins had a reasonable expectation of privacy in his duffelbag and plastic-wrapped packages, the Court also held that the automobile exception to the warrant requirement, see Carroll v. United States, 267 U. S. 132 , 267 U. S. 153 (1925), did not apply to packages found in an automobile. The Court overruled the latter determination in United States v. Ross, 456 U. S. 798 (1982), but reaffirmed that where, as here, the automobile exception is inapplicable, police may not conduct a warrantless search of any container that conceals its contents. [ Footnote 2/2 ] Both to support its position that society recognizes no reasonable privacy interest in sealed, opaque trash bags and to refute the prediction that "society will be shocked to learn" of that conclusion, supra, at 46, the Court relies heavily upon a collection of lower court cases finding no Fourth Amendment bar to trash searches. But the authority that leads the Court to be "distinctly unimpressed" with our position, ante at 486 U. S. 43 , n. 5, is itself impressively undistinguished. Of 11 Federal Court of Appeals cases cited by the Court, at least 2 are factually or legally distinguishable, see United States v. O'Bryant, 775 F.2d 1528, 1533-1534 (CA11 1985) (police may search an apparently valuable briefcase "discarded next to an overflowing trash bin on a busy city street"); United States v. Thornton, 241 U.S.App.D.C. 46, 56, 746 F.2d 39, 49 (1984) (reasonable federal agents could believe in good faith that a trash search is legal), and 7 rely entirely or almost entirely on an abandonment theory that, as noted infra at 486 U. S. 51 , the Court has discredited, see United States v. Dela Espriella, 781 F.2d 1432, 1437 (CA9 1986) ("The question, then, becomes whether placing garbage for collection constitutes abandonment of property"); United States v. Terry, 702 F.2d 299, 308-309 (CA2) ("[T]he circumstances in this case clearly evidence abandonment by Williams of his trash"), cert. denied sub nom. Williams v. United States, 461 U.S. 931 (1983); United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981) ("[T]he placing of trash in garbage cans at a time and place for anticipated collection by public employees for hauling to a public dump signifies abandonment"); United States v. Vahalik, 606 F.2d 99, 100-101 (CA5 1979) (per curiam) ("[T]he act of placing garbage for collection is an act of abandonment which terminates any fourth amendment protection"), cert. denied, 444 U.S. 1081 (1980); United States v. Crowell, 586 F.2d 1020, 1025 (CA4 1978) ("The act of placing [garbage] for collection is an act of abandonment and what happens to it thereafter is not within the protection of the fourth amendment"), cert. denied, 440 U.S. 959 (1979); Magda v. Benson, 536 F.2d 111, 112 (CA6 1976) (per curiam) ("[F]ederal case law . . . holds that garbage . . . is abandoned and no longer protected by the Fourth Amendment"); United States v. Mustone, 469 F.2d 970, 972 (CA1 1972) (when defendant "deposited the bags on the sidewalk, he abandoned them"). A reading of the Court's collection of state court cases reveals an equally unimpressive pattern. [ Footnote 2/3 ] Rakas v. Illinois, 439 U. S. 128 , 439 U. S. 143 -144, n. 12 (1978). See ante at 486 U. S. 43 ("[T]he Fourth Amendment analysis must turn on such factors as our societal understanding that certain areas deserve the most scrupulous protection from government invasion'") (quoting Oliver v. United States, 466 U. S. 170 , 466 U. S. 178 (1984)); Robbins v. California, 453 U. S. 420 , 453 U. S. 428 (1981) (plurality opinion) ("Expectations of privacy are established by general social norms"); Dow Chemical Co. v. United States, 476 U. S. 227 , 476 U. S. 248 (1986) (opinion of Powell, J.); Bush & Bly, Expectation of Privacy Analysis and Warrantless Trash Reconnaissance after Katz v. United States, 23 Ariz.L.Rev. 283, 293 (1981) ("[S]ocial custom . . . serves as the most basic foundation of a great many legitimate privacy expectations") (citation omitted). [ Footnote 2/4 ] To be sure, statutes criminalizing interference with the mails might reinforce the expectation of privacy in mail, see, e.g., 18 U.S.C. §§ 1701-1705, 1708, but the expectation of privacy in no way depends on statutory protection. In fact, none of the cases cited in the text even mention such statutes in finding Fourth Amendment protection in materials handed over to public or private carriers for delivery.

Here is a summary of the case: The U.S. Supreme Court ruled in California v. Greenwood that the Fourth Amendment does not prohibit warrantless search and seizure of garbage left for collection outside the curtilage of a home. The Court found that respondents had no reasonable expectation of privacy in their trash, as it was readily accessible to the public and placed for collection by a third party. The Court also rejected the argument that state law prohibiting warrantless trash searches should determine the reasonableness of a search under the Fourth Amendment. The Court's decision turned on societal understanding and general social norms regarding privacy expectations, rather than state-specific privacy concepts.

Search & Seizure

Murray v. U.S.

https://supreme.justia.com/cases/federal/us/487/533/

U.S. Supreme Court Murray v. United States, 487 U.S. 533 (1988) Murray v. United States No. 86-995 Argued December 8, 1987 Decided June 27, 1988 487 U.S. 533 ast|>* 487 U.S. 533 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Syllabus While surveiling petitioner Murray and others suspected of illegal drug activities, federal agents observed both petitioners driving vehicles into, and later out of, a warehouse, and, upon petitioners' exit, saw that the warehouse contained a tractor-trailer rig bearing a long container. Petitioners later turned over their vehicles to other drivers, who were in turn followed and ultimately arrested, and the vehicles were lawfully seized and found to contain marijuana. After receiving this information, several agents forced their way into the warehouse and observed in plain view numerous burlap-wrapped bales. The agents left without disturbing the bales and did not return until they had obtained a warrant to search the warehouse. In applying for the warrant, they did not mention the prior entry or include any recitations of their observations made during that entry. Upon issuance of the warrant, they reentered the warehouse and seized 270 bales of marijuana and other evidence of crime. The District Court denied petitioners' pretrial motion to suppress the evidence, rejecting their arguments that the warrant was invalid because the agents did not inform the Magistrate about their prior warrantless entry, and that the warrant was tainted by that entry. Petitioners were subsequently convicted of conspiracy to possess and distribute illegal drugs. The Court of Appeals affirmed, assuming for purposes of its decision on the suppression question that the first entry into the warehouse was unlawful. Held: The Fourth Amendment does not require the suppression of evidence initially discovered during police officers' illegal entry of private premises if that evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry. Pp. 487 U. S. 536 -544. (a) The "independent source" doctrine permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the initial illegality. Silverthorne Lumber Co. v. United States, 251 U. S. 385 . There is no merit to petitioners' contention that allowing the Page 487 U. S. 534 doctrine to apply to evidence initially discovered during an illegal search, rather than limiting it to evidence first obtained during a later lawful search, will encourage police routinely to enter premises without a warrant. Pp. 487 U. S. 536 -541. (b) Although the federal agents' knowledge that marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry, it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry, the independent source doctrine allows the admission of testimony as to that knowledge. This same analysis applies to the tangible evidence, the bales of marijuana. United States v. Silvestri, 787 F.2d 736 (CA1), is unpersuasive insofar as it distinguishes between tainted intangible and tangible evidence. The ultimate question is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. Because the District Court did not explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse, the cases are remanded for a determination whether the warrant-authorized search of the warehouse was an independent source in the sense herein described. Pp. 487 U. S. 541 -544. 803 F.2d 20, vacated and remanded. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE and BLACKMUN, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which STEVENS and O'CONNOR, JJ., joined, post, p. 487 U. S. 544 . STEVENS, J. . filed a dissenting opinion, post, p. 487 U. S. 551 . BRENNAN and KENNEDY, JJ., took no part in the consideration or decision of the cases. Page 487 U. S. 535 JUSTICE SCALIA delivered the opinion of the Court. In Segura v. United States, 468 U. S. 796 (1984), we held that police officers' illegal entry upon private premises did not require suppression of evidence subsequently discovered at those premises when executing a search warrant obtained on the basis of information wholly unconnected with the initial entry. In these consolidated cases, we are faced with the question whether, again assuming evidence obtained pursuant to an independently obtained search warrant, the portion of such evidence that had been observed in plain view at the time of a prior illegal entry must be suppressed. I Both cases arise out of the conviction of petitioner Michael F. Murray, petitioner James D. Carter, and others for conspiracy to possess and distribute illegal drugs. Insofar as relevant for our purposes, the facts are as follows: based on information received from informants, federal law enforcement agents had been surveiling petitioner Murray and several of his coconspirators. At about 1:45 p.m. on April 6, 1983, they observed Murray drive a truck and Carter drive a green camper, into a warehouse in South Boston. When the petitioners drove the vehicles out about 20 minutes later, the surveiling agents saw within the warehouse two individuals and a tractor-trailer rig bearing a long, dark container. Murray and Carter later turned over the truck and camper to other drivers, who were in turn followed and ultimately arrested, and the vehicles lawfully seized. Both vehicles were found to contain marijuana. After receiving this information, several of the agents converged on the South Boston warehouse and forced entry. They found the warehouse unoccupied, but observed in plain view numerous burlap-wrapped bales that were later found to contain marijuana. They left without disturbing the bales, kept the warehouse under surveillance, and did not reenter it until they had a search warrant. In applying for Page 487 U. S. 536 the warrant, the agents did not mention the prior entry, and did not rely on any observations made during that entry. When the warrant was issued -- at 10:40 p.m., approximately eight hours after the initial entry -- the agents immediately reentered the warehouse and seized 270 bales of marijuana and notebooks listing customers for whom the bales were destined. Before trial, petitioners moved to suppress the evidence found in the warehouse. The District Court denied the motion, rejecting petitioners' arguments that the warrant was invalid because the agents did not inform the Magistrate about their prior warrantless entry, and that the warrant was tainted by that entry. United States v. Carter, No. 83102-S (Mass., Dec. 23, 1983), App. to Pet. for Cert. 44a-45a. The First Circuit affirmed, assuming for purposes of its decision that the first entry into the warehouse was unlawful. United States v. Moscatiello, 771 F.2d 589 (1985). Murray and Carter then separately filed petitions for certiorari, which we granted, [ Footnote 1 ] 480 U.S. 916 (1987), and have consolidated here. II The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, Weeks v. United States, 232 U. S. 383 (1914), and of testimony concerning knowledge acquired during an unlawful search, Silverman v. United States, 365 U. S. 505 (1961). Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is Page 487 U. S. 537 the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes "so attentuated as to dissipate the taint," Nardone v. United States, 308 U. S. 338 , 308 U. S. 341 (1939). See Wong Sun v. United States, 371 U. S. 471 , 371 U. S. 484 -485 (1963). Almost simultaneously with our development of the exclusionary rule, in the first quarter of this century, we also announced what has come to be known as the "independent source" doctrine. See Silverthorne Lumber Co. v. United States, 251 U. S. 385 , 251 U. S. 392 (1920). That doctrine, which has been applied to evidence acquired not only through Fourth Amendment violations, but also through Fifth and Sixth Amendment violations, has recently been described as follows: "[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. . . . When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation." Nix v. Williams, 467 U. S. 431 , 467 U. S. 443 (1984). The dispute here is over the scope of this doctrine. Petitioners contend that it applies only to evidence obtained for the first time during an independent lawful search. The Government argues that it applies also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. We think the Government's view has better support in both precedent and policy. Our cases have used the concept of "independent source" in a more general and a more specific sense. The more general sense identifies all evidence acquired in a fashion untainted Page 487 U. S. 538 by the illegal evidence-gathering activity. Thus, where an unlawful entry has given investigators knowledge of facts x and y, but fact z has been learned by other means, fact z can be said to be admissible because derived from an "independent source." This is how we used the term in Segura v. United States, 468 U. S. 796 (1984). In that case, agents unlawfully entered the defendant's apartment and remained there until a search warrant was obtained. The admissibility of what they discovered while waiting in the apartment was not before us, id. at 468 U. S. 802 -803, n. 4, but we held that the evidence found for the first time during the execution of the valid and untainted search warrant was admissible because it was discovered pursuant to an "independent source," id. at 468 U. S. 813 -814. See also United States v. Wade, 388 U. S. 218 , 388 U. S. 240 -242 (1967); Costello v. United States, 365 U. S. 265 , 365 U. S. 280 (1961); Nardone v. United States, supra, at 308 U. S. 341 . The original use of the term, however, and its more important use for purposes of this case, was more specific. It was originally applied in the exclusionary rule context, by Justice Holmes, with reference to that particular category of evidence acquired by an untainted search which is identical to the evidence unlawfully acquired -- that is, in the example just given, to knowledge of facts x and y derived from an independent source: "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source, they may be proved like any others." Silverthorne Lumber, supra, at 251 U. S. 392 . As the First Circuit has observed, "[i]n the classic independent source situation, information which is received through an illegal source is considered to be cleanly obtained when Page 487 U. S. 539 it arrives through an independent source." United States v. Silvestri, 787 F.2d 736, 739 (1986). We recently assumed this application of the independent source doctrine (in the Sixth Amendment context) in Nix v. Williams, supra. There, incriminating statements obtained in violation of the defendant's right to counsel had led the police to the victim's body. The body had not in fact been found through an independent source as well, and so the independent source doctrine was not itself applicable. We held, however, that evidence concerning the body was nonetheless admissible because a search had been under way which would have discovered the body, had it not been called off because of the discovery produced by the unlawfully obtained statements. 467 U.S. at 476 U. S. 448 -450. This "inevitable discovery" doctrine obviously assumes the validity of the independent source doctrine as applied to evidence initially acquired unlawfully. It would make no sense to admit the evidence because the independent search, had it not been aborted, would have found the body, but to exclude the evidence if the search had continued and had in fact found the body. The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered. Petitioners' asserted policy basis for excluding evidence which is initially discovered during an illegal search, but is subsequently acquired through an independent and lawful source, is that a contrary rule will remove all deterrence to, and indeed positively encourage, unlawful police searches. As petitioners see the incentives, law enforcement officers will routinely enter without a warrant to make sure that what they expect to be on the premises is in fact there. If it is not, they will have spared themselves the time and trouble of getting a warrant; if it is, they can get the warrant and use the evidence despite the unlawful entry. Brief for Petitioners Page 487 U. S. 540 42. We see the incentives differently. An officer with probable cause sufficient to obtain a search warrant would be foolish to enter the premises first in an unlawful manner. By doing so, he would risk suppression of all evidence on the premises, both seen and unseen, since his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it. See 487 U. S. infra. Nor would the officer without sufficient probable cause to obtain a search warrant have any added incentive to conduct an unlawful entry, since whatever he finds cannot be used to establish probable cause before a magistrate. [ Footnote 2 ] It is possible to read petitioners' briefs as asserting the more narrow position that the "independent source" doctrine does apply to independent acquisition of evidence previously Page 487 U. S. 541 derived indirectly from the unlawful search, but does not apply to what they call "primary evidence," that is, evidence acquired during the course of the search itself. In addition to finding no support in our precedent, see Silverthorne Lumber, 251 U.S. at 251 U. S. 392 (referring specifically to evidence seized during an unlawful search), this strange distinction would produce results bearing no relation to the policies of the exclusionary rule. It would mean, for example, that the government's knowledge of the existence and condition of a dead body, knowledge lawfully acquired through independent sources, would have to be excluded if government agents had previously observed the body during an unlawful search of the defendant's apartment; but not if they had observed a notation that the body was buried in a certain location, producing consequential discovery of the corpse. III To apply what we have said to the present cases: knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry, there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one. See Nix v. Williams, 467 U.S. at 467 U. S. 443 . We think this is also true with respect to the tangible evidence, the bales of marijuana. It would make no more sense to exclude that than it would to exclude tangible evidence found upon the corpse in Nix, if the search in that case had not been abandoned and had in fact come upon the body. The First Circuit has discerned a difference between tangible and intangible evidence that has been tainted, in that objects "once seized cannot be cleanly reseized without returning the objects to private control." United States v. Silvestri, 787 Page 487 U. S. 542 F.2d at 739. It seems to us, however, that reseizure of tangible evidence already seized is no more impossible than rediscovery of intangible evidence already discovered. The independent source doctrine does not rest upon such metaphysical analysis, but upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawful seizure is genuinely independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police's possession), there is no reason why the independent source doctrine should not apply. The ultimate question, therefore, is whether the search pursuant to warrant was, in fact, a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, [ Footnote 3 ] or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. On this point, the Court of Appeals said the following: "[W]e can be absolutely certain that the warrantless entry in no way contributed in the slightest either to the issuance of a warrant or to the discovery of the evidence Page 487 U. S. 543 during the lawful search that occurred pursuant to the warrant." " * * * *" "This is as clear a case as can be imagined where the discovery of the contraband in plain view was totally irrelevant to the later securing of a warrant and the successful search that ensued. As there was no causal link whatever between the illegal entry and the discovery of the challenged evidence, we find no error in the court's refusal to suppress." United States v. Moscatiello, 771 F.2d at 603, 604. Although these statements can be read to provide emphatic support for the Government's position, it is the function of the District Court, rather than the Court of Appeals, to determine the facts, and we do not think the Court of Appeals' conclusions are supported by adequate findings. The District Court found that the agents did not reveal their warrantless entry to the Magistrate, App. to Pet. for Cert. 43a, and that they did not include in their application for a warrant any recitation of their observations in the warehouse, id. at 44a-45a. It did not, however, explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse. The Government concedes this in its brief. Brief for United States 17, n. 5. To be sure, the District Court did determine that the purpose of the warrantless entry was, in part, "to guard against the destruction of possibly critical evidence," App. to Pet. for Cert. 42a, and one could perhaps infer from this that the agents who made the entry already planned to obtain that "critical evidence" through a warrant-authorized search. That inference is not, however, clear enough to justify the conclusion that the District Court's findings amounted to a determination of independent source. Accordingly, we vacate the judgment and remand these cases to the Court of Appeals with instructions that it remand to the District Court for determination whether the Page 487 U. S. 544 warrant-authorized search of the warehouse was an independent source of the challenged evidence in the sense we have described. It is so ordered. JUSTICE BRENNAN and JUSTICE KENNEDY took no part in the consideration or decision of this litigation. * Together with No. 86-1016, Carter v. United States, also on certiorari to the same court. [ Footnote 1 ] The original petitions raised both the present Fourth Amendment claim and a Speedy Trial Act claim. We granted the petitions, vacated the judgment below, and remanded for reconsideration of the Speedy Trial Act issue in light of Henderson v. United States, 476 U. S. 321 (1986). Carter v. United States and Murray v. United States, 476 U.S. 1138 (1986). On remand, the Court of Appeals again rejected the Speedy Trial Act claim, and did not reexamine its prior ruling on the Fourth Amendment question. 803 F.2d 20 (1986). Petitioners again sought writs of certiorari, which we granted limited to the Fourth Amendment question. [ Footnote 2 ] JUSTICE MARSHALL argues, in effect, that where the police cannot point to some historically verifiable fact demonstrating that the subsequent search pursuant to a warrant was wholly unaffected by the prior illegal search -- e.g., that they had already sought the warrant before entering the premises -- we should adopt a per se rule of inadmissibilty. See post at 487 U. S. 549 . We do not believe that such a prophylatic exception to the independent source rule is necessary. To say that a district court must be satisfied that a warrant would have been sought without the illegal entry is not to give dispositive effect to police officers' assurances on the point. Where the facts render those assurances implausible, the independent source doctrine will not apply. We might note that there is no basis for pointing to the present cases as an example of a "search first, warrant later" mentality. The District Court found that the agents entered the warehouse "in an effort to apprehend any participants who might have remained inside and to guard against the destruction of possibly critical evidence." United States v. Carter, No. 83-102-S (Mass., Dec. 23, 1983), App. to Pet. for Cert. 42a. While they may have misjudged the existence of sufficient exigent circumstances to justify the warrantless entry (the Court of Appeals did not reach that issue, and neither do we), there is nothing to suggest that they went in merely to see if there was anything worth getting a warrant for. [ Footnote 3 ] JUSTICE MARSHALL argues that "the relevant question [is] whether, even if the initial entry uncovered no evidence, the officers would return immediately with a warrant to conduct a second search." Post at 487 U. S. 548 , n. 2; see post at 487 U. S. 549 -550, n. 4. We do not see how this is "relevant" at all. To determine whether the warrant was independent of the illegal entry, one must ask whether it would have been sought even if what actually happened had not occurred -- not whether it would have been sought if something else had happened. That is to say, what counts is whether the actual illegal search had any effect in producing the warrant, not whether some hypothetical illegal search would have aborted the warrant. Only that much is needed to assure that what comes before the court is not the product of illegality; to go further than that would be to expand our existing exclusionary rule. JUSTICE MARSHALL, with whom JUSTICE STEVENS and JUSTICE O'CONNOR join, dissenting. The Court today holds that the "independent source" exception to the exclusionary rule may justify admitting evidence discovered during an illegal warrantless search that is later "rediscovered" by the same team of investigators during a search pursuant to a warrant obtained immediately after the illegal search. I believe the Court's decision, by failing to provide sufficient guarantees that the subsequent search was, in fact, independent of the illegal search, emasculates the Warrant Clause and undermines the deterrence function of the exclusionary rule. I therefore dissent. This Court has stated frequently that the exclusionary rule is principally designed to deter violations of the Fourth Amendment. See, e.g., United States v. Leon, 468 U. S. 897 , 468 U. S. 906 (1984); Elkins v. United States, 364 U. S. 206 , 364 U. S. 217 (1960). By excluding evidence discovered in violation of the Fourth Amendment, the rule "compel[s] respect for the constitutional guaranty in the only effectively available way, by removing the incentive to disregard it." Id. at 364 U. S. 217 . The Court has crafted exceptions to the exclusionary rule when the purposes of the rule are not furthered by the exclusion. As the Court today recognizes, the independent source exception to the exclusionary rule "allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." Nix v. Williams, 467 U. S. 431 , 467 U. S. 443 (1984); see Silverthorne Lumber Co. v. United States, 251 U. S. 385 , 251 U. S. 392 (1920). The independent source exception, like the inevitable discovery exception, is primarily Page 487 U. S. 545 based on a practical view that, under certain circumstances, the beneficial deterrent effect that exclusion will have on future constitutional violations is too slight to justify the social cost of excluding probative evidence from a criminal trial. See Nix v. Williams, supra, at 467 U. S. 444 -446; cf. United States v. Leon, supra, 468 U. S. 906 -909. When the seizure of the evidence at issue is "wholly independent of" the constitutional violation, then exclusion arguably will have no effect on a law enforcement officer's incentive to commit an unlawful search. [ Footnote 2/1 ] Given the underlying justification for the independent source exception, any inquiry into the exception's application must keep sight of the practical effect admission will have on the incentives facing law enforcement officers to engage in unlawful conduct. The proper scope of the independent source exception, and guidelines for its application, cannot be divined in a factual vacuum; instead, they must be informed by the nature of the constitutional violation and the deterrent effect of exclusion in particular circumstances. In holding that the independent source exception may apply to the facts of these cases, I believe the Court loses sight of the practical moorings of the independent source exception and creates an affirmative incentive for unconstitutional searches. This holding can find no justification in the purposes underlying both the exclusionary rule and the independent source exception. The factual setting of the instant case is straightforward. Federal Bureau of Investigation (FBI) and Drug Enforcement Agency (DEA) agents stopped two vehicles after they Page 487 U. S. 546 left a warehouse and discovered bales of marijuana. DEA Supervisor Garibotto and an assistant United States attorney then returned to the warehouse, which had been under surveillance for several hours. After demands that the warehouse door be opened went unanswered, Supervisor Garibotto forced open the door with a tire iron. A number of agents entered the warehouse. No persons were found inside, but the agents saw numerous bales of marijuana in plain view. Supervisor Garibotto then ordered everyone out of the warehouse. Agents did not reenter the warehouse until a warrant was obtained some eight hours later. The warehouse was kept under surveillance during the interim. It is undisputed that the agents made no effort to obtain a warrant prior to the initial entry. The agents had not begun to prepare a warrant affidavit, and, according to FBI Agent Cleary, who supervised the FBI's involvement, they had not even engaged in any discussions of obtaining a warrant. App 52. The affidavit in support of the warrant obtained after the initial search was prepared by DEA Agent Keaney, who had tactical control over the DEA agents and who had participated in the initial search of the warehouse. The affidavit did not mention the warrantless search of the warehouse, nor did it cite information obtained from that search. In determining that the challenged evidence was admissible, the Court of Appeals assumed that the initial warrantless entry was not justified by exigent circumstances, and that the search therefore violated the Warrant Clause of the Fourth Amendment. Under the circumstances of these cases, the admission of the evidence "reseized" during the second search severely undermines the the deterrence function of the exclusionary rule. Indeed, admission in these cases affirmatively encourages illegal searches. The incentives for such illegal conduct are clear. Obtaining a warrant is inconvenient and time consuming. Even when officers have probable cause to support a warrant application, therefore, they have an incentive first Page 487 U. S. 547 to determine whether it is worthwhile to obtain a warrant. Probable cause is much less than certainty, and many "confirmatory" searches will result in the discovery that no evidence is present, thus saving the police the time and trouble of getting a warrant. If contraband is discovered, however, the officers may later seek a warrant to shield the evidence from the taint of the illegal search. The police thus know in advance that they have little to lose and much to gain by forgoing the bother of obtaining a warrant and undertaking an illegal search. The Court, however, "see[s] the incentives differently." Ante at 487 U. S. 540 . Under the Court's view, today's decision does not provide an incentive for unlawful searches, because the officer undertaking the search would know that "his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it." Ibid. The Court, however, provides no hint of why this risk would actually seem significant to the officers. Under the circumstances of these cases, the officers committing the illegal search have both knowledge and control of the factors central to the trial court's determination. First, it is a simple matter, as was done in these cases, to exclude from the warrant application any information gained from the initial entry, so that the magistrate's determination of probable cause is not influenced by the prior illegal search. Second, today's decision makes the application of the independent source exception turn entirely on an evaluation of the officers' intent. It normally will be difficult for the trial court to verify, or the defendant to rebut, an assertion by officers that they always intended to obtain a warrant, regardless of the results of the illegal search. [ Footnote 2/2 ] The testimony of the officers Page 487 U. S. 548 conducting the illegal search is the only direct evidence of intent, and the defendant will be relegated simply to arguing that the officers should not be believed. Under these circumstances, the litigation risk described by the Court seems hardly a risk at all; it does not significantly dampen the incentive to conduct the initial illegal search. [ Footnote 2/3 ] The strong Fourth Amendment interest in eliminating these incentives for illegal entry should cause this Court to scrutinize closely the application of the independent source exception to evidence obtained under the circumstances of the instant cases; respect for the constitutional guaranty requires a rule that does not undermine the deterrence function of the exclusionary rule. When, as here, the same team of investigators is involved in both the first and second search, there is a significant danger that the "independence" of the Page 487 U. S. 549 source will in fact be illusory, and that the initial search will have affected the decision to obtain a warrant notwithstanding the officers' subsequent assertions to the contrary. It is therefore crucial that the factual premise of the exception -- complete independence -- be clearly established before the exception can justify admission of the evidence. I believe the Court's reliance on the intent of the law enforcement officers who conducted the warrantless search provides insufficient guarantees that the subsequent legal search was unaffected by the prior illegal search. To ensure that the source of the evidence is genuinely independent, the basis for a finding that a search was untainted by a prior illegal search must focus, as with the inevitable discovery doctrine, on "demonstrated historical facts capable of ready verification or impeachment." Nix v. Williams, 467 U.S. at 467 U. S. 445 , n. 5. In the instant cases, there are no "demonstrated historical facts" capable of supporting a finding that the subsequent warrant search was wholly unaffected by the prior illegal search. The same team of investigators was involved in both searches. The warrant was obtained immediately after the illegal search, and no effort was made to obtain a warrant prior to the discovery of the marijuana during the illegal search. The only evidence available that the warrant search was wholly independent is the testimony of the agents who conducted the illegal search. Under these circumstances, the threat that the subsequent search was tainted by the illegal search is too great to allow for the application of the independent source exception. [ Footnote 2/4 ] The Court's Page 487 U. S. 550 contrary holding lends itself to easy abuse, and offers an incentive to bypass the constitutional requirement that probable cause be assessed by a neutral and detached magistrate before the police invade an individual's privacy. [ Footnote 2/5 ] The decision in Segura v. United States, 468 U. S. 796 (1984), is not to the contrary. In Segura, the Court expressly distinguished between evidence discovered during an initial warrantless entry and evidence that was not discovered until a subsequent legal search. The Court held that, under those circumstances, when no information from an illegal search was used in a subsequent warrant application, the warrant provided an independent source for the evidence first uncovered in the second, lawful search. Segura is readily distinguished from the present cases. The admission of evidence first discovered during a legal search does not significantly lessen the deterrence facing the law enforcement officers contemplating an illegal entry so long as the evidence that is seen is excluded. This was clearly the view of Chief Justice Burger, joined by JUSTICE O'CONNOR, when he stated that the Court's ruling would not significantly detract from the deterrent effects of the exclusionary rule because "officers who enter illegally will recognize that whatever evidence they discover as a direct result of the entry may be suppressed, as it was by the Court of Appeals in this case." Id. at 468 U. S. 812 . As I argue above, extending Segura to cover evidence discovered during an initial illegal search will eradicate this remaining deterrence to illegal entry. Moreover, there is less reason to believe that Page 487 U. S. 551 an initial illegal entry was prompted by a desire to determine whether to bother to get a warrant in the first place, and thus was not wholly independent of the second search, if officers understand that evidence they discover during the illegal search will be excluded even if they subsequently return with a warrant. In sum, under circumstances as are presented in these cases, when the very law enforcement officers who participate in an illegal search immediately thereafter obtain a warrant to search the same premises, I believe the evidence discovered during the initial illegal entry must be suppressed. Any other result emasculates the Warrant Clause, and provides an intolerable incentive for warrantless searches. I respectfully dissent. [ Footnote 2/1 ] The clearest case for the application of the independent source exception is when a wholly separate line of investigation, shielded from information gathered in an illegal search, turns up the same evidence through a separate, lawful search. Under these circumstances, there is little doubt that the lawful search was not connected to the constitutional violation. The exclusion of such evidence would not significantly add to the deterrence facing the law enforcement officers conducting the illegal search, because they would have little reason to anticipate the separate investigation leading to the same evidence. [ Footnote 2/2 ] Such an intent-based rule is of dubious value for other reasons as well. First, the intent of the officers prior to the illegal entry often will be of little significance to the relevant question: whether, even if the initial entry uncovered no evidence, the officers' would return immediately with a warrant to conduct a second search. Officers who have probable cause to believe contraband is present genuinely might intend later to obtain a warrant, but after the illegal search uncovers no such contraband, those same officers might decide their time is better spent than to return with a warrant. In addition, such an intent rule will be difficult to apply. The Court fails to describe how a trial court will properly evaluate whether the law enforcement officers' fully intended to obtain a warrant regardless of what they discovered during the illegal search. The obvious question is whose intent is relevant? Intentions clearly may differ both among supervisory officers and among officers who initiate the illegal search. [ Footnote 2/3 ] The litigation risk facing these law enforcement officers may be contrasted with the risk faced by the officer in Nix v. Williams, 467 U. S. 431 (1984). Nix involved an application of the inevitable discovery exception to the exclusionary rule. In that case, the Court stressed that an officer "who is faced with the opportunity to obtain evidence illegally will rarely, if ever, be in a position to calculate whether the evidence sought would inevitably be discovered." Id. at 467 U. S. 445 . Unlike the officer in Nix, who had no way of knowing about the progress of a wholly separate line of investigation that already had begun at the time of his unconstitutional conduct, the officers in the instant cases, at least under the Court's analysis, have complete knowledge and control over the factors relevant to the determination of "independence." [ Footnote 2/4 ] To conclude that the initial search had no effect on the decision to obtain a warrant, and thus that the warrant search was an "independent source" of the challenged evidence, one would have to assume that, even if the officers entered the premises and discovered no contraband, they nonetheless would have gone to the Magistrate, sworn that they had probable cause to believe that contraband was in the building, and then returned to conduct another search. Although such a scenario is possible, I believe it is more plausible to believe that the officers would not have chosen to return immediately to the premises with a warrant to search for evidence had they not discovered evidence during the initial search. [ Footnote 2/5 ] Given that the law enforcement officers in these cases made no movement to obtain a warrant prior to the illegal search, these cases do not present the more difficult issue whether, in light of the strong interest in deterring illegal warrantless searches, the evidence discovered during an illegal search ever may be admitted under the independent source exception when the second legal search is conducted by the same investigative team pursuing the same line of investigation. JUSTICE STEVENS, dissenting. While I join JUSTICE MARSHALL's opinion explaining why the majority's extension of the Court's holding in Segura v. United States, 468 U. S. 796 (1984), "emasculates the Warrant Clause and provides an intolerable incentive for warrantless searches," ante this page, I remain convinced that the Segura decision itself was unacceptable because, even then, it was obvious that it would "provide government agents with an affirmative incentive to engage in unconstitutional violations of the privacy of the home," 468 U.S. at 468 U. S. 817 (dissenting opinion). I fear that the Court has taken another unfortunate step down the path to a system of "law enforcement unfettered by process concerns." Patterson v. Illinois, ante at 487 U. S. 305 (STEVENS, J., dissenting). In due course, I trust it will pause long enough to remember that "the efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land." Weeks v. United States, 232 U. S. 383 , 232 U. S. 393 -394 (1914).

In Murray v. United States, the Supreme Court held that evidence discovered during an illegal search of a warehouse by federal agents could be admissible if it was later discovered during a search conducted under a valid warrant that was independent of the initial illegal entry. The Court applied the "independent source" doctrine, which allows evidence initially discovered during an unlawful search to be admitted if it is later obtained independently through lawful means untainted by the initial illegality. The Court rejected the argument that applying this doctrine would encourage routine warrantless entries by police. In this case, the agents' knowledge of the marijuana in the warehouse was acquired both during the unlawful entry and the subsequent entry with a warrant, and the later acquisition was not the result of the earlier entry. The Court assumed that the first entry was unlawful but concluded that the warrant search was an "independent source" of the evidence. Justices Marshall and Stevens dissented, arguing that the majority's decision weakened the Warrant Clause and provided an incentive for warrantless searches.

Search & Seizure

Arizona v. Evans

https://supreme.justia.com/cases/federal/us/514/1/

CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1994 Syllabus ARIZONA v. EVANS CERTIORARI TO THE SUPREME COURT OF ARIZONA No. 93-1660. Argued December 7, 1994-Decided March 1, 1995 Respondent was arrested by Phoenix police during a routine traffic stop when a patrol car's computer indicated that there was an outstanding misdemeanor warrant for his arrest. A subsequent search of his car revealed a bag of marijuana, and he was charged with possession. Respondent moved to suppress the marijuana as the fruit of an unlawful arrest, since the misdemeanor warrant had been quashed before his arrest. The trial court granted the motion, but the Court of Appeals reversed on the ground that the exclusionary rule's purpose would not be served by excluding evidence obtained because of an error by employees not directly associated with the arresting officers or their police department. In reversing, the Arizona Supreme Court rejected the distinction between clerical errors committed by law enforcement personnel and similar mistakes by court employees and predicted that the exclusionary rule's application would serve to improve the efficiency of criminal justice system recordkeepers. Held: 1. This Court has jurisdiction to review the State Supreme Court's decision. Under Michigan v. Long, 463 U. S. 1032 , when a state-court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state-law ground is not clear from the opinion's face, this Court will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. This standard for determining whether a 2 Syllabus state-court decision rests upon an adequate and independent state ground was adopted (1) to obviate the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to this Court's satisfaction and (2) to provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference and yet preserve the federal law's integrity. Michigan properly serves its purpose and should not be disturbed. State courts are free both to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution and to serve as experimental laboratories. However, in cases where they interpret the United States Constitution, they are not free from the final authority of this Court. In this case, the State Supreme Court based its decision squarely upon its interpretation of federal law when it discussed the appropriateness of applying the exclusionary rule, and it offered no plain statement that its references to federal law were being used only for the purpose of guidance and did not compel the result reached. Pp. 6-10. 2. The exclusionary rule does not require suppression of evidence seized in violation of the Fourth Amendment where the erroneous information resulted from clerical errors of court employees. The exclusionary rule is a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through its deterrent effect. However, the issue of exclusion is separate from whether the Amendment has been violated. The Amendment does not expressly preclude the use of evidence obtained in violation of its commands, and exclusion is appropriate only where the rule's remedial objectives are thought most efficaciously served. The same framework that this Court used in United States v. Leon, 468 U. S. 897 , to determine that there was no sound reason to apply the exclusionary rule as a means of deterring misconduct on the part of judicial officers responsible for issuing search warrants applies in this case. The exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees. See id., at 916. In addition, respondent offers no evidence that court employees are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. See ibid. In fact, the Justice Court Clerk testified that this type of error occurred only once every three or four years. Finally, there is no basis for believing that application of the exclusionary rule will have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Since they are not adjuncts to the law enforcement team engaged in ferreting out crime, they have no stake in the outcome of particular prosecutions. Application of the exclusionary rule also could not 3 be expected to alter an arresting officer's behavior, since there is no indication that the officer here was not acting reasonably when he relied upon the computer record. pp. 10-16. 177 Ariz. 201, 866 P. 2d 869, reversed and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. O'CONNOR, J., filed a concurring opinion, in which SOUTER and BREYER, JJ., joined, post, p. 16. SOUTER, J., filed a concurring opinion, in which BREYER, J., joined, post, p. 18. STEVENS, J., filed a dissenting opinion, post, p. 18. GINSBURG, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 23. Gerald R. Grant argued the cause and filed briefs for petitioner. Carol A. Carrigan argued the cause and filed a brief for respondent. * CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. This case presents the question whether evidence seized in violation of the Fourth Amendment by an officer who *Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Days, Assistant Attorney General Harris, Deputy Solicitor General Bryson, and Jeffrey P. Minear; for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Michael J. Neimand, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: James H. Evans of Alabama, Bruce M. Botelho of Alaska, Larry EchoHawk of Idaho, Pamela Carter of Indiana, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Scott Harshbarger of Massachusetts, Joseph P. Mazurek of Montana, Lee Fisher of Ohio, T. Travis Medlock of South Carolina, Jeffrey L. Amestoy of Vermont, and James S. Gilmore III of Virginia; for Americans for Effective Law Enforcement, Inc., et al. by Richard M. Weintraub, William C. O'Malley, Bernard J. Farber, Fred E. Inbau, Wayne W Schmidt, and James P. Manak; and for the Washington Legal Foundation et al. by Paul Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Steven R. Shapiro; and for the National Association of Criminal Defense Lawyers by Ephraim Margolin and Barry P. Helft. 4 acted in reliance on a police record indicating the existence of an outstanding arrest warrant-a record that is later determined to be erroneous-must be suppressed by virtue of the exclusionary rule regardless of the source of the error. The Supreme Court of Arizona held that the exclusionary rule required suppression of evidence even if the erroneous information resulted from an error committed by an employee of the office of the Clerk of Court. We disagree. In January 1991, Phoenix police officer Bryan Sargent observed respondent Isaac Evans driving the wrong way on a one-way street in front of the police station. The officer stopped respondent and asked to see his driver's license. After respondent told him that his license had been suspended, the officer entered respondent's name into a computer data terminal located in his patrol car. The computer inquiry confirmed that respondent's license had been suspended and also indicated that there was an outstanding misdemeanor warrant for his arrest. Based upon the outstanding warrant, Officer Sargent placed respondent under arrest. While being handcuffed, respondent dropped a hand-rolled cigarette that the officers determined smelled of marijuana. Officers proceeded to search his car and discovered a bag of marijuana under the passenger's seat. The State charged respondent with possession of marijuana. When the police notified the Justice Court that they had arrested him, the Justice Court discovered that the arrest warrant previously had been quashed and so advised the police. Respondent argued that because his arrest was based on a warrant that had been quashed 17 days prior to his arrest, the marijuana seized incident to the arrest should be suppressed as the fruit of an unlawful arrest. Respondent also argued that "[t]he 'good faith' exception to the exclusionary rule [was] inapplicable ... because it was police error, not judicial error, which caused the invalid arrest." App. 5. At the suppression hearing, the Chief Clerk of the Justice Court testified that a Justice of the Peace had issued the 5 arrest warrant on December 13, 1990, because respondent had failed to appear to answer for several traffic violations. On December 19, 1990, respondent appeared before a pro tem Justice of the Peace who entered a notation in respondent's file to "quash warrant." Id., at 13. The Chief Clerk also testified regarding the standard court procedure for quashing a warrant. Under that procedure a justice court clerk calls and informs the warrant section of the Sheriff's Office when a warrant has been quashed. The Sheriff's Office then removes the warrant from its computer records. After calling the Sheriff's Office, the clerk makes a note in the individual's file indicating the clerk who made the phone call and the person at the Sheriff's Office to whom the clerk spoke. The Chief Clerk testified that there was no indication in respondent's file that a clerk had called and notified the Sheriff's Office that his arrest warrant had been quashed. A records clerk from the Sheriff's Office also testified that the Sheriff's Office had no record of a telephone call informing it that respondent's arrest warrant had been quashed. Id., at 42-43. At the close of testimony, respondent argued that the evidence obtained as a result of the arrest should be suppressed because "the purposes of the exclusionary rule would be served here by making the clerks for the court, or the clerk for the Sheriff's office, whoever is responsible for this mistake, to be more careful about making sure that warrants are removed from the records." Id., at 47. The trial court granted the motion to suppress because it concluded that the State had been at fault for failing to quash the warrant. Presumably because it could find no "distinction between State action, whether it happens to be the police department or not," id., at 52, the trial court made no factual finding as to whether the Justice Court or Sheriff's Office was responsible for the continued presence of the quashed warrant in the police records. 6 A divided panel of the Arizona Court of Appeals reversed because it "believe[d] that the exclusionary rule [was] not intended to deter justice court employees or Sheriff's Office employees who are not directly associated with the arresting officers or the arresting officers' police department." 172 Ariz. 314, 317, 836 P. 2d 1024, 1027 (1992). Therefore, it concluded, "the purpose of the exclusionary rule would not be served by excluding the evidence obtained in this case." Ibid. The Arizona Supreme Court reversed. 177 Ariz. 201, 866 P. 2d 869 (1994). The court rejected the "distinction drawn by the court of appeals ... between clerical errors committed by law enforcement personnel and similar mistakes by court employees." Id., at 203, 866 P. 2d, at 871. The court predicted that application of the exclusionary rule would "hopefully serve to improve the efficiency of those who keep records in our criminal justice system." Id., at 204, 866 P. 2d, at 872. Finally, the court concluded that "[e]ven assuming that deterrence is the principal reason for application of the exclusionary rule, we disagree with the court of appeals that such a purpose would not be served where carelessness by a court clerk results in an unlawful arrest." Ibid. We granted certiorari to determine whether the exclusionary rule requires suppression of evidence seized incident to an arrest resulting from an inaccurate computer record, regardless of whether police personnel or court personnel were responsible for the record's continued presence in the police computer. 511 U. S. 1126 (1994).1 We now reverse. We first must consider whether we have jurisdiction to review the Arizona Supreme Court's decision. Respondent argues that we lack jurisdiction under 28 U. S. C. § 1257 because the Arizona Supreme Court never passed upon the 1 Petitioner has conceded that respondent's arrest violated the Fourth Amendment. Brieffor Petitioner 10. We decline to review that determination. Cf. United States v. Leon, 468 U. S. 897 , 905 (1984); Illinois v. Krull, 480 U. S. 340 , 357, n. 13 (1987). 7 Fourth Amendment issue and instead based its decision on the Arizona good-faith statute, Ariz. Rev. Stat. Ann. § 133925 (1993), an adequate and independent state ground. In the alternative, respondent asks that we remand to the Arizona Supreme Court for clarification. In Michigan v. Long, 463 U. S. 1032 (1983), we adopted a standard for determining whether a state-court decision rested upon an adequate and independent state ground. When "a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so." Id., at 1040-1041. We adopted this practice, in part, to obviate the "unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court." Id., at 1041. We also concluded that this approach would "provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law." Ibid. JUSTICE GINSBURG would overrule Michigan v. Long, supra, because she believes that the rule of that case "impedes the States' ability to serve as laboratories for testing solutions to novel legal problems." Post, at 24.2 The opin- 2 JUSTICE GINSBURG certainly is correct when she notes that" '[s]ince Long, we repeatedly have followed [its] "plain statement" requirement.'" Post, at 33 (quoting Harris v. Reed, 489 U. S. 255 , 261, n. 7 (1989) (opinion of Blackmun, J.)); see also Illinois v. Rodriguez, 497 U. S. 177 , 182 (1990) (opinion of SCALIA, J.); Pennsylvania v. Muniz, 496 U. S. 582 , 588, n. 4 (1990) (opinion of Brennan, J.); Maryland v. Garrison, 480 U. S. 79 ,83-84 (1987) (opinion of STEVENS, J.); Caldwell v. Mississippi, 472 U. S. 320 ,327328 (1985) (opinion of Marshall, J.); California v. Carney, 471 U. S. 386 , 389, n. 1 (1985) (opinion of Burger, C. J.); Ohio v. Johnson, 467 U. S. 493 , 497-498, n. 7 (1984) (opinion of REHNQUIST, J.); Oliver v. United States, 466 U. S. 170 , 175-176, n. 5 (1984) (opinion of Powell, J.); cf. Coleman 8 ion in Long describes the 60-year history of the Court's differing approaches to the determination whether the judgment of the highest court of a State rested on federal or nonfederal grounds. 463 U. S., at 1038-1040. When we were in doubt, on some occasions we dismissed the writ of certiorari; on other occasions we vacated the judgment of the state court and remanded so that it might clarify the basis for its decision. See ibid. The latter approach did not always achieve the desired result and burdened the state courts with additional work. Ibid. We believe that Michigan v. Long properly serves its purpose and should not be disturbed. Under it, state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution. They also are free to serve as experimental laboratories, in the sense that Justice Brandeis used that term in his dissenting opinion in New State Ice Co. v. Liebmann, 285 U. S. 262 , 311 (1932) (urging that the Court not impose federal constitutional restraints on the efforts of a State to "serve as a laboratory"). Under our decision today, the State of Arizona remains free to seek whatever solutions it chooses to problems of law enforcement posed by the advent of computerization.3 Indeed, it is freer to do so because it is disabused of its erroneous view of what the United States Constitution requires. State courts, in appropriate cases, are not merely free tothey are bound to-interpret the United States Constitution. In doing so, they are not free from the final authority of this v. Thompson, 501 U. S. 722 , 740 (1991) (opinion of O'CONNOR, J.) (declining to expand the Long and Harris presumption to instances "where the relevant state court decision does not fairly appear to rest primarily on federal law or to be interwoven with such law"). 3 JUSTICE GINSBURG acknowledges as much when she states that since Long, "state courts, on remand, have reinstated their prior judgments after clarifying their reliance on state grounds." Post, at 32 (citing statistics). 9 Court. This principle was enunciated in Cohens v. Virginia, 6 Wheat. 264 (1821), and presumably JUSTICE GINSBURG does not quarrel with it.4 In Minnesota v. National Tea Co., 309 U. S. 551 (1940), we recognized that our authority as final arbiter of the United States Constitution could be eroded by a lack of clarity in state-court decisions. "It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities from the opinions in such cases .... For no other course assures that important federal issues, such as have been argued here, will reach this Court for adjudication; that state courts will not be the final arbiters of important issues under the federal constitution; and that we will not encroach on the constitutional jurisdiction of the states." Id., at 557. We therefore adhere to the standard adopted in Michigan v. Long, supra. Applying that standard here, we conclude that we have jurisdiction. In reversing the Court of Appeals, the Arizona Supreme Court stated that "[w]hile it may be inappropriate to invoke the exclusionary rule where a magistrate has issued a facially valid warrant (a discretionary judicial function) based on an erroneous evaluation of the facts, the law, or both, Leon, 468 U. S. 897 ... (1984), it is useful and proper 4 Surely if we have jurisdiction to vacate and remand a state-court judgment for clarification, post, at 34, n. 7, we also must have jurisdiction to determine whether a state-court judgment is based upon an adequate and independent state ground. See Abie State Bank v. Bryan, 282 U. S. 765 , 773 (1931). 10 to do so where negligent record keeping (a purely clerical function) results in an unlawful arrest." 177 Ariz., at 204, 866 P. 2d, at 872. Thus, the Arizona Supreme Court's decision to suppress the evidence was based squarely upon its interpretation of federal law. See ibid. Nor did it offer a plain statement that its references to federal law were "being used only for the purpose of guidance, and d[id] not themselves compel the result that [it] reached." Long, supra, at 1041. The Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." We have recognized, however, that the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands. See United States v. Leon, 468 U. S. 897 , 906 (1984). "The wrong condemned by the [Fourth] Amendment is 'fully accomplished' by the unlawful search or seizure itself," ibid. (quoting United States v. Calandra, 414 U. S. 338 , 354 (1974)), and the use of the fruits of a past unlawful search or seizure "'work[s] no new Fourth Amendment wrong,'" Leon, supra, at 906 (quoting Calandra, supra, at 354). "The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." Illinois v. Gates, 462 U. S. 213 , 223 (1983); see also United States v. Havens, 446 U. S. 620 , 627-628 (1980); Stone v. Powell, 428 U. S. 465 , 486-487 (1976); Calandra, supra, at 348. The exclusionary rule operates as a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule's general deterrent effect. Leon, supra, at 11 906; Calandra, supra, at 348. As with any remedial device, the rule's application has been restricted to those instances where its remedial objectives are thought most efficaciously served. Leon, supra, at 908; Calandra, supra, at 348. Where "the exclusionary rule does not result in appreciable deterrence, then, clearly, its use ... is unwarranted." United States v. Janis, 428 U. S. 433 , 454 (1976). In Leon, we applied these principles to the context of a police search in which the officers had acted in objectively reasonable reliance on a search warrant, issued by a neutral and detached Magistrate, that later was determined to be invalid. 468 U. S., at 905. On the basis of three factors, we determined that there was no sound reason to apply the exclusionary rule as a means of deterring misconduct on the part of judicial officers who are responsible for issuing warrants. See Illinois v. Krull, 480 U. S. 340 , 348 (1987) (analyzing Leon, supra). First, we noted that the exclusionary rule was historically designed "'to deter police misconduct rather than to punish the errors of judges and magistrates.' " Krull, supra, at 348 (quoting Leon, supra, at 916). Second, there was "'no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires the application of the extreme sanction of exclusion.''' Krull, supra, at 348 (quoting Leon, supra, at 916). Third, and of greatest importance, there was no basis for believing that exclusion of evidence seized pursuant to a warrant would have a significant deterrent effect on the issuing judge or magistrate. Krull, supra, at 348. The Leon Court then examined whether application of the exclusionary rule could be expected to alter the behavior of the law enforcement officers. We concluded: "[W]here the officer's conduct is objectively reasonable, 'excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that ... the officer is acting as a reason- 12 able officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.'" Leon, supra, at 919-920 (quoting Stone, supra, at 539-540 (White, J., dissenting)). See also Massachusetts v. Sheppard, 468 U. S. 981 , 990-991 (1984) ("[S]uppressing evidence because the judge failed to make all the necessary clerical corrections despite his assurances that such changes would be made will not serve the deterrent function that the exclusionary rule was designed to achieve"). Thus, we held that the "marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." Leon, supra, at 922. Respondent relies on United States v. Hensley, 469 U. S. 221 (1985), and argues that the evidence seized incident to his arrest should be suppressed because he was the victim of a Fourth Amendment violation. Brief for Respondent 10-12, 21-22. In Hensley, the Court determined that evidence uncovered as a result of a stop pursuant to Terry v. Ohio, 392 U. S. 1 (1968), was admissible because the officers who made the stop acted in objectively reasonable reliance on a flyer that had been issued by officers of another police department who possessed a reasonable suspicion to justify a Terry stop. 469 U. S., at 231. Because the Hensley Court determined that there had been no Fourth Amendment violation, id., at 236, the Court never considered whether the seized evidence should have been excluded. Hensley does not contradict our earlier pronouncements that "[t]he question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." Gates, supra, at 223; see also Stone, supra, at 486-487; Calandra, supra, at 348. 13 Respondent also argues that Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560 (1971), compels exclusion of the evidence. In Whiteley, the Court determined that the Fourth Amendment had been violated when police officers arrested Whiteley and recovered inculpatory evidence based upon a radio report that two suspects had been involved in two robberies. Id., at 568-569. Although the "police were entitled to act on the strength of the radio bulletin," the Court determined that there had been a Fourth Amendment violation because the initial complaint, upon which the arrest warrant and subsequent radio bulletin were based, was insufficient to support an independent judicial assessment of probable cause. Id., at 568. The Court concluded that "an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest." Ibid. Because the "arrest violated [Whiteley's] constitutional rights under the Fourth and Fourteenth Amendments; the evidence secured as an incident thereto should have been excluded from his trial. Mapp v. Ohio, 367 U. S. 643 (1961)." Id., at 568-569. Although Whiteley clearly retains relevance in determining whether police officers have violated the Fourth Amendment, see Hensley, supra, at 230-231, its precedential value regarding application of the exclusionary rule is dubious. In Whiteley, the Court treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule to evidence secured incident to that violation. 401 U. S., at 568-569. Subsequent case law has rejected this reflexive application of the exclusionary rule. Cf. Illinois v. Krull, 480 U. S. 340 (1987); Sheppard, supra; United States v. Leon, 468 U. S. 897 (1984); United States v. Calandra, 414 U. S. 338 (1974). These later cases have emphasized that the issue of exclusion is separate from whether the Fourth Amendment has been violated, see, e. g., Leon, supra, at 906, and exclusion is appropriate only if the 14 remedial objectives of the rule are thought most efficaciously served, see Calandra, supra, at 348. Our approach is consistent with the dissenting Justices' position in Krull, our only major case since Leon and Sheppard involving the good-faith exception to the exclusionary rule. In that case, the Court found that the good-faith exception applies when an officer conducts a search in objectively reasonable reliance on the constitutionality of a statute that subsequently is declared unconstitutional. Krull, supra, at 346. Even the dissenting Justices in Krull agreed that Leon provided the proper framework for analyzing whether the exclusionary rule applied; they simply thought that "application of Leon's stated rationales le[d] to a contrary result." 480 U. S., at 362 (O'CONNOR, J., dissenting). In sum, respondent does not persuade us to abandon the Leon framework. Applying the reasoning of Leon to the facts of this case, we conclude that the decision of the Arizona Supreme Court must be reversed. The Arizona Supreme Court determined that it could not "support the distinction drawn ... between clerical errors committed by law enforcement personnel and similar mistakes by court employees," 177 Ariz., at 203, 866 P. 2d, at 871, and that "even assuming ... that responsibility for the error rested with the justice court, it does not follow that the exclusionary rule should be inapplicable to these facts," ibid. This holding is contrary to the reasoning of Leon, supra; Massachusetts v. Sheppard, supra; and, Krull, supra. If court employees were responsible for the erroneous computer record, the exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction. First, as we noted in Leon, the exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees. See Leon, supra, at 916; see also Krull, supra, at 350. Second, respondent offers no evidence that court employees are in- 15 clined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. See Leon, supra, at 916, and n. 14; see also Krull, supra, at 350-351. To the contrary, the Chief Clerk of the Justice Court testified at the suppression hearing that this type of error occurred once every three or four years. App. 37. Finally, and most important, there is no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, see Johnson v. United States, 333 U. S. 10 , 14 (1948), they have no stake in the outcome of particular criminal prosecutions. Cf. Leon, supra, at 917; Krull, supra, at 352. The threat of exclusion of evidence could not be expected to deter such individuals from failing to inform police officials that a warrant had been quashed. Cf. Leon, supra, at 917; Krull, supra, at 352. If it were indeed a court clerk who was responsible for the erroneous entry on the police computer, application of the exclusionary rule also could not be expected to alter the behavior of the arresting officer. As the trial court in this case stated: "I think the police officer [was] bound to arrest. I think he would [have been] derelict in his duty if he failed to arrest." App. 51. Cf. Leon, supra, at 920 (" 'Excluding the evidence can in no way affect [the officer's] future conduct unless it is to make him less willing to do his duty.' " quoting Stone, 428 U. S., at 540 (White, J., dissenting)). The Chief Clerk of the Justice Court testified that this type of error occurred "on[c]e every three or four years." App. 37. In fact, once the court clerks discovered the error, they immediately corrected it, id., at 30, and then proceeded to search their files to make sure that no similar mistakes had occurred, id., at 37. There is no indication that the arresting 16 officer was not acting objectively reasonably when he relied upon the police computer record. Application of the Leon framework supports a categorical exception to the exclusionary rule for clerical errors of court employees. See Leon, supra, at 916-922; Sheppard, supra, at 990-991.5 The judgment of the Supreme Court of Arizona is therefore reversed, and the case is remanded to that court for proceedings not inconsistent with this opinion. It is so ordered. JUSTICE O'CONNOR, with whom JUSTICE SOUTER and JUSTICE BREYER join, concurring. The evidence in this case strongly suggests that it was a court employee's departure from established recordkeeping procedures that caused the record of respondent's arrest warrant to remain in the computer system after the warrant had been quashed. Prudently, then, the Court limits itself to the question whether a court employee's departure from such established procedures is the kind of error to which the exclusionary rule should apply. The Court holds that it is not such an error, and I agree with that conclusion and join the Court's opinion. The Court's holding reaffirms that the exclusionary rule imposes significant costs on society's law enforcement interests and thus should apply only where its deterrence purposes are "most efficaciously served," ante, at 11. In limiting itself to that single question, however, the Court does not hold that the court employee's mistake in this case was necessarily the only error that may have occurred and to which the exclusionary rule might apply. While the 5 The Solicitor General, as amicus curiae, argues that an analysis similar to that we apply here to court personnel also would apply in order to determine whether the evidence should be suppressed if police personnel were responsible for the error. As the State has not made any such argument here, we agree that "[t]he record in this case ... does not adequately present that issue for the Court's consideration." Brief for United States as Amicus Curiae 13. Accordingly, we decline to address that question. 17 police were innocent of the court employee's mistake, they mayor may not have acted reasonably in their reliance on the recordkeeping system itself Surely it would not be reasonable for the police to rely, say, on a recordkeeping system, their own or some other agency's, that has no mechanism to ensure its accuracy over time and that routinely leads to false arrests, even years after the probable cause for any such arrest has ceased to exist (if it ever existed). This is saying nothing new. We have said the same with respect to other information sources police use, informants being an obvious example. In Illinois v. Gates, 462 U. S. 213 (1983), the Court indicated that where an informant provides information about certain criminal activities but does not specify the basis for his knowledge, a finding of probable cause based on that information will not be upheld unless the informant is "known for [his] unusual reliability." Id., at 233, citing United States v. Sellers, 483 F.2d 37 , 40, n. 1 (CA5 1973) (involving informant who had provided accurate information "in more than one hundred instances in matters of investigation"); see generally 1 W. LaFave, Search and Seizure § 3.3(b) (2d ed. 1987 and Supp. 1995). Certainly the reliability of recordkeeping systems deserves no less scrutiny than that of informants. Of course, the comparison to informants may be instructive the opposite way as well. So long as an informant's reliability does pass constitutional muster, a finding of probable cause may not be defeated by an after-the-fact showing that the information the informant provided was mistaken. See 2 id., § 3.5(d), at 21, n. 73 (citation omitted); see also 1 id., § 3.2(d), at 575 ("It is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made upon probable cause"). In recent years, we have witnessed the advent of powerful, computer-based recordkeeping systems that facilitate arrests in ways that have never before been possible. The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforce- 18 ment mechanisms comes the burden of corresponding constitutional responsibilities. JUSTICE SOUTER, with whom JUSTICE BREYER joins, concurring. In joining the Court's opinion, I share JUSTICE O'CONNOR'S understanding of the narrow scope of what we hold today. To her concurrence, which I join as well, I add only that we do not answer another question that may reach us in due course, that is, how far, in dealing with fruits of computerized error, our very concept of deterrence by exclusion of evidence should extend to the government as a whole, not merely the police, on the ground that there would otherwise be no reasonable expectation of keeping the number of resulting false arrests within an acceptable minimum limit. JUSTICE STEVENS, dissenting. JUSTICE GINSBURG has written an important opinion explaining why the Court unwisely departed from settled law when it interpreted its own jurisdiction so expansively in Michigan v. Long, 463 U. S. 1032 (1983). I join her dissent and her conclusion that the writ of certiorari should be dismissed. Because the Court has addressed the merits, however, I add this comment on its holding. The Court seems to assume that the Fourth Amendmentand particularly the exclusionary rule, which effectuates the Amendment's commands-has the limited purpose of deterring police misconduct. Both the constitutional text and the history of its adoption and interpretation identify a more majestic conception. The Amendment protects the fundamental "right of the people to be secure in their persons, houses, papers, and effects," against all official searches and seizures that are unreasonable. The Amendment is a constraint on the power of the sovereign, not merely on some of its agents. See Olmstead v. United States, 277 U. S. 438 , 472-479 (1928) (Brandeis, J., dissenting). The remedy for its violation imposes costs on that sovereign, motivating it to train all of 19 its personnel to avoid future violations. See Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-andSeizure Cases, 83 Colum. L. Rev. 1365, 1400 (1983). The exclusionary rule is not fairly characterized as an "extreme sanction," ante, at 11 (internal quotation marks omitted). As Justice Stewart cogently explained, the implementation of this constitutionally mandated sanction merely places the government in the same position as if it had not conducted the illegal search and seizure in the first place. 1 Given the undisputed fact in this case that the Constitution prohibited the warrantless arrest of respondent, there is nothing "extreme" about the Arizona Supreme Court's conclusion that the State should not be permitted to profit from its negligent misconduct. Even if one accepts deterrence as the sole rationale for the exclusionary rule, the Arizona Supreme Court's decision is correct on the merits. The majority's reliance on United States v. Leon, 468 U. S. 897 (1984), is misplaced. The search in that case had been authorized by a presumptively valid warrant issued by a California Superior Court Judge. In 1 See Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1392 (1983). I am fully aware of the Court's statements that the question whether the exclusionary rule should be applied is distinct from the question whether the Fourth Amendment has been violated. Indeed, the majority twice quotes the same statement from the Court's opinion in Illinois v. Gates, 462 U. S. 213 , 223 (1983). See ante, at 10, 12. I would note that such eminent Members of this Court as Justices Holmes, Brandeis, Harlan, and Stewart have expressed the opposite view. See, e. g., Olmstead v. United States, 277 U. S. 438 ,470 (1928) (Holmes, J., dissenting); id., at 477-479 (Brandeis, J., dissenting); Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560 (1971) (Harlan, J.); Elkins v. United States, 364 U. S. 206 (1960) (Stewart, J.); Stewart, supra, at 1383-1385. The majority today candidly acknowledges that Justice Harlan's opinion for the Court in Whiteley "treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule to evidence secured incident to that violation." Ante, at 13. 20 contrast, this case involves a search pursuant to an arrest made when no warrant at all was outstanding against respondent. The holding in Leon rested on the majority's doubt "that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate." Id., at 916. The reasoning in Leon assumed the existence of a warrant; it was, and remains, wholly inapplicable to warrantless searches and seizures.2 The Fourth Amendment's Warrant Clause provides the fundamental check on official invasions of the individual's right to privacy. E. g., Harris v. United States, 331 U. S. 145 , 195-196 (1947) (Jackson, J., dissenting); see generally Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition"?, 16 Creighton L. Rev. 565, 571-579 (1983). Leon stands for the dubious but limited proposition that courts should not look behind the face of a warrant on which police have relied in good faith. The Leon Court's exemption of judges and magistrates from the deterrent ambit of the exclusionary rule rested, consistently with the emphasis on the warrant requirement, on those officials' constitutionally determined role in issuing warrants. See 468 U. S., at 915917. Taken on its own terms, Leon's logic does not extend to the time after the warrant has issued; nor does it extend to court clerks and functionaries, some of whom work in the same building with police officers and may have more regular and direct contact with police than with judges or magistrates. 2 As JUSTICE O'CONNOR observed in her dissent in Illinois v. Krull, 480 U. S. 340 (1987): "[T]he Leon Court relied explicitly on the tradition of judicial independence in concluding that, until it was presented with evidence to the contrary, there was relatively little cause for concern that judicial officers might take the opportunity presented by the good-faith exception to authorize unconstitutional searches." Id., at 365. I joined that dissent, and I take exception to the majority's pronouncement that today's opinion is "consistent with" it. Ante, at 14. 21 The Phoenix Police Department was part of the chain of information that resulted in respondent's unlawful, warrantless arrest. We should reasonably presume that law enforcement officials, who stand in the best position to monitor such errors as occurred here, can influence mundane communication procedures in order to prevent those errors. That presumption comports with the notion that the exclusionary rule exists to deter future police misconduct systemically. See, e. g., Stone v. Powell, 428 U. S. 465 , 492 (1976); Dunaway v. New York, 442 U. S. 200 , 221 (1979) (STEVENS, J., concurring); see generally Kamisar, 16 Creighton L. Rev., at 659662; Stewart, 83 Colum. L. Rev., at 1400. The deterrent purpose extends to law enforcement as a whole, not merely to "the arresting officer." Compare ante, at 15, with Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560 , 568 (1971). Consequently, the Phoenix officers' good faith does not diminish the deterrent value of invalidating their arrest of respondent. The Court seeks to minimize the impact of its holding on the security of the citizen by referring to the testimony of the Chief Clerk of the East Phoenix Number One Justice Court that in her "particular court" this type of error occurred "'maybe on[c]e every three or four years.'" See ante, at 15. Apart from the fact that the Clerk promptly contradicted herself,3 see post, at 28, this is slim evidence 3 "Q. In your eight years as a chief clerk with the Justice of the Peace, have there been other occasions where a warrant was quashed but the police were not notified? "A. That does happen on rare occasions. "Q. And when you say rare occasions, about how many times in your eight years as chief clerk? "A. In my particular court, they would be like maybe one every three or four years. "Q. When something like this happens, is anything done by your office to correct that problem? "A. Well, when this one happened, we searched all the files to make sure that there were no other ones in there, which there were three other ones 22 on which to base a conclusion that computer error poses no appreciable threat to Fourth Amendment interests. For support, the Court cites a case from 1948. See ante, at 15, citing Johnson v. United States, 333 U. S. 10 . The Court overlooks the reality that computer technology has changed the nature of threats to citizens' privacy over the past half century. See post, at 26-28. What has not changed is the reality that only that fraction of Fourth Amendment violations held to have resulted in unlawful arrests is ever noted and redressed. As Justice Jackson observed: "There may be, and I am convinced that there are, many unlawful searches ... of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear." Brinegar v. United States, 338 U. S. 160 , 181 (1949) (dissenting opinion). Moreover, even if errors in computer records of warrants were rare, that would merely minimize the cost of enforcing the exclusionary rule in cases like this. While I agree with JUSTICE GINSBURG that premature adjudication of this issue is particularly unwise because we have much to learn about the consequences of computer error as well as the efficacy of other preventive measures, see post, at 29-30, one consequence of the Court's holding seems immediately obvious. Its most serious impact will be on the otherwise innocent citizen who is stopped for a minor traffic infraction and is wrongfully arrested based on erroneous information in a computer data base. I assume the police officer who reasonably relies on the computer information would be immune from liability in a § 1983 action. Of course, the Court has held that respondeat superior is unavailable as a basis for imposing liability on his or her municipality. See Monell v. New York City Dept. of Social Servs., 436 U. S. 658 , 663-664, n. 7 (1978). Thus, if courts are to on that same day that it happened. Fortunately, they weren't all arrested." App.37. 23 have any power to discourage official error of this kind, it must be through application of the exclusionary rule. The use of general warrants to search for evidence of violations of the Crown's revenue laws understandably outraged the authors of the Bill of Rights. See, e. g., Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 , 325 (1979); Weeks v. United States, 232 U. S. 383 , 389-391 (1914). "'It is a power, that places the liberty of every man in the hands of every petty officer.'" James Otis, quoted in 2 Works of John Adams 524 (C. Adams ed. 1850), quoted in turn in Illinois v. Krull, 480 U. S. 340 , 363 (1987) (O'CONNOR, J., dissenting). The offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base strikes me as equally outrageous. In this case, of course, such an error led to the fortuitous detection of respondent's unlawful possession of marijuana, and the suppression of the fruit of the error would prevent the prosecution of his crime. That cost, however, must be weighed against the interest in protecting other, wholly innocent citizens from unwarranted indignity. In my judgment, the cost is amply offset by an appropriately "jealous regard for maintaining the integrity of individual rights." Mapp v. Ohio, 367 U. S. 643 , 647 (1961). For this reason, as well as those set forth by JUSTICE GINSBURG, I respectfully dissent. JUSTICE GINSBURG, with whom JUSTICE STEVENS joins, dissenting. This case portrays the increasing use of computer technology in law enforcement; it illustrates an evolving problem this Court need not, and in my judgment should not, resolve too hastily. 1 The Arizona Supreme Court relied on "the 1 We have in many instances recognized that when frontier legal problems are presented, periods of "percolation" in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court. See, e. g., McCray v. New 24 principles of a free society" in reaching its decision. This Court reviews and reverses the Arizona decision on the assumption that Arizona's highest court sought assiduously to apply this Court's Fourth Amendment jurisprudence. The Court thus follows the presumption announced in Michigan v. Long, 463 U. S. 1032 (1983): If it is unclear whether a state court's decision rests on state or federal law, Long dictates the assumption that the state court relied on federal law. On the basis of that assumption, the Court asserts jurisdiction to review the decision of the Arizona Supreme Court. The Long presumption, as I see it, impedes the States' ability to serve as laboratories for testing solutions to novel legal problems. I would apply the opposite presumption and assume that Arizona's Supreme Court has ruled for its own State and people, under its own constitutional recognition of individual security against unwarranted state intrusion. Accordingly, I would dismiss the writ of certiorari. I Isaac Evans was arrested because a computer record erroneously identified an outstanding misdemeanor arrest warrant in his name. The Arizona Supreme Court's suppression of evidence obtained from this unlawful arrest did not rest on a close analysis of this Court's Fourth Amendment precedents. Indeed, the court found our most relevant decision, United States v. Leon, 468 U. S. 897 (1984), "not helpful." 177 Ariz. 201, 203, 866 P. 2d 869, 871 (1994). Instead, the Arizona court emphasized its comprehension of the severe curtailment of personal liberty inherent in arrest warrants. York, 461 U. S. 961, 961-963 (1983) (STEVENS, J., respecting denial of petitions for writs of certiorari) ("My vote to deny certiorari in these cases does not reflect disagreement with JUSTICE MARSHALL'S appraisal of the importance of the underlying issue .... In my judgment it is a sound exercise of discretion for the Court to allow the various States to serve as laboratories in which the issue receives further study before it is addressed by this Court."). 25 Specifically, the Arizona Supreme Court saw the growing use of computerized records in law enforcement as a development presenting new dangers to individual liberty; excluding evidence seized as a result of incorrect computer data, the Arizona court anticipated, would reduce the incidence of uncorrected records: "The dissent laments the 'high costs' of the exclusionary rule, and suggests that its application here is 'purposeless' and provides 'no offsetting benefits.' Such an assertion ignores the fact that arrest warrants result in a denial of human liberty, and are therefore among the most important of legal documents. I t is repugnant to the principles of a free society that a person should ever be taken into police custody because of a computer error precipitated by government carelessness. As automation increasingly invades modern life, the potential for Orwellian mischief grows. Under such circumstances, the exclusionary rule is a 'cost' we cannot afford to be without." Id., at 204, 866 P. 2d, at 872. Thus, the Arizona court did not consider this case to involve simply and only a court employee's slip in failing to communicate with the police, or a police officer's oversight in failing to record information received from a court employee. That court recognized a "potential for Orwellian mischief" in the government's increasing reliance on computer technology in law enforcement. The Arizona Supreme Court concluded that Leon's distinction between police conduct and judicial conduct loses force where, as here, the error derives not from a discretionary judicial function, but from inattentive recordkeeping. Application of an exclusionary rule in the circumstances Evans' case presents, the Arizona court said, "will hopefully serve to improve the efficiency of those who keep records in our criminal justice system." Ibid. Invoking Long, this Court's majority presumes that the Arizona Supreme Court relied on federal law. Long in- 26 structs that a state-court opinion discussing both state and federal precedents shall be deemed to rely on federal law, absent a plain statement in the opinion that the decision rests on state law. 463 U. S., at 1040-1042.2 For reasons this case illustrates, I would choose the opposite plain statement rule. I would presume, absent a plain statement to the contrary, that a state court's decision of the kind here at issue rests on an independent state-law ground.3 II A Widespread reliance on computers to store and convey information generates, along with manifold benefits, new possibilities of error, due to both computer malfunctions and operator mistakes. Most germane to this case, computerization greatly amplifies an error's effect, and correspondingly intensifies the need for prompt correction; for inaccurate data can infect not only one agency, but the many agencies that share access to the data base. The computerized data bases of the Federal Bureau of Investigation's National Crime Information Center (NCIC), to take a conspicuous example, contain 2 The Long presumption becomes operative when two conditions are met: (1) the state-court decision must "fairly appea[r] to rest primarily on federal law, or to be interwoven with the federal law"; and (2) "the adequacy and independence of any possible state law ground [must] not [be] clear from the face of the opinion." 463 U. S., at 1040-1041. 3 I recognize, in accord with Long on this point, that there will be cases in which a presumption concerning exercise of the Court's jurisdiction should yield, i. e., exceptional instances in which vacation of a state court's judgment and remand for clarification of the court's decision is in order. See id., at 1041, n. 6 ("There may be certain circumstances in which clarification is necessary or desirable, and we will not be foreclosed from taking the appropriate action."); Capital Cities Media, Inc. v. Toole, 466 U. S. 378 , 379 (1984) (per curiam) (post-Long decision vacating statecourt judgment and remanding for such further proceedings as the state court might deem appropriate to clarify the ground of its decision). 27 over 23 million records, identifying, among other things, persons and vehicles sought by law enforcement agencies nationwide. See Hearings before the Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies of the House Committee on Appropriations, 102d Cong., 2d Sess., pt. 2B, p. 467 (1992). NCIC information is available to approximately 71,000 federal, state, and local agencies. See Hearings before the Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies of the House Committee on Appropriations, 103d Cong., 1st Sess., pt. 2A, p. 489 (1993). Thus, any mistake entered into the NCIC spreads nationwide in an instant. Isaac Evans' arrest exemplifies the risks associated with computerization of arrest warrants. Though his arrest was in fact warrantless-the warrant once issued having been quashed over two weeks before the episode in suit-the computer reported otherwise. Evans' case is not idiosyncratic. Rogan v. Los Angeles, 668 F. Supp. 1384 (CD Cal. 1987), similarly indicates the problem. There, the Los Angeles Police Department, in 1982, had entered into the NCIC computer an arrest warrant for a man suspected of robbery and murder. Because the suspect had been impersonating Terry Dean Rogan, the arrest warrant erroneously named Rogan. Compounding the error, the Los Angeles Police Department had failed to include a description of the suspect's physical characteristics. During the next two years, this incorrect and incomplete information caused Rogan to be arrested four times, three times at gunpoint, after stops for minor traffic infractions in Michigan and Oklahoma. See id., at 13871389.4 In another case of the same genre, the District Court observed: 4 See also Finch v. Chapman, 785 F. Supp. 1277, 1278-1279 (ND Ill. 1992) (misinformation long retained in NCIC records twice caused plaintiff's arrest and detention), affirmance order, 991 F.2d 799 (CA7 1993). 28 "Because of the inaccurate listing in the NCIC computer, defendant was a 'marked man' for the five months prior to his arrest .... At any time ... a routine check by the police could well result in defendant's arrest, booking, search and detention .... Moreover, this could happen anywhere in the United States where law enforcement officers had access to NCIC information. Defendant was subject to being deprived of his liberty at any time and without any legal basis." United States v. Mackey, 387 F. Supp. 1121, 1124 (Nev. 1975). In the instant case, the Court features testimony of the Chief Clerk of the Justice Court in East Phoenix to the effect that errors of the kind Evans encountered are reported only "on[c]e every three or four years." Ante, at 15 (citing App. 37). But the same witness also recounted that, when the error concerning Evans came to light, an immediate check revealed that three other errors of the very same kind had occurred on "that same day." See ante, at 21-22, and n. 3 (STEVENS, J., dissenting). B This Court and the Arizona Supreme Court hold diverse views on the question whether application of an exclusionary rule will reduce the incidence of erroneous computer data left without prompt correction. Observing that "court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime," the Court reasons that "there is no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on court employees responsible for informing the police that a warrant has been quashed." Ante, at 15. In the Court's view, exclusion of evidence, even if capable of deterring police officer errors, cannot deter the 29 carelessness of other governmental actors.5 Whatever federal precedents may indicate-an issue on which I voice no opinion-the Court's conclusion is not the lesson inevitably to be drawn from logic or experience. In this electronic age, particularly with respect to recordkeeping, court personnel and police officers are not neatly compartmentalized actors. Instead, they serve together to carry out the State's information-gathering objectives. Whether particular records are maintained by the police or the courts should not be dispositive where a single computer data base can answer all calls. Not only is it artificial to distinguish between court clerk and police clerk slips; in practice, it may be difficult to pinpoint whether one official, e. g., a court employee, or another, e. g., a police officer, caused the error to exist or to persist. Applying an exclusionary rule as the Arizona court did may well supply a powerful incentive to the State to promote the prompt updating of computer records. That was the Arizona Supreme Court's hardly unreasonable expectation. The incentive to update promptly would be diminished if court-initiated records were exempt from the rule's sway. 5 It has been suggested that an exclusionary rule cannot deter carelessness, but can affect only intentional or reckless misconduct. This suggestion runs counter to a premise underlying all of negligence law-that imposing liability for negligence, i. e., lack of due care, creates an incentive to act with greater care. That the mistake may have been made by a clerical worker does not alter the conclusion that application of the exclusionary rule has deterrent value. Just as the risk of respondeat superior liability encourages employers to supervise more closely their employees' conduct, so the risk of exclusion of evidence encourages policymakers and systems managers to monitor the performance of the systems they install and the personnel employed to operate those systems. In the words of the trial court, the mistake in Evans' case was "perhaps the negligence of the Justice Court, or the negligence of the Sheriff's office. But it is still the negligence of the State." App. 51. 30 C The debate over the efficacy of an exclusionary rule reveals that deterrence is an empirical question, not a logical one. "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U. S. 262 , 311 (1932) (Brandeis, J., dissenting). With that facet of our federalism in mind, this Court should select a jurisdictional presumption that encourages States to explore different means to secure respect for individual rights in modern times. Historically, state laws were the source, and state courts the arbiters, of individual rights. Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. BaIt. L. Rev. 379, 382 (1980). The drafters of the Federal Bill of Rights looked to provisions in state constitutions as models. Id., at 381. Moreover, many States that adopted constitutions after 1789 modeled their bills of rights on pre-existing state constitutions, rather than on the Federal Bill of Rights. Ibid. And before this Court recognized that the Fourteenth Amendment-which constrains actions by States-incorporates provisions of the Federal Bill of Rights, state constitutional rights, as interpreted by state courts, imposed the primary constraints on state action. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 501-502 (1977). State courts interpreting state law remain particularly well situated to enforce individual rights against the States. Institutional constraints, it has been observed, may limit the ability of this Court to enforce the federal constitutional guarantees. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1217-1218 (1978). Prime among the institutional constraints, this Court is reluctant to intrude too deeply into areas traditionally regulated by the States. This aspect of 31 federalism does not touch or concern state courts interpreting state law. III Under Long, when state courts engage in the essential process of developing state constitutional law, they may insulate their decisions from this Court's review by means of a plain statement of intent to rest upon an independent state ground. The plain statement option does not, however, make pleas for reconsideration of the Long presumption much ado about nothing.6 Both on a practical and on a symbolic level, the presumption chosen matters. The presumption is an imperfect barometer of state courts' intent. Although it is easy enough for a state court to say the requisite magic words, the court may not recognize that its opinion triggers Long's plain statement requirement. "[A]pplication of Long's presumption depends on a whole series of 'soft' requirements: the state decision must 'fairly appear' to rest 'primarily' on federal law or be 'interwoven' with federal law, and the independence of the state ground must be 'not clear' from the face of the state opinion. These are not self-applying concepts." P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 552 (3d ed. 1988) (hereinafter Hart and Wechsler); cf. Coleman v. Thompson, 501 U. S. 722 , 735-740 (1991) (declining to apply Long presumption to summary dismissal order). Can the highest court of a State satisfy Long's "plain statement" requirement in advance, through a blanket disclaimer? The New Hampshire Supreme Court, for example, has declared: "We hereby make clear that when this court cites federal or other State court opinions in construing provisions of the New Hampshire Constitution or statutes, we 6 Long has generated many pages of academic commentary, some supportive, some critical of the presumption. See, e. g., P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 553, n. 3 (3d ed. 1988) (citing commentary). 32 rely on those precedents merely for guidance and do not consider our results bound by those decisions." State v. Ball, 124 N. H. 226, 233, 471 A. 2d 347, 352 (1983). See also State v. Kennedy, 295 Ore. 260, 267, 666 P. 2d 1316, 1321 (1983) ("Lest there be any doubt about it, when this court cites federal opinions in interpreting a provision of Oregon law, it does so because it finds the views there expressed persuasive, not because it considers itself bound to do so by its understanding of federal doctrines."). This Court's stated reluctance to look beneath or beyond the very state-court opinion at issue in order to answer the jurisdictional question, see Long, 463 U. S., at 1040, may render such blanket declarations ineffective. Cf. Hart and Wechsler 553 ("[T]he Court's protestations-that its presumption shows greater respect for state courts than asking them to clarify their opinions-ring hollow: Long simply puts the burden of clarification on the state court in advance."). Application of the Long presumption has increased the incidence of nondispositive United States Supreme Court determinations-instances in which state courts, on remand, have reinstated their prior judgments after clarifying their reliance on state grounds. Westling, Advisory Opinions and the "Constitutionally Required" Adequate and Independent State Grounds Doctrine, 63 Tulane L. Rev. 379, 389, and n. 47 (1988) (pre-Long, i. e., between January 1, 1978, and June 30, 1983, 14.3% of decisions (2 of 14) involving potentially adequate and independent state grounds were reinstated on state grounds upon remand; post-Long, i. e., between July 1, 1983, and January 1, 1988, 26.7% of such decisions (4 of 15) were reinstated on remand). Even if these reinstatements do not render the Supreme Court's opinion technically "advisory," see Hart and Wechsler 537, they do suggest that the Court unnecessarily spent its resources on cases better left, at the time in question, to state-court solution. The Long presumption, in sum, departs from the traditional understanding that "every federal court is 'without 33 jurisdiction' unless 'the contrary appears affirmatively from the record.'" Delaware v. Van Arsdall, 475 U. S. 673 , 692 (1986) (STEVENS, J., dissenting) (quoting King Bridge Co. v. Otoe County, 120 U. S. 225 , 226 (1887)). And it is out of sync with the principle that this Court will avoid constitutional questions when an alternative basis of decision fairly presents itself. Ashwander v. TVA, 297 U. S. 288 , 346-347 (1936) (Brandeis, J., concurring). Most critically, as this case shows, the Long presumption interferes prematurely with state-court endeavors to explore different solutions to new problems facing modern society. I recognize that "[s]ince Long, we repeatedly have followed [its] 'plain statement' requirement," Harris v. Reed, 489 U. S. 255 , 261, n. 7 (1989), and that precedent ought not be overruled absent strong cause. But the Long ruling itself did "a virtual about-face regarding the guidelines for determining the reviewability of state court decisions in situations where the state court opinion is not absolutely clear about the bases on which it rests. The traditional presumption was that the Court lacked jurisdiction unless its authority to review was clear on the face of the state court opinion. When faced with uncertainty, the Court in the past occasionally remanded such cases to the state court for clarification. But more commonly, the Court would deny jurisdiction where there was uncertainty." G. Gunther, Constitutional Law 56 (12th ed. 1991). Restoring a main rule "deny[ing] jurisdiction where there [is] uncertainty," ibid., would stop this Court from asserting authority in matters belonging, or at least appropriately left, to the States' domain. Cf. Erie R. Co. v. Tompkins, 304 U. S. 64, 77-80 (1938). Recognizing that "adequate state grounds are independent unless it clearly appears other- 34 wise," Long, 463 U. S., at 1066 (STEVENS, J., dissenting),7 would also avoid premature settlement of important federal questions. The submission for the United States is telling in this regard. While filing in support of petitioner, the United States acknowledges the problem occasioned by "erroneous information contained in law enforcement computer-information systems," but does not see this case as a proper vehicle for a pathmarking opinion. The United States suggests that the Court "await a case in which relevant characteristics of such systems and the legal questions they pose can be thoroughly explored." Brief for United States as Amicus Curiae 13. *** The Arizona Supreme Court found it "repugnant to the principles of a free society," 177 Ariz., at 204, 866 P. 2d, at 872, to take a person "into police custody because of a computer error precipitated by government carelessness." Ibid. Few, I believe, would disagree. Whether, in order to guard against such errors, "the exclusionary rule is a 'cost' we cannot afford to be without," ibid., seems to me a question this Court should not rush to decide. The Court errs, as I see it, in presuming that Arizona rested its decision on federal grounds. I would abandon the Long presumption and dismiss the writ because the generally applicable obligation affirmatively to establish the Court's jurisdiction has not been satisfied. 7 For instances in which a state court's decision, even if arguably placed on a state ground, embodies a misconstruction of federal law threatening gravely to mislead, or to engender disuniformity, confusion, or instability, a Supreme Court order vacating the judgment and remanding for clarification should suffice. See Hart and Wechsler 554; see also supra, at 26, n.3.

The Supreme Court of the United States ruled that it had jurisdiction to review the Arizona Supreme Court's decision in the case of Arizona v. Evans. The Arizona Supreme Court's decision to reverse the lower court's ruling and suppress the marijuana evidence obtained during an unlawful arrest based on an invalid warrant was based on its interpretation of federal law, specifically the appropriateness of applying the exclusionary rule. The majority opinion in Michigan v. Long, which established the standard for determining whether a state court decision rests on adequate and independent state grounds, should not be disturbed as it serves its purpose of providing state courts with the opportunity to develop state jurisprudence while preserving the integrity of federal law. Justice Stevens, in his dissenting opinion, argued for abandoning the Long presumption and dismissing the writ due to uncertainty about the grounds for the Arizona Supreme Court's decision. He suggested that a Supreme Court order vacating the judgment and remanding for clarification would be sufficient in such cases.

Search & Seizure

Michigan Dept. of State Police v. Sitz

https://supreme.justia.com/cases/federal/us/496/444/

U.S. Supreme Court Michigan State Police v. Sitz, 496 U.S. 444 (1990) Michigan Department of State Police v. Sitz No. 88-1897 Argued Feb. 27, 1990 Decided June 14, 1990 496 U.S. 444 CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN Chief Justice REHNQUIST delivered the opinion of the Court. This case poses the question whether a State's use of highway sobriety checkpoints violates the Fourth and Fourteenth Amendments to the United States Constitution. We hold that it does not, and therefore reverse the contrary holding of the Court of Appeals of Michigan. Petitioners, the Michigan Department of State Police and its Director, established a sobriety checkpoint pilot program in early 1986. The Director appointed a Sobriety Checkpoint Advisory Committee comprising representatives of the State Police force, local police forces, state prosecutors, and the University of Michigan Transportation Research Institute. Pursuant to its charge, the Advisory Committee created guidelines setting forth procedures governing checkpoint operations, site selection, and publicity. Under the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the motorist's driver's license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer's observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately. [448 ] The first -- and to date the only -- sobriety checkpoint operated under the program was conducted in Saginaw County with the assistance of the Saginaw County Sheriff's Department. During the hour-and-fifteen-minute duration of the checkpoint's operation, 126 vehicles passed through the checkpoint. The average delay for each vehicle was approximately 25 seconds. Two drivers were detained for field sobriety testing, and one of the two was arrested for driving under the influence of alcohol. A third driver who drove through without stopping was pulled over by an officer in an observation vehicle and arrested for driving under the influence. On the day before the operation of the Saginaw County checkpoint, respondents filed a complaint in the Circuit Court of Wayne County seeking declaratory and injunctive relief from potential subjection to the checkpoints. Each of the respondents "is a licensed driver in the State of Michigan . . . who regularly travels throughout the State in his automobile." See Complaint, App. 3a-4a. During pretrial proceedings, petitioners agreed to delay further implementation of the checkpoint program pending the outcome of this litigation. After the trial, at which the court heard extensive testimony concerning, inter alia , the "effectiveness" of highway sobriety checkpoint programs, the court ruled that the Michigan program violated the Fourth Amendment and Art. 1, § 11, of the Michigan Constitution. App. to Pet. for Cert. 132a. On appeal, the Michigan Court of Appeals affirmed the holding that the program violated the Fourth Amendment and, for that reason, did not consider whether the program violated the Michigan Constitution. 170 Mich.App. 433, 445, 429 N.W.2d 180, 185 (1988). After the Michigan Supreme Court denied petitioners' application for leave to appeal, we granted certiorari. 493 U.S. 806 (1989). To decide this case, the trial court performed a balancing test derived from our opinion in Brown v. Texas , 443 U. S. 47 (1979). As described by the Court of Appeals, the test in- [449 ] volved "balancing the state's interest in preventing accidents caused by drunk drivers, the effectiveness of sobriety checkpoints in achieving that goal, and the level of intrusion on an individual's privacy caused by the checkpoints." 170 Mich.App. at 439, 429 N.W.2d, at 182 (citing Brown, supra , 443 U.S. at 50-51). The Court of Appeals agreed that "the Brown three-prong balancing test was the correct test to be used to determine the constitutionality of the sobriety checkpoint plan." 170 Mich.App., at 439, 429 N.W.2d, at 182. As characterized by the Court of Appeals, the trial court's findings with respect to the balancing factors were that the State has "a grave and legitimate" interest in curbing drunken driving; that sobriety checkpoint programs are generally "ineffective" and, therefore, do not significantly further that interest; and that the checkpoints' "subjective intrusion" on individual liberties is substantial. Id. at 439 and 440, 429 N.W.2d, at 183 and 184. According to the court, the record disclosed no basis for disturbing the trial court's findings, which were made within the context of an analytical framework prescribed by this Court for determining the constitutionality of seizures less intrusive than traditional arrests. Id. at 445, 429 N.W.2d at 185. In this Court, respondents seek to defend the judgment in their favor by insisting that the balancing test derived from Brown v. Texas, supra , was not the proper method of analysis. Respondents maintain that the analysis must proceed from a basis of probable cause or reasonable suspicion and rely for support on language from our decision last Term in Treasury Employees v. Von Raab , 489 U. S. 656 (1989). We said in Von Raab: "Where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant [450 ] or some level of individualized suspicion in the particular context." Id. at 665-666. Respondents argue that there must be a showing of some special governmental need "beyond the normal need" for criminal law enforcement before a balancing analysis is appropriate, and that petitioners have demonstrated no such special need. But it is perfectly plain from a reading of Von Raab , which cited and discussed with approval our earlier decision in United States v. Martinez-Fuerte , 428 U. S. 543 (1976), that it was in no way designed to repudiate our prior cases dealing with police stops of motorists on public highways. Martinez-Fuerte, supra , which utilized a balancing analysis in approving highway checkpoints for detecting illegal aliens, and Brown v. Texas, supra , are the relevant authorities here. Petitioners concede, correctly in our view, that a Fourth Amendment "seizure" occurs when a vehicle is stopped at a checkpoint. Tr. of Oral Arg. 11; see Martinez-Fuerte, supra , at 556 ("It is agreed that checkpoint stops are 'seizures' within the meaning of the Fourth Amendment"); Brower v. County of Inyo , 489 U. S. 593 , 597 (1989) (Fourth Amendment seizure occurs "when there is a governmental termination of freedom of movement through means intentionally applied " (emphasis in original)). The question thus becomes whether such seizures are "reasonable" under the Fourth Amendment. It is important to recognize what our inquiry is not about. No allegations are before us of unreasonable treatment of any person after an actual detention at a particular checkpoint. See Martinez-Fuerte , 428 U.S. at 559 ("claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review"). As pursued in the lower courts, the instant action challenges only the use of sobriety checkpoints generally. We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and ob- [451 ] servation by checkpoint officers. Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard. Id. at 567. No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion. The anecdotal is confirmed by the statistical. "Drunk drivers cause an annual death toll of over 25,000 [ Footnote * ]and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage." 4 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.8(d), p. 71 (2d ed. 1987). For decades, this Court has "repeatedly lamented the tragedy." South Dakota v. Neville , 459 U. S. 553 , 558 (1983); see Breithaupt v. Abram , 352 U. S. 432 , 439 (1957) ("The increasing slaughter on our highways . . . now reaches the astounding figures only heard of on the battlefield"). Conversely, the weight bearing on the other scale -- the measure of the intrusion on motorists stopped briefly at sobriety checkpoints -- is slight. We reached a similar conclusion as to the intrusion on motorists subjected to a brief stop at a highway checkpoint for detecting illegal aliens. See Martinez-Fuerte, supra , at 558. We see virtually no difference between the levels of intrusion on law-abiding motorists [452 ] from the brief stops necessary to the effectuation of these two types of checkpoints, which to the average motorist would seem identical save for the nature of the questions the checkpoint officers might ask. The trial court and the Court of Appeals, thus, accurately gauged the "objective" intrusion, measured by the duration of the seizure and the intensity of the investigation, as minimal. See 170 Mich.App. at 444, 429 N.W.2d at 184. With respect to what it perceived to be the "subjective" intrusion on motorists, however, the Court of Appeals found such intrusion substantial. See supra at 449. The court first affirmed the trial court's finding that the guidelines governing checkpoint operation minimize the discretion of the officers on the scene. But the court also agreed with the trial court's conclusion that the checkpoints have the potential to generate fear and surprise in motorists. This was so because the record failed to demonstrate that approaching motorists would be aware of their option to make U-turns or turnoffs to avoid the checkpoints. On that basis, the court deemed the subjective intrusion from the checkpoints unreasonable. Id. at 443-444, 429 N.W.2d at 184-185. We believe the Michigan courts misread our cases concerning the degree of "subjective intrusion" and the potential for generating fear and surprise. The "fear and surprise" to be considered are not the natural fear of one who has been drinking over the prospect of being stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in law abiding motorists by the nature of the stop. This was made clear in Martinez-Fuerte. Comparing checkpoint stops to roving patrol stops considered in prior cases, we said, "we view checkpoint stops in a different light because the subjective intrusion -- the generating of concern or even fright on the part of lawful travelers -- is appreciably less in the case of a checkpoint stop. In [ United States v. ] Ortiz, [ 422 U.S. 891 (1975),] we noted: [453 ] "'[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion." 422 U.S. at 894-895." Martinez-Fuerte , 428 U.S. at 558. See also id. at 559. Here, checkpoints are selected pursuant to the guidelines, and uniformed police officers stop every approaching vehicle. The intrusion resulting from the brief stop at the sobriety checkpoint is for constitutional purposes indistinguishable from the checkpoint stops we upheld in Martinez-Fuerte. The Court of Appeals went on to consider as part of the balancing analysis the "effectiveness" of the proposed checkpoint program. Based on extensive testimony in the trial record, the court concluded that the checkpoint program failed the "effectiveness" part of the test, and that this failure materially discounted petitioners' strong interest in implementing the program. We think the Court of Appeals was wrong on this point as well. The actual language from Brown v. Texas , upon which the Michigan courts based their evaluation of "effectiveness," describes the balancing factor as "the degree to which the seizure advances the public interest." 443 U.S. at 51. This passage from Brown was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger. Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives [454 ] remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers. Brown's rather general reference to "the degree to which the seizure advances the public interest" was derived, as the opinion makes clear, from the line of cases culminating in Martinez-Fuerte, supra. Neither Martinez-Fuerte nor Delaware v. Prouse , 440 U. S. 648 (1979), however, the two cases cited by the Court of Appeals as providing the basis for its "effectiveness" review, see 170 Mich.App. at 442, 429 N.W.2d at 183, supports the searching examination of "effectiveness" undertaken by the Michigan court. In Delaware v. Prouse, supra , we disapproved random stops made by Delaware Highway Patrol officers in an effort to apprehend unlicensed drivers and unsafe vehicles. We observed that no empirical evidence indicated that such stops would be an effective means of promoting roadway safety and said that "[i]t seems common sense that the percentage of all drivers on the road who are driving without a license is very small, and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be large indeed." 440 U.S. at 659-660. We observed that the random stops involved the "kind of standardless and unconstrained discretion [which] is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent." Id. at 661. We went on to state that our holding did not "cast doubt on the permissibility of roadside truck weigh-stations and inspection checkpoints, at which some vehicles may be subject to further detention for safety and regulatory inspection than are others." Id. at 663, n. 26. Unlike Prouse , this case involves neither a complete absence of empirical data nor a challenge to random highway stops. During the operation of the Saginaw County checkpoint, the detention of each of the 126 vehicles that entered the checkpoint resulted in the arrest of two drunken drivers. [455 ] Stated as a percentage, approximately 1.5 percent of the drivers passing through the checkpoint were arrested for alcohol impairment. In addition, an expert witness testified at the trial that experience in other States demonstrated that, on the whole, sobriety checkpoints resulted in drunken driving arrests of around 1 percent of all motorists stopped. 170 Mich.App. at 441, 429 N.W.2d at 183. By way of comparison, the record from one of the consolidated cases in Martinez-Fuerte showed that, in the associated checkpoint, illegal aliens were found in only 0.12 percent of the vehicles passing through the checkpoint. See 428 U.S. at 554. The ratio of illegal aliens detected to vehicles stopped (considering that on occasion two or more illegal aliens were found in a single vehicle) was approximately 0.5 percent. See Ibid. We concluded that this "record . . . provides a rather complete picture of the effectiveness of the San Clemente checkpoint", ibid, , and we sustained its constitutionality. We see no justification for a different conclusion here. In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. The judgment of the Michigan Court of Appeals is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice BLACKMUN, concurring in the judgment. I concur only in the judgment. I fully agree with the Court's lamentations about the slaughter on our highways, and about the dangers posed to almost everyone by the driver who is under the influence of alcohol or other drug. I add this comment only to remind the Court that it has been almost 20 years since, in Perez v. [456 ] Campbell , 402 U. S. 637 , 657 (1971), in writing for three others (no longer on the Court) and myself, I noted that the "slaughter on the highways of this Nation exceeds the death toll of all our wars," and that I detected "little genuine public concern about what takes place in our very midst and on our daily travel routes." See also Tate v. Short , 401 U. S. 395 , 401 (1971) (concurring statement). And in the Appendix to my writing in Perez , 402 U.S. at 672, I set forth official figures to the effect that, for the period from 1900 through 1969, motor vehicle deaths in the United States exceeded the death toll of all our wars. I have little doubt that those figures, when supplemented for the two decades since 1969, would disclose an even more discouraging comparison. I am pleased, of course, that the Court is now stressing this tragic aspect of American life. See ante at 451. Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. Today, the Court rejects a Fourth Amendment challenge to a sobriety checkpoint policy in which police stop all cars and inspect all drivers for signs of intoxication without any individualized suspicion that a specific driver is intoxicated. The Court does so by balancing "the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped." Ante at 455. For the reasons stated by JUSTICE STEVENS in Parts I and II of his dissenting opinion, I agree that the Court misapplies that test by undervaluing the nature of the intrusion and exaggerating the law enforcement need to use the roadblocks to prevent drunken driving. See also United States v. Martinez-Fuerte , 428 U. S. 543 , 567 (1976) (BRENNAN, J., dissenting). I write separately to express a few additional points. The majority opinion creates the impression that the Court generally engages in a balancing test in order to determine [457 ] the constitutionality of all seizures, or at least those "dealing with police stops of motorists on public highways." Ante at 450. This is not the case. In most cases, the police must possess probable cause for a seizure to be judged reasonable. See Dunaway v. New York , 442 U. S. 200 , 209 (1979). Only when a seizure is " substantially less intrusive," id. at 210, than a typical arrest is the general rule replaced by a balancing test. I agree with the Court that the initial stop of a car at a roadblock under the Michigan State Police sobriety checkpoint policy is sufficiently less intrusive than an arrest so that the reasonableness of the seizure may be judged, not by the presence of probable cause, but by balancing "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Brown v. Texas , 443 U. S. 47 , 51 (1979). But one searches the majority opinion in vain for any acknowledgment that the reason for employing the balancing test is that the seizure is minimally intrusive. Indeed, the opinion reads as if the minimal nature of the seizure ends rather than begins the inquiry into reasonableness. Once the Court establishes that the seizure is "slight," ante at 451, it asserts without explanation that the balance "weighs in favor of the state program." Ante at 455. The Court ignores the fact that, in this class of minimally intrusive searches, we have generally required the Government to prove that it had reasonable suspicion for a minimally intrusive seizure to be considered reasonable. See, e.g., Delaware v. Prouse , 440 U. S. 648 , 661 (1979); United States v. Brignoni-Ponce , 422 U. S. 873 , 882-883 (1975); Terry v. Ohio , 392 U. S. 1 , 27, (1968). Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. See Prouse, supra , 440 U.S. at 654-655; Martinez-Fuerte, supra , 428 U.S. at 577 (BRENNAN, J., dissenting) ("Action based merely on [458 ] whatever may pique the curiosity of a particular officer is the antithesis of the objective standards requisite to reasonable conduct and to avoiding abuse and harassment"). By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police. I would have hoped that before taking such a step, the Court would carefully explain how such a plan fits within our constitutional framework. Presumably, the Court purports to draw support from Martinez-Fuerte, supra , which is the only case in which the Court has upheld a program that subjects the general public to suspicionless seizures. But as Justice STEVENS demonstrates, post at 463-466, 471-472, the Michigan State Police policy is sufficiently different from the program at issue in Martinez-Fuerte that such reliance is unavailing. Moreover, even if the policy at issue here were comparable to the program at issue in Martinez-Fuerte , it does not follow that the balance of factors in this case also justifies abandoning a requirement of individualized suspicion. In Martinez-Fuerte , the Court explained that suspicionless stops were justified because "[a] requirement that stops . . . be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens." 428 U.S. at 557. There has been no showing in this case that there is a similar difficulty in detecting individuals who are driving under the influence of alcohol, nor is it intuitively obvious that such a difficulty exists. See Prouse, supra , 440 U.S. at 661. That stopping every car might make it easier to prevent drunken driving, but see post at 469-471, is an insufficient justification for abandoning the requirement of individualized suspicion. "The needs of law enforcement stand in constant tension with the Constitution's protections [459 ] of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards." Alameida-Sanchez v. United States , 413 U. S. 266 , 273 (1973). Without proof that the police cannot develop individualized suspicion that a person is driving while impaired by alcohol, I believe the constitutional balance must be struck in favor of protecting the public against even the "minimally intrusive" seizures involved in this case. I do not dispute the immense social cost caused by drunken drivers, nor do I slight the government's efforts to prevent such tragic losses. Indeed, I would hazard a guess that today's opinion will be received favorably by a majority of our society, who would willingly suffer the minimal intrusion of a sobriety checkpoint stop in order to prevent drunken driving. But consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis. "The Fourth Amendment was designed not merely to protect against official intrusions whose social utility was less as measured by some 'balancing test' than its intrusion on individual privacy; it was designed in addition to grant the individual a zone of privacy whose protections could be breached only where the 'reasonable' requirements of the probable cause standard were met. Moved by whatever momentary evil has aroused their fears, officials -- perhaps even supported by a majority of citizens -- may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of 'the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men.' Olmstead v. United States , 277 U. S. 438 , 478 (1928) (Brandeis, J., dissenting)." New Jersey [460 ] v. T.L.O. , 469 U. S. 325 , 361-362 (1985) (BRENNAN, J., concurring in part and dissenting in part) (footnote omitted). In the face of the "momentary evil" of drunken driving, the Court today abdicates its role as the protector of that fundamental right. I respectfully dissent. Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join as to Parts I and II, dissenting. A sobriety checkpoint is usually operated at night at an unannounced location. Surprise is crucial to its method. The test operation conducted by the Michigan State Police and the Saginaw County Sheriff's Department began shortly after midnight and lasted until about 1 a.m. During that period, the 19 officers participating in the operation made two arrests and stopped and questioned 125 other unsuspecting and innocent drivers. [ Footnote 1 ] It is, of course, not known how many arrests would have been made during that period if those officers had been engaged in normal patrol activities. However, the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative. Indeed, the record in this case makes clear that a decision holding these suspicionless seizures unconstitutional would not impede the law enforcement community's remarkable progress in reducing the death toll on our highways. [ Footnote 2 ] Because [461 ] the Michigan program was patterned after an older program in Maryland, the trial judge gave special attention to that State's experience. Over a period of several years, Maryland operated 125 checkpoints; of the 41,000 motorists passing through those checkpoints, only 143 persons (0.3%) were arrested. [ Footnote 3 ] The number of man-hours devoted to these [462 ] operations is not in the record, but it seems inconceivable that a higher arrest rate could not have been achieved by more conventional means. [ Footnote 4 ] Yet, even if the 143 checkpoint arrests were assumed to involve a net increase in the number of drunk driving arrests per year, the figure would still be insignificant by comparison to the 71,000 such arrests made by Michigan State Police without checkpoints in 1984 alone. See App. to Pet. for Cert. 97a. Any relationship between sobriety checkpoints and an actual reduction in highway fatalities is even less substantial than the minimal impact on arrest rates. As the Michigan Court of Appeals pointed out, "Maryland had conducted a study comparing traffic statistics between a county using checkpoints and a control county. The results of the study showed that alcohol-related accidents in the checkpoint county decreased by ten percent, whereas the control county saw an eleven percent decrease; and while fatal accidents in the control county fell from sixteen to three, fatal accidents in the checkpoint county actually doubled from the prior year." 170 Mich.App. 433, 443, 429 N.W.2d 180, 184. In light of these considerations, it seems evident that the Court today misapplies the balancing test announced in Brown v. Texas , 443 U. S. 47 , 50-51 (1979). The Court overvalues the law enforcement interest in using sobriety checkpoints, undervalues the citizen's interest in freedom from random, unannounced investigatory seizures, and mistakenly assumes that there is "virtually no difference" between a routine stop at a permanent, fixed checkpoint and a [463 ] surprise stop at a sobriety checkpoint. I believe this case is controlled by our several precedents condemning suspicionless random stops of motorists for investigatory purposes. Delaware v. Prouse , 440 U. S. 648 (1979); United States v. Brignoni-Ponce , 422 U. S. 873 (1975); United States v. Ortiz , 422 U. S. 891 (1975); Almeida-Sanchez v. United States , 413 U. S. 266 (1973); cf. Carroll v. United States , 267 U. S. 132 , 153-154 (1925). I There is a critical difference between a seizure that is preceded by fair notice and one that is effected by surprise. See Wyman v. James , 400 U. S. 309 , 320-321 (1971); United States v. Martinez-Fuerte , 428 U. S. 543 , 559 (1976); Michigan v. Tyler , 436 U. S. 499 , 513-514 (1978) (STEVENS, J., concurring in part and concurring in judgment). That is one reason why a border search, or indeed any search at a permanent and fixed checkpoint, is much less intrusive than a random stop. A motorist with advance notice of the location of a permanent checkpoint has an opportunity to avoid the search entirely, or at least to prepare for, and limit, the intrusion on her privacy. No such opportunity is available in the case of a random stop or a temporary checkpoint, which both depend for their effectiveness on the element of surprise. A driver who discovers an unexpected checkpoint on a familiar local road will be startled and distressed. She may infer, correctly, that the checkpoint is not simply "business as usual," and may likewise infer, again correctly, that the police have made a discretionary decision to focus their law enforcement efforts upon her and others who pass the chosen point. This element of surprise is the most obvious distinction between the sobriety checkpoints permitted by today's majority and the interior border checkpoints approved by this Court in Martinez-Fuerte. The distinction casts immediate doubt upon the majority's argument, for Martinez-Fuerte is the only case in which we have upheld suspicionless seizures [464 ] of motorists. But the difference between notice and surprise is only one of the important reasons for distinguishing between permanent and mobile checkpoints. With respect to the former, there is no room for discretion in either the timing or the location of the stop -- it is a permanent part of the landscape. In the latter case, however, although the checkpoint is most frequently employed during the hours of darkness on weekends (because that is when drivers with alcohol in their blood are most apt to be found on the road), the police have extremely broad discretion in determining the exact timing and placement of the roadblock. [ Footnote 5 ] There is also a significant difference between the kind of discretion that the officer exercises after the stop is made. A check for a driver's license, or for identification papers at an immigration checkpoint, is far more easily standardized than is a search for evidence of intoxication. A Michigan officer who questions a motorist at a sobriety checkpoint has virtually unlimited discretion to detain the driver on the basis [465 ] of the slightest suspicion. A ruddy complexion, an unbuttoned shirt, bloodshot eyes or a speech impediment may suffice to prolong the detention. Any driver who had just consumed a glass of beer, or even a sip of wine, would almost certainly have the burden of demonstrating to the officer that her driving ability was not impaired. [ Footnote 6 ] Finally, it is significant that many of the stops at permanent checkpoints occur during daylight hours, whereas the sobriety checkpoints are almost invariably operated at night. A seizure followed by interrogation and even a cursory search at night is surely more offensive than a daytime stop that is almost as routine as going through a toll gate. Thus we thought it important to point out that the random stops at issue in Ortiz frequently occurred at night. 422 U.S. at 894. These fears are not, as the Court would have it, solely the lot of the guilty. See ante at 452. To be law abiding is not necessarily to be spotless, and even the most virtuous can be unlucky. Unwanted attention from the local police need not be less discomforting simply because one's secrets are not the stuff of criminal prosecutions. Moreover, those who have found -- by reason of prejudice or misfortune -- that encounters with the police may become adversarial or unpleasant without good cause will have grounds for worrying at any stop designed to elicit signs of suspicious behavior. Being stopped by the police is distressing even when it should not be terrifying, and what begins mildly may by happenstance turn severe. For all these reasons, I do not believe that this case is analogous to Martinez-Fuerte. In my opinion, the sobriety checkpoints are instead similar to -- and in some respects more intrusive than -- the random investigative stops that the Court held unconstitutional in Brignoni-Ponce and Prouse. In the latter case, the Court explained: [466 ] "We cannot agree that stopping or detaining a vehicle on an ordinary city street is less intrusive than a roving-patrol stop on a major highway, and that it bears greater resemblance to a permissible stop and secondary detention at a checkpoint near the border. In this regard, we note that Brignoni-Ponce was not limited to roving-patrol stops on limited-access roads, but applied to any roving-patrol stop by Border Patrol agents on any type of roadway on less than reasonable suspicion. See 422 U.S. at 882-883; United States v. Ortiz , 422 U. S. 891 , 894 (1975). We cannot assume that the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents is of any less moment than that occasioned by a stop by border agents on roving patrol. Both of these stops generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. Both interfere with freedom of movement, are inconvenient, and consume time. Both may create substantial anxiety." 440 U.S. at 657. We accordingly held that the State must produce evidence comparing the challenged seizure to other means of law enforcement, so as to show that the seizure "is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail. On the record before us, that question must be answered in the negative. Given the alternative mechanisms available, both those in use and those that might be adopted, we are unconvinced that the incremental contribution to highway safety of the random spot check justifies the practice under the Fourth Amendment." Id. at 659. [467 ] II The Court, unable to draw any persuasive analogy to Martinez-Fuerte , rests its decision today on application of a more general balancing test taken from Brown v. Texas , 443 U. S. 47 (1979). In that case, the appellant, a pedestrian, had been stopped for questioning in an area of El Paso, Texas, that had "a high incidence of drug traffic" because he "looked suspicious." Id. at 49. He was then arrested and convicted for refusing to identify himself to police officers. We set aside his conviction because the officers stopped him when they lacked any reasonable suspicion that he was engaged in criminal activity. In our opinion, we stated: "Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id. at 50-51. The gravity of the public concern with highway safety that is implicated by this case is, of course, undisputed. [ Footnote 7 ] [468 ] Yet that same grave concern was implicated in Delaware v. Prouse. Moreover, I do not understand the Court to have placed any lesser value on the importance of the drug problem implicated in Texas v. Brown , or on the need to control the illegal border crossings that were at stake in Almeida-Sanchez and its progeny. [ Footnote 8 ] A different result in this case must be justified by the other two factors in the Brown formulation. As I have already explained, I believe the Court is quite wrong in blithely asserting that a sobriety checkpoint is no more intrusive than a permanent checkpoint. In my opinion, unannounced investigatory seizures are, particularly when [469 ] they take place at night, the hallmark of regimes far different from ours; [ Footnote 9 ] the surprise intrusion upon individual liberty is not minimal. On that issue, my difference with the Court may amount to nothing less than a difference in our respective evaluations of the importance of individual liberty, a serious albeit inevitable source of constitutional disagreement. [ Footnote 10 ] On the degree to which the sobriety checkpoint seizures advance the public interest, however, the Court's position is wholly indefensible. The Court's analysis of this issue resembles a business decision that measures profits by counting gross receipts and ignoring expenses. The evidence in this case indicates that sobriety checkpoints result in the arrest of a fraction of one percent of the drivers who are stopped, [ Footnote 11 ] but there is absolutely no evidence that this figure represents an increase over the number of arrests that would have been made by using the same law enforcement resources in conventional patrols. [ Footnote 12 ] Thus, although the gross number of arrests is more [470 ] than zero, there is a complete failure of proof on the question whether the wholesale seizures have produced any net advance in the public interest in arresting intoxicated drivers. Indeed, the position adopted today by the Court is not one endorsed by any of the law enforcement authorities to whom the Court purports to defer, see ante at 453-454. The Michigan police do not rely, as the Court does, ante at 454-455, on the arrest rate at sobriety checkpoints to justify the stops made there. Colonel Hough, the commander of the Michigan State Police and a leading proponent of the checkpoints, admitted at trial that the arrest rate at the checkpoints was "very low." 1 Record 87. Instead, Colonel Hough and the State have maintained that the mere threat of such arrests is sufficient to deter drunk driving and so to reduce the accident rate. [ Footnote 13 ] The Maryland police officer who testified [471 ] at trial took the same position with respect to his State's program. [ Footnote 14 ] There is, obviously, nothing wrong with a law enforcement technique that reduces crime by pure deterrence without punishing anybody; on the contrary, such an approach is highly commendable. One cannot, however, prove its efficacy by counting the arrests that were made. One must instead measure the number of crimes that were avoided. Perhaps because the record is wanting, the Court simply ignores this point. The Court's sparse analysis of this issue differs markedly from Justice Powell's opinion for the Court in Martinez-Fuerte. He did not merely count the 17,000 arrests made at the San Clemente checkpoint in 1973, 428 U.S. at 554; he also carefully explained why those arrests represented a net benefit to the law enforcement interest at stake. [ Footnote 15 ] Common [472 ] sense, moreover, suggests that immigration checkpoints are more necessary than sobriety checkpoints: there is no reason why smuggling illegal aliens should impair a motorist's driving ability, but if intoxication did not noticeably affect driving ability, it would not be unlawful. Drunk driving, unlike smuggling, may thus be detected absent any checkpoints. A program that produces thousands of otherwise impossible arrests is not a relevant precedent for a program that produces only a handful of arrests which would be more easily obtained without resort to suspicionless seizures of hundreds of innocent citizens. [ Footnote 16 ] [473 ] III The most disturbing aspect of the Court's decision today is that it appears to give no weight to the citizen's interest in freedom from suspicionless unannounced investigatory seizures. Although the author of the opinion does not reiterate his description of that interest as "diaphanous," see Delaware v. Prouse , 440 U.S. at 666 (REHNQUIST, J., dissenting), the Court's opinion implicitly adopts that characterization. On the other hand, the Court places a heavy thumb on the law enforcement interest by looking only at gross receipts instead of net benefits. Perhaps this tampering with the scales of justice can be explained by the Court's obvious concern about the slaughter on our highways, and a resultant tolerance for policies designed to alleviate the problem by "setting an example" of a few motorists. This possibility prompts two observations. First, my objections to random seizures or temporary checkpoints do not apply to a host of other investigatory procedures that do not depend upon surprise and are unquestionably permissible. These procedures have been used to address other threats to human life no less pressing than the threat posed by drunken drivers. It is, for example, common practice to require every prospective airline passenger, or every visitor to a public building, to pass through a metal detector that will reveal the presence of a firearm or an explosive. Permanent, nondiscretionary checkpoints could be used to control serious dangers at other publicly operated facilities. Because concealed weapons obviously represent one such substantial threat to public safety, [ Footnote 17 ] I would suppose [474 ] that all subway passengers could be required to pass through metal detectors, so long as the detectors were permanent and every passenger was subjected to the same search. [ Footnote 18 ] Likewise, I would suppose that a State could condition access to its toll roads upon not only paying the toll but also taking a uniformly administered breathalizer test. That requirement might well keep all drunken drivers off the highways that serve the fastest and most dangerous traffic. This procedure would not be subject to the constitutional objections that control this case: the checkpoints would be permanently fixed, the stopping procedure would apply to all users of the toll road in precisely the same way, and police officers would not be free to make arbitrary choices about which neighborhoods should be targeted or about which individuals should be more thoroughly searched. Random, suspicionless seizures designed to search for evidence of firearms, drugs, or intoxication belong, however, in a fundamentally different category. These seizures play upon the detained individual's reasonable expectations of privacy, injecting a suspicionless search into a context where none would normally occur. The imposition that seems diaphanous today may be intolerable tomorrow. See Boyd v. United States , 116 U. S. 616 , 636 (1886). [475 ] Second, sobriety checkpoints are elaborate, and disquieting, publicity stunts. The possibility that anybody, no matter how innocent, may be stopped for police inspection is nothing if not attention-getting. The shock value of the checkpoint program may be its most effective feature: Lieutenant Cotton of the Maryland State Police, a defense witness, testified that "the media coverage . . . has been absolutely overwhelming. . . . Quite frankly, we got benefits just from the controversy of the sobriety checkpoints." [ Footnote 19 ] In- [476 ] sofar as the State seeks to justify its use of sobriety checkpoints on the basis that they dramatize the public interest in the prevention of alcohol related accidents, the Court should heed Justice SCALIA's comment upon a similar justification for a drug screening program: "The only plausible explanation, in my view, is what the Commissioner himself offered in the concluding sentence of his memorandum to Customs Service employees announcing the program: 'Implementation of the drug screening program would set an important example in our country's struggle with this most serious threat to our national health and security.' App. 12. Or as respondent's brief to this Court asserted: 'if a law enforcement agency and its employees do not take the law seriously, neither will the public on which the agency's effectiveness depends.' Brief for Respondent 36. What better way to show that the Government is serious about its 'war on drugs' than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity? To be sure, there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use, but it will show to the world that the Service is 'clean,' and -- most important of all -- will demonstrate the determination of the Government to eliminate this scourge of our society! I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, [477 ] even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search." Treasury Employees v. Von Raab , 489 U. S. 656 , 686 (1989) (dissenting opinion). This is a case that is driven by nothing more than symbolic state action -- an insufficient justification for an otherwise unreasonable program of random seizures. Unfortunately, the Court is transfixed by the wrong symbol -- the illusory prospect of punishing countless intoxicated motorists -- when it should keep its eyes on the road plainly marked by the Constitution. I respectfully dissent. Footnotes [ Footnote * ] * Statistical evidence incorporated in the dissent suggests that this figure declined between 1982 and 1988. See post at 496 U.S. 460 -461 n. 2 and 467-468, n. 7 (citing National Highway Traffic Safety Administration, Fatal Accident Reporting System 1988). It was during this same period that police departments experimented with sobriety checkpoint systems. Petitioners, for instance, operated their checkpoint in May, 1986, see App. to Pet. for Cert. 6a, and the Maryland State Police checkpoint program, about which much testimony was given before the trial court, began in December, 1982. See id. at 84a. Indeed, it is quite possible that jurisdictions which have recently decided to implement sobriety checkpoint systems have relied on such data from the 1980s in assessing the likely utility of such checkpoints. [ Footnote 1 ] The 19 officers present at the sole Michigan checkpoint were not the standard detail; a few were observers. Nevertheless, the standard plan calls for having at least 8 and as many as 12 officers on hand. 1 Record 82-83. [ Footnote 2 ] The fatality rate per 100 million miles traveled has steadily declined from 5.2 in 1968 to 2.3 in 1988. During the same span, the absolute number of fatalities also decreased, albeit less steadily, from more than 52,000 in 1968 to approximately 47,000 in 1988. U.S. Dept. of Transportation, National Highway Traffic Safety Administration, Fatal Accident Reporting System 1988 Ch. 1, p. 6 (Dec.1989) (hereinafter Fatal Accident Reporting System 1988). Alcohol remains a substantial cause of these accidents, but progress has been made on this front as well: "Since 1982, alcohol use by drivers in fatal crashes has steadily decreased. The proportion of all drivers who were estimated to have been legally intoxicated (BAC of .10 or greater) dropped from 30% in 1982 to 24.6% in 1988. The reduction from 1982-1988 is 18%." "The proportion of fatally injured drivers who were legally intoxicated dropped from 43.8% in 1982 to 37.5% in 1988 -- a 14% decrease." "During the past seven years, the proportion of drivers involved in fatal crashes who were intoxicated decreased in all age groups. The most significant drop continues to be in the 15 to 19 year old age group. In 1982, NHTSA estimated that 28.4% of these teenaged drivers in fatal crashes were drunk, compared with 18.3% in 1988." Id. Overview, p. 2. All of these improvements have been achieved despite resistance -- now ebbing at last -- to the use of airbags and other passive restraints, improvements that would almost certainly result in even more dramatic reductions in the fatality rate. Indeed, the National Highway Traffic Safety Administration estimates that an additional 5,000 lives per year would be saved if the 21 States without mandatory safety belt usage laws were to enact such legislation -- even though only 50% of motorists obey such laws. Id. Overview, p. 4, Ch. 2, p. 13. [ Footnote 3 ] App. to Pet. for Cert. 80a-81a. The figures for other States are roughly comparable. See, e.g., State ex rel. Ekstrom v. Justice Ct. , 136 Ariz. 1, 2, 663 P.2d 992 , 993 (1983) (5,763 cars stopped, 14 persons arrested for drunken driving); Ingersoll v. Palmer , 43 Cal. 3d 1321 , 1327, 241 Cal. Rptr. 42 , 46, 743 P.2d 1299 , 1303 (1987) (233 vehicles screened, no arrests for drunken driving); State v. Garcia , 481 N.E.2d 148 , 150 (Ind. App.1985) (100 cars stopped, seven arrests for drunken driving made in two hours of operation); State v. McLaughlin , 471 N.E.2d 1125 , 1137 (Ind. App. 1984) (115 cars stopped, three arrests for drunken driving); State v. Deskins , 234 Kan. 529, 545, 673 P.2d 1174 , 1187 (1983) (Prager, J., dissenting) (2,000 to 3,000 vehicles stopped, 15 arrests made, 140 police man-hours consumed); Commonwealth v. Trumble , 396 Mass. 81, 85, 483 N.E.2d 1102 , 1105 (1985) (503 cars stopped, eight arrests, 13 participating officers); State v. Koppel , 127 N.H. 286, 288, 499 A.2d 977, 979 (1985) (1,680 vehicles stopped, 18 arrests for driving while intoxicated). [ Footnote 4 ] "The then sheriffs of Macomb County, Kalamazoo County, and Wayne County all testified as to other means used in their counties to combat drunk driving and as to their respective opinions that other methods currently in use, e.g. , patrol cars, were more effective means of combating drunk driving and utilizing law enforcement resources than sobriety checkpoints." 170 Mich.App. 433, 443, 429 N.W.2d 180, 184 ( 1988). [ Footnote 5 ] The Michigan Plan provides that locations should be selected after consideration of "previous alcohol and drug experience per time of day and day of week as identified by arrests and/or Michigan Accident Location Index data," App. to Pet. for Cert. 148a, and that "specific site selection" should be based on the following criteria: "1. Safety of the location for citizens and law enforcement personnel. The site selected shall have a safe area for stopping a driver and must afford oncoming traffic sufficient sight distance for the driver to safely come to a stop upon approaching the checkpoint." "2. The location must ensure minimum inconvenience for the driver and facilitate the safe stopping of traffic in one direction during the pilot program." "3. Roadway choice must ensure that sufficient adjoining space is available to pull the vehicle off the traveled portion of the roadway for further inquiry if necessary." "4. Consideration should be given to the physical space requirements as shown in Appendixes 'A' and 'B.'" Id. at 149a-150a. Although these criteria are not as open-ended as those used in Delaware v. Prouse , 440 U. S. 648 (1979), they certainly would permit the police to target an extremely wide variety of specific locations. [ Footnote 6 ] See, e.g. , 1 Record 107. [ Footnote 7 ] It is, however, inappropriate for the Court to exaggerate that concern by relying on an outdated statistic from a tertiary source. The Court's quotation from the 1987 edition of Professor LaFave's treatise, ante , at 5, is in turn drawn from a 1983 law review note which quotes a 1982 House committee report that does not give the source for its figures. See 4 W. LaFave, Search and Seizure § 10.8(d), p. 71 (2d ed. 1987), citing, Note, Curbing the Drunk Driver under the Fourth Amendment: The Constitutionality of Roadblock Seizures, 71 Geo.L.J. 1457, 1457, n. I (1983), citing, H.R.Rep. No. 97-867, p. 7. Justice BLACKMUN's citation, ante at 455-456 (concurring opinion) to his own opinion in Perez v. Campbell , 402 U. S. 637 , 657 (1971) (opinion concurring in part and dissenting in part) is even wider of the mark, since that case had nothing to do with drunken driving, and the number of highway fatalities has since declined significantly despite the increase in highway usage. By looking instead at recent data from the National Highway Traffic Safety Administration, one finds that, in 1988, there were 18,501 traffic fatalities involving legally intoxicated persons, and an additional 4,850 traffic fatalities involving persons with some alcohol exposure. Of course, the latter category of persons could not be arrested at a sobriety checkpoint, but even the total number of alcohol related traffic fatalities (23,352) is significantly below the figure located by the student commentator and embraced by today's Court. These numbers, of course, include any accidents that might have been caused by a sober driver but involved an intoxicated person. They also include accidents in which legally intoxicated pedestrians and bicyclists were killed; such accidents account for 2,180 of the 18,501 total accidents involving legally intoxicated persons. The checkpoints would presumably do nothing to intercept tipsy pedestrians or cyclists. See Fatal Accident Reporting System 1988 Overview, p. 1; Id. Ch. 2, p. 5; see also 1 Record 58. [ Footnote 8 ] The dissents in those cases touted the relevant State interests in detail. In Almeida-Sanchez v. United States , 413 U. S. 266 , 293 (1973), Justice WHITE, joined by the author of today's majority opinion, wrote: "The fact is that illegal crossings at other than the legal ports of entry are numerous and recurring. If there is to be any hope of intercepting illegal entrants and of maintaining any kind of credible deterrent, it is essential that permanent or temporary checkpoints be maintained away from the borders, and roving patrols be conducted to discover and intercept illegal entrants as they filter to the established roads and highways and attempt to move away from the border area. It is for this purpose that the Border Patrol maintained the roving patrol involved in this case and conducted random, spot checks of automobiles and other vehicular traffic." Then-Justice REHNQUIST argued in a similar vein in his dissent in Delaware v. Prouse , in which he observed that: "The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed." 440 U.S. at 666. [ Footnote 9 ] "It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials: "These [Fourth Amendment rights], I protest, are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.' Brinegar v. United States , 338 U. S. 160 , 180 (Jackson, J., dissenting)." Almeida-Sanchez v. United States , 413 U.S. at 273-274. [ Footnote 10 ] See, e.g., Walters v. National Assn. of Radiation Survivors , 473 U. S. 305 , 371-372 (1985) (dissenting opinion); Hudson v. Palmer , 468 U. S. 517 , 556-558 (1984) (dissenting opinion); Meachum v. Fano , 427 U. S. 215 , 229-230 (1976) (dissenting opinion). [ Footnote 11 ] The Court refers to the expert testimony that the arrest rate is "around I percent," ante at 455, but a fair reading of the entire testimony of that witness, together with the other statistical evidence in the record, points to a significantly lower percentage. [ Footnote 12 ] Indeed, a single officer in a patrol car parked at the same place as the sobriety checkpoint would no doubt have been able to make some of the arrests based on the officer's observation of the way the intoxicated driver was operating his vehicle. [ Footnote 13 ] Colonel Hough's testimony included the following exchanges: "Q. It is true, is it not, Colonel that your purpose in effectuating or attempting to effectuate this Checkpoint Plan is not to obtain large numbers of arrest of drunk drivers?" "A. That is correct." "Q. Is it correct, is it, as far as you are aware, other states that have tried this have not found they are getting a high rate of arrests?" "A. Yes, that's my understanding." "Q. What was your purpose then, Colonel, in attempting to implement this plan if you don't intend to use it to get drunk drivers arrested?" "A. Deter them from drinking and driving." App. 77a. "Q. To your knowledge, in the Maryland study, the part you reviewed, the check lanes are not an effective tool for arresting drunk drivers?" "A. They have not relied upon the number of arrests to judge the successfulness in my understanding." Id. at 82a. "Q. Are you aware that within the announcements that went out to the public was an indication that the checkpoints were to effectuate or [sic] arrest of drunk drivers. There was a goal to effectuate arrests of drunk drivers?" "A. Well, it is part of the role, sure." "Q. Certainly not your primary goal, is it?" "A. The primary goal is to reduce alcohol-related accidents." "Q. It's not your primary goal by any stretch, is it, to effectuate a high rate of arrests within this program?" "A. No." "Q. If your goal was to effectuate a rise of arrests, you would use a different technique, wouldn't you?" "A. l don't know that." 1 Record 88-89. Respondents informed this Court that, at trial, "the Defendants did not even attempt to justify sobriety roadblocks on the basis of the number of arrests obtained." Brief for Respondents 25. In answer, the State said, "Deterrence and public information are the primary goals of the sobriety checkpoint program, but the program is also clearly designed to apprehend any drunk drivers who pass through the checkpoint." Reply Brief for Petitioner 34. This claim, however, does not directly controvert respondents' argument or Colonel Hough's concession: even if the checkpoint is designed to produce some arrests, it does not follow that it has been adopted in order to produce arrests, or that it can be justified on such grounds. [ Footnote 14 ] "Dr. Ross' testimony regarding the low actual arrest rate of checkpoint programs was corroborated by the testimony of one of defendants' witnesses, Lieutenant Raymond Cotten of the Maryland State Police." 170 Mich.App. at 442, 429 N.W.2d at 184. [ Footnote 15 ] "Our previous cases have recognized that maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border. We note here only the substantiality of the public interest in the practice of routine stops for inquiry at permanent checkpoints, a practice which the Government identifies as the most important of the traffic-checking operations. Brief for United States in No. 741560, pp. 19-20. These checkpoints are located on important highways; in their absence, such highways would offer illegal aliens a quick and safe route into the interior. Routine checkpoint inquiries apprehend many smugglers and illegal aliens who succumb to the lure of such highways. And the prospect of such inquiries forces others onto less efficient roads that are less heavily traveled, slowing their movement and making them more vulnerable to detection by roving patrols. Cf. United States v. Brignoni-Ponce , 422 U.S. at 883-885. "A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens. In particular, such a requirement would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly." United States v. Martinez-Fuerte , 428 U. S. 543 , 556-557 (1976) (footnote omitted). [ Footnote 16 ] Alcohol-related traffic fatalities are also susceptible to reduction by public information campaigns in a way that crimes such as, for example, smuggling or armed assault are not. An intoxicated driver is her own most likely victim: more than 55% of those killed in accidents involving legally intoxicated drivers are legally intoxicated drivers themselves. Fatal Accident Reporting System 1988 Overview, p. 1. Cf. Skinner v. Railway Labor Executives Assn. , 489 U. S. 602 , 634, (STEVENS, J., concurring in part and concurring in judgment) ("if they are conscious of the possibilities that such an accident might occur and that alcohol or drug use might be a contributing factor, if the risk of serious personal injury does not deter their use of these substances, it seems highly unlikely that the additional threat of loss of employment would have an effect on their behavior"). [ Footnote 17 ] For example, in 1988 there were 18,501 traffic fatalities involving legally intoxicated persons. If one subtracts from this number the 10,210 legally intoxicated drivers who were themselves killed in these crashes, there remain 8,291 fatalities in which somebody other than the intoxicated driver was killed in an accident involving legally intoxicated persons (this number still includes, however, accidents in which legally intoxicated pedestrians stepped in front of sober drivers and were killed). Fatal Accident Reporting System 1988 Overview, p. 1; see also supra , n 15. By contrast, in 1986 there were a total of 19,257 murders and non-negligent manslaughters. Of these, approximately 11,360 were committed with a firearm, and another 3,850 were committed with some sort of knife. U.S. Dep. of Justice, 1987 Sourcebook of Criminal Justice Statistics 337 (1988). From these statistics, it would seem to follow that someone who does not herself drive when legally intoxicated is more likely to be killed by an armed assailant than by an intoxicated driver. The threat to life from concealed weapons thus appears comparable to the threat from drunk driving. [ Footnote 18 ] Permanent, nondiscretionary checkpoints are already a common practice at public libraries, which now often require every patron to submit to a brief search for books, or to leave by passing through a special detector. [ Footnote 19 ] 2 Record 40. Colonel Hough and Lieutenant Cotton agreed that publicity from the news media was an integral part of the checkpoint program. Colonel Hough, for example, testified as follows: "Q. And you have observed, haven't you, Colonel, any time you have a media campaign with regard to a crackdown you're implementing, it does have a positive effect?" "A. We believe it has an effect, yes." "Q. And in order for the positive effect of the media campaign to continue would be necessary to continue the announcements that you are putting out there?" "A. Yes." "Q. It's true, isn't it, much of the media publicity attendant to this sobriety checkpoint has come from your public service announcements about the general media attention to this issue and placing it in our newspapers as a public interest story?" "A. Yes. . . . " "Q. Or other television public interest stories?" "A. Yes." "Q. You don't anticipate, do you, Colonel, that the level of media interest in this matter will continue over the long haul, do you?" "A. I am certain it will wane in a period of time." "Q. Have you ever given any thought to whether or not a different type of deterrent program with the same type of attendant media attention would have a similar deterrent effect as to what you can expect at the checkpoint?" "A. We have done it both with a SAVE Program and CARE Program and selective enforcement. Probably it has not received as great of attention as this has." "Q. Any question, have you ever given any thought to whether or not a different technique with the same attendant media publicity that this has gotten would have the same effect you're looking for here?" "A. No." 1 id. at 91-92. In addition, Point 6 of the Michigan State Police Sobriety Checkpoint Guidelines indicates that each driver stopped should be given a brochure describing the checkpoint's purposes and operation. "The brochure will explain the purpose of the sobriety checkpoint program, furnish information concerning the effects of alcohol and safe consumption levels, and include a detachable pre-addressed questionnaire." Trial Exhibit A, Michigan State Police Sobriety Checkpoint Guidelines 8 (Feb. 1986). The Maryland program had a similar feature. 2 Record 18.

Here is a summary of the key points from the case: Michigan State Police v. Sitz (1990) concerned the constitutionality of highway sobriety checkpoints established by the Michigan Department of State Police. The case posed the question of whether these checkpoints violated the Fourth and Fourteenth Amendment protections against unreasonable searches and seizures. The Supreme Court held that the state's use of highway sobriety checkpoints was constitutional and did not violate the Fourth or Fourteenth Amendments. The Court considered the state's interest in preventing drunk driving and the intrusiveness of the checkpoints, including the average delay of approximately 25 seconds for each vehicle. The Court balanced the state's interest in highway safety against the individual's privacy interest and found that the checkpoints, as designed, were reasonable under the Fourth Amendment. The Court also noted the importance of publicity and public awareness campaigns in conjunction with the checkpoints to enhance their deterrent effect. As a result, the Court reversed the decision of the Court of Appeals of Michigan, which had found the checkpoints unconstitutional.

Search & Seizure

Alabama v. White

https://supreme.justia.com/cases/federal/us/496/325/

U.S. Supreme Court Alabama v. White, 496 U.S. 325 (1990) Alabama v. White No. 89-789 Argued April 17, 1990 Decided June 11, 1990 496 U.S. 325 CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF ALABAMA Syllabus Police received an anonymous telephone tip that respondent White would be leaving a particular apartment at a particular time in a particular vehicle, that she would be going to a particular motel, and that she would be in possession of cocaine. They immediately proceeded to the apartment building, saw a vehicle matching the caller's description, observed White as she left the building and entered the vehicle, and followed her along the most direct route to the motel, stopping her vehicle just short of the motel. A consensual search of the vehicle revealed marijuana and, after White was arrested, cocaine was found in her purse. The Court of Criminal Appeals of Alabama reversed her conviction on possession charges, holding that the trial court should have suppressed the marijuana and cocaine because the officers did not have the reasonable suspicion necessary under Terry v. Ohio, 392 U. S. 1 , to justify the investigatory stop of the vehicle. Held: The anonymous tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. Pp. 496 U. S. 328 -332. (a) Under Adams v. Williams, 407 U. S. 143 , 407 U. S. 147 , an informant's tip may carry sufficient "indicia of reliability" to justify a Terry stop even though it may be insufficient to support an arrest or search warrant. Moreover, Illinois v. Gates, 462 U. S. 213 , 462 U. S. 230 , adopted a "totality of the circumstances" approach to determining whether an informant's tip establishes probable cause, whereby the informant's veracity, reliability, and basis of knowledge are highly relevant. These factors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard. Pp. 496 U. S. 328 -329. (b) Standing alone, the tip here is completely lacking in the necessary indicia of reliability, since it provides virtually nothing from which one might conclude that the caller is honest or his information reliable, and gives no indication of the basis for his predictions regarding White's criminal activities. See Gates, supra, at 462 U. S. 227 . However, although it is a close question, the totality of the circumstances demonstrates that significant aspects of the informant's story were sufficiently corroborated by the police to furnish reasonable suspicion. Although not every detail Page 496 U. S. 326 mentioned by the tipster was verified -- e.g., the name of the woman leaving the apartment building or the precise apartment from which she left -- the officers did corroborate that a woman left the building and got into the described vehicle. Given the facts that they proceeded to the building immediately after the call, and that White emerged not too long thereafter, it also appears that her departure was within the timeframe predicted by the caller. Moreover, since her four-mile route was the most direct way to the motel, but nevertheless involved several turns, the caller's prediction of her destination was significantly corroborated, even though she was stopped before she reached the motel. Furthermore, the fact that the caller was able to predict her future behavior demonstrates a special familiarity with her affairs. Thus there was reason to believe that the caller was honest and well informed, and to impart some degree of reliability to his allegation that White was engaged in criminal activity. See id. at 462 U. S. 244 , 462 U. S. 245 . Pp. 496 U. S. 329 -332. 550 So. 2d 1074 (Ala.Cr.App.1989), reversed and remanded. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion in which BRENNAN and MARSHALL, JJ., joined, post, p. 496 U. S. 333 . Justice WHITE delivered the opinion of the Court. Based on an anonymous telephone tip, police stopped respondent's vehicle. A consensual search of the car revealed drugs. The issue is whether the tip, as corroborated by independent Page 496 U. S. 327 police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. We hold that it did. On April 22, 1987, at approximately 3 p.m., Corporal B.H. Davis of the Montgomery Police Department received a telephone call from an anonymous person stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey's Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. Corporal Davis and his partner, Corporal P. A. Reynolds, proceeded to the Lynwood Terrace Apartments. The officers saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the 235 building. The officers observed respondent leave the 235 building, carrying nothing in her hands, and enter the station wagon. They followed the vehicle as it drove the most direct route to Dobey's Motel. When the vehicle reached the Mobile Highway, on which Dobey's Motel is located, Corporal Reynolds requested a patrol unit to stop the vehicle. The vehicle was stopped at approximately 4:18 p.m., just short of Dobey's Motel. Corporal Davis asked respondent to step to the rear of her car, where he informed her that she had been stopped because she was suspected of carrying cocaine in the vehicle. He asked if they could look for cocaine, and respondent said they could look. The officers found a locked brown attache case in the car and, upon request, respondent provided the combination to the lock. The officers found marijuana in the attache case, and placed respondent under arrest. During processing at the station, the officers found three milligrams of cocaine in respondent's purse. Respondent was charged in Montgomery County court with possession of marijuana and possession of cocaine. The trial court denied respondent's motion to suppress, and she pleaded guilty to the charges, reserving the right to appeal Page 496 U. S. 328 the denial of her suppression motion. The Court of Criminal Appeals of Alabama held that the officers did not have the reasonable suspicion necessary under Terry v. Ohio, 392 U. S. 1 (1968), to justify the investigatory stop of respondent's car, and that the marijuana and cocaine were fruits of respondent's unconstitutional detention. The court concluded that respondent's motion to dismiss should have been granted, and reversed her conviction. 550 So. 2d 1074 (1989). The Supreme Court of Alabama denied the State's petition for writ of certiorari, two justices dissenting. 550 So. 2d 1081 (1989). Because of differing views in the state and federal courts over whether an anonymous tip may furnish reasonable suspicion for a stop, we granted the State's petition for certiorari, 493 U.S. 1042 (1990). We now reverse. Adams v. Williams, 407 U. S. 143 (1972), sustained a Terry stop and frisk undertaken on the basis of a tip given in person by a known informant who had provided information in the past. We concluded that, while the unverified tip may have been insufficient to support an arrest or search warrant, the information carried sufficient "indicia of reliability" to justify a forcible stop. 407 U.S. at 407 U. S. 147 . We did not address the issue of anonymous tips in Adams except to say that "[t]his is a stronger case than obtains in the case of an anonymous telephone tip," id. at 407 U. S. 146 . Illinois v. Gates, 462 U. S. 213 (1983), dealt with an anonymous tip in the probable cause context. The Court there abandoned the "two-pronged test" of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), in favor of a "totality of the circumstances" approach to determining whether an informant's tip establishes probable cause. Gates made clear, however, that those factors that had been considered critical under Aguilar and Spinelli -- an informant's "veracity," "reliability," and "basis of knowledge" -- remain "highly relevant in determining the value of his report." 462 U.S. at 462 U. S. 230 . These factors are also relevant in the reasonable suspicion context, although allowance Page 496 U. S. 329 must be made in applying them for the lesser showing required to meet that standard. The opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity, inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations, and given that the veracity of persons supplying anonymous tips is "by hypothesis largely unknown and unknowable," Id. at 462 U. S. 237 . This is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a Terry stop. But the tip in Gates was not an exception to the general rule, and the anonymous tip in this case is like the one in Gates: "[it] provides virtually nothing from which one might conclude that [the caller] is either honest or his information reliable; likewise, the [tip] gives absolutely no indication of the basis for the [caller's] predictions regarding [Vanessa White's] criminal activities." 462 U.S. at 462 U. S. 227 . By requiring "[s]omething more," as Gates did, ibid., we merely apply what we said in Adams: "Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized," 407 U.S. at 470 U. S. 147 . Simply put, a tip such as this one, standing alone, would not " warrant a man of reasonable caution in the belief' that [a stop] was appropriate." Terry, supra, 392 U.S. at 392 U. S. 22 , quoting Carroll v. United States, 267 U. S. 132 , 267 U. S. 162 (1925). As there was in Gates, however, in this case there is more than the tip itself. The tip was not as detailed, and the corroboration was not as complete, as in Gates, but the required degree of suspicion was likewise not as high. We discussed the difference in the two standards last Term in United States v. Sokolow, 490 U. S. 1 , 490 U. S. 7 (1989): "The officer [making a Terry stop] . . . must be able to articulate something more than an "inchoate and unparticularized suspicion or hunch.'" [ Terry, 392 U.S.] at 392 U. S. 27 . The Fourth Amendment requires "some minimal Page 496 U. S. 330 level of objective justification" for making the stop. INS v. Delgado, 466 U. S. 210 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means "a fair probability that contraband or evidence of a crime will be found," [ Gates, 462 U.S. at 462 U. S. 238 ], and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause." Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U.S. at 407 U. S. 147 . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the "totality of the circumstances -- the whole picture," United States v. Cortez, 449 U. S. 411 , 449 U. S. 417 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The Gates Court applied its totality of the circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable suspicion context, the only difference Page 496 U. S. 331 being the level of suspicion that must be established. Contrary to the court below, we conclude that when the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity, and that the investigative stop therefore did not violate the Fourth Amendment. It is true that not every detail mentioned by the tipster was verified, such as the name of the woman leaving the building or the precise apartment from which she left; but the officers did corroborate that a woman left the 235 building and got into the particular vehicle that was described by the caller. With respect to the time of departure predicted by the informant, Corporal Davis testified that the caller gave a particular time when the woman would be leaving, App. 5, but he did not state what that time was. He did testify that, after the call, he and his partner proceeded to the Lynwood Terrace Apartments to put the 235 building under surveillance, id. at 5-6. Given the facts that the officers proceeded to the indicated address immediately after the call, and that respondent emerged not too long thereafter, it appears from the record before us that respondent's departure from the building was within the timeframe predicted by the caller. As for the caller's prediction of respondent's destination, it is true that the officers stopped her just short of Dobey's Motel and did not know whether she would have pulled in or continued on past it. But, given that the four-mile route driven by respondent was the most direct route possible to Dobey's Motel, 550 So. 2d at 1075, Tr. of Oral Arg. 24, but nevertheless involved several turns, App. 7, Tr. of Oral Arg. 24, we think respondent's destination was significantly corroborated. The Court's opinion in Gates gave credit to the proposition that, because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. 462 U.S. at 462 U. S. 244 . Thus, it is not Page 496 U. S. 332 unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller. We think it also important that, as in Gates, "the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." Gates, 462 U.S. at 462 U. S. 245 . The fact that the officers found a car precisely matching the caller's description in front of the 235 building is an example of the former. Anyone could have "predicted" that fact, because it was a condition presumably existing at the time of the call. What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information -- a special familiarity with respondent's affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey's Motel. Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities. See Gates, supra, at 462 U. S. 245 . When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest, but also that he was well informed, at least well enough to justify the stop. Although it is a close case, we conclude that, under the totality of the circumstances, the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent's car. We therefore reverse the judgment of the Court of Criminal Appeals of Alabama, and remand for further proceedings not inconsistent with this opinion. So ordered. Page 496 U. S. 333 Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting. Millions of people leave their apartments at about the same time every day, carrying an attache case and heading for a destination known to their neighbors. Usually, however, the neighbors do not know what the briefcase contains. An anonymous neighbor's prediction about somebody's time of departure and probable destination is anything but a reliable basis for assuming that the commuter is in possession of an illegal substance -- particularly when the person is not even carrying the attache case described by the tipster. The record in this case does not tell us how often respondent drove from the Lynwood Terrace Apartments to Dobey's Motel; for all we know, she may have been a room clerk or telephone operator working the evening shift. It does not tell us whether Officer Davis made any effort to ascertain the informer's identity, his reason for calling, or the basis of his prediction about respondent's destination. Indeed, for all that this record tells us, the tipster may well have been another police officer who had a "hunch" that respondent might have cocaine in her attache case. Anybody with enough knowledge about a given person to make her the target of a prank, or to harbor a grudge against her, will certainly be able to formulate a tip about her like the one predicting Vanessa White's excursion. In addition, under the Court's holding, every citizen is subject to being seized and questioned by any officer who is prepared to testify that the warrantless stop was based on an anonymous tip predicting whatever conduct the officer just observed. Fortunately, the vast majority of those in our law enforcement community would not adopt such a practice. But the Fourth Amendment was intended to protect the citizen from the over-zealous and unscrupulous officer, as well as from those who are conscientious and truthful. This decision makes a mockery of that protection. I respectfully dissent.

Here is a summary of the case: The Supreme Court ruled that police officers had reasonable suspicion to make an investigatory stop of a vehicle based on an anonymous tip that was corroborated by their own observations. The tip provided specific details about the suspect's itinerary, which indicated that the informant had insider knowledge of the suspect's plans. While the tip alone lacked reliability, the Court held that the totality of the circumstances, including the police's independent corroboration, justified the stop under Terry v. Ohio. The Court adopted a "totality of the circumstances" approach, considering the informant's veracity, reliability, and basis of knowledge, while allowing for a lesser standard than probable cause. The case highlights the balance between an individual's Fourth Amendment rights and the police's ability to act on anonymous tips in situations where criminal activity is suspected but not yet confirmed.

Search & Seizure

Wilson v. Arkansas

https://supreme.justia.com/cases/federal/us/514/927/

OCTOBER TERM, 1994 Syllabus WILSON v. ARKANSAS CERTIORARI TO THE SUPREME COURT OF ARKANSAS No. 94-5707. Argued March 28, 1995-Decided May 22,1995 Petitioner was convicted on state-law drug charges after the Arkansas trial court denied her evidence-suppression motion, in which she asserted that the search of her home was invalid because, inter alia, the police had violated the common-law principle requiring them to announce their presence and authority before entering. The State Supreme Court affirmed, rejecting petitioner's argument that the common-law "knock and announce" principle is required by the Fourth Amendment. Held: The common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry. pp. 931-937. (a) An officer's unannounced entry into a home might, in some circumstances, be unreasonable under the Amendment. In evaluating the scope of the constitutional right to be secure in one's house, this Court has looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. Given the longstanding common-law endorsement of the practice of announcement, and the wealth of founding-era commentaries, constitutional provisions, statutes, and cases espousing or supporting the knock and announce principle, this Court has little doubt that the Amendment's Framers thought that whether officers announced their presence and authority before entering a dwelling was among the factors to be considered in assessing a search's reasonableness. Nevertheless, the common-law principle was never stated as an inflexible rule requiring announcement under all circumstances. Countervailing law enforcement interests-including, e. g., the threat of physical harm to police, the fact that an officer is pursuing a recently escaped arrestee, and the existence of reason to believe that evidence would likely be destroyed if advance notice were given-may establish the reasonableness of an unannounced entry. For now, this Court leaves to the lower courts the task of determining such relevant countervailing factors. Pp. 934-936. (b) Respondent's asserted reasons for affirming the judgment below-that the police reasonably believed that a prior announcement would have placed them in peril and would have produced an unreasonable risk that petitioner would destroy easily disposable narcotics evidence-may well provide the necessary justification for the unannounced entry in this case. The case is remanded to allow the state 928 Syllabus courts to make the reasonableness determination in the first instance. P.937. 317 Ark. 548, 878 S. W. 2d 755, reversed and remanded. THOMAS, J., delivered the opinion for a unanimous Court. John Wesley Hall, Jr., argued the cause and filed briefs for petitioner. Winston Bryant, Attorney General of Arkansas, argued the cause for respondent. With him on the briefs were Kent G. Holt, Vada Berger, and David R. Raupp, Assistant Attorneys General, and Andrew D. Leipold. Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, Paul A. Engelmayer, and Deborah Watson. * *Tracey Maclin, Steven R. Shapiro, and Ephraim Margolin filed a brief for the American Civil Liberties Union et al. as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Richard Rochman, Assistant Attorney General, and Eleni M. Constantine, and by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Jim Ryan of Illinois, Tom Miller of Iowa, Carla J. Stovall of Kansas, Chris Gorman of Kentucky, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Jeremiah W "Jay" Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Deborah T. Poritz of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty Montgomery of Ohio, Theodore R. Kulongoski of Oregon, Jeffrey B. Pine of Rhode Island, Charlie Condon of South Carolina, Mark Bennett of South Dakota, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, and James S. Gilmore III of Virginia; for Wayne County, Michigan, by John D. O'Hair and Timothy A. Baughman; and for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W Schmidt, James P. Manak, Richard M. Weintraub, Robert L. Deschamps, and Bernard J. Farber. 929 JUSTICE THOMAS delivered the opinion of the Court. At the time of the framing, the common law of search and seizure recognized a law enforcement officer's authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law "knock and announce" principle forms a part of the reasonableness inquiry under the Fourth Amendment. I During November and December 1992, petitioner Sharlene Wilson made a series of narcotics sales to an informant acting at the direction of the Arkansas State Police. In late November, the informant purchased marijuana and methamphetamine at the home that petitioner shared with Bryson Jacobs. On December 30, the informant telephoned petitioner at her home and arranged to meet her at a local store to buy some marijuana. According to testimony presented below, petitioner produced a semiautomatic pistol at this meeting and waved it in the informant's face, threatening to kill her if she turned out to be working for the police. Petitioner then sold the informant a bag of marijuana. The next day, police officers applied for and obtained warrants to search petitioner's home and to arrest both petitioner and Jacobs. Affidavits filed in support of the warrants set forth the details of the narcotics transactions and stated that Jacobs had previously been convicted of arson and firebombing. The search was conducted later that afternoon. Police officers found the main door to petitioner's home open. While opening an unlocked screen door and entering the residence, they identified themselves as police officers and stated that they had a warrant. Once inside the home, the officers seized marijuana, methamphetamine, valium, narcotics paraphernalia, a gun, and ammunition. They also found petitioner in the bathroom, flushing marijuana down the toilet. Petitioner and Jacobs were arrested and 930 charged with delivery of marijuana, delivery of methamphetamine, possession of drug paraphernalia, and possession of marijuana. Before trial, petitioner filed a motion to suppress the evidence seized during the search. Petitioner asserted that the search was invalid on various grounds, including that the officers had failed to "knock and announce" before entering her home. The trial court summarily denied the suppression motion. After a jury trial, petitioner was convicted of all charges and sentenced to 32 years in prison. The Arkansas Supreme Court affirmed petitioner's conviction on appeal. 317 Ark. 548, 878 S. W. 2d 755 (1994). The court noted that "the officers entered the home while they were identifying themselves," but it rejected petitioner's argument that "the Fourth Amendment requires officers to knock and announce prior to entering the residence." Id., at 553, 878 S. W. 2d, at 758 (emphasis added). Finding "no authority for [petitioner's] theory that the knock and announce principle is required by the Fourth Amendment," the court concluded that neither Arkansas law nor the Fourth Amendment required suppression of the evidence. Ibid. We granted certiorari to resolve the conflict among the lower courts as to whether the common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.l 513 U. S. 1014 (1995). We hold that it does, and accordingly reverse and remand. 1 See, e. g., People v. Gonzalez, 211 Cal. App. 3d 1043, 1048, 259 Cal. Rptr. 846, 848 (1989) ("Announcement and demand for entry at the time of service of a search warrant [are] part of Fourth Amendment reasonableness"); People v. Saechao, 129 Ill. 2d 522, 531, 544 N. E. 2d 745,749 (1989) ("[T]he presence or absence of such an announcement is an important consideration in determining whether subsequent entry to arrest or search is constitutionally reasonable") (internal quotation marks omitted); Com monwealth v. Goggin, 412 Mass. 200, 202, 587 N. E. 2d 785, 787 (1992) ("Our knock and announce rule is one of common law which is not constitutionally compelled"). 931 II The Fourth Amendment to the Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. See California v. Hodari D., 499 U. S. 621 , 624 (1991); United States v. Watson, 423 U. S. 411 , 418420 (1976); Carroll v. United States, 267 U. S. 132 , 149 (1925). "Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable," New Jersey v. T. L. 0., 469 U. S. 325 , 337 (1985), our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering. Although the common law generally protected a man's house as "his castle of defence and asylum," 3 W. Blackstone, Commentaries *288 (hereinafter Blackstone), common-law courts long have held that "when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K[ing]'s process, if otherwise he cannot enter." Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K. B. 1603). To this rule, however, common-law courts appended an important qualification: "But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors ... , for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no 932 default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it .... " Ibid., 77 Eng. Rep., at 195-196. See also Case of Richard Curtis, Fost. 135, 137, 168 Eng. Rep. 67, 68 (Crown 1757) ("[N]o precise form of words is required in a case of this kind. It is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to act under a proper authority ... "); Lee v. Gansell, Lofft 374, 381-382, 98 Eng. Rep. 700, 705 (K. B. 1774) ("[A]s to the outer door, the law is now clearly taken" that it is privileged; but the door may be broken "when the due notification and demand has been made and refused").2 Several prominent founding-era commentators agreed on this basic principle. According to Sir Matthew Hale, the "constant practice" at common law was that "the officer may break open the door, if he be sure the offender is there, if after acquainting them of the business, and demanding the prisoner, he refuses to open the door." See 1 M. Hale, Pleas of the Crown *582. William Hawkins propounded a similar principle: "the law doth never allow" an officer to break open the door of a dwelling "but in cases of necessity," that is, unless he "first signify to those in the house the cause of his coming, and request them to give him admittance." 2 W. Hawkins, Pleas of the Crown, ch. 14, § 1, p. 138 (6th ed. 1787). 2 This "knock and announce" principle appears to predate even Se mayne's Case, which is usually cited as the judicial source of the commonlaw standard. Semayne's Case itself indicates that the doctrine may be traced to a statute enacted in 1275, and that at that time the statute was "but an affirmance of the common law." 5 Co. Rep., at 91b, 77 Eng. Rep., at 196 (referring to 3 Edw. I, ch. 17, in 1 Statutes at Large from Magna Carta to Hen. 6 (0. Ruffhead ed. 1769) (providing that if any person takes the beasts of another and causes them "to be driven into a Castle or Fortress," if the sheriff makes "solem[n] deman[d]" for deliverance of the beasts, and if the person "did not cause the Beasts to be delivered incontinent," the King "shall cause the said Castle or Fortress to be beaten down without Recovery")). 933 Sir William Blackstone stated simply that the sheriff may "justify breaking open doors, if the possession be not quietly delivered." 3 Blackstone *412. The common-law knock and announce principle was woven quickly into the fabric of early American law. Most of the States that ratified the Fourth Amendment had enacted constitutional provisions or statutes generally incorporating English common law, see, e. g., N. J. Const. of 1776, § 22, in 5 Federal and State Constitutions 2598 (F. Thorpe ed. 1909) ("[T]he common law of England ... shall still remain in force, until [it] shall be altered by a future law of the Legislature"); N. Y. Const. of 1777, Art. 35, in id., at 2635 ("[S]uch parts of the common law of England ... as ... did form the law of [New York on April 19, 1775] shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same"); Ordinances of May 1776, ch. 5, § 6, in 9 Statutes at Large of Virginia 127 (w. Hening ed. 1821) ("[T]he common law of England ... shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony"), and a few States had enacted statutes specifically embracing the common-law view that the breaking of the door of a dwelling was permitted once admittance was refused, see, e. g., Act of Nov. 8, 1782, ch. 15, , 6, in Acts and Laws of Massachusetts 193 (1782); Act of Apr. 13, 1782, ch. 39, § 3, in 1 Laws of the State of New York 480 (1886); Act of June 24, 1782, ch. 317, § 18, in Acts of the General Assembly of New-Jersey (1784) (reprinted in The First Laws of the State of New Jersey 293-294 (J. Cushing compo 1981)); Act of Dec. 23, 1780, ch. 925, § 5, in 10 Statutes at Large of Pennsylvania 255 (J. Mitchell & H. Flanders compo 1904). Early American courts similarly embraced the common-law knock and announce principle. See, e. g., Walker v. Fox, 32 Ky. 404, 405 (1834); Burton v. Wilkinson, 18 Vt. 186, 189 (1846); Howe v. Butter field, 58 Mass. 302, 305 (1849). See generally Blakey, The 934 Rule of Announcement and Unlawful Entry, 112 U. Pa. L. Rev. 499, 504-508 (1964) (collecting cases). Our own cases have acknowledged that the common-law principle of announcement is "embedded in Anglo-American law," Miller v. United States, 357 U. S. 301 , 313 (1958), but we have never squarely held that this principle is an element of the reasonableness inquiry under the Fourth Amendment.3 We now so hold. Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure. Contrary to the decision below, we hold that in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment. This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests. As even petitioner concedes, the common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances. See Ker v. California, 374 U. S. 23 , 38 (1963) (plurality opinion) ("[I]t has been recognized from the early common law that ... breaking is permissible in executing an arrest under certain circumstances"); see also, e. g., 3 In Miller, our discussion focused on the statutory requirement of announcement found in 18 U. S. C. § 3109 (1958 ed.), not on the constitutional requirement of reasonableness. See 357 U. S., at 306, 308, 313. See also Sabbath v. United States, 391 U. S. 585 , 591, n. 8 (1968) (suggesting that both the "common law" rule of announcement and entry and its "exceptions" were codified in §3109); Ker v. California, 374 U. S. 23 , 40-41 (1963) (plurality opinion) (reasoning that an unannounced entry was reasonable under the "exigent circumstances" of that case, without addressing the antecedent question whether the lack of announcement might render a search unreasonable under other circumstances). 935 White & Wiltsheire, 2 Rolle 137, 138, 81 Eng. Rep. 709, 710 (K. B. 1619) (upholding the sheriff's breaking of the door of the plaintiff's dwelling after the sheriff's bailiffs had been imprisoned in plaintiff's dwelling while they attempted an earlier execution of the seizure); Pugh v. Griffith, 7 Ad. & E. 827, 840-841, 112 Eng. Rep. 681, 686 (K. B. 1838) (holding that "the necessity of a demand ... is obviated, because there was nobody on whom a demand could be made" and noting that White & Wiltsheire leaves open the possibility that there may be "other occasions where the outer door may be broken" without prior demand). Indeed, at the time of the framing, the common-law admonition that an officer "ought to signify the cause of his coming," Semayne's Case, 5 Co. Rep., at 91b, 77 Eng. Rep., at 195, had not been extended conclusively to the context of felony arrests. See Blakey, supra, at 503 ("The full scope of the application of the rule in criminal cases ... was never judicially settled"); Launock v. Brown, 2 B. & Ald. 592, 593, 106 Eng. Rep. 482, 483 (K. B. 1819) ("It is not at present necessary for us to decide how far, in the case of a person charged with felony, it would be necessary to make a previous demand of admittance before you could justify breaking open the outer door of his house"); W. Murfree, Law of Sheriffs and Other Ministerial Officers § 1163, p. 631 (1st ed. 1884) ("[A]lthough there has been some doubt on the question, the better opinion seems to be that, in cases of felony, no demand of admittance is necessary, especially as, in many cases, the delay incident to it would enable the prisoner to escape"). The common-law principle gradually was applied to cases involving felonies, but at the same time the courts continued to recognize that under certain circumstances the presumption in favor of announcement necessarily would give way to contrary considerations. Thus, because the common-law rule was justified in part by the belief that announcement generally would avoid "the destruction or breaking of any house ... by which great 936 damage and inconvenience might ensue," Semayne's Case, supra, at 91b, 77 Eng. Rep., at 196, courts acknowledged that the presumption in favor of announcement would yield under circumstances presenting a threat of physical violence. See, e. g., Read v. Case, 4 Conn. 166, 170 (1822) (plaintiff who "had resolved ... to resist even to the shedding of blood ... was not within the reason and spirit of the rule requiring notice"); Mahomed v. The Queen, 4 Moore 239, 247, 13 Eng. Rep. 293, 296 (P. C. 1843) ("While he was firing pistols at them, were they to knock at the door, and to ask him to be pleased to open it for them? The law in its wisdom only requires this ceremony to be observed when it possibly may be attended with some advantage, and may render the breaking open of the outer door unnecessary"). Similarly, courts held that an officer may dispense with announcement in cases where a prisoner escapes from him and retreats to his dwelling. See, e. g., ibid.; Allen v. Martin, 10 Wend. 300, 304 (N. Y. Sup. Ct. 1833). Proof of "demand and refusal" was deemed unnecessary in such cases because it would be a "senseless ceremony" to require an officer in pursuit of a recently escaped arrestee to make an announcement prior to breaking the door to retake him. Id., at 304. Finally, courts have indicated that unannounced entry may be justified where police officers have reason to believe that evidence would likely be destroyed if advance notice were given. See Ker, supra, at 40-41 (plurality opinion); People We need not attempt a comprehensive catalog of the relevant countervailing factors here. For now, we leave to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment. We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry. 937 III Respondent contends that the judgment below should be affirmed because the unannounced entry in this case was justified for two reasons. First, respondent argues that police officers reasonably believed that a prior announcement would have placed them in peril, given their knowledge that petitioner had threatened a government informant with a semiautomatic weapon and that Mr. Jacobs had previously been convicted of arson and firebombing. Second, respondent suggests that prior announcement would have produced an unreasonable risk that petitioner would destroy easily disposable narcotics evidence. These considerations may well provide the necessary justification for the unannounced entry in this case. Because the Arkansas Supreme Court did not address their sufficiency, however, we remand to allow the state courts to make any necessary findings of fact and to make the determination of reasonableness in the first instance. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.4 It is so ordered. 4 Respondent and its amici also ask us to affirm the denial of petitioner's suppression motion on an alternative ground: that exclusion is not a constitutionally compelled remedy where the unreasonableness of a search stems from the failure of announcement. Analogizing to the "independent source" doctrine applied in Segura v. United States, 468 U. S. 796 , 805, 813-816 (1984), and the "inevitable discovery" rule adopted in Nix v. Williams, 467 U. S. 431 , 440-448 (1984), respondent and its amici argue that any evidence seized after an unreasonable, unannounced entry is causally disconnected from the constitutional violation and that exclusion goes beyond the goal of precluding any benefit to the government flowing from the constitutional violation. Because this remedial issue was not addressed by the court below and is not within the narrow question on which we granted certiorari, we decline to address these arguments.

The Supreme Court ruled that police officers must announce their presence and authority before entering a dwelling, but this principle is not an inflexible rule as countervailing law enforcement interests may establish the reasonableness of an unannounced entry. The case was remanded to the state courts to determine if the unannounced entry in this case was reasonable.

Search & Seizure

Whren v. U.S.

https://supreme.justia.com/cases/federal/us/517/806/

OCTOBER TERM, 1995 Syllabus WHREN ET AL. v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 95-5841. Argued April 17, 1996-Decided June 10, 1996 Plainclothes policemen patrolling a "high drug area" in an unmarked vehicle observed a truck driven by petitioner Brown waiting at a stop sign at an intersection for an unusually long time; the truck then turned suddenly, without signaling, and sped off at an "unreasonable" speed. The officers stopped the vehicle, assertedly to warn the driver about traffic violations, and upon approaching the truck observed plastic bags of crack cocaine in petitioner Whren's hands. Petitioners were arrested. Prior to trial on federal drug charges, they moved for suppression of the evidence, arguing that the stop had not been justified by either a reasonable suspicion or probable cause to believe petitioners were engaged in illegal drug-dealing activity, and that the officers' traffic-violation ground for approaching the truck was pretextual. The motion to suppress was denied, petitioners were convicted, and the Court of Appeals affirmed. Held: The temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. Pp. 809-819. (a) Detention of a motorist is reasonable where probable cause exists to believe that a traffic violation has occurred. See, e. g., Delaware v. Prouse, 440 U. S. 648 , 659. Petitioners claim that, because the police may be tempted to use commonly occurring traffic violations as means of investigating violations of other laws, the Fourth Amendment test for traffic stops should be whether a reasonable officer would have stopped the car for the purpose of enforcing the traffic violation at issue. However, this Court's cases foreclose the argument that ulterior motives can invalidate police conduct justified on the basis of probable cause. See, e. g., United States v. Robinson, 414 U. S. 218 , 221, n. 1,236. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. Pp. 809-813. (b) Although framed as an empirical question-whether the officer's conduct deviated materially from standard police practices-petitioners' proposed test is plainly designed to combat the perceived danger of pretextual stops. It is thus inconsistent with this Court's cases, which 807 make clear that the Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances, whatever the subjective intent. See, e. g., Robinson, supra, at 236. Nor can the Fourth Amendment's protections be thought to vary from place to place and from time to time, which would be the consequence of assessing the reasonableness of police conduct in light of local law enforcement practices. Pp. 813-816. (c) Also rejected is petitioners' argument that the balancing of interests inherent in Fourth Amendment inquiries does not support enforcement of minor traffic laws by plainclothes police in unmarked vehicles, since that practice only minimally advances the government's interest in traffic safety while subjecting motorists to inconvenience, confusion, and anxiety. Where probable cause exists, this Court has found it necessary to engage in balancing only in cases involving searches or seizures conducted in a manner unusually harmful to the individual. See, e. g., Tennessee v. Garner, 471 U. S. 1 . The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice. pp. 816-819. 53 F.3d 371 , affirmed. SCALIA, J., delivered the opinion for a unanimous Court. Lisa Burget Wright argued the cause for petitioners. With her on the briefs were A. J. Kramer, Neil H. Jaffee, and G. Allen Dale. James A. Feldman argued the cause for the United States. On the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and Paul A. Engelmayer. * *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Steven R. Shapiro and Susan N. Herman; and for the National Association of Criminal Defense Lawyers by Natman Schaye and Walter B. Nash III. Briefs of amici curiae urging affirmance were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Joan Killeen and Catherine A. Rivlin, Supervising Deputy Attorneys General, and Christina V. Kuo, Deputy Attorney General; and by the Attorneys General for their respective States as follows: M. Jane Brady of Delaware, 808 JUSTICE SCALIA delivered the opinion of the Court. In this case we decide whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment's prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws. I On the evening of June 10, 1993, plainclothes vice-squad officers of the District of Columbia Metropolitan Police Department were patrolling a "high drug area" of the city in an unmarked car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger at his right. The truck remained stopped at the intersection for what seemed an unusually long time-more than 20 seconds. When the police car executed aU-turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, without signaling, and sped off at an "unreasonable" speed. The policemen followed, and in a short while overtook the Pathfinder when it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto stepped out and approached the driver's door, identifying himself as a police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver's Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Mike Moore of Mississippi, Frankie Sue Del Papa of Nevada, Deborah T. Poritz of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Charles W Burson of Tennessee, and Jan Graham of Utah. Richard S. Michaels and Jeff Rubin filed a brief for the California District Attorney's Association as amicus curiae. 809 window, he immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren's hands. Petitioners were arrested, and quantities of several types of illegal drugs were retrieved from the vehicle. Petitioners were charged in a four-count indictment with violating various federal drug laws, including 21 U. S. C. §§ 844(a) and 860(a). At a pretrial suppression hearing, they challenged the legality of the stop and the resulting seizure of the drugs. They argued that the stop had not been justified by probable cause to believe, or even reasonable suspicion, that petitioners were engaged in illegal drug-dealing activity; and that Officer Soto's asserted ground for approaching the vehicle-to give the driver a warning concerning traffic violations-was pretextual. The District Court denied the suppression motion, concluding that "the facts of the stop were not controverted," and "[t]here was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop." App. 5. Petitioners were convicted of the counts at issue here. The Court of Appeals affirmed the convictions, holding with respect to the suppression issue that, "regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation." 53 F.3d 371 , 374-375 (CADC 1995). We granted certiorari. 516 U. S. 1036 (1996). II The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the 810 meaning of this provision. See Delaware v. Prouse, 440 U. S. 648, 653 (1979); United States v. Martinez-Fuerte, 428 U. S. 543, 556 (1976); United States v. Brignoni-Ponce, 422 U. S. 873 , 878 (1975). An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See Prouse, supra, at 659; Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977) (per curiam). Petitioners accept that Officer Soto had probable cause to believe that various provisions of the District of Columbia traffic code had been violated. See 18 D. C. Mun. Regs. §§ 2213.4 (1995) ("An operator shall ... give full time and attention to the operation of the vehicle"); 2204.3 ("No person shall turn any vehicle ... without giving an appropriate signal"); 2200.3 ("No person shall drive a vehicle ... at a speed greater than is reasonable and prudent under the conditions"). They argue, however, that "in the unique context of civil traffic regulations" probable cause is not enough. Since, they contend, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who are both black, further contend that police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given. 811 A Petitioners contend that the standard they propose is consistent with our past cases' disapproval of police attempts to use valid bases of action against citizens as pretexts for pursuing other investigatory agendas. We are reminded that in Florida v. Wells, 495 U. S. 1 , 4 (1990), we stated that "an inventory search[l] must not be a ruse for a general rummaging in order to discover incriminating evidence"; that in Col orado v. Bertine, 479 U. S. 367 , 372 (1987), in approving an inventory search, we apparently thought it significant that there had been "no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation"; and that in New York v. Burger, 482 U. S. 691 , 716-717, n. 27 (1987), we observed, in upholding the constitutionality of a warrantless administrative inspection,2 that the search did not appear to be "a 'pretext' for obtaining evidence of ... violation of ... penal laws." But only an undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred. In each case we were addressing the validity of a search conducted in the absence of probable cause. Our quoted statements simply explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative 1 An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage. See South Dakota v. Opperman, 428 U. S. 364 , 369 (1976). 2 An administrative inspection is the inspection of business premises conducted by authorities responsible for enforcing a pervasive regulatory scheme-for example, unannounced inspection of a mine for compliance with health and safety standards. See Donovan v. Dewey, 452 U. S. 594 , 599-605 (1981). 812 regulation, is not accorded to searches that are not made for those purposes. See Bertine, supra, at 371-372; Burger, supra, at 702-703. Petitioners also rely upon Colorado v. Bannister, 449 U. S. 1 (1980) (per curiam), a case which, like this one, involved a traffic stop as the prelude to a plain-view sighting and arrest on charges wholly unrelated to the basis for the stop. Petitioners point to our statement that "[t]here was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants" of the car. Id., at 4, n. 4. That dictum at most demonstrates that the Court in Bannister found no need to inquire into the question now under discussion; not that it was certain of the answer. And it may demonstrate even less than that: If by "pretext" the Court meant that the officer really had not seen the car speeding, the statement would mean only that there was no reason to doubt probable cause for the traffic stop. It would, moreover, be anomalous, to say the least, to treat a statement in a footnote in the per curiam Bannister opinion as indicating a reversal of our prior law. Petitioners' difficulty is not simply a lack of affirmative support for their position. Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary. In United States v. Villamonte-Marquez, 462 U. S. 579 , 584, n. 3 (1983), we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered invalid "because the customs officers were accompanied by a Louisiana state policeman, and were following an informant's tip that a vessel in the ship channel was thought to be carrying marihuana." We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United States v. Robinson, 414 U. S. 218 (1973), we held that 813 a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was "a mere pretext for a narcotics search," id., at 221, n. 1; and that a lawful post-arrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches, see id., at 236. See also Gustafson v. Florida, 414 U. S. 260 , 266 (1973). And in Scott v. United States, 436 U. S. 128 , 138 (1978), in rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that "[sJubjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional." We described Robinson as having established that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." 436 U. S., at 136, 138. We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. B Recognizing that we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers, petitioners disavow any intention to make the individual officer's subjective good faith the touchstone of "reasonableness." They insist that the stand- 814 ard they have put forward-whether the officer's conduct deviated materially from usual police practices, so that a reasonable officer in the same circumstances would not have made the stop for the reasons given-is an "objective" one. But although framed in empirical terms, this approach is plainly and indisputably driven by subjective considerations. Its whole purpose is to prevent the police from doing under the guise of enforcing the traffic code what they would like to do for different reasons. Petitioners' proposed standard may not use the word "pretext," but it is designed to combat nothing other than the perceived "danger" of the pretextual stop, albeit only indirectly and over the run of cases. Instead of asking whether the individual officer had the proper state of mind, the petitioners would have us ask, in effect, whether (based on general police practices) it is plausible to believe that the officer had the proper state of mind. Why one would frame a test designed to combat pretext in such fashion that the court cannot take into account actual and admitted pretext is a curiosity that can only be explained by the fact that our cases have foreclosed the more sensible option. If those cases were based only upon the evidentiary difficulty of establishing subjective intent, petitioners' attempt to root out subjective vices through objective means might make sense. But they were not based only upon that, or indeed even principally upon that. Their principal basis-which applies equally to attempts to reach subjective intent through ostensibly objective means-is simply that the Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances, whatever the subjective intent. See, e. g., Robinson, supra, at 236 ("Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the [arrestee] or that he did not himself suspect that [the arrestee] was armed") (footnotes omitted); Gustafson, supra, at 266 (same). But even if our concern had been only an evidentiary one, 815 petitioners' proposal would by no means assuage it. Indeed, it seems to us somewhat easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a "reasonable officer" would have been moved to act upon the traffic violation. While police manuals and standard procedures may sometimes provide objective assistance, ordinarily one would be reduced to speculating about the hypothetical reaction of a hypothetical constable-an exercise that might be called virtual subjectivity. Moreover, police enforcement practices, even if they could be practicably assessed by a judge, vary from place to place and from time to time. We cannot accept that the search and seizure protections of the Fourth Amendment are so variable, cf. Gustafson, supra, at 265; United States v. Caceres, 440 U. S. 741 , 755-756 (1979), and can be made to turn upon such trivialities. The difficulty is illustrated by petitioners' arguments in this case. Their claim that a reasonable officer would not have made this stop is based largely on District of Columbia police regulations which permit plainclothes officers in unmarked vehicles to enforce traffic laws "only in the case of a violation that is so grave as to pose an immediate threat to the safety of others." Metropolitan Police Department, Washington, D. C., General Order 303.1, pt. 1, Objectives and Policies (A)(2)(4) (Apr. 30, 1992), reprinted as Addendum to Brief for Petitioners. This basis of invalidation would not apply in jurisdictions that had a different practice. And it would not have applied even in the District of Columbia, if Officer Soto had been wearing a uniform or patrolling in a marked police cruiser. Petitioners argue that our cases support insistence upon police adherence to standard practices as an objective means of rooting out pretext. They cite no holding to that effect, and dicta in only two cases. In Abel v. United States, 362 U. S. 217 (1960), the petitioner had been arrested by the Immigration and Naturalization Service (INS), on the basis of 816 an administrative warrant that, he claimed, had been issued on pretextual grounds in order to enable the Federal Bureau of Investigation (FBI) to search his room after his arrest. We regarded this as an allegation of "serious misconduct," but rejected Abel's claims on the ground that "[a] finding of bad faith is ... not open to us on thee] record" in light of the findings below, including the finding that "'the proceedings taken by the [INS] differed in no respect from what would have been done in the case of an individual concerning whom [there was no pending FBI investigation],'" id., at 226-227. But it is a long leap from the proposition that following regular procedures is some evidence of lack of pretext to the proposition that failure to follow regular procedures proves (or is an operational substitute for) pretext. Abel, moreover, did not involve the assertion that pretext could invalidate a search or seizure for which there was probable cause-and even what it said about pretext in other contexts is plainly inconsistent with the views we later stated in Robinson, Gustafson, Scott, and Villamonte-Marquez. In the other case claimed to contain supportive dicta, United States v. Robinson, 414 U. S. 218 (1973), in approving a search incident to an arrest for driving without a license, we noted that the arrest was "not a departure from established police department practice." Id., at 221, n. 1. That was followed, however, by the statement that "[w]e leave for another day questions which would arise on facts different from these." Ibid. This is not even a dictum that purports to provide an answer, but merely one that leaves the question open. III In what would appear to be an elaboration on the "reasonable officer" test, petitioners argue that the balancing inherent in any Fourth Amendment inquiry requires us to weigh the governmental and individual interests implicated in a traffic stop such as we have here. That balancing, petitioners claim, does not support investigation of minor traffic in- 817 fractions by plainclothes police in unmarked vehicles; such investigation only minimally advances the government's interest in traffic safety, and may indeed retard it by producing motorist confusion and alarm-a view said to be supported by the Metropolitan Police Department's own regulations generally prohibiting this practice. And as for the Fourth Amendment interests of the individuals concerned, petitioners point out that our cases acknowledge that even ordinary traffic stops entail "a possibly unsettling show of authority"; that they at best "interfere with freedom of movement, are inconvenient, and consume time" and at worst "may create substantial anxiety," Prouse, 440 U. S., at 657. That anxiety is likely to be even more pronounced when the stop is conducted by plainclothes officers in unmarked cars. It is of course true that in principle every Fourth Amendment case, since it turns upon a "reasonableness" determination, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause. That is why petitioners must rely upon cases like Prouse to provide examples of actual "balancing" analysis. There, the police action in question was a random traffic stop for the purpose of checking a motorist's license and vehicle registration, a practice that-like the practices at issue in the inventory search and administrative inspection cases upon which petitioners rely in making their "pretext" claim-involves police intrusion without the probable cause that is its traditional justification. Our opinion in Prouse expressly distinguished the case from a stop based on precisely what is at issue here: "probable cause to believe that a driver is violating anyone of the multitude of applicable traffic and equipment regulations." Id., at 661. It noted approvingly that "[t]he foremost method of enforcing traffic and vehicle safety regulations ... is acting upon observed violations," id., at 659, which afford the "'quantum of individualized suspicion'" necessary to ensure that police 818 discretion is sufficiently constrained, id., at 654-655 (quoting United States v. Martinez-Fuerte, 428 U. S., at 560). What is true of Prouse is also true of other cases that engaged in detailed "balancing" to decide the constitutionality of automobile stops, such as Martinez-Fuerte, which upheld checkpoint stops, see 428 U. S., at 556-562, and Brignoni-Ponce, which disallowed so-called "roving patrol" stops, see 422 U. S., at 882-884: The detailed "balancing" analysis was necessary because they involved seizures without probable cause. Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests-such as, for example, seizure by means of deadly force, see Tennessee v. Garner, 471 U. S. 1 (1985), unannounced entry into a home, see Wilson v. Arkansas, 514 U. S. 927 (1995), entry into a home without a warrant, see Welsh v. Wisconsin, 466 U. S. 740 (1984), or physical penetration of the body, see Winston v. Lee, 470 U. S. 753 (1985). The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken "outbalances" private interest in avoiding police contact. Petitioners urge as an extraordinary factor in this case that the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as 819 petitioners would have us do, which particular provisions are sufficiently important to merit enforcement. For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure. *** Here the District Court found that the officers had probable cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals for the District of Columbia Circuit correct. The judgment is Affirmed.

The Supreme Court ruled that a police officer's subjective intentions for stopping a motorist are irrelevant as long as there is probable cause to believe that a traffic violation has occurred. In this case, the police officers had probable cause to stop the petitioners for traffic violations, and the evidence of drug possession discovered during the stop was therefore admissible. The Court rejected the petitioners' argument that the stop was pretextual and that a "reasonable officer" test should be applied to determine the validity of traffic stops.

Search & Seizure

Maryland v. Wilson

https://supreme.justia.com/cases/federal/us/519/408/

OCTOBER TERM, 1996 Syllabus MARYLAND v. WILSON CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND No. 95-1268. Argued December 11, 1996-Decided February 19, 1997 After stopping a speeding car in which respondent Wilson was a passenger, a Maryland state trooper ordered Wilson out of the car upon noticing his apparent nervousness. When Wilson exited, a quantity of cocaine fell to the ground. He was arrested and charged with possession of cocaine with intent to distribute. The Baltimore County Circuit Court granted his motion to suppress the evidence, deciding that the trooper's ordering him out of the car constituted an unreasonable seizure under the Fourth Amendment. The Maryland Court of Special Appeals affirmed, holding that the rule of Pennsylvania v. Mimms, 434 U. S. 106, that an officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, does not apply to passengers. Held: An officer making a traffic stop may order passengers to get out of the car pending completion of the stop. Statements by the Court in Michigan v. Long, 463 U. S. 1032 , 1047-1048 (Mimms "held that police may order persons out of an automobile during a [traffic] stop" (emphasis added)), and by Justice Powell in Rakas v. Illinois, 439 U. S. 128 , 155, n. 4 (Mimms held "that passengers ... have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made" (emphasis added)), do not constitute binding precedent, since the former statement was dictum, and the latter was contained in a concurrence. Nevertheless, the Mimms rule applies to passengers as well as to drivers. The Court therein explained that the touchstone of Fourth Amendment analysis is the reasonableness of the particular governmental invasion of a citizen's personal security, 434 U. S., at 108-109, and that reasonableness depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by officers, id., at 109. On the public interest side, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver, as in Mimms, see id., at 109-110, or a passenger, as here. Indeed, the danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. On the personal liberty side, the case for passengers is stronger than that for the driver in the sense that there is probable cause to believe that the driver has committed a minor vehicular offense, see id., at 110, but there is no such reason to stop or detain 409 passengers. But as a practical matter, passengers are already stopped by virtue of the stop of the vehicle, so that the additional intrusion upon them is minimal. Pp.411-415. 106 Md. App. 24, 664 A. 2d 1, reversed and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which KENNEDY, J., joined, post, p. 415. KENNEDY, J., filed a dissenting opinion, post, p. 422. J. Joseph Curran, Jr., Attorney General of Maryland, argued the cause for petitioner. With him on the briefs were Gary E. Bair, Mary Ellen Barbera, and Kathryn Grill Graeff, Assistant Attorneys General. Byron L. Warnken, by appointment of the Court, 519 U. S. 804 (1996), argued the cause and filed a brief for respondent. Attorney General Reno argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, David C. Frederick, and Nina Goodman. * *Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas and Stuart A. Cole, Assistant Attorneys General, joined by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert Butterworth of Florida, James E. Ryan of Illinois, Tom Miller of Iowa, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W A. Drew Edmondson of Oklahoma, Theodore Kulongoski of Oregon, Thomas Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles Condon of South Carolina, Mark W Barnett of South Dakota, 410 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. In this case we consider whether the rule of Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam), that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well. We hold that it does. At about 7:30 p.m. on a June evening, Maryland state trooper David Hughes observed a passenger car driving southbound on 1-95 in Baltimore County at a speed of 64 miles per hour. The posted speed limit was 55 miles per hour, and the car had no regular license tag; there was a torn piece of paper reading "Enterprise Rent-A-Car" dangling from its rear. Hughes activated his lights and sirens, signaling the car to pull over, but it continued driving for another mile and a half until it finally did so. During the pursuit, Hughes noticed that there were three occupants in the car and that the two passengers turned to look at him several times, repeatedly ducking below sight level and then reappearing. As Hughes approached the car on foot, the driver alighted and met him halfway. The driver was trembling and appeared extremely nervous, but nonetheless produced a valid Connecticut driver's license. Hughes instructed him to return to the car and retrieve the rental documents, and he complied. During this encounter, Hughes noticed that the front-seat passenger, respondent Jerry Lee Wilson, was sweating and also appeared extremely Charles W Burson of Tennessee, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Julio A. Brady of the U. S. Virgin Islands, Christine O. Gregoire of Washington, Darrell McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W Schmidt, Robert Wennerholm, James P. Manek, John Kaye, Richard M. Weintraub, and Bernard J. Farber; for the National Association of Police Organizations, Inc., by William J. Johnson; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson. 411 nervous. While the driver was sitting in the driver's seat looking for the rental papers, Hughes ordered Wilson out of the car. When Wilson exited the car, a quantity of crack cocaine fell to the ground. Wilson was then arrested and charged with possession of cocaine with intent to distribute. Before trial, Wilson moved to suppress the evidence, arguing that Hughes' ordering him out of the car constituted an unreasonable seizure under the Fourth Amendment. The Circuit Court for Baltimore County agreed, and granted respondent's motion to suppress. On appeal, the Court of Special Appeals of Maryland affirmed, 106 Md. App. 24, 664 A. 2d 1 (1995), ruling that Pennsylvania v. Mimms does not apply to passengers. The Court of Appeals of Maryland denied certiorari. 340 Md. 502, 667 A. 2d 342 (1995). We granted certiorari, 518 U. S. 1003 (1996), and now reverse. In Mimms, we considered a traffic stop much like the one before us today. There, Mimms had been stopped for driving with an expired license plate, and the officer asked him to step out of his car. When Mimms did so, the officer noticed a bulge in his jacket that proved to be a .38-caliber revolver, whereupon Mimms was arrested for carrying a concealed deadly weapon. Mimms, like Wilson, urged the suppression of the evidence on the ground that the officer's ordering him out of the car was an unreasonable seizure, and the Pennsylvania Supreme Court, like the Court of Special Appeals of Maryland, agreed. We reversed, explaining that "[t]he touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security,'" 434 U. S., at 108109 (quoting Terry v. Ohio, 392 U. S. 1 , 19 (1968)), and that reasonableness "depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers,'" 434 U. S., at 109 (quoting United States v. Brignoni-Ponce, 422 U. S. 873 , 412 878 (1975)). On the public interest side of the balance, we noted that the State "freely concede[d]" that there had been nothing unusual or suspicious to justify ordering Mimms out of the car, but that it was the officer's "practice to order all drivers [stopped in traffic stops] out of their vehicles as a matter of course" as a "precautionary measure" to protect the officer's safety. 434 U. S., at 109-110. We thought it "too plain for argument" that this justification-officer safety-was "both legitimate and weighty." Id., at 110. In addition, we observed that the danger to the officer of standing by the driver's door and in the path of oncoming traffic might also be "appreciable." Id., at 111. On the other side of the balance, we considered the intrusion into the driver's liberty occasioned by the officer's ordering him out of the car. Noting that the driver's car was already validly stopped for a traffic infraction, we deemed the additional intrusion of asking him to step outside his car "de minimis." Ibid. Accordingly, we concluded that "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable seizures." Id., at 111, n. 6. Respondent urges, and the lower courts agreed, that this per se rule does not apply to Wilson because he was a passenger, not the driver. Maryland, in turn, argues that we have already implicitly decided this question by our statement in Michigan v. Long, 463 U. S. 1032 (1983), that "[i]n [Mimms], we held that police may order persons out of an automobile during a stop for a traffic violation," id., at 1047-1048 (emphasis added), and by Justice Powell's statement in Rakas v. Illinois, 439 U. S. 128 (1978), that "this Court determined in [Mimms] that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made," id., at 155, n. 4 (Powell, J., joined by Burger, C. J., concurring) (emphasis added). We agree with respondent that the former statement was dictum, and the 413 latter was contained in a concurrence, so that neither constitutes binding precedent. We must therefore now decide whether the rule of Mimms applies to passengers as well as to drivers.1 On the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger. Regrettably, traffic stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops. Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71, 33 (1994). In the case of passengers, the danger of the officer's standing in the path of oncoming traffic would not be present except in the case of a passenger in the left rear seat, but the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.2 On the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers. But as a practical 1 Respondent argues that, because we have generally eschewed brightline rules in the Fourth Amendment context, see, e. g., Ohio v. Robinette, ante, p. 33, we should not here conclude that passengers may constitutionally be ordered out of lawfully stopped vehicles. But, that we typically avoid per se rules concerning searches and seizures does not mean that we have always done so; Mimms itself drew a bright line, and we believe the principles that underlay that decision apply to passengers as well. 2JUSTICE STEVENS' dissenting opinion points out, post, at 416, that these statistics are not further broken down as to assaults by passengers and assaults by drivers. It is, indeed, regrettable that the empirical data on a subject such as this are sparse, but we need not ignore the data which do exist simply because further refinement would be even more helpful. JUSTICE STEVENS agrees that there is "a strong public interest in minimizing" the number of assaults on law officers, ibid., and we believe that our holding today is more likely to accomplish that result than would be the case if his views were to prevail. 414 matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver. We think that our opinion in Michigan v. Summers, 452 U. S. 692 (1981), offers guidance by analogy here. There the police had obtained a search warrant for contraband thought to be located in a residence, but when they arrived to execute the warrant they found Summers coming down the front steps. The question in the case depended "upon a determination whether the officers had the authority to require him to re-enter the house and to remain there while they conducted their search." Id., at 695. In holding as it did, the Court said: "Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Id., at 702-703 (footnote omitted). In summary, danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is 415 for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.3 The judgment of the Court of Special Appeals of Maryland is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE KENNEDY joins, dissenting. In Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam), the Court answered the "narrow question" whether an "incremental intrusion" on the liberty of a person who had been lawfully seized was reasonable. Id., at 109. This case, in contrast, raises a separate and significant question concerning the power of the State to make an initial seizure of persons who are not even suspected of having violated the law. My concern is not with the ultimate disposition of this particular case, but rather with the literally millions of other cases that will be affected by the rule the Court announces. Though the question is not before us, I am satisfied thatunder the rationale of Terry v. Ohio, 392 U. S. 1 (1968)-if a police officer conducting a traffic stop has an articulable suspicion of possible danger, the officer may order passengers to exit the vehicle as a defensive tactic without running afoul of the Fourth Amendment. Accordingly, I assume that the facts recited in the majority's opinion provided a valid justi- 3 Maryland urges us to go further and hold that an officer may forcibly detain a passenger for the entire duration of the stop. But respondent was subjected to no detention based on the stopping of the car once he had left it; his arrest was based on probable cause to believe that he was guilty of possession of cocaine with intent to distribute. The question which Maryland wishes answered, therefore, is not presented by this case, and we express no opinion upon it. 416 fication for this officer's order commanding the passengers to get out of this vehicle. 1 But the Court's ruling goes much further. It applies equally to traffic stops in which there is not even a scintilla of evidence of any potential risk to the police officer. In those cases, I firmly believe that the Fourth Amendment prohibits routine and arbitrary seizures of obviously innocent citizens. I The majority suggests that the personal liberty interest at stake here, which is admittedly "stronger" than that at issue in Mimms, is outweighed by the need to ensure officer safety. Ante, at 413, 414-415. The Court correctly observes that "traffic stops may be dangerous encounters." Ante, at 413. The magnitude of the danger to police officers is reflected in the statistic that, in 1994 alone, "there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops." Ibid. There is, unquestionably, a strong public interest in minimizing the number of such assaults and fatalities. The Court's statistics, however, provide no support for the conclusion that its ruling will have any such effect. Those statistics do not tell us how many of the incidents involved passengers. Assuming that many of the assaults were committed by passengers, we do not know how many occurred after the passenger got out of the vehicle, how many took place while the passenger remained in the vehicle, or indeed, whether any of them could have been prevented 1 The Maryland Court of Special Appeals held, inter alia, that the State had not properly preserved this claim during the suppression hearing. See App. to Pet. for Cert. 4a. The State similarly fails to press the point here. Pet. for Cert. 4, n. 1; Brief for Petitioner 4, n. 1. The issue is therefore not before us, and I am not free to concur in the Court's judgment on this alternative ground. See Caldwell v. Mississippi, 472 U. S. 320 , 327 (1985); this Court's Rule 14.1(a). 417 by an order commanding the passengers to exit.2 There is no indication that the number of assaults was smaller in jurisdictions where officers may order passengers to exit the vehicle without any suspicion than in jurisdictions where they were then prohibited from doing so. Indeed, there is no indication that any of the assaults occurred when there was a complete absence of any articulable basis for concern about the officer's safety-the only condition under which I would hold that the Fourth Amendment prohibits an order commanding passengers to exit a vehicle. In short, the statistics are as consistent with the hypothesis that ordering passengers to get out of a vehicle increases the danger of assault as with the hypothesis that it reduces that risk. Furthermore, any limited additional risk to police officers must be weighed against the unnecessary invasion that will be imposed on innocent citizens under the majority's rule in the tremendous number of routine stops that occur each day. We have long recognized that "[b]ecause of the extensive regulation of motor vehicles and traffic ... the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office." Cady v. Dombrowski, 413 U. S. 433 , 441 (1973).3 Most traffic 2 I am assuming that in the typical case the officer would not order passengers out of a vehicle until after he had stopped his own car, exited, and arrived at a position where he could converse with the driver. The only way to avoid all risk to the officer, I suppose, would be to adopt a routine practice of always issuing an order through an amplified speaker commanding everyone to get out of the stopped car before the officer exposed himself to the possibility of a shot from a hidden weapon. Given the predicate for the Court's ruling-that an articulable basis for suspecting danger to the officer provides insufficient protection against the possibility of a surprise assault-we must assume that every passenger, no matter how feeble or infirm, must be prepared to accept the "petty indignity" of obeying an arbitrary and sometimes demeaning command issued over a loud speaker. 3 See also New York v. Class, 475 U. S. 106 , 113 (1986); South Dakota v. Opperman, 428 U. S. 364 ,368 (1976); cf. Whren v. United States, 517 U. S. 806 , 810, 818 (1996). 418 stops involve otherwise law-abiding citizens who have committed minor traffic offenses. A strong interest in arriving at a destination-to deliver a patient to a hospital, to witness a kickoff, or to get to work on time-will often explain a traffic violation without justifying it. In the aggregate, these stops amount to significant law enforcement activity. Indeed, the number of stops in which an officer is actually at risk is dwarfed by the far greater number of routine stops. If Maryland's share of the national total is about average, the State probably experiences about 100 officer assaults each year during traffic stops and pursuits. Making the unlikely assumption that passengers are responsible for onefourth of the total assaults, it appears that the Court's new rule would provide a potential benefit to Maryland officers in only roughly 25 stops a year.4 These stops represent a minuscule portion of the total. In Maryland alone, there are something on the order of one million traffic stops each year.5 Assuming that there are passengers in about half of the cars stopped, the majority's rule is of some possible advantage to police in only about one out of every twenty thousand traffic stops in which there is a passenger in the car. And, any benefit is extremely marginal. In the overwhelming majority of cases posing a real threat, the officer would almost 4 This figure may in fact be smaller. The majority's data aggregate assaults committed during "[t]raffic [p]ursuits and [s]tops." Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71 (1994). In those assaults that occur during the pursuit of a moving vehicle, it would obviously be impossible for an officer to order a passenger out of the car. 5 Maryland had well over one million nontort motor vehicle cases during a I-year period between 1994 and 1995. Annual Report of the Maryland Judiciary 80 (1994-1995). Though the State does not maintain a count of the number of stops performed each year, this figure is probably a fair rough proxy. The bulk of these cases likely represent a traffic stop, and this total does not include those stops in which the police officer simply gave the driver an informal reprimand. I presume that these figures are representative of present circumstances. 419 certainly have some ground to suspect danger that would justify ordering passengers out of the car. In contrast, the potential daily burden on thousands of innocent citizens is obvious. That burden may well be "minimal" in individual cases. Ante, at 415. But countless citizens who cherish individual liberty and are offended, embarrassed, and sometimes provoked by arbitrary official commands may well consider the burden to be significant.6 In all events, the aggregation of thousands upon thousands of petty indignities has an impact on freedom that I would characterize as substantial, and which in my view clearly outweighs the evanescent safety concerns pressed by the majority. II The Court concludes today that the balance of convenience and danger that supported its holding in Mimms applies to passengers of lawfully stopped cars as well as drivers. In Mimms itself, however, the Court emphasized the fact that the intrusion into the driver's liberty at stake was "occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car." 434 U. S., at 111. The conclusion that "this additional intrusion can only be described as de minimis" rested on the premise that the "police have already lawfully decided that the driver shall be briefly detained." Ibid. 7 6 The number of cases in which the command actually protects the officer from harm may well be a good deal smaller than the number in which a passenger is harmed by exposure to inclement weather, as well as the number in which an ill-advised command is improperly enforced. Consider, for example, the harm caused to a passenger by an inadequately trained officer after a command was issued to exit the vehicle in Board of Comm'rs of Bryan Cty. v. Brown, 67 F.3d 1174 (CA5 1995), cert. granted, 517 U. S. 1154 (1996). 7Dissenting in Mimms, I criticized the Court's reasoning and, indeed, predicted the result that the majority reaches today. 434 U. S., at 122-123. 420 In this case as well, the intrusion on the passengers' liberty occasioned by the initial stop of the vehicle is not challenged. That intrusion was a necessary by-product of the lawful detention of the driver. But the passengers had not yet been seized at the time the car was pulled over, any more than a traffic jam caused by construction or other stateimposed delay not directed at a particular individual constitutes a seizure of that person. The question is whether a passenger in a lawfully stopped car may be seized, by an order to get out of the vehicle, without any evidence whatsoever that he or she poses a threat to the officer or has committed an offense.8 To order passengers about during the course of a traffic stop, insisting that they exit and remain outside the car, can hardly be classified as a de minimis intrusion. The traffic violation sufficiently justifies subjecting the driver to detention and some police control for the time necessary to conclude the business of the stop. The restraint on the liberty of blameless passengers that the majority permits is, in contrast, entirely arbitrary. 9 In my view, wholly innocent passengers in a taxi, bus, or private car have a constitutionally protected right to decide whether to remain comfortably seated within the vehicle rather than exposing themselves to the elements and the observation of curious bystanders. The Constitution should not be read to permit law enforcement officers to order innocent passengers about simply because they have the misfor- 8 The order to the passenger is unquestionably a "seizure" within the meaning of the Fourth Amendment. As we held in United States v. Brignoni-Ponce, 422 U. S. 873 , 878 (1975): "The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1 , 16-19 (1968)." 9 Cf. Ybarra v. Illinois, 444 U. S. 85 , 91 (1979) (" '[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person'" (citing Sibron v. New York, 392 U. S. 40 , 62-63 (1968))). 421 tune to be seated in a car whose driver has committed a minor traffic offense. Unfortunately, the effect of the Court's new rule on the law may turn out to be far more significant than its immediate impact on individual liberty. Throughout most of our history the Fourth Amendment embodied a general rule requiring that official searches and seizures be authorized by a warrant, issued "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 10 During the prohibition era, the exceptions for warrantless searches supported by probable cause started to replace the general rule.ll In 1968, in the landmark "stop and frisk" case Terry v. Ohio, 392 U. S. 1 (1968), the Court placed its stamp of approval on seizures supported by specific and articulable facts that did not establish probable cause. The Court crafted Terry as a narrow exception to the general rule that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure." Id., at 20. The intended scope of the Court's major departure from prior practice was reflected in its statement that the "demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." Id., at 21, n. 18; see also id., at 27. In the 1970's, the Court twice rejected attempts to justify suspicionless seizures that caused only "modest" intrusions on the liberty of passengers in automobiles. United States v. Brignoni-Ponce, 422 U. S. 873 , 879-880 (1975); Delaware v. Prouse, 440 U. S. 648 , 662-663 10 See, e. g., Amos v. United States, 255 U. S. 313 , 315 (1921); Weeks v. United States, 232 U. S. 383 , 393 (1914). 11 See, e. g., Carroll v. United States, 267 U. S. 132 , 149 (1925) (automobile search). We had also recognized earlier in dictum the now wellestablished doctrine permitting warrantless searches incident to a valid arrest. See Weeks, 232 U. S., at 392; see also J. Landynski, Search and Seizure and the Supreme Court 87 (1966). 422 (1979).12 Today, however, the Court takes the unprecedented step of authorizing seizures that are unsupported by any individualized suspicion whatsoever. The Court's conclusion seems to rest on the assumption that the constitutional protection against "unreasonable" seizures requires nothing more than a hypothetically rational basis for intrusions on individual liberty. How far this ground-breaking decision will take us, I do not venture to predict. I fear, however, that it may pose a more serious threat to individual liberty than the Court realizes. I respectfully dissent. JUSTICE KENNEDY, dissenting. I join in the dissent by JUSTICE STEVENS and add these few observations. The distinguishing feature of our criminal justice system is its insistence on principled, accountable decisionmaking in individual cases. If a person is to be seized, a satisfactory explanation for the invasive action ought to be established by an officer who exercises reasoned judgment under all the circumstances of the case. This principle can be accommodated even where officers must make immediate decisions to ensure their own safety. Traffic stops, even for minor violations, can take upwards of 30 minutes. When an officer commands passengers innocent of any violation to leave the vehicle and stand by the side of the road in full view of the public, the seizure is serious, not trivial. As JUSTICE STEVENS concludes, the command to exit ought not to be given unless there are objective circumstances making it reasonable for the officer to issue the order. (We do not have before us the separate question whether passengers, who, after all, are in the car by choice, 12 Dissenting in Delaware v. Prouse, 440 U. S. 648 (1979), then-JusTIcE REHNQUIST characterized the motorist's interest in freedom from random stops as "only the most diaphanous of citizen interests." Id., at 666. 423 can be ordered to remain there for a reasonable time while the police conduct their business.) The requisite showing for commanding passengers to exit need be no more than the existence of any circumstance justifying the order in the interests of the officer's safety or to facilitate a lawful search or investigation. As we have acknowledged for decades, special latitude is given to the police in effecting searches and seizures involving vehicles and their occupants. See, e. g., Chambers v. Maroney, 399 U. S. 42 (1970); New York v. Class, 475 U. S. 106 (1986); New York v. Belton, 453 U. S. 454 (1981). Just last Term we adhered to a rule permitting vehicle stops if there is some objective indication that a violation has been committed, regardless of the officer's real motives. See Whren v. United States, 517 U. S. 806 (1996). We could discern no other, workable rule. Even so, we insisted on a reasoned explanation for the stop. The practical effect of our holding in Whren, of course, is to allow the police to stop vehicles in almost countless circumstances. When Whren is coupled with today's holding, the Court puts tens of millions of passengers at risk of arbitrary control by the police. If the command to exit were to become commonplace, the Constitution would be diminished in a most public way. As the standards suggested in dissent are adequate to protect the safety of the police, we ought not to suffer so great a loss. Since a myriad of circumstances will give a cautious officer reasonable grounds for commanding passengers to leave the vehicle, it might be thought the rule the Court adopts today will be little different in its operation than the rule offered in dissent. It does no disservice to police officers, however, to insist upon exercise of reasoned judgment. Adherence to neutral principles is the very premise of the rule of law the police themselves defend with such courage and dedication. Most officers, it might be said, will exercise their new power with discretion and restraint; and no doubt this often 424 will be the case. It might also be said that if some jurisdictions use today's ruling to require passengers to exit as a matter of routine in every stop, citizen complaints and political intervention will call for an end to the practice. These arguments, however, would miss the point. Liberty comes not from officials by grace but from the Constitution by right. For these reasons, and with all respect for the opinion of the Court, I dissent.

Here is a summary of the case verdict: Maryland v. Wilson: - Facts: A Maryland state trooper stopped a speeding car and ordered the passenger, Wilson, to exit due to his nervousness. Cocaine fell from Wilson as he got out, leading to an arrest for possession. Lower courts suppressed the evidence, deeming the exit order an unreasonable seizure. - Issue: Whether a police officer, making a traffic stop, may order passengers to get out of the car pending completion of the stop. - Holding: Yes. The Court extended the rule from Pennsylvania v. Mimms, which allowed officers to order drivers out of a lawfully stopped car, to passengers as well. The Court reasoned that officer safety concerns outweigh the minimal additional intrusion on passengers, who are already stopped due to the vehicle stop. - Reasoning: The Fourth Amendment's touchstone is reasonableness, balancing public interest and personal liberty. The Court found a significant public interest in officer safety, which is heightened when there are passengers in addition to the driver. While passengers haven't necessarily committed a violation, they are already stopped due to the vehicle stop, making the additional intrusion of exiting minimal. - Dissent: Justice Stevens dissented, arguing that the ruling gives police arbitrary control over passengers and diminishes constitutional protections. He suggested that the standards in the dissent, which require a reasoned judgment by officers, adequately protect officer safety without eroding liberty.

Search & Seizure

Ohio v. Robinette

https://supreme.justia.com/cases/federal/us/519/33/

OCTOBER TERM, 1996 Syllabus OHIO v. ROBINETTE CERTIORARI TO THE SUPREME COURT OF OHIO No.95-891. Argued October 8, 1996-Decided November 18,1996 After an Ohio deputy sheriff stopped respondent Robinette for speeding, gave him a verbal warning, and returned his driver's license, the deputy asked whether he was carrying illegal contraband, weapons, or drugs in his car. Robinette answered "no" and consented to a search of the car, which revealed a small amount of marijuana and a pill. He was arrested and later charged with knowing possession of a controlled substance when the pill turned out to be methylenedioxymethamphetamine. Following denial of his pretrial suppression motion, he was found guilty, but the Ohio Court of Appeals reversed on the ground that the search resulted from an unlawful detention. The State Supreme Court affirmed, establishing as a bright-line prerequisite for consensual interrogation under these circumstances the requirement that an officer clearly state when a citizen validly detained for a traffic offense is "legally free to go." Held: 1. This Court has jurisdiction to review the Ohio Supreme Court's decision. The contention that jurisdiction is lacking because the Ohio decision rested in part upon the State Constitution is rejected under Michigan v. Long, 463 U. S. 1032 , 1040-1041. Although the opinion below mentions the Ohio Constitution in passing, it clearly relies on federal law, discussing and citing federal cases almost exclusively. It is not dispositive that those citations appear only in the opinion and not in the official syllabus. Under Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 , 566, it is permissible to turn to an Ohio opinion's body when the syllabus speaks only in general terms of "the federal and Ohio Constitutions." Nor is the Court's jurisdiction defeated by the additional holding below that continuing detention of a person stopped for a traffic violation constitutes an illegal seizure when the officer's motivation for continuing is not related to the purpose of the original, constitutional stop and there are no articulable facts giving rise to a suspicion of some separate illegal activity. Under Whren v. United States, 517 U. S. 806, 813, the officer's subjective intentions do not make continued detention illegal, so long as the detention is justified by the circumstances viewed objectively. Pp. 36-39. 2. The Fourth Amendment does not require that a lawfully seized defendant be advised that he is "free to go" before his consent to search 34 Syllabus will be recognized as voluntary. The Amendment's touchstone is reasonableness, which is measured in objective terms by examining the totality of the circumstances. In applying this test, the Court has consistently eschewed bright-line rules, instead emphasizing the factspecific nature of the reasonableness inquiry. Indeed, in rejecting a per se rule very similar to one adopted below, this Court has held that the voluntariness of a consent to search is a question of fact to be determined from all the circumstances. Schneckloth v. Bustamonte, 412 U. S. 218, 248-249. The Ohio Supreme Court erred in holding otherwise. It would be unrealistic to require the police to always inform detainees that they are free to go before a consent to search may be deemed voluntary. Cf. id., at 231. Pp. 39-40. 73 Ohio St. 3d 650, 653 N. E. 2d 695, reversed and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment, post, p. 40. STEVENS, J., filed a dissenting opinion, post, p. 45. Carley J. Ingram argued the cause for petitioner. With her on the briefs was Mathias H. Heck, Jr. Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Paul A. Engelmayer, and Joseph C. Wyderko. James D. Ruppert argued the cause and filed a brief for respondent. * *Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas, and by the Attorneys General for their respective States as follows: Jeff Sessions of Alabama, Daniel E. Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Jim Ryan of Illinois, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa 35 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. We are here presented with the question whether the Fourth Amendment requires that a lawfully seized defendant must be advised that he is "free to go" before his consent to search will be recognized as voluntary. We hold that it does not. This case arose on a stretch of Interstate 70 north of Dayton, Ohio, where the posted speed limit was 45 miles per hour because of construction. Respondent Robert D. Robinette was clocked at 69 miles per hour as he drove his car along this stretch of road, and was stopped by Deputy Roger Newsome of the Montgomery County Sheriff's Office. Newsome asked for and was handed Robinette's driver's license, and he ran a computer check which indicated that Robinette had no previous violations. Newsome then asked Robinette to step out of his car, turned on his mounted video camera, issued a verbal warning to Robinette, and returned his license. At this point, Newsome asked, "One question before you get gone: [A]re you carrying any illegal contraband in your of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, W A. Drew Edmondson of Oklahoma, Theodore Kulongoski of Oregon, Thomas W Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Mark Bennett of South Dakota, Charles W Bursen of Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, Darrell V. McGraw, Jr., of West Virginia, James E. Doyle of Wisconsin, and William U. Hill of Wyoming; and for Americans for Effective Law Enforcement, Inc., by Fred E. Inbau, Wayne W Schmidt, James P. Manak, and Bernard J. Farber. Tracey Maclin, Steven R. Shapiro, and Jeffrey M. Gamso filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. Briefs of amicus curiae were filed for the National Association of Criminal Defense Lawyers by Sheryl Gordon McCloud; and for the Ohio Association of Criminal Defense Lawyers by W Andrew Hasselbach. 36 car? Any weapons of any kind, drugs, anything like that?" App. to Brief for Respondent 2 (internal quotation marks omitted). Robinette answered "no" to these questions, after which Deputy Newsome asked if he could search the car. Robinette consented. In the car, Deputy Newsome discovered a small amount of marijuana and, in a film container, a pill which was later determined to be methylenedioxymethamphetamine (MDMA). Robinette was then arrested and charged with knowing possession of a controlled substance, MDMA, in violation of Ohio Rev. Code Ann. § 2925.11(A) (1993). Before trial, Robinette unsuccessfully sought to suppress this evidence. He then pleaded "no contest," and was found guilty. On appeal, the Ohio Court of Appeals reversed, ruling that the search resulted from an unlawful detention. The Supreme Court of Ohio, by a divided vote, affirmed. 73 Ohio St. 3d 650, 653 N. E. 2d 695 (1995). In its opinion, that court established a bright-line prerequisite for consensual interrogation under these circumstances: "The right, guaranteed by the federal and Ohio Constitutions, to be secure in one's person and property requires that citizens stopped for traffic offenses be clearly informed by the detaining officer when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation. Any attempt at consensual interrogation must be preceded by the phrase 'At this time you legally are free to go' or by words of similar import." Id., at 650-651, 653 N. E. 2d, at 696. We granted certiorari, 516 U. S. 1157 (1996), to review this per se rule, and we now reverse. We must first consider whether we have jurisdiction to review the Ohio Supreme Court's decision. Respondent contends that we lack such jurisdiction because the Ohio decision rested upon the Ohio Constitution, in addition to the 37 Federal Constitution. Under Michigan v. Long, 463 U. S. 1032 (1983), when "a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so." * Id., at 1040-1041. Although the opinion below mentions Art. I, § 14, of the Ohio Constitution in passing (a section which reads identically to the Fourth Amendment), the opinion clearly relies on federal law nevertheless. Indeed, the only cases it discusses or even cites are federal cases, except for one state case which itself applies the Federal Constitution. Our jurisdiction is not defeated by the fact that these citations appear in the body of the opinion, while, under Ohio law, "[the] Supreme Court speaks as a court only through the syllabi of its cases." See Ohio v. Gallagher, 425 U. S. 257 , 259 (1976). When the syllabus, as here, speaks only in general terms of "the federal and Ohio Constitutions," it is permissible for us to turn to the body of the opinion to discern the grounds for decision. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 , 566 (1977). Respondent Robinette also contends that we may not reach the question presented in the petition because the Supreme Court of Ohio also held, as set out in the syllabus paragraph (1): "When the motivation behind a police officer's continued detention of a person stopped for a traffic violation is not related to the purpose of the original, constitutional stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some *Respondent and his amici ask us to take this opportunity to depart from Michigan v. Long. We are no more persuaded by this argument now than we were two Terms ago, see Arizona v. Evans, 514 U. S. 1 (1995), and we again reaffirm the Long presumption. 38 separate illegal activity justifying an extension of the detention, the continued detention constitutes an illegal seizure." 73 Ohio St. 3d, at 650, 653 N. E. 2d, at 696. In reliance on this ground, the Supreme Court of Ohio held that when Newsome returned to Robinette's car and asked him to get out of the car, after he had determined in his own mind not to give Robinette a ticket, the detention then became unlawful. Respondent failed to make any such argument in his brief in opposition to certiorari. See this Court's Rule 15.2. We believe the issue as to the continuing legality of the detention is a "predicate to an intelligent resolution" of the question presented, and therefore "fairly included therein." This Court's Rule 14.1(a); Vance v. Terrazas, 444 U. S. 252 , 258259, n. 5 (1980). The parties have briefed this issue, and we proceed to decide it. We think that under our recent decision in Whren v. United States, 517 U. S. 806 (1996) (decided after the Supreme Court of Ohio decided the present case), the subjective intentions of the officer did not make the continued detention of respondent illegal under the Fourth Amendment. As we made clear in Whren, "'the fact that [an] officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.' ... Subjective intentions play no role in ordinary, probablecause Fourth Amendment analysis." Id., at 813 (quoting Scott v. United States, 436 U. S. 128 , 138 (1978)). And there is no question that, in light of the admitted probable cause to stop Robinette for speeding, Deputy Newsome was objectively justified in asking Robinette to get out of the car, subjective thoughts notwithstanding. See Pennsylvania v. Mimms, 434 U. S. 106 , 111, n. 6 (1977) ("We hold ... that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out 39 of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures"). We now turn to the merits of the question presented. We have long held that the "touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U. S. 248 , 250 (1991). Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry. Thus, in Florida v. Royer, 460 U. S. 491 (1983), we expressly disavowed any "litmuspaper test" or single "sentence or ... paragraph ... rule," in recognition of the "endless variations in the facts and circumstances" implicating the Fourth Amendment. Id., at 506. Then, in Michigan v. Chesternut, 486 U. S. 567 (1988), when both parties urged "bright-line rule[s] applicable to all investigatory pursuits," we rejected both proposed rules as contrary to our "traditional contextual approach." Id., at 572-573. And again, in Florida v. Bostick, 501 U. S. 429 (1991), when the Florida Supreme Court adopted a per se rule that questioning aboard a bus always constitutes a seizure, we reversed, reiterating that the proper inquiry necessitates a consideration of "all the circumstances surrounding the encounter." Id., at 439. We have previously rejected a per se rule very similar to that adopted by the Supreme Court of Ohio in determining the validity of a consent to search. In Schneckloth v. Bustamonte, 412 U. S. 218 (1973), it was argued that such a consent could not be valid unless the defendant knew that he had a right to refuse the request. We rejected this argument: "While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." Id., at 227. And just as it "would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning," id., at 231, so too would it be 40 GINSBURG, J., concurring in judgment unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary. The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and "[v]oluntariness is a question of fact to be determined from all the circumstances," id., at 248-249. The Supreme Court of Ohio having held otherwise, its judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE GINSBURG, concurring in the judgment. Robert Robinette's traffic stop for a speeding violation on an interstate highway in Ohio served as prelude to a search of his automobile for illegal drugs. Robinette's experience was not uncommon in Ohio. As the Ohio Supreme Court related, the sheriff's deputy who detained Robinette for speeding and then asked Robinette for permission to search his vehicle "was on drug interdiction patrol at the time." 73 Ohio St. 3d 650, 651, 653 N. E. 2d 695, 696 (1995). The deputy testified in Robinette's case that he routinely requested permission to search automobiles he stopped for traffic violations. Ibid. According to the deputy's testimony in another prosecution, he requested consent to search in 786 traffic stops in 1992, the year of Robinette's arrest. State v. Retherford, 93 Ohio App. 3d 586, 594, n. 3, 639 N. E. 2d 498, 503, n. 3, dism'd, 69 Ohio St. 3d 1488, 635 N. E. 2d 43 (1994). From their unique vantage point, Ohio's courts observed that traffic stops in the State were regularly giving way to contraband searches, characterized as consensual, even when officers had no reason to suspect illegal activity. One Ohio appellate court noted: "[H]undreds, and perhaps thousands of Ohio citizens are being routinely delayed in their travels and asked to relinquish to uniformed police officers their 41 right to privacy in their automobiles and luggage, sometimes for no better reason than to provide an officer the opportunity to 'practice' his drug interdiction technique." 93 Ohio App. 3d, at 594, 639 N. E. 2d, at 503 (footnote omitted). Against this background, the Ohio Supreme Court determined, and announced in Robinette's case, that the federal and state constitutional rights of Ohio citizens to be secure in their persons and property called for the protection of a clear-cut instruction to the State's police officers: An officer wishing to engage in consensual interrogation of a motorist at the conclusion of a traffic stop must first tell the motorist that he or she is free to go. The Ohio Supreme Court described the need for its first-tell-then-ask rule this way: "The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred .... "Most people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him. "While the legality of consensual encounters between police and citizens should be preserved, we do not believe that this legality should be used by police officers to turn a routine traffic stop into a fishing expedition for unrelated criminal activity. The Fourth Amendment to the federal Constitution and Section 14, Article I of the Ohio Constitution exist to protect citizens against such an unreasonable interference with their liberty." 73 Ohio St. 3d, at 654-655, 653 N. E. 2d, at 698-699. 42 GINSBURG, J., concurring in judgment Today's opinion reversing the decision of the Ohio Supreme Court does not pass judgment on the wisdom of the first-tell-then-ask rule. This Court's opinion simply clarifies that the Ohio Supreme Court's instruction to police officers in Ohio is not, under this Court's controlling jurisprudence, the command of the Federal Constitution. See ante, at 3940. The Ohio Supreme Court invoked both the Federal Constitution and the Ohio Constitution without clearly indicating whether state law, standing alone, independently justified the court's rule. The ambiguity in the Ohio Supreme Court's decision renders this Court's exercise of jurisdiction proper under Michigan v. Long, 463 U. S. 1032 , 1040-1042 (1983), and this Court's decision on the merits is consistent with the Court's "totality of the circumstances" Fourth Amendment precedents, see ante, at 39. I therefore concur in the Court's judgment. I write separately, however, because it seems to me improbable that the Ohio Supreme Court understood its firsttell-then-ask rule to be the Federal Constitution's mandate for the Nation as a whole. "[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards." Oregon v. Hass, 420 U. S. 714 , 719 (1975). * But ordinarily, when a state high court grounds a rule of criminal procedure in the Federal Constitution, the *Formerly, the Ohio Supreme Court was "reluctant to use the Ohio Constitution to extend greater protection to the rights and civil liberties of Ohio citizens" and had usually not taken advantage of opportunities to "us[e] the Ohio Constitution as an independent source of constitutional rights." Arnold v. Cleveland, 67 Ohio St. 3d 35, 42, n. 8, 616 N. E. 2d 163, 168, n. 8 (1993). Recently, however, the state high court declared: "The Ohio Constitution is a document of independent force .... As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups." Id., at 35, 616 N. E. 2d, at 164 (syllabus). 43 court thereby signals its view that the Nation's Constitution would require the rule in all 50 States. Given this Court's decisions in consent-to-search cases such as Schneckloth v. Bustamonte, 412 U. S. 218 (1973), and Florida v. Bostick, 501 U. S. 429 (1991), however, I suspect that the Ohio Supreme Court may not have homed in on the implication ordinarily to be drawn from a state court's reliance on the Federal Constitution. In other words, I question whether the Ohio court thought of the strict rule it announced as a rule for the governance of police conduct not only in Miami County, Ohio, but also in Miami, Florida. The first-tell-then-ask rule seems to be a prophylactic measure not so much extracted from the text of any constitutional provision as crafted by the Ohio Supreme Court to reduce the number of violations of textually guaranteed rights. In Miranda v. Arizona, 384 U. S. 436 (1966), this Court announced a similarly motivated rule as a minimal national requirement without suggesting that the text of the Federal Constitution required the precise measures the Court's opinion set forth. See id., at 467 ("[T]he Constitution [does not] necessarily requir[e] adherence to any particular solution" to the problems associated with custodial interrogations.); see also Oregon v. Elstad, 470 U. S. 298 , 306 (1985) ("The Miranda exclusionary rule ... sweeps more broadly than the Fifth Amendment itself."). Although all parts of the United States fall within this Court's domain, the Ohio Supreme Court is not similarly situated. That court can declare prophylactic rules governing the conduct of officials in Ohio, but it cannot command the police forces of sister States. The very ease with which the Court today disposes of the federal leg of the Ohio Supreme Court's decision strengthens my impression that the Ohio Supreme Court saw its rule as a measure made for Ohio, designed to reinforce in that State the right of the people to be secure against unreasonable searches and seizures. 44 GINSBURG, J., concurring in judgment The Ohio Supreme Court's syllabus and opinion, however, were ambiguous. Under Long, the existence of ambiguity regarding the federal- or state-law basis of a state-court decision will trigger this Court's jurisdiction. Long governs even when, all things considered, the more plausible reading of the state court's decision may be that the state court did not regard the Federal Constitution alone as a sufficient basis for its ruling. Compare Arizona v. Evans, 514 U. S. 1 , 7-9 (1995), with id., at 31-33 (GINSBURG, J., dissenting). It is incumbent on a state court, therefore, when it determines that its State's laws call for protection more complete than the Federal Constitution demands, to be clear about its ultimate reliance on state law. Similarly, a state court announcing a new legal rule arguably derived from both federal and state law can definitively render state law an adequate and independent ground for its decision by a simple declaration to that effect. A recent Montana Supreme Court opinion on the scope of an individual's privilege against self-incrimination includes such a declaration: "While we have devoted considerable time to a lengthy discussion of the application of the Fifth Amendment to the United States Constitution, it is to be noted that this holding is also based separately and independently on [the defendant's] right to remain silent pursuant to Article II, Section 25 of the Montana Constitution." State v. Fuller, 276 Mont. 155, 167, 915 P. 2d 809, 816, cert. denied, post, p. 930. An explanation of this order meets the Court's instruction in Long that "[i]f the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, [this Court] will not undertake to review the decision." 463 U. S., at 1041. On remand, the Ohio Supreme Court may choose to clarify that its instructions to law enforcement officers in Ohio find 45 adequate and independent support in state law, and that in issuing these instructions, the court endeavored to state dispositively only the law applicable in Ohio. See Evans, 514 U. S., at 30-34 (GINSBURG, J., dissenting). To avoid misunderstanding, the Ohio Supreme Court must itself speak with the clarity it sought to require of its State's police officers. The efficacy of its endeavor to safeguard the liberties of Ohioans without disarming the State's police can then be tested in the precise way Our Federalism was designed to work. See, e. g., Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N. Y. U. L. Rev. 1, 11-18 (1995); Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. BaIt. L. Rev. 379, 392-396 (1980). JUSTICE STEVENS, dissenting. The Court's holding today is narrow: The Federal Constitution does not require that a lawfully seized person be advised that he is "free to go" before his consent to search will be recognized as voluntary. I agree with that holding. Given the Court's reading of the opinion of the Supreme Court of Ohio, I also agree that it is appropriate for the Court to limit its review to answering the sole question presented in the State's certiorari petition.1 As I read the state-court opinion, however, the prophylactic rule announced in the second syllabus was intended as a guide to the decision of future cases rather than an explanation of the decision in this case. I would therefore affirm the judgment of the Supreme Court of Ohio because it correctly held that respondent's consent to the search of his vehicle was the product of an unlawful detention. Moreover, it is important 1 "Whether the Fourth Amendment to the United States Constitution requires police officers to inform motorists, lawfully stopped for traffic violations, that the legal detention has concluded before any subsequent interrogation or search will be found to be consensual?" Pet. for Cert. i. 46 to emphasize that nothing in the Federal Constitution-or in this Court's opinion-prevents a State from requiring its law enforcement officers to give detained motorists the advice mandated by the Ohio court. I The relevant facts are undisputed.2 Officer Newsome stopped respondent because he was speeding. Neither at the time of the stop nor at any later time prior to the search of respondent's vehicle did the officer have any basis for believing that there were drugs in the car. After ordering respondent to get out of his car, issuing a warning, and returning his driver's license, Newsome took no further action related to the speeding violation. He did, however, state: "One question before you get gone: are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?" Thereafter, he obtained respondent's consent to search the car. These facts give rise to two questions of law: whether respondent was still being detained when the "one question" was asked, and, if so, whether that detention was unlawful. In my opinion the Ohio Appellate Court and the Ohio Supreme Court correctly answered both of those questions. The Ohio Supreme Court correctly relied upon United States v. Mendenhall, 446 U. S. 544 (1980),3 which stated that "a person has been 'seized' within the meaning of the Fourth Amendment ... if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id., at 554 (opinion of Stewart, J.); see Michigan v. Chesternut, 486 U. S. 567 , 573 (1988) (noting that "[t]he Court has since embraced this test"). See also Florida v. Bostick, 501 U. S. 429 , 435-436 (1991) (applying variant of this approach). The Ohio Court 2 This is in part because crucial portions of the exchange were videotaped; this recording is a part of the record. 3 See 73 Ohio St. 3d 650, 654, 653 N. E. 2d 695, 698 (1995). 47 of Appeals applied a similar analysis. See App. to Pet. for Cert. 17-18. Several circumstances support the Ohio courts' conclusion that a reasonable motorist in respondent's shoes would have believed that he had an obligation to answer the "one question" and that he could not simply walk away from the officer, get back in his car, and drive away. The question itself sought an answer "before you get gone." In addition, the facts that respondent had been detained, had received no advice that he was free to leave, and was then standing in front of a television camera in response to an official command are all inconsistent with an assumption that he could reasonably believe that he had no duty to respond. The Ohio Supreme Court was surely correct in stating: "Most people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him." 73 Ohio St. 3d, at 655, 653 N. E. 2d, at 698.4 Moreover, as an objective matter it is fair to presume that most drivers who have been stopped for speeding are in a hurry to get to their destinations; such drivers have no interest in prolonging the delay occasioned by the stop just to engage in idle conversation with an officer, much less to allow 4 A learned commentator has expressed agreement on this point. See 4 W. LaFave, Search and Seizure § 9.3(a), p. 112 (3d ed. 1996 and Supp. 1997) ("Given the fact that [defendant] quite clearly had been seized when his car was pulled over, the return of the credentials hardly manifests a change in status when it was immediately followed by interrogation concerning other criminal activity"); see also ibid. (approving of Ohio Supreme Court's analysis in this case). We have indicated as much ourselves in the past. See Berkemer v. McCarty, 468 U. S. 420 , 436 (1984) ("Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so"). 48 a potentially lengthy search.5 I also assume that motorists-even those who are not carrying contraband-have an interest in preserving the privacy of their vehicles and possessions from the prying eyes of a curious stranger. The fact that this particular officer successfully used a similar method of obtaining consent to search roughly 786 times in one year, State v. Retherford, 93 Ohio App. 3d 586, 591592, 639 N. E. 2d 498, 502, dism'd, 69 Ohio St. 3d 1488, 635 N. E. 2d 43 (1994), indicates that motorists generally respond in a manner that is contrary to their self-interest. Repeated decisions by ordinary citizens to surrender that interest cannot satisfactorily be explained on any hypothesis other than an assumption that they believed they had a legal duty to do so. The Ohio Supreme Court was therefore entirely correct to presume in the first syllabus preceding its opinion that a "continued detention" was at issue here. 73 Ohio St. 3d, at 650, 653 N. E. 2d, at 696.6 The Ohio Court of Appeals reached a similar conclusion. In response to the State's con- 5 Though this search does not appear to have been particularly intrusive, that may not always be so. See Brief for American Civil Liberties Union et al. as Amici Curiae 28-29. Indeed, our holding in Florida v. Jimeno, 500 U. S. 248 (1991), allowing police to open closed containers in the context of an automobile consent search where the "consent would reasonably be understood to extend to a particular container," id., at 252, ensures that many motorists will wind up "consenting" to a far broader search than they might have imagined. See id., at 254-255 ("only objection that the police could have to" a rule requiring police to seek consent to search containers as well as the automobile itself "is that it would prevent them from exploiting the ignorance of a citizen who simply did not anticipate that his consent to search the car would be understood to authorize the police to rummage through his packages") (Marshall, J., dissenting). 6 It is ordinarily the syllabus that precedes an Ohio Supreme Court opinion, rather than the opinion itself, that states the law of the case. Cassidy v. Glossip, 12 Ohio St. 2d 17,24,231 N. E. 2d 64, 68 (1967); see Migra v. Warren City School Dist. Ed. of Ed., 465 U. S. 75 , 86, n. 8 (1984); Ohio v. Gallagher, 425 U. S. 257 ,259 (1976). 49 tention that Robinette "was free to go" at the time consent was sought, that court held-after reviewing the recordthat "a reasonable person in Robinette's position would not believe that the investigative stop had been concluded, and that he or she was free to go, so long as the police officer was continuing to ask investigative questions." App. to Pet. for Cert. 17-18. As I read the Ohio opinions, these determinations were independent of the bright-line rule criticized by the majority.7 I see no reason to disturb them. In the first syllabus, the Ohio Supreme Court also answered the question whether the officer's continued detention of respondent was lawful or unlawful. See ante, at 3738. Although there is a possible ambiguity in the use of the word "motivation" in the Ohio Supreme Court's explanation of why the traffic officer's continued detention of respondent was an illegal seizure, the first syllabus otherwise was a correct statement of the relevant federal rule as well as the relevant Ohio rule. As this Court points out in its opinion, as a matter of federal law the subjective motivation of the officer does not determine the legality of a detention. Because I assume that the learned judges sitting on the Ohio Supreme Court were well aware of this proposition, we should construe the syllabus generously by replacing the ambiguous term "motivation behind" with the term "justification for" in order to make the syllabus unambiguously state the correct rule of federal law. So amended, the controlling proposition of federal law reads: "When the [justification for] a police officer's continued detention of a person stopped for a traffic violation is 7 Indeed, the first paragraph of the Ohio Supreme Court's opinion clearly indicates that the bright-line rule was meant to apply only infuture cases. The Ohio Supreme Court first explained: "We find that the search was invalid since it was the product of an unlawful seizure." 73 Ohio St. 3d, at 652, 653 N. E. 2d, at 697. Only then did the court proceed to point out that it would "also use this case to establish a bright-line test .... " Ibid. 50 not related to the purpose of the original, constitutional stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some separate illegal activity justifying an extension of the detention, the continued detention constitutes an illegal seizure." 73 Ohio St. 3d, at 650, 653 N. E. 2d, at 696. Notwithstanding that the subjective motivation for the officer's decision to stop respondent related to drug interdiction, the legality of the stop depended entirely on the fact that respondent was speeding. Of course, "[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U. S. 806 , 810 (1996). As noted above, however, by the time Robinette was asked for consent to search his automobile, the lawful traffic stop had come to an end; Robinette had been given his warning, and the speeding violation provided no further justification for detention. The continued detention was therefore only justifiable, if at all, on some other grounds.8 At no time prior to the search of respondent's vehicle did any articulable facts give rise to a reasonable suspicion of some separate illegal activity that would justify further detention. See United States v. Sharpe, 470 U. S. 675 , 682 (1985); United States v. Brignoni-Ponce, 422 U. S. 873 , 881882 (1975); Terry v. Ohio, 392 U. S. 1 , 21 (1968). As an objective matter, it inexorably follows that when the officer had completed his task of either arresting or reprimanding the driver of the speeding car, his continued detention of that 8 Cf. Florida v. Royer, 460 U. S. 491 , 500 (1983) (plurality opinion) ("[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop"); United States v. BrignoniPonce, 422 U. S. 873 , 881 (1975) ("stop and inquiry must be 'reasonably related in scope to the justification for their initiation'" (quoting Terry v. Ohio, 392 U. S. 1 , 29 (1968)). 51 person constituted an illegal seizure. This holding by the Ohio Supreme Court is entirely consistent with federallaw.9 The proper disposition follows as an application of wellsettled law. We held in Florida v. Royer, 460 U. S. 491 (1983), that a consent obtained during an illegal detention is ordinarily ineffective to justify an otherwise invalid search.lO See also Florida v. Bostick, 501 U. S., at 433-434 (noting that if consent was given during the course of an unlawful seizure, the results of the search "must be suppressed as tainted fruit"); Dunaway v. New York, 442 U. S. 200 , 218-219 (1979); Brown v. Illinois, 422 U. S. 590 , 601-602 (1975). Cf. Wong Sun v. United States, 371 U. S. 471 (1963). Because Robinette's consent to the search was the product of an unlawful detention, "the consent was tainted by the illegality and was ineffective to justify the search." Royer, 460 U. S., at 507508 (plurality opinion). I would therefore affirm the judgment below. II A point correctly raised by JUSTICE GINSBURG merits emphasis. The Court's opinion today does not address either the wisdom of the rule announced in the second syllabus pre- 9 Since "this Court reviews judgments, not opinions," Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 842 (1984), the Ohio Supreme Court's holding that Robinette's continued seizure was illegal on these grounds provides a sufficient basis for affirming its judgment. lOWriting for a plurality of the Court, Justice White explained that "statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will." 460 U. S., at 501. The defendant in Royer had been "illegally detained when he consented to the search." Id., at 507. As a result, the plurality agreed that "the consent was tainted by the illegality and was ineffective to justify the search." Id., at 507-508. Concurring in the result, Justice Brennan agreed with this much of the plurality's decision, diverging on other grounds. See id., at 509. Justice Brennan's agreement on that narrow principle represents the holding of the Court. See Marks v. United States, 430 U. S. 188 , 193 (1977). 52 ceding the Ohio Supreme Court's opinion or the validity of that rule as a matter of Ohio law. Nevertheless the risk that the narrowness of the Court's holding may not be fully understood prompts these additional words. There is no rule of federal law that precludes Ohio from requiring its police officers to give its citizens warnings that will help them to understand whether a valid traffic stop has come to an end, and will help judges to decide whether a reasonable person would have felt free to leave under the circumstances at issue in any given case.ll Nor, as I have previously observed, is there anything "in the Federal Constitution that prohibits a State from giving lawmaking power to its courts." Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 , 479, and n. 3 (1981) (dissenting opinion). Thus, as far as we are concerned, whether Ohio acts through one branch of its government or another, it has the same power to enforce a warning rule as other States that may adopt such rules by executive action.12 11 Indeed, we indicated in Florida v. Bostick, 501 U. S. 429 , 437 (1991), that the fact a defendant had been explicitly advised that he could refuse to give consent was relevant to the question whether he was seized at the time consent was sought. And, in other cases, we have stressed the importance of similar advice as a circumstance supporting the conclusion that a consent to search was voluntary. See Schneckloth v. Bustamonte, 412 U. S. 218 , 227 (1973); United States v. Mendenhall, 446 U. S. 544 , 558559 (1980). Cf. Washington v. Chrisman, 455 U. S. 1 , 9 (1982) (consent to search was voluntary where defendant "consented, in writing, ... after being advised that his consent must be voluntary and that he had an absolute right to refuse consent"). 12 As we are informed by a brief amicus curiae filed by Americans For Effective Law Enforcement, Inc.: "Such a warning may be good police practice, and indeed amicus knows that many law enforcement agencies among our constituents have routinely incorporated a warning into their Fourth Amendment consent forms that they use in the field, but it is precisely that-a practice and not a constitutional imperative. An officer who includes such a warning in his request for consent undoubtedly presents a stronger case for a finding of voluntariness in a suppression hearing, and we would not suggest that such agencies and officers do other- 53 Moreover, while I recognize that warning rules provide benefits to the law enforcement profession and the courts, as well as to the public, I agree that it is not our function to pass judgment on the wisdom of such rules. Accordingly, while I have concluded that the judgment of the Supreme Court of Ohio should be affirmed, and thus dissent from this Court's disposition of the case, I am in full accord with its conclusion that the Federal Constitution neither mandates nor prohibits the warnings prescribed by the Ohio Court. Whether such a practice should be followed in Ohio is a matter for Ohio lawmakers to decide. wise. We know, too, that instructors in many police training programs of leading universities and management institutes routinely recommend such warnings as a sound practice, likely to bolster the voluntariness of a consent to search. [We ourselves] conduc[t] law enforcement training programs at the national level and many of our own speakers have made this very point." Brief for Americans For Effective Law Enforcement, Inc., as Amicus Curiae 7.

The Supreme Court of the United States ruled that a person who has been lawfully detained for a traffic offense does not need to be informed that they are "free to go" for their consent to a search to be considered voluntary under the Fourth Amendment. The Court held that the touchstone of the Fourth Amendment is reasonableness and that this is measured by examining the totality of the circumstances in an objective manner, without the need for bright-line rules. The Court also asserted its jurisdiction to review the case, despite the Ohio Supreme Court's decision being partially based on the state constitution, as federal law was predominantly discussed and cited in the opinion.

Search & Seizure

Knowles v. Iowa

https://supreme.justia.com/cases/federal/us/525/113/

OCTOBER TERM, 1998 Syllabus KNOWLES v. IOWA CERTIORARI TO THE SUPREME COURT OF IOWA No. 97-7597. Argued November 3, 1998-Decided December 8,1998 An Iowa policeman stopped petitioner Knowles for speeding and issued him a citation rather than arresting him. The officer then conducted a full search of the car, without either Knowles' consent or probable cause, found marijuana and a "pot pipe," and arrested Knowles. Before his trial on state drug charges, Knowles moved to suppress the evidence, arguing that because he had not been arrested, the search could not be sustained under the "search incident to arrest" exception recognized in United States v. Robinson, 414 U. S. 218 . The trial court denied the motion and found Knowles guilty, based on state law giving officers authority to conduct a full-blown search of an automobile and driver where they issue a citation instead of making a custodial arrest. In affirming, the State Supreme Court applied its bright-line "search incident to citation" exception to the Fourth Amendment's warrant requirement, reasoning that so long as the officer had probable cause to make a custodial arrest, there need not in fact have been an arrest. Held: The search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment. Neither of the two historical exceptions for the "search incident to arrest" exception, see Robinson, supra, at 234, is sufficient to justify the search in the present case. First, the threat to officer safety from issuing a traffic citation is a good deal less than in the case of a custodial arrest. While concern for safety during a routine traffic stop may justify the "minimal" additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full fieldtype search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. Second, the need to discover and preserve evidence does not exist in a traffic stop, for once Knowles was stopped for speeding and issued a citation, all evidence necessary to prosecute that offense had been obtained. Iowa's argument that a "search incident to citation" is justified because a suspect may try to hide evidence of his identity or of other crimes is unpersuasive. An officer may arrest a driver if he is not satisfied with the identification furnished, and the possibility that an officer would stumble onto evidence of an unrelated offense seems remote. Pp. 116-119. 569 N. W. 2d 601, reversed and remanded. 114 REHNQUIST, C. J., delivered the opinion for a unanimous Court. Paul Rosenberg argued the cause for petitioner. With him on the briefs was Maria Ruhtenberg. Bridget A. Chambers, Assistant Attorney General of Iowa, argued the cause for respondent. With her on the brief were Thomas J. Miller, Attorney General, and Elizabeth M. Osenbaugh, Solicitor General. * CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. An Iowa police officer stopped petitioner Knowles for speeding, but issued him a citation rather than arresting him. The question presented is whether such a procedure authorizes the officer, consistently with the Fourth Amendment, to conduct a full search of the car. We answer this question "no." Knowles was stopped in Newton, Iowa, after having been clocked driving 43 miles per hour on a road where the speed limit was 25 miles per hour. The police officer issued a citation to Knowles, although under Iowa law he might have arrested him. The officer then conducted a full search of the car, and under the driver's seat he found a bag of marijuana and a "pot pipe." Knowles was then arrested and charged with violation of state laws dealing with controlled substances. Before trial, Knowles moved to suppress the evidence so obtained. He argued that the search could not be sustained under the "search incident to arrest" exception recognized in United States v. Robinson, 414 U. S. 218 (1973), because he had not been placed under arrest. At the hearing on the motion to suppress, the police officer conceded that he had * James J. Tomkovicz, Steven R. Shapiro, Susan N. Herman, and Lisa B. Kemler filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Stephen R. McSpadden filed a brief for the National Association of Police Organizations, Inc., as amicus curiae urging affirmance. 115 neither Knowles' consent nor probable cause to conduct the search. He relied on Iowa law dealing with such searches. Iowa Code Ann. § 321.485(1)(a) (West 1997) provides that Iowa peace officers having cause to believe that a person has violated any traffic or motor vehicle equipment law may arrest the person and immediately take the person before a magistrate. Iowa law also authorizes the far more usual practice of issuing a citation in lieu of arrest or in lieu of continued custody after an initial arrest.1 See Iowa Code Ann. § 805.1(1) (West Supp. 1997). Section 805.1(4) provides that the issuance of a citation in lieu of an arrest "does not affect the officer's authority to conduct an otherwise lawful search." The Iowa Supreme Court has interpreted this provision as providing authority to officers to conduct a fullblown search of an automobile and driver in those cases where police elect not to make a custodial arrest and instead issue a citation-that is, a search incident to citation. See State v. Meyer, 543 N. W. 2d 876, 879 (1996); State v. Becker, 458 N. W. 2d 604, 607 (1990). Based on this authority, the trial court denied the motion to suppress and found Knowles guilty. The Supreme Court of Iowa, sitting en bane, affirmed by a divided vote. 569 N. W. 2d 601 (1997). Relying on its earlier opinion in State v. Doran, 563 N. W. 2d 620 (1997), the Iowa Supreme Court upheld the constitutionality of the search under a bright-line "search incident to citation" exception to the Fourth Amendment's warrant requirement, reasoning that so long as the 1 Iowa law permits the issuance of a citation in lieu of arrest for most offenses for which an accused person would be "eligible for bail." See Iowa Code Ann. §805.1(1) (West Supp. 1997). In addition to traffic and motor vehicle equipment violations, this would permit the issuance of a citation in lieu of arrest for such serious felonies as second-degree burglary, § 713.5 (West Supp. 1997), and first-degree theft, § 714.2(1) (West 1993), both bailable offenses under Iowa law. See §811.1 (West Supp. 1997) (listing all nonbailable offenses). The practice in Iowa of permitting citation in lieu of arrest is consistent with law reform efforts. See 3 W. LaFave, Search and Seizure § 5.2(h), p. 99, and n. 151 (3d ed. 1996). 116 arresting officer had probable cause to make a custodial arrest, there need not in fact have been a custodial arrest. We granted certiorari, 523 U. S. 1019 (1998), and we now reverse. The State contends that Knowles has challenged Iowa Code's § 805.1(4) only "on its face" and not "as applied," in which case, the argument continues, his challenge would run afoul of Sibron v. New York, 392 U. S. 40 (1968). But in his motion to suppress, Knowles argued that "[b]ecause the officer had no probable cause and no search warrant, and the search cannot otherwise be justified under the Fourth Amendment, the search of the car was unconstitutional." App. 7. Knowles did not argue below, and does not argue here, that the statute could never be lawfully applied. The question we therefore address is whether the search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment.2 In Robinson, supra, we noted the two historical rationales for the "search incident to arrest" exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. 414 U. S., at 234. See also United States v. Edwards, 415 U. S. 800 ,802-803 (1974); Chimel v. California, 395 U. S. 752 , 762763 (1969); Preston v. United States, 376 U. S. 364 , 367 (1964); 2 Iowa also contends that Knowles' challenge is precluded because he failed to seek review of a separate decision of the Iowa Supreme Court, which affirmed his conviction for possession of drug paraphernalia in violation of a city ordinance. That decision, Iowa argues, resulted from the same search at issue here, rejected the same Fourth Amendment challenge Knowles now makes, and, under principles of res judicata, bars his present challenge. Even if Knowles' failure to seek certiorari review of this decision could preclude his present challenge, Iowa waived this argument by failing to raise it in its brief in opposition to the petition for certiorari. See this Court's Rule 15.2; Oklahoma City v. Tuttle, 471 U. S. 808 , 816 (1985) ("Nonjurisdictional defects of this sort should be brought to our attention no later than in respondent's brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived"). 117 Agnello v. United States, 269 U. S. 20 , 30 (1925); Weeks v. United States, 232 U. S. 383 , 392 (1914). But neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case. We have recognized that the first rationale-officer safety-is "'both legitimate and weighty,'" Maryland v. Wilson, 519 U. S. 408 , 412 (1997) (quoting Pennsylvania v. Mimms, 434 U. S. 106 , 110 (1977) (per curiam)). The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest. In Rob inson, we stated that a custodial arrest involves "danger to an officer" because of "the extended exposure which follows the taking of a suspect into custody and transporting him to the police station." 414 U. S., at 234-235. We recognized that "[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest." Id., at 234, n. 5. A routine traffic stop, on the other hand, is a relatively brief encounter and "is more analogous to a so-called 'Terry stop' ... than to a formal arrest." Berkemer v. McCarty, 468 U. S. 420 , 439 (1984). See also Cupp v. Murphy, 412 U. S. 291 , 296 (1973) ("Where there is no formal arrest ... a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence"). This is not to say that the concern for officer safety is absent in the case of a routine traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the concern for officer safety in this context may justify the "minimal" additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full fieldtype search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. For example, they 118 may order out of a vehicle both the driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at 414; perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a "Terry pat down" of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, Michigan v. Long, 463 U. S. 1032 , 1049 (1983); and even conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest, New York v. Belton, 453 U. S. 454 , 460 (1981). Nor has Iowa shown the second justification for the authority to search incident to arrest-the need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car. Iowa nevertheless argues that a "search incident to citation" is justified because a suspect who is subject to a routine traffic stop may attempt to hide or destroy evidence related to his identity (e.g., a driver's license or vehicle registration), or destroy evidence of another, as yet undetected crime. As for the destruction of evidence relating to identity, if a police officer is not satisfied with the identification furnished by the driver, this may be a basis for arresting him rather than merely issuing a citation. As for destroying evidence of other crimes, the possibility that an officer would stumble onto evidence wholly unrelated to the speeding offense seems remote. In Robinson, we held that the authority to conduct a full field search as incident to an arrest was a "bright-line rule," which was based on the concern for officer safety and destruction or loss of evidence, but which did not depend in every case upon the existence of either concern. Here we 119 are asked to extend that "bright-line rule" to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all. We decline to do so. The judgment of the Supreme Court of Iowa is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

The Supreme Court ruled that a full search of a vehicle during a routine traffic stop, without the driver's consent or probable cause, violates the Fourth Amendment, even if the officer issues a citation instead of making a custodial arrest. The "search incident to arrest" exception does not apply in this case as the threat to officer safety is lower, and all evidence necessary to prosecute the speeding offense had already been obtained. The judgment of the Iowa Supreme Court was reversed and the case remanded.

Search & Seizure

Illinois v. Wardlow

https://supreme.justia.com/cases/federal/us/528/119/

OCTOBER TERM, 1999 Syllabus ILLINOIS v. WARDLOW CERTIORARI TO THE SUPREME COURT OF ILLINOIS No. 98-1036. Argued November 2, 1999-Decided January 12,2000 Respondent Wardlow fled upon seeing a caravan of police vehicles converge on an area of Chicago known for heavy narcotics trafficking. When Officers Nolan and Harvey caught up with him on the street, Nolan stopped him and conducted a protective patdown search for weapons because in his experience there were usually weapons in the vicinity of narcotics transactions. Discovering a handgun, the officers arrested Wardlow. The Illinois trial court denied his motion to suppress, finding the gun was recovered during a lawful stop and frisk. He was convicted of unlawful use of a weapon by a felon. In reversing, the State Appellate Court found that Nolan did not have reasonable suspicion to make the stop under Terry v. Ohio, 392 U. S. 1 . The State Supreme Court affirmed, determining that sudden flight in a high crime area does not create a reasonable suspicion justifying a Terry stop because flight may simply be an exercise of the right to "go on one's way," see Florida v. Royer, 460 U. S. 491 . Held: The officers' actions did not violate the Fourth Amendment. This case, involving a brief encounter between a citizen and a police officer on a public street, is governed by Terry, under which an officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop. While "reasonable suspicion" is a less demanding standard than probable cause, there must be at least a minimal level of objective justification for the stop. An individual's presence in a "high crime area," standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity, but a location's characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation, Adams v. Williams, 407 U. S. 143 ,144,147-148. In this case, moreover, it was also Wardlow's unprovoked flight that aroused the officers' suspicion. Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion, e. g., United States v. Brignoni-Ponce, 422 U. S. 873, 885, and headlong flight is the consummate act of evasion. In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences from suspicious behavior, and this Court cannot reasonably demand scientific certainty when none exists. Thus, the reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior. See 120 Syllabus United States v. Cortez, 449 U. S. 411 ,418. Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further. Such a holding is consistent with the decision in Florida v. Royer, supra, at 498, that an individual, when approached, has a right to ignore the police and go about his business. Unprovoked flight is the exact opposite of "going about one's business." While flight is not necessarily indicative of ongoing criminal activity, Terry recognized that officers can detain individuals to resolve ambiguities in their conduct, 392 U. S., at 30, and thus accepts the risk that officers may stop innocent people. If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way. But in this case the officers found that Wardlow possessed a handgun and arrested him for violating a state law. The propriety of that arrest is not before the Court. pp. 123-126. 183 Ill. 2d 306, 701 N. E. 2d 484, reversed and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 126. Richard A. Devine argued the cause for petitioner. With him on the briefs were James E. Ryan, Attorney General of Illinois, Joel D. Bertocchi, Solicitor General, Renee G. Goldfarb, Theodore Fotios Burtzos, and Veronica Ximena Calderon. Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Deborah Watson. James B. Koch argued the cause for respondent. With him on the brief were Lynn N. Weisberg and Thomas G. Gardiner. * *Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, Robert C. Maier and Alejandro Almaguer, Assistant Solicitors, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Ken Salazar of Colorado, M. Jane Brady of Delaware, 121 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Respondent Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. Two of the officers caught up with him, stopped him, and conducted a protective patdown search for weapons. Discovering a .38-caliber handgun, the officers arrested Wardlow. We hold that the officers' stop did not violate the Fourth Amendment to the United States Constitution. On September 9, 1995, Officers Nolan and Harvey were working as uniformed officers in the special operations section of the Chicago Police Department. The officers were driving the last car of a four-car caravan converging on an area known for heavy narcotics trafficking in order to investigate drug transactions. The officers were traveling together because they expected to find a crowd of people in the area, including lookouts and customers. As the caravan passed 4035 West Van Buren, Officer Nolan observed respondent Wardlow standing next to the building Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Mike Hatch of Minnesota, Michael C. Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Michael P. Easley of North Carolina, W A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Mark L. Barnett of South Dakota, and Mark L. Earley of Virginia; for the Wayne County Prosecuting Attorney by John D. O'Hair, pro se, Timothy A. Baughman, and Jeffrey Caminsky; for Americans for Effective Law Enforcement, Inc., et al. by Wayne W Schmidt, James P. Manak, and Richard Weintraub; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations et al. by Stephen R. McSpadden. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Tracey Maclin, Steven R. Shapiro, Harvey Grossman, and Barbara E. Bergman; for the NAACP Legal Defense & Educational Fund, Inc., by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, and Laura E. Hankins; and for the Rutherford Institute by John W Whitehead and Steven H. Aden. 122 holding an opaque bag. Respondent looked in the direction of the officers and fled. Nolan and Harvey turned their car southbound, watched him as he ran through the gangway and an alley, and eventually cornered him on the street. Nolan then exited his car and stopped respondent. He immediately conducted a protective patdown search for weapons because in his experience it was common for there to be weapons in the near vicinity of narcotics transactions. During the frisk, Officer Nolan squeezed the bag respondent was carrying and felt a heavy, hard object similar to the shape of a gun. The officer then opened the bag and discovered a .38-caliber handgun with five live rounds of ammunition. The officers arrested Wardlow. The Illinois trial court denied respondent's motion to suppress, finding the gun was recovered during a lawful stop and frisk. App. 14. Following a stipulated bench trial, Wardlow was convicted of unlawful use of a weapon by a felon. The Illinois Appellate Court reversed Wardlow's conviction, concluding that the gun should have been suppressed because Officer Nolan did not have reasonable suspicion sufficient to justify an investigative stop pursuant to Terry v. Ohio, 392 U. S. 1 (1968). 287 Ill. App. 3d 367, 678 N. E. 2d 65 (1997). The Illinois Supreme Court agreed. 183 Ill. 2d 306, 701 N. E. 2d 484 (1998). While rejecting the Appellate Court's conclusion that Wardlow was not in a high crime area, the Illinois Supreme Court determined that sudden flight in such an area does not create a reasonable suspicion justifying a Terry stop. 183 Ill. 2d, at 310, 701 N. E. 2d, at 486. Relying on Florida v. Royer, 460 U. S. 491 (1983), the court explained that although police have the right to approach individuals and ask questions, the individual has no obligation to respond. The person may decline to answer and simply go on his or her way, and the refusal to respond, alone, does not provide a legitimate basis for an investigative stop. 183 Ill. 123 2d, at 311-312, 701 N. E. 2d, at 486-487. The court then determined that flight may simply be an exercise of this right to "go on one's way," and, thus, could not constitute reasonable suspicion justifying a Terry stop. 183 Ill. 2d, at 312, 701 N. E. 2d, at 487. The Illinois Supreme Court also rejected the argument that flight combined with the fact that it occurred in a high crime area supported a finding of reasonable suspicion because the "high crime area" factor was not sufficient standing alone to justify a Terry stop. Finding no independently suspicious circumstances to support an investigatory detention, the court held that the stop and subsequent arrest violated the Fourth Amendment. We granted certiorari, 526 U. S. 1097 (1999), and now reverse.1 This case, involving a brief encounter between a citizen and a police officer on a public street, is governed by the analysis we first applied in Terry. In Terry, we held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. 392 U. S., at 30. While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. United States v. Sokolow, 490 U. S. 1 , 7 (1989). The officer must be able 1 The state courts have differed on whether unprovoked flight is sufficient grounds to constitute reasonable suspicion. See, e. g., State v. Anderson, 155 Wis. 2d 77, 454 N. W. 2d 763 (1990) (flight alone is sufficient); Platt v. State, 589 N. E. 2d 222 (Ind. 1992) (same); Harris v. State, 205 Ga. App. 813,423 S. E. 2d 723 (1992) (flight in high crime area sufficient); State v. Hicks, 241 Neb. 357, 488 N. W. 2d 359 (1992) (flight is not enough); State v. Tucker, 136 N. J. 158, 642 A. 2d 401 (1994) (same); People v. Shabaz, 424 Mich. 42, 378 N. W. 2d 451 (1985) (same); People v. Wilson, 784 P. 2d 325 (Colo. 1989) (same). 124 to articulate more than an "inchoate and unparticularized suspicion or 'hunch'" of criminal activity. Terry, supra, at 27.2 Nolan and Harvey were among eight officers in a four-car caravan that was converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. App.8. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas, 443 U. S. 47 (1979). But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a "high crime area" among the relevant contextual considerations in a Terry analysis. Adams v. Williams, 407 U. S. 143 , 144, 147-148 (1972). In this case, moreover, it was not merely respondent's presence in an area of heavy narcotics trafficking that aroused the officers' suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. United States v. Brignoni-Ponce, 422 U. S. 873 , 885 (1975); Florida v. Rodriguez, 469 U. S. 1 , 6 (1984) (per curiam); United States v. Sokolow, supra, at 8-9. Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious 2We granted certiorari solely on the question whether the initial stop was supported by reasonable suspicion. Therefore, we express no opinion as to the lawfulness of the frisk independently of the stop. 125 behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. See United States v. Cortez, 449 U. S. 411, 418 (1981). We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further. Such a holding is entirely consistent with our decision in Florida v. Royer, 460 U. S. 491 (1983), where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. Id., at 498. And any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." Florida v. Bostick, 501 U. S. 429 , 437 (1991). But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning. Respondent and amici also argue that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not establish a violation of the Fourth Amendment. Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. The officer observed two individuals pacing back and forth in front of a store, peering into the window and periodically conferring. 392 U. S., at 5-6. All of this conduct was by itself lawful, but it also suggested that the individuals were casing the store for a planned robbery. Terry recognized that the officers could detain the individuals to resolve the ambiguity. Id., at 30. 126 Opinion of STEVENS, J. In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. But in this case the officers found respondent in possession of a handgun, and arrested him for violation of an Illinois firearms statute. No question of the propriety of the arrest itself is before us. The judgment of the Supreme Court of Illinois is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, concurring in part and dissenting in part. The State of Illinois asks this Court to announce a "bright-line rule" authorizing the temporary detention of anyone who flees at the mere sight of a police officer. Brief for Petitioner 7-36. Respondent counters by asking us to adopt the opposite per se rule-that the fact that a person flees upon seeing the police can never, by itself, be sufficient to justify a temporary investigative stop of the kind authorized by Terry v. Ohio, 392 U. S. 1 (1968). Brief for Respondent 6-31. The Court today wisely endorses neither per se rule. Instead, it rejects the proposition that "flight is ... necessarily indicative of ongoing criminal activity," ante, at 125, adhering to the view that "[t]he concept of reasonable suspicion ... is not readily, or even usefully, reduced to a neat set of legal rules," but must be determined by looking to "the 127 totality of the circumstances-the whole picture," United States v. Sokolow, 490 U. S. 1 , 7-8 (1989) (internal quotation marks and citation omitted). Abiding by this framework, the Court concludes that "Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity." Ante, at 125. Although I agree with the Court's rejection of the per se rules proffered by the parties, unlike the Court, I am persuaded that in this case the brief testimony of the officer who seized respondent does not justify the conclusion that he had reasonable suspicion to make the stop. Before discussing the specific facts of this case, I shall comment on the parties' requests for a per se rule. I In Terry v. Ohio, we first recognized "that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest," 392 U. S., at 22, an authority permitting the officer to "stop and briefly detain a person for investigative purposes," Sokolow, 490 U. S., at 7. We approved as well "a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry, 392 U. S., at 27. Cognizant that such police intrusion had never before received constitutional imprimatur on less than probable cause, id., at 11-12, 20, we reflected upon the magnitude of the departure we were endorsing. "Even a limited search," we said, "constitutes a severe, though brief, intrusion upon cherished personal security, and it must be an annoying, frightening, and perhaps humiliating experience." Id., at 24-25.1 1 We added that a Terry frisk "is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and is not to be undertaken lightly." 392 U. S., at 17. The resent- 128 Opinion of STEVENS, J. Accordingly, we recognized only a "narrowly drawn authority" that is "limited to that which is necessary for the discovery of weapons." Id., at 27, 26. An officer conducting an investigatory stop, we further explained, must articulate "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U. S. 411 , 417-418 (1981). That determination, we admonished, "becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances." Terry, 392 U. S., at 21. In undertaking that neutral scrutiny "based on all of the circumstances," a court relies on "certain commonsense conclusions about human behavior." Cortez, 449 U. S., at 418; see also ante, at 125. "[T]he relevant inquiry" concerning the inferences and conclusions a court draws "is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." Sokolow, 490 U. S., at 10. The question in this case concerns "the degree of suspicion that attaches to" a person's flight-or, more precisely, what "commonsense conclusions" can be drawn respecting the motives behind that flight. A pedestrian may break into a run for a variety of reasons-to catch up with a friend a block or two away, to seek shelter from an impending storm, to arrive at a bus stop before the bus leaves, to get home in time for ment engendered by that intrusion is aggravated, not mitigated, if the officer's entire justification for the stop is the belief that the individual is simply trying to avoid contact with the police or move from one place to another-as he or she has a right to do (and do rapidly). See Chicago v. Morales, 527 U. S. 41 , 53 (1999) (plurality opinion) ("We have expressly identified this 'right to remove from one place to another according to inclination' as 'an attribute of personal liberty' protected by the Constitution" (citation omitted)); Florida v. Bostick, 501 U. S. 429 , 437 (1991); Florida v. Royer, 460 U. S. 491 , 497-498 (1983) (plurality opinion); Terry, 392 U. S., at 32-33 (Harlan, J., concurring); see also ante, at 125. 129 dinner, to resume jogging after a pause for rest, to avoid contact with a bore or a bully, or simply to answer the call of nature-any of which might coincide with the arrival of an officer in the vicinity. A pedestrian might also run because he or she has just sighted one or more police officers. In the latter instance, the State properly points out "that the fleeing person may be, inter alia, (1) an escapee from jail; (2) wanted on a warrant; (3) in possession of contraband, (i. e. drugs, weapons, stolen goods, etc.); or (4) someone who has just committed another type of crime." Brief for Petitioner 9, n. 4.2 In short, there are unquestionably circumstances in which a person's flight is suspicious, and undeniably instances in which a person runs for entirely innocent reasons.3 Given the diversity and frequency of possible motivations for flight, it would be profoundly unwise to endorse either per se rule. The inference we can reasonably draw about the motivation for a person's flight, rather, will depend on a number of different circumstances. Factors such as the time of day, the number of people in the area, the character of the neighborhood, whether the officer was in uniform, the way the runner was dressed, the direction and speed of the 2 If the fleeing person exercises his or her right to remain silent after being stopped, only in the third of the State's four hypothetical categories is the stop likely to lead to probable cause to make an arrest. And even in the third category, flight does not necessarily indicate that the officer is "dealing with an armed and dangerous individual." Terry v. Ohio, 392 3 Compare, e. g., Proverbs 28:1 ("The wicked flee when no man pursueth: but the righteous are as bold as a lion") with Proverbs 22:3 ("A shrewd man sees trouble coming and lies low; the simple walk into it and pay the penalty"). I have rejected reliance on the former proverb in the past, because its "ivory-towered analysis of the real world" fails to account for the experiences of many citizens of this country, particularly those who are minorities. See California v. Hodari D., 499 U. S. 621 , 630, n. 4 (1991) (STEVENS, J., dissenting). That this pithy expression fails to capture the total reality of our world, however, does not mean it is inaccurate in all instances. 130 Opinion of STEVENS, J. flight, and whether the person's behavior was otherwise unusual might be relevant in specific cases. This number of variables is surely sufficient to preclude either a bright-line rule that always justifies, or that never justifies, an investigative stop based on the sole fact that flight began after a police officer appeared nearby.4 Still, Illinois presses for a per se rule regarding "unprovoked flight upon seeing a clearly identifiable police officer." Id., at 7. The phrase "upon seeing," as used by Illinois, apparently assumes that the flight is motivated by the presence of the police officer. 5 Illinois contends that unprovoked flight is "an extreme reaction," id., at 8, because innocent people simply do not "flee at the mere sight of the police," id., at 24. To be sure, Illinois concedes, an innocent person-even one distrustful of the police-might "avoid eye contact or even sneer at the sight of an officer," and that 4 Of course, Terry itself recognized that sometimes behavior giving rise to reasonable suspicion is entirely innocent, but it accepted the risk that officers may stop innocent people. 392 U. S., at 30. And as the Court correctly observes, it is "undoubtedly true" that innocent explanations for flight exist, but they do not "establish a violation of the Fourth Amendment." Ante, at 125. It is equally true, however, that the innocent explanations make the single act of flight sufficiently ambiguous to preclude the adoption of a per se rule. In Terry, furthermore, reasonable suspicion was supported by a concatenation of acts, each innocent when viewed in isolation, that when considered collectively amounted to extremely suspicious behavior. See 392 U. S., at 5-7, 22-23. Flight alone, however, is not at all like a "series of acts, each of them perhaps innocent in itself, but which taken together warran[t] further investigation." Id., at 22. Nor is flight similar to evidence which in the aggregate provides "fact on fact and clue on clue afford[ing] a basis for the deductions and inferences," supporting reasonable suspicion. United States v. Cortez, 449 U. S. 411 , 419 (1981). 5 Nowhere in Illinois' briefs does it specify what it means by "unprovoked." At oral argument, Illinois explained that if officers precipitate a flight by threats of violence, that flight is "provoked." But if police officers in a patrol car-with lights flashing and siren sounding-descend upon an individual for the sole purpose of seeing if he or she will run, the ensuing flight is "unprovoked." Tr. of Oral Arg. 17-18,20. 131 would not justify a Terry stop or any sort of per se inference. Id., at 8-9. But, Illinois insists, unprovoked flight is altogether different. Such behavior is so "aberrant" and "abnormal" that a per se inference is justified. Id., at 8-9, and n.4. Even assuming we know that a person runs because he sees the police, the inference to be drawn may still vary from case to case. Flight to escape police detection, we have said, may have an entirely innocent motivation: "[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that 'the wicked flee when no man pursueth, but the righteous are as bold as a lion.' Innocent men sometimes hesitate to confront a jury-not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves." Alberty v. United States, 162 U. S. 499 , 511 (1896). In addition to these concerns, a reasonable person may conclude that an officer's sudden appearance indicates nearby criminal activity. And where there is criminal activity there is also a substantial element of danger-either from the criminal or from a confrontation between the criminal and the police. These considerations can lead to an innocent and understandable desire to quit the vicinity with all speed.6 6 Statistical studies of bystander victimization are rare. One study attributes this to incomplete recordkeeping and a lack of officially compiled data. See Sherman, Steele, Laufersweiler, Hooper, & Julian, Stray Bul- 132 Opinion of STEVENS, J. Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer's sudden presence.7 For such a person, lets and "Mushrooms": Random Shootings of Bystanders in Four Cities, 1977-1988,5 J. of Quantitative Criminology 297,303 (1989). Nonetheless, that study, culling data from newspaper reports in four large cities over an 11-year period, found "substantial increases in reported bystander killings and woundings in all four cities." Id., at 306. From 1986 to 1988, for example, the study identified 250 people who were killed or wounded in bystander shootings in the four survey cities. Id., at 306-311. Most significantly for the purposes of the present case, the study found that such incidents "rank at the top of public outrage." Id., at 299. The saliency of this phenomenon, in turn, "violate[s] the routine assumptions" of day-to-day affairs, and, "[w]ith enough frequency ... it shapes the conduct of daily life." Ibid. 7 See Johnson, Americans' Views on Crime and Law Enforcement: Survey Findings, Nat. Institute of Justice J. 13 (Sept. 1997) (reporting study by the Joint Center for Political and Economic Studies in April 1996, which found that 43% of African-Americans consider "police brutality and harassment of African-Americans a serious problem" in their own community); President's Comm'n on Law Enforcement and Administration of Justice, Task Force Report: The Police 183-184 (1967) (documenting the belief, held by many minorities, that field interrogations are conducted "indiscriminately" and "in an abusive ... manner," and labeling this phenomenon a "principal problem" causing "friction" between minorities and the police) (cited in Terry, 392 U. S., at 14, n. 11); see also Casimir, Minority Men: We Are Frisk Targets, N. Y. Daily News, Mar. 26,1999, p. 34 (informal survey of 100 young black and Hispanic men living in New York City; 81 reported having been stopped and frisked by police at least once; none of the 81 stops resulted in arrests); Brief for NAACP Legal Defense & Educational Fund as Amicus Curiae 17-19 (reporting figures on disproportionate street stops of minority residents in Pittsburgh and Philadelphia, Pennsylvania, and St. Petersburg, Florida); U. S. Dept. of Justice, Bureau of Justice Statistics, S. Smith, Criminal Victimization and Perceptions of Community Safety in 12 Cities 25 (June 1998) (African-American residents in 12 cities are more than twice as likely to be dissatisfied with police practices than white residents in same community). 133 unprovoked flight is neither "aberrant" nor "abnormal." 8 Moreover, these concerns and fears are known to the police officers themselves,9 and are validated by law enforcement investigations into their own practices.10 Accordingly, the 8 See, e. g., Kotlowitz, Hidden Casualties: Drug War's Emphasis on Law Enforcement Takes a Toll on Police, Wall Street Journal, Jan. 11, 1991, p. A2, col. 1 ("Black leaders complained that innocent people were picked up in the drug sweeps .... Some teen-agers were so scared of the task force they ran even if they weren't selling drugs"). Many stops never lead to an arrest, which further exacerbates the perceptions of discrimination felt by racial minorities and people living in high crime areas. See Goldberg, The Color of Suspicion, N. Y. Times Magazine, June 20, 1999, p. 85 (reporting that in 2-year period, New York City Police Department Street Crimes Unit made 45,000 stops, only 9,500, or 20%, of which resulted in arrest); Casimir, supra n. 7 (reporting that in 1997, New York City's Street Crimes Unit conducted 27,061 stop-andfrisks, only 4,647 of which, 17%, resulted in arrest). Even if these data were race neutral, they would still indicate that society as a whole is paying a significant cost in infringement on liberty by these virtually random stops. See also n. 1, supra. 9 The Chief of the Washington, D. C., Metropolitan Police Department, for example, confirmed that "sizeable percentages of Americans todayespecially Americans of color-still view policing in the United States to be discriminatory, if not by policy and definition, certainly in its day-to-day application." P. Verniero, Attorney General of New Jersey, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling 46 (Apr. 20, 1999) (hereinafter Interim Report). And a recent survey of 650 Los Angeles Police Department officers found that 25% felt that" 'racial bias (prejudice) on the part of officers toward minority citizens currently exists and contributes to a negative interaction between police and the community.''' Report of the Independent Comm'n on the Los Angeles Police Department 69 (1991); see also 5 United States Comm'n on Civil Rights, Racial and Ethnic Tensions in American Communities: Poverty, Inequality and Discrimination, The Los Angeles Report 26 (June 1999). 10 New Jersey's Attorney General, in a recent investigation into allegations of racial profiling on the New Jersey Turnpike, concluded that "minority motorists have been treated differently [by New Jersey State Troopers] than non-minority motorists during the course of traffic stops on the New Jersey Turnpike." "[T]he problem of disparate treatment is real-not imagined," declared the Attorney General. Not surprisingly, 134 Opinion of STEVENS, J. evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficientY In the report concluded that this disparate treatment "engender[s] feelings of fear, resentment, hostility, and mistrust by minority citizens." See Interim Report 4, 7. Recently, the United States Department of Justice, citing this very evidence, announced that it would appoint an outside monitor to oversee the actions of the New Jersey State Police and ensure that it enacts policy changes advocated by the Interim Report, and keeps records on racial statistics and traffic stops. See Kocieniewski, U. S. Will Monitor New Jersey Police on Race Profiling, N. Y. Times, Dec. 23, 1999, Likewise, the Massachusetts Attorney General investigated similar allegations of egregious police conduct toward minorities. The report stated: "We conclude that Boston police officers engaged in improper, and unconstitutional, conduct in the 1989-90 period with respect to stops and searches of minority individuals .... Although we cannot say with precision how widespread this illegal conduct was, we believe that it was sufficiently common to justify changes in certain Department practices. "Perhaps the most disturbing evidence was that the scope of a number of Terry searches went far beyond anything authorized by that case and indeed, beyond anything that we believe would be acceptable under the federal and state constitutions even where probable cause existed to conduct a full search incident to an arrest. Forcing young men to lower their trousers, or otherwise searching inside their underwear, on public streets or in public hallways, is so demeaning and invasive of fundamental precepts of privacy that it can only be condemned in the strongest terms. The fact that not only the young men themselves, but independent witnesses complained of strip searches, should be deeply alarming to all members of this community." J. Shannon, Attorney General of Massachusetts, Report of the Attorney General's Civil Rights Division on Boston Police Department Practices 60-61 (Dec. 18, 1990). 11 Taking into account these and other innocent motivations for unprovoked flight leads me to reject Illinois' requested per se rule in favor of adhering to a totality-of-the-circumstances test. This conclusion does not, as Illinois suggests, "establish a separate Terry analysis based on the individual characteristics of the person seized." Reply Brief for Petitioner 14. My rejection of a per se rule, of course, applies to members of all races. It is true, as Illinois points out, that Terry approved of the stop and frisk procedure notwithstanding "[t]he wholesale harassment by certain 135 any event, just as we do not require "scientific certainty" for our commonsense conclusion that unprovoked flight can sometimes indicate suspicious motives, see ante, at 124-125, neither do we require scientific certainty to conclude that unprovoked flight can occur for other, innocent reasons.12 The probative force of the inferences to be drawn from flight is a function of the varied circumstances in which it occurs. Sometimes those inferences are entirely consistent with the presumption of innocence, sometimes they justify further investigation, and sometimes they justify an immediate stop and search for weapons. These considerations have led us to avoid categorical rules concerning a person's flight and the presumptions to be drawn therefrom: "Few things ... distinguish an enlightened system of judicature from a rude and barbarous one more than the manner in which they deal with evidence. The former weighs testimony, whilst the latter, conscious perhaps of its inability to do so or careless of the consequences of error, at times rejects whole portions en masse, and at others converts pieces of evidence into rules of law by investing with conclusive effect some whose probative force has been found to be in general considerable .... Our ancestors, observing that guilty persons usually fled from justice, adopted the hasty conclusion that it was only the guilty who did so ... so that under the old law, a man who fled to avoid being tried for felony forfeited elements of the police community, of which minority groups, particularly Negroes, frequently complain." 392 U. S., at 14. But in this passage, Terry simply held that such concerns would not preclude the use of the stop and frisk procedure altogether. See id., at 17, n. 14. Nowhere did Terry suggest that such concerns cannot inform a court's assessment of whether reasonable suspicion sufficient to justify a particular stop existed. 12 As a general matter, local courts often have a keener and more informed sense of local police practices and events that may heighten these concerns at particular times or locations. Thus, a reviewing court may accord substantial deference to a local court's determination that fear of the police is especially acute in a specific location or at a particular time. 136 Opinion of STEVENS, J. all his goods even though he were acquitted . In modern times more correct views have prevailed, and the evasion of or flight from justice seems now nearly reduced to its true place in the administration of the criminal law, namely, that of a circumstance-a fact which it is always of importance to take into consideration, and combined with others may afford strong evidence of guilt, but which, like any other piece of presumptive evidence, it is equally absurd and dangerous to invest with infallibility." Hickory v. United States, 160 U. S. 408 , 419-420 (1896) (internal quotation marks omitted). "Unprovoked flight," in short, describes a category of activity too broad and varied to permit a per se reasonable inference regarding the motivation for the activity. While the innocent explanations surely do not establish that the Fourth Amendment is always violated whenever someone is stopped solely on the basis of an unprovoked flight, neither do the suspicious motivations establish that the Fourth Amendment is never violated when a Terry stop is predicated on that fact alone. For these reasons, the Court is surely correct in refusing to embrace either per se rule advocated by the parties. The totality of the circumstances, as always, must dictate the result.13 13 Illinois' reliance on the common law as a conclusive answer to the issue at hand is mistaken. The sources from which it gleans guidance focus either on flightfollowing an accusation of criminal activity, see 4 W. Blackstone, Commentaries *387 ("For flight ... on an accusation of treason, felony, or even petit larceny ... is an offence carrying with it a strong presumption of guilt" (emphasis added in part)), or are less dogmatic than Illinois contends, compare Brief for Petitioner 15 ("[A] person's flight was considered ... conclusive proof of guilt") with A. Burrill, Circumstantial Evidence 472 (1856) ("So impressed was the old common law with considerations of this kind, that it laid down the rule, which passed into a maxim,-that flight from justice was equivalent to confession of guilt .... But this maxim ... was undoubtedly expressed in too general and sweeping terms"). 137 II Guided by that totality-of-the-circumstances test, the Court concludes that Officer Nolan had reasonable suspicion to stop respondent. Ante, at 125. In this respect, my view differs from the Court's. The entire justification for the stop is articulated in the brief testimony of Officer Nolan. Some facts are perfectly clear; others are not. This factual insufficiency leads me to conclude that the Court's judgment is mistaken. Respondent Wardlow was arrested a few minutes after noon on September 9, 1995. 183 Ill. 2d 306, 308, n. 1, 701 N. E. 2d 484, 485, n. 1 (1998).14 Nolan was part of an eightofficer, four-car caravan patrol team. The officers were headed for "one of the areas in the 11th District [of Chicago] that's high [in] narcotics traffic." App. 8.15 The reason why four cars were in the caravan was that "[n]ormally in these different areas there's an enormous amount of people, sometimes lookouts, customers." Ibid. Officer Nolan testified that he was in uniform on that day, but he did not recall whether he was driving a marked or an unmarked car. Id., at 4. Officer Nolan and his partner were in the last of the four patrol cars that "were all caravaning eastbound down Van Buren." Id., at 8. Nolan first observed respondent "in front of 4035 West Van Buren." Id., at 7. Wardlow "looked in our direction and began fleeing." Id., at 9. Nolan then "began driving southbound down the street observing [respondent] running through the gangway and the alley southbound," and observed that Wardlow was carrying a white, 14 At the suppression hearing, the State failed to present testimony as to the time of respondent's arrest. The Illinois Supreme Court, however, took notice of the time recorded in Officer Nolan's arrest report. See 183 Ill. 2d, at 308, n. 1, 701 N. E. 2d, at 485, n. 1. 15 The population of the 11th district is over 98,000 people. See Brief for the National Association of Police Organizations et al. as Amici Curiae App. II. 138 Opinion of STEVENS, J. opaque bag under his arm. Id., at 6, 9. After the car turned south and intercepted respondent as he "ran right towards us," Officer Nolan stopped him and conducted a "protective search," which revealed that the bag under respondent's arm contained a loaded handgun. Id., at 9-11. This terse testimony is most noticeable for what it fails to reveal. Though asked whether he was in a marked or unmarked car, Officer Nolan could not recall the answer. Id., at 4. He was not asked whether any of the other three cars in the caravan were marked, or whether any of the other seven officers were in uniform. Though he explained that the size of the caravan was because "[n]ormally in these different areas there's an enormous amount of people, sometimes lookouts, customers," Officer Nolan did not testify as to whether anyone besides Wardlow was nearby 4035 West Van Buren. Nor is it clear that that address was the intended destination of the caravan. As the Appellate Court of Illinois interpreted the record, "it appears that the officers were simply driving by, on their way to some unidentified location, when they noticed defendant standing at 4035 West Van Buren." 287 Ill. App. 3d 367, 370-371, 678 N. E. 2d 65, 67 (1997).16 Officer Nolan's testimony also does not reveal how fast the officers were driving. It does not indicate whether he saw respondent notice the other patrol cars. And it does not say whether the caravan, or any part of it, had already passed Wardlow by before he began to run. Indeed, the Appellate Court thought the record was even "too vague to support the inference that ... defendant's flight was related to his expectation of police focus on him." Id., at 371, 678 N. E. 2d, at 67. Presumably, respondent did not react to the first three cars, and we cannot even be sure that he recognized the occupants of the fourth as police officers. The adverse inference is based entirely on the officer's 16 Of course, it would be a different case if the officers had credible information respecting that specific street address which reasonably led them to believe that criminal activity was afoot in that narrowly defined area. 139 statement: "He looked in our direction and began fleeing." App.9.17 No other factors sufficiently support a finding of reasonable suspicion. Though respondent was carrying a white, opaque bag under his arm, there is nothing at all suspicious about that. Certainly the time of day-shortly after noondoes not support Illinois' argument. Nor were the officers "responding to any call or report of suspicious activity in the area." 183 Ill. 2d, at 315, 701 N. E. 2d, at 488. Officer Nolan did testify that he expected to find "an enormous amount of people," including drug customers or lookouts, App. 8, and the Court points out that "[i]t was in this context that Officer Nolan decided to investigate Wardlow after observing him flee," ante, at 124. This observation, in my view, lends insufficient weight to the reasonable suspicion analysis; indeed, in light of the absence of testimony that anyone else was nearby when respondent began to run, this observation points in the opposite direction. The State, along with the majority of the Court, relies as well on the assumption that this flight occurred in a high crime area. Even if that assumption is accurate, it is insufficient because even in a high crime neighborhood unprovoked flight does not invariably lead to reasonable suspicion. On the contrary, because many factors providing innocent motivations for unprovoked flight are concentrated in high crime areas, the character of the neighborhood arguably makes an inference of guilt less appropriate, rather than more so. Like unprovoked flight itself, presence in a high crime neighborhood is a fact too generic and susceptible to innocent explanation to satisfy the reasonable suspicion inquiry. See Brown v. Texas, 443 U. S. 47 , 52 (1979); see also n. 15, supra. 17 Officer Nolan also testified that respondent "was looking at us," App. 5 (emphasis added), though this minor clarification hardly seems sufficient to support the adverse inference. 140 Opinion of STEVENS, J. It is the State's burden to articulate facts sufficient to support reasonable suspicion. Brown v. Texas, 443 U. S., at 52; see also Florida v. Royer, 460 U. S. 491 , 500 (1983) (plurality opinion). In my judgment, Illinois has failed to discharge that burden. I am not persuaded that the mere fact that someone standing on a sidewalk looked in the direction of a passing car before starting to run is sufficient to justify a forcible stop and frisk. I therefore respectfully dissent from the Court's judgment to reverse the court below.

The Supreme Court ruled that the police officers' stop and frisk of Wardlow did not violate the Fourth Amendment, as they had reasonable suspicion that criminal activity was occurring based on Wardlow's unprovoked flight in a high-crime area.

Search & Seizure

Richards v. Wisconsin

https://supreme.justia.com/cases/federal/us/520/385/

OCTOBER TERM, 1996 Syllabus RICHARDS v. WISCONSIN CERTIORARI TO THE SUPREME COURT OF WISCONSIN No. 96-5955. Argued March 24, 1997-Decided April 28, 1997 In Wilson v. Arkansas, 514 U. S. 927 , this Court held that the Fourth Amendment incorporates the common-law requirement that police knock on a dwelling's door and announce their identity and purpose before attempting forcible entry, recognized that the flexible reasonableness requirement should not be read to mandate a rigid announcement rule that ignores countervailing law enforcement interests, id., at 934, and left it to the lower courts to determine the circumstances under which an unannounced entry is reasonable. Id., at 936. Officers in Madison, Wisconsin, obtained a warrant to search petitioner Richards' motel room for drugs and related paraphernalia, but the Magistrate refused to give advance authorization for a "no-knock" entry. The officer who knocked on Richards' door was dressed, and identified himself, as a maintenance man. Upon opening the door, Richards also saw a uniformed officer and quickly closed the door. The officers kicked down the door, caught Richards trying to escape, and found cash and cocaine in the bathroom. In denying Richards' motion to suppress the evidence on the ground that the officers did not knock and announce their presence before forcing entry, the trial court found that they could gather from Richards' strange behavior that he might try to destroy evidence or escape and that the drugs' disposable nature further justified their decision not to knock and announce. The State Supreme Court affirmed, concluding that Wilson did not preclude the court's pre-Wilson per se rule that police officers are never required to knock and announce when executing a search warrant in a felony drug investigation because of the special circumstances of today's drug culture. Held: 1. The Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement for felony drug investigations. While the requirement can give way under circumstances presenting a threat of physical violence or where officers believe that evidence would be destroyed if advance notice were given, 514 U. S., at 936, the fact that felony drug investigations may frequently present such circumstances cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Creating exceptions to the requirement based on the culture surrounding a general category of criminal behavior presents at 386 Syllabus least two serious concerns. First, the exception contains considerable overgeneralization that would impermissibly insulate from judicial review cases in which a drug investigation does not pose special risks. Second, creating an exception in one category can, relatively easily, be applied to others. If a per se exception were allowed for each criminal activity category that included a considerable risk of danger to officers or destruction of evidence, the knock-and-announce requirement would be meaningless. The court confronted with the question in each case has a duty to determine whether the facts and circumstances of the particular entry justified dispensing with the requirement. A "noknock" entry is justified when the police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime. This standard strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Cf. Maryland v. Buie, 494 U. S. 325 , 337. Pp.391-395. 2. Because the evidence in this case establishes that the decision not to knock and announce was a reasonable one under the circumstances, the officers' entry into the motel room did not violate the Fourth Amendment. That the Magistrate had originally refused to issue a noknock warrant means only that at the time the warrant was requested there was insufficient evidence for a no-knock entry. However, the officers' decision to enter the room must be evaluated as of the time of entry. Pp. 395-396. 201 Wis. 2d 845, 549 N. W. 2d 218, affirmed. STEVENS, J., delivered the opinion for a unanimous Court. David R. Karpe, by appointment of the Court, 519 U. S. 1106, argued the cause for petitioner. With him on the briefs were John Wesley Hall, Jr., Henry R. Schultz, and Jack E. Schairer. James E. Doyle, Attorney General of Wisconsin, argued the cause for respondent. With him on the brief was Stephen W Kleinmaier, Assistant Attorney General. Miguel A. Estrada argued the cause for the United States as amicus curiae urging affirmance. On the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney 387 General Richard, Deputy Solicitor General Dreeben, James A. Feldman, and Deborah Watson. * JUSTICE STEVENS delivered the opinion of the Court. In Wilson v. Arkansas, 514 U. S. 927 (1995), we held that the Fourth Amendment incorporates the common-law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. At the same time, we recognized that the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests," id., at 934, and left "to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment," id., at 936. In this case, the Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony *Tracey Maclin, Steven R. Shapiro, and Lisa B. Kemler filed a brieffor the American Civil Liberties Union et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Simon B. Karas, and Diane R. Richards, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Winston Bryant of Arkansas, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Gus F. Diaz of Guam, Alan G. Lance of Idaho, James E. Ryan of Illinois, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Thomas J. Miller of Iowa, Frankie Sue Del Papa of Nevada, Steven M. Houran of New Hampshire, Peter Verniero of New Jersey, Tom Udall of New Mexico, Jose Fuentes Agostini of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South Carolina, Mark W Barnett of South Dakota, Jan Graham of Utah, and James Gilmore III of Virginia; and for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W Schmidt, James P. Manak, Richard M. Weintraub, and Bernard J. Farber. 388 drug investigation. In so doing, it reaffirmed a pre-Wilson holding and concluded that Wilson did not preclude this per se rule. We disagree with the court's conclusion that the Fourth Amendment permits a blanket exception to the knock-and-announce requirement for this entire category of criminal activity. But because the evidence presented to support the officers' actions in this case establishes that the decision not to knock and announce was a reasonable one under the circumstances, we affirm the judgment of the Wisconsin court. I On December 31, 1991, police officers in Madison, Wisconsin, obtained a warrant to search Steiney Richards' motel room for drugs and related paraphernalia. The search warrant was the culmination of an investigation that had uncovered substantial evidence that Richards was one of several individuals dealing drugs out of hotel rooms in Madison. The police requested a warrant that would have given advance authorization for a "no-knock" entry into the motel room, but the Magistrate explicitly deleted those portions of the warrant. App. 7, 9. The officers arrived at the motel room at 3:40 a.m. Officer Pharo, dressed as a maintenance man, led the team. With him were several plainclothes officers and at least one man in uniform. Officer Pharo knocked on Richards' door and, responding to the query from inside the room, stated that he was a maintenance man. With the chain still on the door, Richards cracked it open. Although there is some dispute as to what occurred next, Richards acknowledges that when he opened the door he saw the man in uniform standing behind Officer Pharo. Brief for Petitioner 6. He quickly slammed the door closed and, after waiting two or three seconds, the officers began kicking and ramming the door to gain entry to the locked room. At trial, the officers testified that they identified themselves as police while they were kicking the door in. App. 40. When they finally did break 389 into the room, the officers caught Richards trying to escape through the window. They also found cash and cocaine hidden in plastic bags above the bathroom ceiling tiles. Richards sought to have the evidence from his motel room suppressed on the ground that the officers had failed to knock and announce their presence prior to forcing entry into the room. The trial court denied the motion, concluding that the officers could gather from Richards' strange behavior when they first sought entry that he knew they were police officers and that he might try to destroy evidence or to escape. Id., at 54. The judge emphasized that the easily disposable nature of the drugs the police were searching for further justified their decision to identify themselves as they crossed the threshold instead of announcing their presence before seeking entry. Id., at 55. Richards appealed the decision to the Wisconsin Supreme Court and that court affirmed. 201 Wis. 2d 845, 549 N. W. 2d 218 (1996). The Wisconsin Supreme Court did not delve into the events underlying Richards' arrest in any detail, but accepted the following facts: "[O]n December 31, 1991, police executed a search warrant for the motel room of the defendant seeking evidence of the felonious crime of Possession with Intent to Deliver a Controlled Substance in violation of Wis. Stat. § 161.41(lm) (1991-92). They did not knock and announce prior to their entry. Drugs were seized." Id., at 849, 549 N. W. 2d, at 220. Assuming these facts, the court proceeded to consider whether our decision in Wilson required the court to abandon its decision in State v. Stevens, 181 Wis. 2d 410, 511 N. W. 2d 591 (1994), cert. denied, 515 U. S. 1102 (1995), which held that "when the police have a search warrant, supported by probable cause, to search a residence for evidence of delivery of drugs or evidence of possession with intent to deliver drugs, they necessarily have reasonable cause to believe exigent circumstances exist" to justify a no-knock entry. 201 Wis. 2d, at 852, 549 N. W. 2d, at 221. The court concluded 390 that nothing in Wilson's acknowledgment that the knockand-announce rule was an element of the Fourth Amendment "reasonableness" requirement would prohibit application of a per se exception to that rule in a category of cases. 201 Wis. 2d, at 854-855, 549 N. W. 2d, at 220. In reaching this conclusion, the Wisconsin court found it reasonable-after considering criminal conduct surveys, newspaper articles, and other judicial opinions-to assume that all felony drug crimes will involve "an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police." Id., at 847-848,549 N. W. 2d, at 219. Notwithstanding its acknowledgment that in "some cases, police officers will undoubtedly decide that their safety, the safety of others, and the effective execution of the warrant dictate that they knock and announce," id., at 863, 549 N. W. 2d, at 225, the court concluded that exigent circumstances justifying a no-knock entry are always present in felony drug cases. Further, the court reasoned that the violation of privacy that occurs when officers who have a search warrant forcibly enter a residence without first announcing their presence is minimal, given that the residents would ultimately be without authority to refuse the police entry. The principal intrusion on individual privacy interests in such a situation, the court concluded, comes from the issuance of the search warrant, not the manner in which it is executed. Id., at 864-865, 549 N. W. 2d, at 226. Accordingly, the court determined that police in Wisconsin do not need specific information about dangerousness, or the possible destruction of drugs in a particular case, in order to dispense with the knock-and-announce requirement in felony drug cases.1 1 Several other state courts-in cases that predate our decision in Wil son-have adopted similar rules, concluding that simple probable cause to search a home for narcotics always allows the police to forgo the knockand-announce requirement. See, e. g., People v. Lujan, 484 P. 2d 1238, 1241 (Colo. 1971) (en bane); Henson v. State, 236 Md. 519, 523-524, 204 A. 391 Justice Abrahamson concurred in the judgment because, in her view, the facts found by the trial judge justified a no-knock entry. Id., at 866-868, 549 N. W. 2d, at 227. Specifically, she noted that Richards' actions in slamming the door when he saw the uniformed man standing behind Officer Pharo indicated that he already knew that the people knocking on his door were police officers. Under these circumstances, any further announcement of their presence would have been a useless gesture. Id., at 868-869, n. 3, 549 N. W. 2d, at 228, n. 3. While agreeing with the outcome, Justice Abrahamson took issue with her colleagues' affirmation of the blanket exception to the knock-and-announce requirement in drug felony cases. She observed that the constitutional reasonableness of a search has generally been a matter left to the court, rather than to the officers who conducted the search, and she objected to the creation of a blanket rule that insulated searches in a particular category of crime from the neutral oversight of a reviewing judge. Id., at 868-875, 549 N. W. 2d, at 228-230. II We recognized in Wilson that the knock-and-announce requirement could give way "under circumstances presenting a threat of physical violence," or "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given." 514 U. S., at 936. It is indisputable that felony drug investigations may frequently involve both of these circumstances.2 The question we must 2d 516, 519-520 (1964); State v. Loucks, 209 N. W. 2d 772, 777-778 (N. D. 1973). Cf. People v. De Lago, 16 N. Y. 2d 289, 292, 213 N. E. 2d 659, 661 (1965) (similar rule for searches related to gambling operations), cert. denied, 383 U. S. 963 (1966). 2 This Court has encountered before the links between drugs and violence, see, e. g., Michigan v. Summers, 452 U. S. 692 , 702 (1981), and the likelihood that drug dealers will attempt to dispose of drugs before police seize them, see, e. g., Ker v. California, 374 U. S. 23 , 28, n. 3 (1963). 392 resolve is whether this fact justifies dispensing with caseby-case evaluation of the manner in which a search was executed.3 The Wisconsin court explained its blanket exception as necessitated by the special circumstances of today's drug culture, 201 Wis. 2d, at 863-866, 549 N. W. 2d, at 226-227, and the State asserted at oral argument that the blanket exception was reasonable in "felony drug cases because of the convergence in a violent and dangerous form of commerce of weapons and the destruction of drugs." Tr. of Oral Arg. 26. But creating exceptions to the knock-and-announce rule based on the "culture" surrounding a general category of criminal behavior presents at least two serious concerns.4 3 Although our decision in Wilson did not address this issue directly, it is instructive that in that case-which involved a felony drug investigation-we remanded to the state court for further factual development to determine whether the no-knock entry was reasonable under the circumstances of the case. Two amicus briefs in Wilson suggested that we adopt just the sort of per se rule the Wisconsin court propounded here. Brief for Americans for Effective Law Enforcement, Inc., et al. as Amici Curiae 10-11, Brief for Wayne County, Michigan, as Amicus Curiae 39 46, in Wilson v. Arkansas, O. T. 1994, No. 5707. Although the respondent did not argue for a categorical rule, the petitioner, in her reply brief, did address the arguments put forward by the amicus briefs, Reply Brief for Petitioner in Wilson v. Arkansas, O. T. 1994, No. 5707, p. 11, and amici supporting the petitioner also presented arguments against a categorical rule. Brief for American Civil Liberties Union et al. as Amici Curiae in Wilson v. Arkansas, O. T. 1994, No. 5707, p. 29, n. 44. Thus, while the prospect of a categorical rule was one to which we were alerted in Wilson, we did not choose to adopt such a rule at that time. 4 It is always somewhat dangerous to ground exceptions to constitutional protections in the social norms of a given historical moment. The purpose of the Fourth Amendment's requirement of reasonableness "is to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted-even if a later, less virtuous age should become accustomed to considering all sorts of intrusion 'reasonable.''' Minnesota v. Dickerson, 508 U. S. 366 , 380 (1993) (SCALIA, J., concurring). 393 First, the exception contains considerable overgeneralization. For example, while drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly. In those situations, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a no-knock entry. 5 Wisconsin's blanket rule impermissibly insulates these cases from judicial review. A second difficulty with permitting a criminal-category exception to the knock-and-announce requirement is that the 5 The State asserts that the intrusion on individual interests effectuated by a no-knock entry is minimal because the execution of the warrant itself constitutes the primary intrusion on individual privacy and that the individual privacy interest cannot outweigh the generalized governmental interest in effective and safe law enforcement. Brieffor Respondent 21-24. See also Brieffor United States as Amicus Curiae 16 ("occupants' privacy interest is necessarily limited to the brief interval between the officers' announcement and their entry"). While it is true that a no-knock entry is less intrusive than, for example, a warrantless search, the individual interests implicated by an unannounced, forcible entry should not be unduly minimized. As we observed in Wilson v. Arkansas, 514 U. S. 927 , 930-932 (1995), the common law recognized that individuals should be provided the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry. These interests are not inconsequential. Additionally, when police enter a residence without announcing their presence, the residents are not given any opportunity to prepare themselves for such an entry. The State pointed out at oral argument that, in Wisconsin, most search warrants are executed during the late night and early morning hours. Tr. of Oral Arg. 24. The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed. 394 reasons for creating an exception in one category can, relatively easily, be applied to others. Armed bank robbers, for example, are, by definition, likely to have weapons, and the fruits of their crime may be destroyed without too much difficulty. If a per se exception were allowed for each category of criminal investigation that included a considerable-albeit hypothetical-risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless. Thus, the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement. In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard-as opposed to a probable-cause requirement-strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Cf. Maryland v. Buie, 494 U. S. 325 , 337 (1990) (allowing a protective sweep of a house during an arrest where the officers have "a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene"); Terry v. Ohio, 392 U. S. 1 , 30 (1968) (requiring a reasonable and articulable suspicion of danger to justify a patdown search). This showing is not high, but the police 395 should be required to make it whenever the reasonableness of a no-knock entry is challenged. III Although we reject the Wisconsin court's blanket exception to the knock-and-announce requirement, we conclude that the officers' no-knock entry into Richards' motel room did not violate the Fourth Amendment. We agree with the trial court, and with Justice Abrahamson, that the circumstances in this case show that the officers had a reasonable suspicion that Richards might destroy evidence if given further opportunity to do SO.6 The judge who heard testimony at Richards' suppression hearing concluded that it was reasonable for the officers executing the warrant to believe that Richards knew, after opening the door to his motel room the first time, that the men seeking entry to his room were the police. App. 54. Once the officers reasonably believed that Richards knew who they were, the court concluded, it was reasonable for them to force entry immediately given the disposable nature of the drugs. Id., at 55. In arguing that the officers' entry was unreasonable, Richards places great emphasis on the fact that the Magistrate who signed the search warrant for his motel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no-knock entry. But this fact does not alter the reasonableness of the officers' decision, which must be evaluated as of the time they entered the motel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the Magistrate, to justify a no-knock warrant. Of course, 6We note that the attorneys general of 26 States, the Commonwealth of Puerto Rico, and the Territory of Guam filed an amicus brief taking the position that the officers' decision was reasonable under the specific facts of this case, but rejecting Wisconsin's per se rule. See Brief for Ohio et al. as Amici Curiae. 396 the Magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards' motel room.7 These actual circumstances-petitioner's apparent recognition of the officers combined with the easily disposable nature of the drugsjustified the officers' ultimate decision to enter without first announcing their presence and authority. Accordingly, although we reject the blanket exception to the knock-and-announce requirement for felony drug investigations, the judgment of the Wisconsin Supreme Court is affirmed. It is so ordered. 7 A number of States give magistrate judges the authority to issue "noknock" warrants if the officers demonstrate ahead of time a reasonable suspicion that entry without prior announcement will be appropriate in a particular context. See, e. g., 725 Ill. Compo Stat., ch. 725, § 5/108-8 (1992); Neb. Rev. Stat. §29-411 (1995); Okla. Stat., Tit. 22, § 1228 (Supp. 1997); S. D. Codified Laws § 23A-35-9 (1988); Utah Code Ann. § 77-23-210 (1995). But see State V. Arce, 83 Ore. App. 185, 730 P. 2d 1260 (1986) (magistrate has no authority to abrogate knock-and-announce requirement); State V. Bamber, 630 So. 2d 1048 (Fla. 1994) (same). The practice of allowing magistrates to issue no-knock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated ahead of time. But, as the facts of this case demonstrate, a magistrate's decision not to authorize a no-knock entry should not be interpreted to remove the officers' authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.

The Supreme Court ruled that police officers must knock and announce their presence before entering a dwelling, unless there is a threat of physical violence or evidence destruction. While drug investigations may present such circumstances, each case must be reviewed individually to determine if the officers' decision to force entry was reasonable. The Court rejected a blanket exception to the knock-and-announce requirement for drug investigations but affirmed the lower court's decision that the officers' entry was reasonable given the specific circumstances of the case.

Search & Seizure

Florida v. J.L.

https://supreme.justia.com/cases/federal/us/529/266/

OCTOBER TERM, 1999 Syllabus FLORIDA v. J. L. CERTIORARI TO THE SUPREME COURT OF FLORIDA No. 98-1993. Argued February 29, 2000-Decided March 28, 2000 After an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun, officers went to the bus stop and saw three black males, one of whom, respondent J. L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm or observe any unusual movements. One of the officers frisked J. L. and seized a gun from his pocket. J. L., who was then almost 16, was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. The trial court granted his motion to suppress the gun as the fruit of an unlawful search. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment. Held: An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U. S. 1 , 30. Here, the officers' suspicion that J. L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. See Alabama v. White, 496 U. S. 325 , 327. The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J. L.'s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if 267 the accusation would fail standard pre-search reliability testing. The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great--e. g., a report of a person carrying a bomb-as to justify a search even without a showing of reliability. Pp.269-274. 727 So. 2d 204, affirmed. GINSBURG, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, in which REHNQUIST, C. J., joined, post, p.274. Michael J. Neimand, Assistant Attorney General of Florida, argued the cause for petitioner. With him on the briefs was Robert A. Butterworth, Attorney General. Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben. Harvey J. Sepler argued the cause for respondent. With him on the brief were Bennett H. Brummer and Andrew Stanton. * *Briefs of amici curiae urging reversal were filed for Americans for Effective Law Enforcement, Inc., et al. by Wayne W Schmidt, James P. Manak, Richard Weintraub, and Bernard J. Farber; for the Justice Coalition by Scott D. Makar; for the National Association of Police Organizations by Stephen R. McSpadden; and for the State of Illinois et al. by James E. Ryan, Attorney General of Illinois, Joel D. Bertocchi, Solicitor General, William Browers and Michael M. Glick, Assistant Attorneys General, and Dan Schweitzer, joined by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Earl I. Anzai of Hawaii, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran of Maryland, Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Patricia A. Madrid of New Mexico, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of 268 JUSTICE GINSBURG delivered the opinion of the Court. The question presented in this case is whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and frisk of that person. We hold that it is not. I On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. App. to Pet. for Cert. A-40 to A-41. So far as the record reveals, there is no audio recording of the tip, and nothing is known about the informant. Sometime after the police received the tip-the record does not say how longtwo officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three black males "just hanging out [there]." Id., at A-42. One of the three, respondent J. L., was wearing a plaid shirt. Id., at A-41. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, and J. L. made no threatening or otherwise unusual movements. Id., at A-42 to A-44. One of the officers approached J. L., told him to put his hands up on the bus stop, frisked him, and seized a gun from J. L.'s pocket. The second officer frisked the other two individuals, against whom no allegations had been made, and found nothing. Pennsylvania, Jose A. Fuentes Agostini of Puerto Rico, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Paul G. Summers of Tennessee, John Cornyn of Texas, Jan Graham of Utah, Christine O. Gregoire of Washington, and Gay Woodhouse of Wyoming. Briefs of amici curiae urging affirmance were filed for the Congress of Racial Equality, Inc., by Stefan B. Tahmassebi; for the National Association of Criminal Defense Lawyers et al. by James J. Tomkovicz and Barbara E. Bergman; for the National Rifle Association of America et al. by Robert Dowlut and David B. Kopel; and for the Rutherford Institute by John W Whitehead and Steven H. Aden. 269 J. L., who was at the time of the frisk "10 days shy of his 16th birth[day]," Tr. of Oral Arg. 6, was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. He moved to suppress the gun as the fruit of an unlawful search, and the trial court granted his motion. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment. 727 So. 2d 204 (1998). Anonymous tips, the Florida Supreme Court stated, are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability, for example, the correct forecast of a subject's "'not easily predicted'" movements. Id., at 207 (quoting Alabama v. White, 496 U. S. 325 , 332 (1990)). The tip leading to the frisk of J. L., the court observed, provided no such predictions, nor did it contain any other qualifying indicia of reliability. 727 So. 2d, at 207-208. Two justices dissented. The safety of the police and the public, they maintained, justifies a "firearm exception" to the general rule barring investigatory stops and frisks on the basis of bare-boned anonymous tips. Id., at 214-215. Seeking review in this Court, the State of Florida noted that the decision of the State's Supreme Court conflicts with decisions of other courts declaring similar searches compatible with the Fourth Amendment. See, e. g., United States v. DeBerry, 76 F.3d 884 , 886-887 (CA7 1996); United States v. Clipper, 973 F.2d 944 , 951 (CADC 1992). We granted certiorari, 528 U. S. 963 (1999), and now affirm the judgment of the Florida Supreme Court. II Our "stop and frisk" decisions begin with Terry v. Ohio, 392 U. S. 1 (1968). This Court held in Terry: "[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his 270 experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Id., at 30. In the instant case, the officers' suspicion that J. L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U. S. 143 , 146-147 (1972), "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity," Alabama v. White, 496 U. S., at 329. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits "sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Id., at 327. The question we here confront is whether the tip pointing to J. L. had those indicia of reliability. In White, the police received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel. Ibid. Standing alone, the tip would not have justified a Terry stop. 496 U. S., at 329. Only after police observation showed that the informant had accurately predicted the woman's movements, we explained, did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine. 271 Id., at 332. Although the Court held that the suspicion in White became reasonable after police surveillance, we regarded the case as borderline. Knowledge about a person's future movements indicates some familiarity with that person's affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband. We accordingly classified White as a "close case." Ibid. The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case. The anonymous call concerning J. L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J. L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J. L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line. Florida contends that the tip was reliable because its description of the suspect's visible attributes proved accurate: There really was a young black male wearing a plaid shirt at the bus stop. Brief for Petitioner 20-21. The United States as amicus curiae makes a similar argument, proposing that a stop and frisk should be permitted "when (1) an anonymous tip provides a description of a particular person at a particular location illegally carrying a concealed firearm, (2) police promptly verify the pertinent details of the tip except the existence of the firearm, and (3) there are no factors that cast doubt on the reliability of the tip .... " Brief 272 for United States 16. These contentions misapprehend the reliability needed for a tip to justify a Terry stop. An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Cf. 4 W. LaFave, Search and Seizure § 9.4(h), p. 213 (3d ed. 1996) (distinguishing reliability as to identification, which is often important in other criminal law contexts, from reliability as to the likelihood of criminal activity, which is central in anonymous-tip cases). A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position. Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. See 392 U. S., at 30. But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms. 273 Several Courts of Appeals have held it per se foreseeable for people carrying significant amounts of illegal drugs to be carrying guns as well. See, e. g., United States v. Sakyi, 160 F. 3d 164, 169 (CA4 1998); United States v. Dean, 59 F.3d 1479 , 1490, n. 20 (CA5 1995); United States v. Odom, 13 F.3d 949 , 959 (CA6 1994); United States v. Martinez, 958 F.2d 217 , 219 (CA8 1992). If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited decisions that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied. Cf. Richards v. Wisconsin, 520 U. S. 385 , 393-394 (1997) (rejecting a per se exception to the "knock and announce" rule for narcotics cases partly because "the reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily, be applied to others," thus allowing the exception to swallow the rule). * The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the * At oral argument, petitioner also advanced the position that J. L.'s youth made the stop and frisk valid, because it is a crime in Florida for persons under the age of 21 to carry concealed firearms. See Fla. Stat. § 790.01 (1997) (carrying a concealed weapon without a license is a misdemeanor), § 790.06(2)(b) (only persons aged 21 or older may be licensed to carry concealed weapons). This contention misses the mark. Even assuming that the arresting officers could be sure that J. L. was under 21, they would have had reasonable suspicion that J. L. was engaged in criminal activity only if they could be confident that he was carrying a gun in the first place. The mere fact that a tip, if true, would describe illegal activity does not mean that the police may make a Terry stop without meeting the reliability requirement, and the fact that J. L. was under 21 in no way made the gun tip more reliable than if he had been an adult. 274 indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports, see Florida v. Rodriguez, 469 U. S. 1 (1984) (per curiam), and schools, see New Jersey v. T. L. 0., 469 U. S. 325 (1985), cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere. Finally, the requirement that an anonymous tip bear standard indicia of reliability in order to justify a stop in no way diminishes a police officer's prerogative, in accord with Terry, to conduct a protective search of a person who has already been legitimately stopped. We speak in to day's decision only of cases in which the officer's authority to make the initial stop is at issue. In that context, we hold that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm. The judgment of the Florida Supreme Court is affirmed. It is so ordered. JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins, concurring. On the record created at the suppression hearing, the Court's decision is correct. The Court says all that is necessary to resolve this case, and I join the opinion in all respects. It might be noted, however, that there are many indicia of reliability respecting anonymous tips that we have yet to explore in our cases. When a police officer testifies that a suspect aroused the officer's suspicion, and so justifies a stop and frisk, the courts can weigh the officer's credibility and admit evidence seized pursuant to the frisk even if no one, aside from the officer and defendant themselves, was present or observed the sei- 275 zure. An anonymous telephone tip without more is different, however; for even if the officer's testimony about receipt of the tip is found credible, there is a second layer of inquiry respecting the reliability of the informant that cannot be pursued. If the telephone call is truly anonymous, the informant has not placed his credibility at risk and can lie with impunity. The reviewing court cannot judge the credibility of the informant and the risk of fabrication becomes unacceptable. On this record, then, the Court is correct in holding that the telephone tip did not justify the arresting officer's immediate stop and frisk of respondent. There was testimony that an anonymous tip came in by a telephone call and nothing more. The record does not show whether some notation or other documentation of the call was made either by a voice recording or tracing the call to a telephone number. The prosecution recounted just the tip itself and the later verification of the presence of the three young men in the circumstances the Court describes. It seems appropriate to observe that a tip might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action. One such feature, as the Court recognizes, is that the tip predicts future conduct of the alleged criminal. There may be others. For example, if an unnamed caller with a voice which sounds the same each time tells police on two successive nights about criminal activity which in fact occurs each night, a similar call on the third night ought not be treated automatically like the tip in the case now before us. In the instance supposed, there would be a plausible argument that experience cures some of the uncertainty surrounding the anonymity, justifying a proportionate police response. In to day's case, however, the State provides us with no data about the reliability of anonymous tips. Nor do we know whether the dispatcher or arresting officer had any 276 objective reason to believe that this tip had some particular indicia of reliability. If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring. This too seems to be different from the tip in the present case. See United States v. Sierra-Hernandez, 581 F.2d 760 (CA9 1978). Instant caller identification is widely available to police, and, if anonymous tips are proving unreliable and distracting to police, squad cars can be sent within seconds to the location of the telephone used by the informant. Voice recording of telephone tips might, in appropriate cases, be used by police to locate the caller. It is unlawful to make false reports to the police, e. g., Fla. Stat. Ann. § 365.171(16) (Supp. 2000); Fla. Stat. § 817.49 (1994), and the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips. These matters, of course, must await discussion in other cases, where the issues are presented by the record.

Here is a summary of the Florida v. J. L. case: The Supreme Court of the United States ruled that an anonymous tip about a person carrying a gun is not enough for police officers to stop and search that person without further evidence or reasonable suspicion of criminal activity. In this case, the police received an anonymous call about a young black male wearing a plaid shirt and carrying a gun at a bus stop. The court held that the tip alone did not provide reasonable suspicion for the stop and frisk, as it lacked predictive information to test the informant's knowledge or credibility. The court declined to create a "firearm exception" to the standard Terry stop-and-frisk analysis, emphasizing that reasonable suspicion requires reliability in asserting illegality. The decision highlights the need for police to have reliable information or observations of suspicious behavior before conducting searches and seizures.

Search & Seizure

Wyoming v. Houghton

https://supreme.justia.com/cases/federal/us/526/295/

OCTOBER TERM, 1998 Syllabus WYOMING v. HOUGHTON CERTIORARI TO THE SUPREME COURT OF WYOMING No. 98-184. Argued January 12, 1999-Decided April 5, 1999 During a routine traffic stop, a Wyoming Highway Patrol officer noticed a hypodermic syringe in the driver's shirt pocket, which the driver admitted using to take drugs. The officer then searched the passenger compartment for contraband, removing and searching what respondent, a passenger in the car, claimed was her purse. He found drug paraphernalia there and arrested respondent on drug charges. The trial court denied her motion to suppress all evidence from the purse as the fruit of an unlawful search, holding that the officer had probable cause to search the car for contraband, and, by extension, any containers therein that could hold such contraband. Respondent was convicted. In reversing, the Wyoming Supreme Court ruled that an officer with probable cause to search a vehicle may search all containers that might conceal the object of the search; but, if the officer knows or should know that a container belongs to a passenger who is not suspected of criminal activity, then the container is outside the scope of the search unless someone had the opportunity to conceal contraband within it to avoid detection. Applying that rule here, the court concluded that the search violated the Fourth and Fourteenth Amendments. Held: Police officers with probable cause to search a car, as in this case, may inspect passengers' belongings found in the car that are capable of concealing the object of the search. In determining whether a particular governmental action violates the Fourth Amendment, this Court inquires first whether the action was regarded as an unlawful search or seizure under common law when the Amendment was framed, see, e. g., Wilson v. Arkansas, 514 U. S. 927 , 931. Where that inquiry yields no answer, the Court must evaluate the search or seizure under traditional reasonableness standards by balancing an individual's privacy interests against legitimate governmental interests, see, e. g., Vernonia School Dist. -'+ 7 J v. Acton, 515 U. S. 646 , 652-653. This Court has concluded that the Framers would have regarded as reasonable the warrantless search of a car that police had probable cause to believe contained contraband, Carroll v. United States, 267 U. S. 132 , as well as the warrantless search of containers within the automobile, United States v. Ross, 456 U. S. 798 . Neither Ross nor the historical evidence it relied upon admits of a distinction based on ownership. The analytical principle underlying Ross's rule is also fully consistent with the balance of this 296 Syllabus Court's Fourth Amendment jurisprudence. Even if the historical evidence were equivocal, the balancing of the relative interests weighs decidedly in favor of searching a passenger's belongings. Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property they transport in cars. See, e. g., Cardwell v. Lewis, 417 U. S. 583 , 590. The degree of intrusiveness of a package search upon personal privacy and personal dignity is substantially less than the degree of intrusiveness of the body searches at issue in United States v. Di Re, 332 U. S. 581 , and Ybarra v. Illinois, 444 U. S. 85 . In contrast to the passenger's reduced privacy expectations, the governmental interest in effective law enforcement would be appreciably impaired without the ability to search the passenger's belongings, since an automobile's ready mobility creates the risk that evidence or contraband will be permanently lost while a warrant is obtained, California v. Carney, 471 U. S. 386 ; since a passenger may have an interest in concealing evidence of wrongdoing in a common enterprise with the driver, cf. Maryland v. Wilson, 519 U. S. 408 , 413-414; and since a criminal might be able to hide contraband in a passenger's belongings as readily as in other containers in the car, see, e. g., Rawlings v. Kentucky, 448 U. S. 98, 102. The Wyoming Supreme Court's "passenger property" rule would be unworkable in practice. Finally, an exception from the historical practice described in Ross protecting only a passenger's property, rather than property belonging to anyone other than the driver, would be less sensible than the rule that a package may be searched, whether or not its owner is present as a passenger or otherwise, because it might contain the object of the search. Pp. 299-307. 956 P. 2d 363, reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, THOMAS, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, post, p. 307. STEVENS, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined, post, p.309. Paul S. Rehurek, Deputy Attorney General of Wyoming, argued the cause for petitioner. With him on the briefs were Gay Woodhouse, Acting Attorney General, and D. Michael Pauling, Senior Assistant Attorney General. Barbara McDowell argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben. 297 Donna D. Domonkos, by appointment of the Court, 525 U. S. 980, argued the cause for respondent. With her on the brief were Sylvia Lee Hackl and Michael Dinnerstein.* JUSTICE SCALIA delivered the opinion of the Court. This case presents the question whether police officers violate the Fourth Amendment when they search a passenger's personal belongings inside an automobile that they have probable cause to believe contains contraband. I In the early morning hours of July 23, 1995, a Wyoming Highway Patrol officer stopped an automobile for speeding and driving with a faulty brake light. There were three *Briefs of amici curiae urging reversal were filed for the State of Kentucky et al. by Albert B. Chandler III, Attorney General of Kentucky, Matthew Nelson, Assistant Attorney General, Dan Schweitzer, and John M. Bailey, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Gus F. Diaz of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Verniero of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, and Jan Graham of Utah; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations by Stephen R. McSpadden. Briefs of amici curiae urging affirmance were filed for the Legal Aid Society of New York City et al. by M. Sue Wycoff; for the National Association of Criminal Defense Lawyers by Paul Mogin and Lisa B. Kemler; and for the Rutherford Institute by Steven H. Aden and John W Whitehead. 298 passengers in the front seat of the car: David Young (the driver), his girlfriend, and respondent. While questioning Young, the officer noticed a hypodermic syringe in Young's shirt pocket. He left the occupants under the supervision of two backup officers as he went to get gloves from his patrol car. Upon his return, he instructed Young to step out of the car and place the syringe on the hood. The officer then asked Young why he had a syringe; with refreshing candor, Young replied that he used it to take drugs. At this point, the backup officers ordered the two female passengers out of the car and asked them for identification. Respondent falsely identified herself as "Sandra James" and stated that she did not have any identification. Meanwhile, in light of Young's admission, the officer searched the passenger compartment of the car for contraband. On the back seat, he found a purse, which respondent claimed as hers. He removed from the purse a wallet containing respondent's driver's license, identifying her properly as Sandra K. Houghton. When the officer asked her why she had lied about her name, she replied: "In case things went bad." Continuing his search of the purse, the officer found a brown pouch and a black wallet-type container. Respondent denied that the former was hers, and claimed ignorance of how it came to be there; it was found to contain drug paraphernalia and a syringe with 60 ccs of methamphetamine. Respondent admitted ownership of the black container, which was also found to contain drug paraphernalia, and a syringe (which respondent acknowledged was hers) with 10 ccs of methamphetamine-an amount insufficient to support the felony conviction at issue in this case. The officer also found fresh needle-track marks on respondent's arms. He placed her under arrest. The State of Wyoming charged respondent with felony possession of methamphetamine in a liquid amount greater than three-tenths of a gram. See Wyo. Stat. Ann. § 35-71031(c)(iii) (Supp. 1996). After a hearing, the trial court de- 299 nied her motion to suppress all evidence obtained from the purse as the fruit of a violation of the Fourth and Fourteenth Amendments. The court held that the officer had probable cause to search the car for contraband, and, by extension, any containers therein that could hold such contraband. A jury convicted respondent as charged. The Wyoming Supreme Court, by divided vote, reversed the conviction and announced the following rule: "Generally, once probable cause is established to search a vehicle, an officer is entitled to search all containers therein which may contain the object of the search. However, if the officer knows or should know that a container is the personal effect of a passenger who is not suspected of criminal activity, then the container is outside the scope of the search unless someone had the opportunity to conceal the contraband within the personal effect to avoid detection." 956 P. 2d 363, 372 (1998). The court held that the search of respondent's purse violated the Fourth and Fourteenth Amendments because the officer "knew or should have known that the purse did not belong to the driver, but to one of the passengers," and because "there was no probable cause to search the passengers' personal effects and no reason to believe that contraband had been placed within the purse." Ibid. We granted certiorari, 524 U. S. 983 (1998). II The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In determining whether a particular governmental action violates this provision, we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed. See Wilson v. Arkansas, 514 U. S. 927, 931 (1995); California v. Hodari D., 499 U. S. 621 , 624 (1991). Where that inquiry yields no answer, we must 300 evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. See, e. g., Vernonia School Dist. J,7J v. Acton, 515 U. S. 646 , 652-653 (1995). It is uncontested in the present case that the police officers had probable cause to believe there were illegal drugs in the car. Carroll v. United States, 267 U. S. 132 (1925), similarly involved the warrantless search of a car that law enforcement officials had probable cause to believe contained contraband-in that case, bootleg liquor. The Court concluded that the Framers would have regarded such a search as reasonable in light of legislation enacted by Congress from 1789 through 1799-as well as subsequent legislation from the founding era and beyond-that empowered customs officials to search any ship or vessel without a warrant if they had probable cause to believe that it contained goods subject to a duty. Id., at 150-153. See also United States v. Ross, 456 U. S. 798 , 806 (1982); Boyd v. United States, 116 U. S. 616 , 623-624 (1886). Thus, the Court held that "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant" where probable cause exists. Carroll, supra, at 153. We have furthermore read the historical evidence to show that the Framers would have regarded as reasonable (if there was probable cause) the warrantless search of containers within an automobile. In Ross, supra, we upheld as reasonable the warrantless search of a paper bag and leather pouch found in the trunk of the defendant's car by officers who had probable cause to believe that the trunk contained drugs. JUSTICE STEVENS, writing for the Court, observed: "It is noteworthy that the early legislation on which the Court relied in Carro II concerned the enforcement of laws imposing duties on imported merchandise .... Presumably such merchandise was shipped then in con- 301 tainers of various kinds, just as it is today. Since Congress had authorized warrantless searches of vessels and beasts for imported merchandise, it is inconceivable that it intended a customs officer to obtain a warrant for every package discovered during the search; certainly Congress intended customs officers to open shipping containers when necessary and not merely to examine the exterior of cartons or boxes in which smuggled goods might be concealed. During virtually the entire history of our country-whether contraband was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile-it has been assumed that a lawful search of a vehicle would include a search of any container that might conceal the object of the search." I d., at 820, n. 26. Ross summarized its holding as follows: "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id., at 825 (emphasis added). And our later cases describing Ross have characterized it as applying broadly to all containers within a car, without qualification as to ownership. See, e. g., California v. Acevedo, 500 U. S. 565 , 572 (1991) ("[T]his Court in Ross took the critical step of saying that closed containers in cars could be searched without a warrant because of their presence within the automobile"); United States v. Johns, 469 U. S. 478, 479-480 (1985) (Ross "held that if police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of any containers found inside that may conceal the object of the search"). To be sure, there was no passenger in Ross, and it was not claimed that the package in the trunk belonged to anyone other than the driver. Even so, if the rule of law that Ross announced were limited to contents belonging to the driver, or contents other than those belonging to passengers, one would have expected that substantial limitation to be ex- 302 pressed. And, more importantly, one would have expected that limitation to be apparent in the historical evidence that formed the basis for Ross's holding. In fact, however, nothing in the statutes Ross relied upon, or in the practice under those statutes, would except from authorized warrantless search packages belonging to passengers on the suspect ship, horse-drawn carriage, or automobile. Finally, we must observe that the analytical principle underlying the rule announced in Ross is fully consistent-as respondent's proposal is not-with the balance of our Fourth Amendment jurisprudence. Ross concluded from the historical evidence that the permissible scope of a warrantless car search "is defined by the object of the search and the places in which there is probable cause to believe that it may be found." 456 U. S., at 824. The same principle is reflected in an earlier case involving the constitutionality of a search warrant directed at premises belonging to one who is not suspected of any crime: "The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U. S. 547 , 556 (1978). This statement was illustrated by citation and description of Carroll, 267 U. S., at 158-159, 167. 436 U. S., at 556-557. In sum, neither Ross itself nor the historical evidence it relied upon admits of a distinction among packages or containers based on ownership. When there is probable cause to search for contraband in a car, it is reasonable for police officers-like customs officials in the founding era-to examine packages and containers without a showing of individualized probable cause for each one. A passenger's personal belongings, just like the driver's belongings or containers attached to the car like a glove compartment, are "in" the car, and the officer has probable cause to search for contraband in the car. 303 Even if the historical evidence, as described by Ross, were thought to be equivocal, we would find that the balancing of the relative interests weighs decidedly in favor of allowing searches of a passenger's belongings. Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which "trave[l] public thoroughfares," Cardwell v. Lewis, 417 U. S. 583 , 590 (1974), "seldom serv[e] as ... the repository of personal effects," ibid., are subjected to police stop and examination to enforce "pervasive" governmental controls "[a]s an everyday occurrence," South Dakota v. Opperman, 428 U. S. 364 , 368 (1976), and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny. In this regard-the degree of intrusiveness upon personal privacy and indeed even personal dignity-the two cases the Wyoming Supreme Court found dispositive differ substantially from the package search at issue here. United States v. Di Re, 332 U. S. 581 (1948), held that probable cause to search a car did not justify a body search of a passenger. And Ybarra v. Illinois, 444 U. S. 85 (1979), held that a search warrant for a tavern and its bartender did not permit body searches of all the bar's patrons. These cases turned on the unique, significantly heightened protection afforded against searches of one's person. "Even a limited search of the outer clothing ... constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." Terry v. Ohio, 392 U. S. 1 , 24-25 (1968). Such traumatic consequences are not to be expected when the police examine an item of personal property found in a car. 1 1 The dissent begins its analysis, post, at 309-310 (opinion of STEVENS, J.), with an assertion that this case is governed by our decision in United States v. Di Re, 332 U. S. 581 (1948), which held, as the dissent describes it, that the automobile exception to the warrant requirement did not justify "searches of the passenger's pockets and the space between his shirt and underwear," post, at 309. It attributes that holding to "the settled dis- 304 Whereas the passenger's privacy expectations are, as we have described, considerably diminished, the governmental interests at stake are substantial. Effective law enforcement would be appreciably impaired without the ability to search a passenger's personal belongings when there is reason to believe contraband or evidence of criminal wrongdoing is hidden in the car. As in all car-search cases, the "ready mobility" of an automobile creates a risk that the evidence or contraband will be permanently lost while a warrant is obtained. California v. Carney, 471 U. S. 386 , 390 (1985). In addition, a car passenger-unlike the unwitting tavern patron in Ybarra-will often be engaged in a common enterprise with the driver, and have the same interest in tinction between drivers and passengers," rather than to a distinction between search of the person and search of property, which the dissent claims is "newly minted" by today's opinion-a "new rule that is based on a distinction between property contained in clothing worn by a passenger and property contained in a passenger's briefcase or purse." Post, at 309, 309-310. In its peroration, however, the dissent quotes extensively from Justice Jackson's opinion in Di Re, which makes it very clear that it is precisely this distinction between search of the person and search of property that the case relied upon: "The Government says it would not contend that, armed with a search warrant for a residence only, it could search all persons found in it. But an occupant of a house could be used to conceal this contraband on his person quite as readily as can an occupant of a car." 332 U. S., at 587 (quoted post, at 312). Does the dissent really believe that Justice Jackson was saying that a house search could not inspect property belonging to persons found in the house-say a large standing safe or violin case belonging to the owner's visiting godfather? Of course that is not what Justice Jackson meant at all. He was referring precisely to that "distinction between property contained in clothing worn by a passenger and property contained in a passenger's briefcase or purse" that the dissent disparages, post, at 309. This distinction between searches of the person and searches of property is assuredly not "newly minted," see post, at 310. And if the dissent thinks "pockets" and "clothing" do not count as part of the person, it must believe that the only searches of the person are strip searches. 305 concealing the fruits or the evidence of their wrongdoing. Cf. Maryland v. Wilson, 519 U. S. 408 , 413-414 (1997). A criminal might be able to hide contraband in a passenger's belongings as readily as in other containers in the car, see, e. g., Rawlings v. Kentucky, 448 U. S. 98 , 102 (1980)-perhaps even surreptitiously, without the passenger's knowledge or permission. (This last possibility provided the basis for respondent's defense at trial; she testified that most of the seized contraband must have been placed in her purse by her traveling companions at one or another of various times, including the time she was "half asleep" in the car.) To be sure, these factors favoring a search will not always be present, but the balancing of interests must be conducted with an eye to the generality of cases. To require that the investigating officer have positive reason to believe that the passenger and driver were engaged in a common enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in the passenger's belongings, surreptitiously or with friendly permission, is to impose requirements so seldom met that a "passenger's property" rule would dramatically reduce the ability to find and seize contraband and evidence of crime. Of course these requirements would not attach (under the Wyoming Supreme Court's rule) until the police officer knows or has reason to know that the container belongs to a passenger. But once a "passenger's property" exception to car searches became widely known, one would expect passenger-confederates to claim everything as their own. And one would anticipate a bog of litigation-in the form of both civil lawsuits and motions to suppress in criminal trials-involving such questions as whether the officer should have believed a passenger's claim of ownership, whether he should have inferred ownership from various objective factors, whether he had probable cause to believe that the passenger was a confederate, or to believe that the driver might have introduced the contraband 306 into the package with or without the passenger's knowledge.2 When balancing the competing interests, our determinations of "reasonableness" under the Fourth Amendment must take account of these practical realities. We think they militate in favor of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak. Finally, if we were to invent an exception from the historical practice that Ross accurately described and summarized, it is perplexing why that exception should protect only property belonging to a passenger, rather than (what seems much more logical) property belonging to anyone other than the driver. Surely Houghton's privacy would have been invaded to the same degree whether she was present or absent when her purse was searched. And surely her presence in the car with the driver provided more, rather than less, reason to believe that the two were in league. It may ordinarily be easier to identify the property as belonging to someone other than the driver when the purported owner is present to identify it-but in the many cases (like Ross itself) where the car is seized, that identification may occur later, at the sta- 2 The dissent is "confident in a police officer's ability to apply a rule requiring a warrant or individualized probable cause to search belongings that are ... obviously owned by and in the custody of a passenger," post, at 311. If this is the dissent's strange criterion for warrant protection ("obviously owned by and in the custody of") its preceding paean to the importance of preserving passengers' privacy rings a little hollow on rehearing. Should it not be enough if the passenger says he owns the briefcase, and the officer has no concrete reason to believe otherwise? Or would the dissent consider that an example of "obvious" ownership? On reflection, it seems not at all obvious precisely what constitutes obviousness-and so even the dissent's on-the-cheap protection of passengers' privacy interest in their property turns out to be unclear, and hence unadministrable. But maybe the dissent does not mean to propose an obviously-owned-by-and-in-the-custody-of test after all, since a few sentences later it endorses, simpliciter, "a rule requiring a warrant or individualized probable cause to search passenger belongings," post, at 312. For the reasons described in text, that will not work. 307 tion house; and even at the site of the stop one can readily imagine a package clearly marked with the owner's name and phone number, by which the officer can confirm the driver's denial of ownership. The sensible rule (and the one supported by history and case law) is that such a package may be searched, whether or not its owner is present as a passenger or otherwise, because it may contain the contraband that the officer has reason to believe is in the car. *** We hold that police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search. The judgment of the Wyoming Supreme Court is reversed. It is so ordered. JUSTICE BREYER, concurring. I join the Court's opinion with the understanding that history is meant to inform, but not automatically to determine, the answer to a Fourth Amendment question. Ante, at 299300. I also agree with the Court that when a police officer has probable cause to search a car, say, for drugs, it is reasonable for that officer also to search containers within the car. If the police must establish a container's ownership prior to the search of that container (whenever, for example, a passenger says "that's mine"), the resulting uncertainty will destroy the workability of the bright-line rule set forth in United States v. Ross, 456 U. S. 798 (1982). At the same time, police officers with probable cause to search a car for drugs would often have probable cause to search containers regardless. Hence a bright-line rule will authorize only a limited number of searches that the law would not otherwise justify. At the same time, I would point out certain limitations upon the scope of the bright-line rule that the Court de- 308 scribes. Obviously, the rule applies only to automobile searches. Equally obviously, the rule applies only to containers found within automobiles. And it does not extend to the search of a person found in that automobile. As the Court notes, and as United States v. Di Re, 332 U. S. 581 , 586-587 (1948), relied on heavily by JUSTICE STEVENS' dissent, makes clear, the search of a person, including even "'a limited search of the outer clothing,'" ante, at 303 (quoting Terry v. Ohio, 392 U. S. 1 , 24-25 (1968)), is a very different matter in respect to which the law provides "significantly heightened protection." Ante, at 303; cf. Ybarra v. Illinois, 444 U. S. 85 , 91 (1979); Sibron v. New York, 392 U. S. 40 , 62-64 (1968). Less obviously, but in my view also important, is the fact that the container here at issue, a woman's purse, was found at a considerable distance from its owner, who did not claim ownership until the officer discovered her identification while looking through it. Purses are special containers. They are repositories of especially personal items that people generally like to keep with them at all times. So I am tempted to say that a search of a purse involves an intrusion so similar to a search of one's person that the same rule should govern both. However, given this Court's prior cases, I cannot argue that the fact that the container was a purse automatically makes a legal difference, for the Court has warned against trying to make that kind of distinction. United States v. Ross, supra, at 822. But I can say that it would matter if a woman's purse, like a man's billfold, were attached to her person. It might then amount to a kind of "outer clothing," Terry v. Ohio, supra, at 24, which under the Court's cases would properly receive increased protection. See post, at 312-313 (STEVENS, J., dissenting) (quoting United States v. Di Re, supra, at 587). In this case, the purse was separate from the person, and no one has claimed that, under those circumstances, the type of container makes a difference. For that reason, I join the Court's opinion. 309 JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, dissenting. After Wyoming's highest court decided that a state highway patrolman unlawfully searched Sandra Houghton's purse, the State of Wyoming petitioned for a writ of certiorari. The State asked that we consider the propriety of searching an automobile passenger's belongings when the government has developed probable cause to search the vehicle for contraband based on the driver's conduct. The State conceded that the trooper who searched Houghton's purse lacked a warrant, consent, or "probable cause specific to the purse or passenger." Pet. for Cert. i. In light of our established preference for warrants and individualized suspicion, I would respect the result reached by the Wyoming Supreme Court and affirm its judgment. In all of our prior cases applying the automobile exception to the Fourth Amendment's warrant requirement, either the defendant was the operator of the vehicle and in custody of the object of the search, or no question was raised as to the defendant's ownership or custody.l In the only automobile case confronting the search of a passenger defendant United States v. Di Re, 332 U. S. 581 (1948)-the Court held that the exception to the warrant requirement did not apply. Id., at 583-587 (addressing searches of the passenger's pockets and the space between his shirt and underwear, both of which uncovered counterfeit fuel rations). In Di Re, as here, the information prompting the search directly implicated the driver, not the passenger. Today, instead of adhering to the settled distinction between drivers and passengers, the Court fashions a new rule that is based on a distinction between property contained in clothing worn by 1 See, e. g., California v. Acevedo, 500 U. S. 565 (1991); California v. Carney, 471 U. S. 386 (1985); United States v. Johns, 469 U. S. 478 (1985); United States v. Ross, 456 U. S. 798 (1982); Carroll v. United States, 267 U. S. 132 (1925); 3 W. LaFave, Search and Seizure § 7.2(c), pp. 487-488, and n. 113 (3d ed. 1996); id., § 7.2(d), at 506, n. 167. 310 a passenger and property contained in a passenger's briefcase or purse. In cases on both sides of the Court's newly minted test, the property is in a "container" (whether a pocket or a pouch) located in the vehicle. Moreover, unlike the Court, I think it quite plain that the search of a passenger's purse or briefcase involves an intrusion on privacy that may be just as serious as was the intrusion in Di Re. See, e. g., New Jersey v. T. L. 0., 469 U. S. 325 , 339 (1985); Ex parte Jackson, 96 U. S. 727 , 733 (1878). Even apart from Di Re, the Court's rights-restrictive approach is not dictated by precedent. For example, in United States v. Ross, 456 U. S. 798 (1982), we were concerned with the interest of the driver in the integrity of "his automobile," id., at 823, and we categorically rejected the notion that the scope of a warrantless search of a vehicle might be "defined by the nature of the container in which the contraband is secreted," id., at 824. "Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found." Ibid. We thus disapproved of a possible container-based distinction between a man's pocket and a woman's pocketbook. Ironically, while we concluded in Ross that "[p]robable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab," ibid., the rule the Court fashions would apparently permit a warrantless search of a passenger's briefcase if there is probable cause to believe the taxidriver had a syringe somewhere in his vehicle. Nor am I persuaded that the mere spatial association between a passenger and a driver provides an acceptable basis for presuming that they are partners in crime or for ignoring privacy interests in a purse.2 Whether or not the Fourth 2 See United States v. Di Re, 332 U. S. 581 , 587 (1948) ("We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled"); Chandler v. Miller, 520 U. S. 305 , 308 (1997) (emphasizing in- 311 Amendment required a warrant to search Houghton's purse, cf. Carroll v. United States, 267 U. S. 132 , 153 (1925), at the very least the trooper in this case had to have probable cause to believe that her purse contained contraband. The Wyoming Supreme Court concluded that he did not. 956 P. 2d 363, 372 (1998); see App. 20-21. Finally, in my view, the State's legitimate interest in effective law enforcement does not outweigh the privacy concerns at issue.3 I am as confident in a police officer's ability to apply a rule requiring a warrant or individualized probable cause to search belongings that are-as in this case-obviously owned by and in the custody of a passenger as is the Court in a "passenger-confederate[']s" ability to circumvent the rule. Ante, at 305. Certainly the ostensible clarity of the Court's rule is attractive. But that virtue is insufficient justification for its adoption. Arizona v. Hicks, 480 U. S. dividualized suspicion); Ybarra v. Illinois, 444 U. S. 85 , 91, 94-96 (1979) (explaining that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person," and discussing Di Re); Brown v. Texas, 443 U. S. 47, 52 (1979); Sibron v. New York, 392 U. S. 40 , 62-63 (1968); see also United States v. Padilla, 508 U. S. 77 , 82 (1993) (per curiam) ("Expectations of privacy and property interests govern the analysis of Fourth Amendment search and seizure claims. Participants in a criminal conspiracy may have such expectations or interests, but the conspiracy itself neither adds to nor detracts from them"). 3 To my knowledge, we have never restricted ourselves to a two-step Fourth Amendment approach wherein the privacy and governmental interests at stake must be considered only if 18th-century common law "yields no answer." Ante, at 299. Neither the precedent cited by the Court, nor the majority's opinion in this case, mandate that approach. In a later discussion, the Court does attempt to address the contemporary privacy and governmental interests at issue in cases of this nature. Ante, at 303-306. Either the majority is unconvinced by its own recitation of the historical materials, or it has determined that considering additional factors is appropriate in any event. The Court does not admit the former; and of course the latter, standing alone, would not establish uncertainty in the common law as the prerequisite to looking beyond history in Fourth Amendment cases. 312 321,329 (1987); Mincey v. Arizona, 437 U. S. 385 , 393 (1978). Moreover, a rule requiring a warrant or individualized probable cause to search passenger belongings is every bit as simple as the Court's rule; it simply protects more privacy. I would decide this case in accord with what we have said about passengers and privacy, rather than what we might have said in cases where the issue was not squarely presented. See ante, at 301-302. What Justice Jackson wrote for the Court 50 years ago is just as sound today: "The Government says it would not contend that, armed with a search warrant for a residence only, it could search all persons found in it. But an occupant of a house could be used to conceal this contraband on his person quite as readily as can an occupant of a car. Necessity, an argument advanced in support of this search, would seem as strong a reason for searching guests of a house for which a search warrant had issued as for search of guests in a car for which none had been issued. By a parity of reasoning with that on which the Government disclaims the right to search occupants of a house, we suppose the Government would not contend that if it had a valid search warrant for the car only it could search the occupants as an incident to its execution. How then could we say that the right to search a car without a warrant confers greater latitude to search occupants than a search by warrant would permit? "We see no ground for expanding the ruling in the Carroll case to justify this arrest and search as incident to the search of a car. We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled." Di Re, 332 U. S., at 587. Accord, Ross, 456 U. S., at 823, 825 (the proper scope of a warrantless automobile search based on probable cause is "no broader" than the proper scope of a search authorized 313 by a warrant supported by probable cause).4 Instead of applying ordinary Fourth Amendment principles to this case, the majority extends the automobile warrant exception to allow searches of passenger belongings based on the driver's misconduct. Thankfully, the Court's automobile-centered analysis limits the scope of its holding. But it does not justify the outcome in this case. I respectfully dissent. 4 In response to this dissent the Court has crafted an imaginative footnote suggesting that the Di Re decision rested, not on Di Re's status as a mere occupant of the vehicle and the importance of individualized suspicion, but rather on the intrusive character of the search. See ante, at 303-304, n. 1. That the search of a safe or violin case would be less intrusive than a strip search does not, however, persuade me that the Di Re case would have been decided differently if Di Re had been a woman and the gas coupons had been found in her purse. Significantly, in commenting on the Carroll case immediately preceding the paragraphs that I have quoted in the text, the Di Re Court stated: "But even the National Prohibition Act did not direct the arrest of all occupants but only of the person in charge of the offending vehicle, though there is better reason to assume that no passenger in a car loaded with liquor would remain innocent of knowledge of the car's cargo than to assume that a passenger must know what pieces of paper are carried in the pockets of the driver." United States v. Di Re, 332 U. S., at 586-587.

Here is a summary of the case: The Supreme Court ruled that police officers who have probable cause to search a car may also inspect passengers' belongings within the car that could conceal the object of the search. This decision weighed an individual's privacy interests against the government's legitimate interests, ultimately favoring the latter. The Court's rationale was based on the reduced expectation of privacy when in a car and the potential for passengers to conceal contraband.

Search & Seizure

Bond v. U.S.

https://supreme.justia.com/cases/federal/us/529/334/

OCTOBER TERM, 1999 Syllabus BOND v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-9349. Argued February 29, 2000-Decided April 17, 2000 Border Patrol Agent Cantu boarded a bus in Texas to check the immigration status of its passengers. As he walked off the bus, he squeezed the soft luggage which passengers had placed in the overhead storage space. He squeezed a canvas bag above petitioner's seat and noticed that it contained a "brick-like" object. After petitioner admitted owning the bag and consented to its search, Agent Cantu discovered a "brick" of methamphetamine. Petitioner was indicted on federal drug charges. He moved to suppress the drugs, arguing that Agent Cantu conducted an illegal search of his bag. The District Court denied the motion and found petitioner guilty. The Fifth Circuit affirmed the denial of the motion, holding that Agent Cantu's manipulation of the bag was not a search under the Fourth Amendment. Held: Agent Cantu's physical manipulation of petitioner's carry-on bag violated the Fourth Amendment's proscription against unreasonable searches. A traveler's personal luggage is clearly an "effect" protected by the Amendment, see United States v. Place, 462 U. S. 696 , 707, and it is undisputed that petitioner possessed a privacy interest in his bag. The Government's assertion that by exposing his bag to the public, petitioner lost a reasonable expectation that his bag would not be physically manipulated is rejected. California v. Ciraolo, 476 U. S. 207 , and Florida v. Riley, 488 U. S. 445 , are distinguishable, because they involved only visual, as opposed to tactile, observation. Physically invasive inspection is simply more intrusive than purely visual inspection. Under this Court's Fourth Amendment analysis, a court first asks whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that "he [sought] to preserve [something] as private." Smith v. Maryland, 442 U. S. 735 , 740. Here, petitioner sought to preserve privacy by using an opaque bag and placing it directly above his seat. Second, a court inquires whether the individual's expectation of privacy is "one that society is prepared to recognize as reasonable." Ibid. Although a bus passenger clearly expects that other passengers or bus employees may handle his bag, he does not expect that they will feel the bag in an exploratory manner. But this is exactly what the agent did here. Pp. 336-339. 167 F.3d 225 , reversed. 335 REHNQUIST, C. J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p.339. M. Carolyn Fuentes argued the cause for petitioner. With her on the briefs were Lucien B. Campbell and Henry Jeffrey A. Lamken argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben. * CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. This case presents the question whether a law enforcement officer's physical manipulation of a bus passenger's carry-on luggage violated the Fourth Amendment's proscription against unreasonable searches. We hold that it did. Petitioner Steven Dewayne Bond was a passenger on a Greyhound bus that left California bound for Little Rock, Arkansas. The bus stopped, as it was required to do, at the permanent Border Patrol checkpoint in Sierra Blanca, Texas. Border Patrol Agent Cesar Cantu boarded the bus to check the immigration status of its passengers. After reaching the back of the bus, having satisfied himself that the passengers were lawfully in the United States, Agent Cantu began walking toward the front. Along the way, he squeezed the soft luggage which passengers had placed in the overhead storage space above the seats. *Briefs of amici curiae urging reversal were filed for the National Association of Criminal Defense Lawyers et al. by William J. Mertens and Barbara Bergman; and for the Pro Bono Criminal Assistance Project by David L. Heilberg. Stephen R. McSpadden filed a brief for the National Association of Police Organizations as amicus curiae urging affirmance. 336 Petitioner was seated four or five rows from the back of the bus. As Agent Cantu inspected the luggage in the compartment above petitioner's seat, he squeezed a green canvas bag and noticed that it contained a "brick-like" object. Petitioner admitted that the bag was his and agreed to allow Agent Cantu to open it.1 Upon opening the bag, Agent Cantu discovered a "brick" of methamphetamine. The brick had been wrapped in duct tape until it was oval-shaped and then rolled in a pair of pants. Petitioner was indicted for conspiracy to possess, and possession with intent to distribute, methamphetamine in violation of 84 Stat. 1260, 21 U. S. C. § 841(a)(1). He moved to suppress the drugs, arguing that Agent Cantu conducted an illegal search of his bag. Petitioner's motion was denied, and the District Court found him guilty on both counts and sentenced him to 57 months in prison. On appeal, he conceded that other passengers had access to his bag, but contended that Agent Cantu manipulated the bag in a way that other passengers would not. The Court of Appeals rejected this argument, stating that the fact that Agent Cantu's manipulation of petitioner's bag was calculated to detect contraband is irrelevant for Fourth Amendment purposes. 167 F.3d 225 , 227 (CA5 1999) (citing California v. Ciraolo, 476 U. S. 207 (1986)). Thus, the Court of Appeals affirmed the denial of the motion to suppress, holding that Agent Cantu's manipulation of the bag was not a search within the meaning of the Fourth Amendment. 167 F. 3d, at 227. We granted certiorari, 528 U. S. 927 (1999), and now reverse. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .... " A traveler's personal luggage is clearly an "effect" protected by the Amendment. See United States v. 1 The Government has not argued here that petitioner's consent to Agent Cantu's opening the bag is a basis for admitting the evidence. 337 Place, 462 U. S. 696 , 707 (1983). Indeed, it is undisputed here that petitioner possessed a privacy interest in his bag. But the Government asserts that by exposing his bag to the public, petitioner lost a reasonable expectation that his bag would not be physically manipulated. The Government relies on our decisions in California v. Ciraolo, supra, and Florida v. Riley, 488 U. S. 445 (1989), for the proposition that matters open to public observation are not protected by the Fourth Amendment. In Ciraolo, we held that police observation of a backyard from a plane flying at an altitude of 1,000 feet did not violate a reasonable expectation of privacy. Similarly, in Riley, we relied on Ciraolo to hold that police observation of a greenhouse in a home's curtilage from a helicopter passing at an altitude of 400 feet did not violate the Fourth Amendment. We reasoned that the property was "not necessarily protected from inspection that involves no physical invasion," and determined that because any member of the public could have lawfully observed the defendants' property by flying overhead, the defendants' expectation of privacy was "not reasonable and not one 'that society is prepared to honor.''' See Riley, supra, at 449 (explaining and relying on Ciraolo's reasoning). But Ciraolo and Riley are different from this case because they involved only visual, as opposed to tactile, observation. Physically invasive inspection is simply more intrusive than purely visual inspection. For example, in Terry v. Ohio, 392 U. S. 1, 16-17 (1968), we stated that a "careful [tactile] exploration of the outer surfaces of a person's clothing all over his or her body" is a "serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly." Although Agent Cantu did not "frisk" petitioner's person, he did conduct a probing tactile examination of petitioner's carry-on luggage. Obviously, petitioner's bag was not part of his person. But travelers are particularly concerned 338 about their carry-on luggage; they generally use it to transport personal items that, for whatever reason, they prefer to keep close at hand. Here, petitioner concedes that, by placing his bag in the overhead compartment, he could expect that it would be exposed to certain kinds of touching and handling. But petitioner argues that Agent Cantu's physical manipulation of his luggage "far exceeded the casual contact [petitioner] could have expected from other passengers." Brief for Petitioner 18-19. The Government counters that it did not. Our Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that "he [sought] to preserve [something] as private." Smith v. Maryland, 442 U. S. 735 , 740 (1979) (internal quotation marks omitted). Here, petitioner sought to preserve privacy by using an opaque bag and placing that bag directly above his seat. Second, we inquire whether the individual's expectation of privacy is "one that society is prepared to recognize as reasonable." Ibid. (internal quotation marks omitted).2 When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, 2 The parties properly agree that the subjective intent of the law enforcement officer is irrelevant in determining whether that officer's actions violate the Fourth Amendment. Brief for Petitioner 14; Brief for United States 33-34; see Whren v. United States, 517 U. S. 806 , 813 (1996) (stating that "we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers"); California v. Ciraolo, 476 U. S. 207 , 212 (1986) (rejecting respondent's challenge to "the authority of government to observe his activity from any vantage point or place if the viewing is motivated by a law enforcement purpose, and not the result of a casual, accidental observation"). This principle applies to the agent's acts in this case as well; the issue is not his state of mind, but the objective effect of his actions. 339 as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent's physical manipulation of petitioner's bag violated the Fourth Amendment. The judgment of the Court of Appeals is Reversed. JUSTICE BREYER, with whom JUSTICE SCALIA joins, dissenting. Does a traveler who places a soft-sided bag in the shared overhead storage compartment of a bus have a "reasonable expectation" that strangers will not push, pull, prod, squeeze, or otherwise manipulate his luggage? Unlike the majority, I believe that he does not. Petitioner argues-and the majority points out-that, even if bags in overhead bins are subject to general "touching" and "handling," this case is special because "Agent Cantu's physical manipulation of [petitioner's] luggage 'far exceeded the casual contact [he] could have expected from other passengers.'" Ante, at 338. But the record shows the contrary. Agent Cantu testified that border patrol officers (who routinely enter buses at designated checkpoints to run immigration checks) "conduct an inspection of the overhead luggage by squeezing the bags as we're going out." App. 9. On the occasion at issue here, Agent Cantu "felt a green bag" which had "a brick-like object in it." Id., at 10. He explained that he felt "the edges of the brick in the bag," id., at 12, and that it was a "[b]rick-like object ... that, when squeezed, you could feel an outline of something of [a] different mass inside of it," id., at 11. Although the agent acknowledged that his practice was to "squeeze [bags] very hard," he testified that his touch ordinarily was not "[h]ard enough to break something inside that might be fragile." Id., at 15. Petitioner also testified that Agent Cantu "reached for my bag, and he shook it a little, and squeezed it." Id., at 18. 340 How does the "squeezing" just described differ from the treatment that overhead luggage is likely to receive from strangers in a world of travel that is somewhat less gentle than it used to be? I think not at all. See United States v. McDonald, 100 F.3d 1320 , 1327 (CA7 1996) (" '[A]ny person who has travelled on a common carrier knows that luggage placed in an overhead compartment is always at the mercy of all people who want to rearrange or move previously placed luggage' "); Eagan, Familiar Anger Takes Flight with Airline Tussles, Boston Herald, Aug. 15, 1999, p. 8 ("It's dog-eat-dog trying to cram half your home into overhead compartments"); Massingill, Airlines Ride on the Wings of HighFlying Economy and Travelers Pay Price in Long Lines, Cramped Airplanes, Kansas City Star, May 9, 1999, p. F4 ("[H]undreds of passengers fill overhead compartments with bulky carry-on bags that they have to cram, recram, and then remove"); Flinn, Confessions of a Once-Only Carry-On Guy, San Francisco Examiner, Sept. 6, 1998, p. T2 (flight attendant "rearranged the contents of three different overhead compartments to free up some room" and then "shoved and pounded until [the] bag squeezed in"). The trial court, which heard the evidence, saw nothing unusual, unforeseeable, or special about this agent's squeeze. It found that Agent Cantu simply "felt the outside of Bond's softside green cloth bag," and it viewed the agent's activity as "minimally intrusive touching." App. 23 (Order Denying Motion to Suppress). The Court of Appeals also noted that, because "passengers often handle and manipulate other passengers' luggage," the substantially similar tactile inspection here was entirely "foreseeable." 167 F.3d 225 , 227 (CAS 1999). The record and these factual findings are sufficient to resolve this case. The law is clear that the Fourth Amendment protects against government intrusion that upsets an "'actual (subjective) expectation of privacy''' that is objectively "'reasonable.''' Smith v. Maryland, 442 U. S. 735 , 740 (1979) (quoting Katz v. United States, 389 U. S. 347 , 361 341 (1967) (Harlan, J., concurring)). Privacy itself implies the exclusion of uninvited strangers, not just strangers who work for the Government. Hence, an individual cannot reasonably expect privacy in respect to objects or activities that he "knowingly exposes to the public." Id., at 351. Indeed, the Court has said that it is not objectively reasonable to expect privacy if "[a]ny member of the public ... could have" used his senses to detect "everything that thee] officers observed." California v. Ciraolo, 476 U. S. 207 , 213-214 (1986). Thus, it has held that the fact that strangers may look down at fenced-in property from an aircraft or sift through garbage bags on a public street can justify a similar police intrusion. See ibid.; Florida v. Riley, 488 U. S. 445, 451 (1989) (plurality opinion); California v. Greenwood, 486 U. S. 35 , 40-41 (1988); cf. Texas v. Brown, 460 U. S. 730 , 740 (1983) (police not precluded from" 'ben[ding] down'" to see since "[t]he general public could peer into the interior of [the car] from any number of angles"). The comparative likelihood that strangers will give bags in an overhead compartment a hard squeeze would seem far greater. See Riley, supra, at 453 (O'CONNOR, J., concurring in judgment) (reasonableness of privacy expectation depends on whether intrusion is a "sufficiently routine part of modern life"). Consider, too, the accepted police practice of using dogs to sniff for drugs hidden inside luggage. See, e. g., United States v. Place, 462 U. S. 696 , 699 (1983). Surely it is less likely that nongovernmental strangers will sniff at another's bags (or, more to the point, permit their dogs to do so) than it is that such actors will touch or squeeze another person's belongings in the process of making room for their own. Of course, the agent's purpose here-searching for drugs-differs dramatically from the intention of a driver or fellow passenger who squeezes a bag in the process of making more room for another parcel. But in determining whether an expectation of privacy is reasonable, it is the effect, not the purpose, that matters. See ante, at 338, n. 2 342 ("[T]he issue is not [the agent's] state of mind, but the objective effect of his actions"); see also Whren v. United States, 517 U. S. 806 , 813 (1996); United States v. Dunn, 480 U. S. 294 , 304-305 (1987). Few individuals with something to hide wish to expose that something to the police, however careless or indifferent they may be in respect to discovery by other members of the public. Hence, a Fourth Amendment rule that turns on purpose could prevent police alone from intruding where other strangers freely tread. And the added privacy protection achieved by such an approach would not justify the harm worked to law enforcement-at least that is what this Court's previous cases suggest. See Greenwood, supra, at 41 ("[T]he police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public"); Ciraolo, supra, at 212-213 (rejecting respondent's argument that the police should be restricted solely because their actions are "motivated by a law enforcement purpose, and not the result of a casual, accidental observation"). Nor can I accept the majority's effort to distinguish "tactile" from "visual" interventions, see ante, at 337, even assuming that distinction matters here. Whether tactile manipulation (say, of the exterior of luggage) is more intrusive or less intrusive than visual observation (say, through a lighted window) necessarily depends on the particular circumstances. If we are to depart from established legal principles, we should not begin here. At best, this decision will lead to a constitutional jurisprudence of "squeezes," thereby complicating further already complex Fourth Amendment law, increasing the difficulty of deciding ordinary criminal matters, and hindering the administrative guidance (with its potential for control of unreasonable police practices) that a less complicated jurisprudence might provide. Cf. Whren, supra, at 815 (warning against the creation of trivial Fourth Amendment distinctions). At worst, this case will deter law en- 343 forcement officers searching for drugs near borders from using even the most nonintrusive touch to help investigate publicly exposed bags. At the same time, the ubiquity of non-governmental pushes, prods, and squeezes (delivered by driver, attendant, passenger, or some other stranger) means that this decision cannot do much to protect true privacy. Rather, the traveler who wants to place a bag in a shared overhead bin and yet safeguard its contents from public touch should plan to pack those contents in a suitcase with hard sides, irrespective of the Court's decision today. For these reasons, I dissent.

Here is a summary of the Supreme Court case, Bond v. United States: Issue: Whether a Border Patrol agent's physical manipulation of a bus passenger's carry-on bag to examine its contents constituted an unreasonable search in violation of the Fourth Amendment. Holding: Yes, the agent's physical manipulation of the bag was an unreasonable search. Travelers have a reasonable expectation of privacy in their personal luggage, and the agent's tactile inspection of the bag was more intrusive than a purely visual inspection. The Court reversed the Fifth Circuit's decision and held that the agent's actions violated the Fourth Amendment. Impact: The case sets a precedent for the level of privacy individuals can expect regarding their personal luggage in public spaces and the extent to which law enforcement officers can physically manipulate such luggage without a warrant.

Search & Seizure

Maryland v. Pringle

https://supreme.justia.com/cases/federal/us/540/366/

OPINION OF THE COURT MARYLAND V. PRINGLE 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NO. 02-809 MARYLAND, PETITIONER v. JOSEPH JERMAINE PRINGLE on writ of certiorari to the court of appeals of maryland [December 15, 2003]    Chief Justice Rehnquist delivered the opinion of the Court.    In the early morning hours a passenger car occupied by three men was stopped for speeding by a police officer. The officer, upon searching the car, seized $763 of rolled-up cash from the glove compartment and five glassine baggies of cocaine from between the back-seat armrest and the back seat. After all three men denied ownership of the cocaine and money, the officer arrested each of them. We hold that the officer had probable cause to arrest Pringle—one of the three men.    At 3:16 a.m. on August 7, 1999, a Baltimore County Police officer stopped a Nissan Maxima for speeding. There were three occupants in the car: Donte Partlow, the driver and owner, respondent Pringle, the front-seat passenger, and Otis Smith, the back-seat passenger. The officer asked Partlow for his license and registration. When Partlow opened the glove compartment to retrieve the vehicle registration, the officer observed a large amount of rolled-up money in the glove compartment. The officer returned to his patrol car with Partlow’s license and registration to check the computer system for outstanding violations. The computer check did not reveal any violations. The officer returned to the stopped car, had Partlow get out, and issued him an oral warning.    After a second patrol car arrived, the officer asked Partlow if he had any weapons or narcotics in the vehicle. Partlow indicated that he did not. Partlow then consented to a search of the vehicle. The search yielded $763 from the glove compartment and five plastic glassine baggies containing cocaine from behind the back-seat armrest. When the officer began the search the armrest was in the upright position flat against the rear seat. The officer pulled down the armrest and found the drugs, which had been placed between the armrest and the back seat of the car.    The officer questioned all three men about the ownership of the drugs and money, and told them that if no one admitted to ownership of the drugs he was going to arrest them all. The men offered no information regarding the ownership of the drugs or money. All three were placed under arrest and transported to the police station.    Later that morning, Pringle waived his rights under Miranda v. Arizona, 384 U. S. 436 (1966), and gave an oral and written confession in which he acknowledged that the cocaine belonged to him, that he and his friends were going to a party, and that he intended to sell the cocaine or “[u]se it for sex.” App. 26. Pringle maintained that the other occupants of the car did not know about the drugs, and they were released.    The trial court denied Pringle’s motion to suppress his confession as the fruit of an illegal arrest, holding that the officer had probable cause to arrest Pringle. A jury convicted Pringle of possession with intent to distribute cocaine and possession of cocaine. He was sentenced to 10 years’ incarceration without the possibility of parole. The Court of Special Appeals of Maryland affirmed. 141 Md. App. 292, 785 A. 2d 790 (2001).    The Court of Appeals of Maryland, by divided vote, reversed, holding that, absent specific facts tending to show Pringle’s knowledge and dominion or control over the drugs, “the mere finding of cocaine in the back armrest when [Pringle] was a front seat passenger in a car being driven by its owner is insufficient to establish probable cause for an arrest for possession.” 370 Md. 525, 545, 805 A. 2d 1016, 1027 (2002). We granted certiorari, 538 U. S. 921 (2003), and now reverse.    Under the Fourth Amendment, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961), the people are “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, … and no Warrants shall issue, but upon probable cause … .” U. S. Const., Amdt. 4. Maryland law authorizes police officers to execute warrantless arrests, inter alia , for felonies committed in an officer’s presence or where an officer has probable cause to believe that a felony has been committed or is being committed in the officer’s presence. Md. Ann. Code, Art. 27, §594B (1996) (repealed 2001). A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer’s presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause. United States v. Watson, 423 U. S. 411 , 424 (1976); see Atwater v. Lago Vista, 532 U. S. 318 , 354 (2001) (stating that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender”).    It is uncontested in the present case that the officer, upon recovering the five plastic glassine baggies containing suspected cocaine, had probable cause to believe a felony had been committed. Md. Ann. Code, Art. 27, §287 (1996) (repealed 2002) (prohibiting possession of controlled dangerous substances). The sole question is whether the officer had probable cause to believe that Pringle committed that crime.[ Footnote 1 ]    The long-prevailing standard of probable cause protects “citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime,” while giving “fair leeway for enforcing the law in the community’s protection.” Brinegar v. United States, 338 U. S. 160 , 176 (1949). On many occasions, we have reiterated that the probable-cause standard is a “ ‘practical, nontechnical conception’ ” that deals with “ ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Illinois v. Gates, 462 U. S. 213 , 231 (1983) (quoting Brinegar, supra, at 175–176); see, e.g. , Ornelas v. United States, 517 U. S. 690 , 695 (1996); United States v. Sokolow, 490 U. S. 1 , 7–8 (1989). “[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Gates , 462 U. S., at 232.    The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. See ibid.; Brinegar , 338 U. S., at 175. We have stated, however, that “[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,” ibid. (internal quotation marks and citations omitted), and that the belief of guilt must be particularized with respect to the person to be searched or seized, Ybarra v. Illinois, 444 U. S. 85 , 91 (1979). In Illinois v. Gates, we noted: “As early as Locke v. United States, 7 Cranch 339, 348 (1813), Chief Justice Marshall observed, in a closely related context: ‘[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation … . It imports a seizure made under circumstances which warrant suspicion.’ More recently, we said that ‘the quanta … of proof ’ appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Brinegar, 338 U. S., at 173. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [probable-cause] decision.” 462 U. S., at 235.    To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause, Ornelas , supra , at 696.    In this case, Pringle was one of three men riding in a Nissan Maxima at 3:16 a.m. There was $763 of rolled-up cash in the glove compartment directly in front of Pringle.[ Footnote 2 ] Five plastic glassine baggies of cocaine were behind the back-seat armrest and accessible to all three men. Upon questioning, the three men failed to offer any information with respect to the ownership of the cocaine or the money.    We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.    Pringle’s attempt to characterize this case as a guilt-by-association case is unavailing. His reliance on Ybarra v. Illinois, supra, and United States v. Di Re, 332 U. S. 581 (1948), is misplaced. In Ybarra , police officers obtained a warrant to search a tavern and its bartender for evidence of possession of a controlled substance. Upon entering the tavern, the officers conducted patdown searches of the customers present in the tavern, including Ybarra. Inside a cigarette pack retrieved from Ybarra’s pocket, an officer found six tinfoil packets containing heroin. We stated: “[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U. S. 40 , 62–63 (1968). Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.” 444 U. S., at 91. We held that the search warrant did not permit body searches of all of the tavern’s patrons and that the police could not pat down the patrons for weapons, absent individualized suspicion. Id. , at 92.    This case is quite different from Ybarra . Pringle and his two companions were in a relatively small automobile, not a public tavern. In Wyoming v. Houghton, 526 U. S. 295 (1999), we noted that “a car passenger—unlike the unwitting tavern patron in Ybarra —will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing.” Id., at 304–305. Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.    In Di Re , a federal investigator had been told by an informant, Reed, that he was to receive counterfeit gasoline ration coupons from a certain Buttitta at a particular place. The investigator went to the appointed place and saw Reed, the sole occupant of the rear seat of the car, holding gasoline ration coupons. There were two other occupants in the car: Buttitta in the driver’s seat and Di Re in the front passenger’s seat. Reed informed the investigator that Buttitta had given him counterfeit coupons. Thereupon, all three men were arrested and searched. After noting that the officers had no information implicating Di Re and no information pointing to Di Re’s possession of coupons, unless presence in the car warranted that inference, we concluded that the officer lacked probable cause to believe that Di Re was involved in the crime. 332 U. S., at 592–594. We said “[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person.” Id. , at 594. No such singling out occurred in this case; none of the three men provided information with respect to the ownership of the cocaine or money.    We hold that the officer had probable cause to believe that Pringle had committed the crime of possession of a controlled substance. Pringle’s arrest therefore did not contravene the Fourth and Fourteenth Amendments. Accordingly, the judgment of the Court of Appeals of Maryland is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Maryland law defines “possession” as “the exercise of actual or constructive dominion or control over a thing by one or more persons.” Md. Ann. Code, Art. 27, §277(s) (1996) (repealed 2002). Footnote 2 The Court of Appeals of Maryland dismissed the $763 seized from the glove compartment as a factor in the probable-cause determination, stating that “[m]oney, without more, is innocuous.” 370 Md. 524, 546, 805 A. 2d 1016, 1028 (2002). The court’s consideration of the money in isolation, rather than as a factor in the totality of the circumstances, is mistaken in light of our precedents. See, e.g., Illinois v. Gates, 462 U. S. 213 , 230–231 (1983) (opining that the totality of the circumstances approach is consistent with our prior treatment of probable cause); Brinegar v. United States, 338 U. S. 160 , 175–176 (1949) (“Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed”). We think it is abundantly clear from the facts that this case involves more than money alone.

The Supreme Court held that a police officer had probable cause to arrest Pringle, one of three men in a car where cocaine and a large amount of cash were found, as it was reasonable to infer that Pringle knew about and was intentionally involved with the cocaine. The Court reversed the Maryland Court of Appeals' decision and remanded the case for further proceedings.

Search & Seizure

Illinois v. McArthur

https://supreme.justia.com/cases/federal/us/531/326/

OCTOBER TERM, 2000 Syllabus ILLINOIS v. McARTHUR CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT No. 99-1132. Argued November 1, 2000-Decided February 20, 2001 Police officers, with probable cause to believe that respondent McArthur had hidden marijuana in his home, prevented him from entering the home unaccompanied by an officer for about two hours while they obtained a search warrant. Once they did so, the officers found drug paraphernalia and marijuana, and arrested McArthur. He was subsequently charged with misdemeanor possession of those items. He moved to suppress the evidence on the ground that it was the "fruit" of an unlawful police seizure, namely, the refusal to let him reenter his home unaccompanied. The Illinois trial court granted the motion, and the State Appellate Court affirmed. Held: Given the nature of the intrusion and the law enforcement interest at stake, the brief seizure of the premises was permissible under the Fourth Amendment. Pp. 330-337. (a) The Amendment's central requirement is one of reasonableness. Although, in the ordinary case, personal property seizures are unreasonable unless accomplished pursuant to a warrant, United States v. Place, 462 U. S. 696 , 701, there are exceptions to this rule involving special law enforcement needs, diminished expectations of privacy, minimal intrusions, and the like, see, e. g., Pennsylvania v. Labron, 518 U. S. 938 , 940-941. The circumstances here involve a plausible claim of specially pressing or urgent law enforcement need. Cf., e. g., United States v. Place, supra, at 701. Moreover, the restraint at issue was tailored to that need, being limited in time and scope, cf. Terry v. Ohio, 392 U. S. 1, 29-30, and avoiding significant intrusion into the home itself, cf. Payton v. New York, 445 U. S. 573 , 585. Consequently, rather than employing a per se rule of unreasonableness, the Court must balance the privacy-related and law enforcement-related concerns to determine if the intrusion here was reasonable. Cf. Delaware v. Prouse, 440 U. S. 648 , 654. In light of the following circumstances, considered in combination, the Court concludes that the restriction was reasonable, and hence lawful. First, the police had probable cause to believe that McArthur's home contained evidence of a crime and unlawful drugs. Second, they had good reason to fear that, unless restrained, he would destroy the drugs before they could return with a warrant. Third, they 327 made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy by avoiding a warrantless entry or arrest and preventing McArthur only from entering his home unaccompanied. Fourth, they imposed the restraint for a limited period, which was no longer than reasonably necessary for them, acting with diligence, to obtain the warrant. Pp. 330-333. (b) The conclusion that the restriction was lawful finds significant support in this Court's case law. See, e. g., Segura v. United States, 468 U. S. 796 ; United States v. Place, supra, at 706. And in no case has this Court held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period. But cf. Welsh v. Wisconsin, 466 U. S. 740 , 754. Pp.333-334. (c) The Court is not persuaded by the countervailing considerations raised by the parties or lower courts: that the police proceeded without probable cause; that, because McArthur was on his porch, the police order that he stay outside his home amounted to an impermissible "constructive eviction"; that an officer, with McArthur's consent, stepped inside the home's doorway to observe McArthur when McArthur reentered the home on two or three occasions; and that Welsh v. Wisconsin, supra, at 742, 754, offers direct support for McArthur's position. Pp. 334-336. 304 Ill. App. 3d 395, 713 N. E. 2d 93, reversed and remanded. BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. SOUTER, J., filed a concurring opinion, post, p. 337. STEVENS, J., filed a dissenting opinion, post, p. 338. Joel D. Bertocchi, Solicitor General of Illinois, argued the cause for petitioner. With him on the briefs were James E. Ryan, Attorney General, and William L. Browers and Colleen M. Griffin, Assistant Attorneys General. Matthew D. Roberts argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Deborah Watson. 328 Deanne Fortna Jones argued the cause for respondent. With her on the brief was Jeff Justice. * JUSTICE BREYER delivered the opinion of the Court. Police officers, with probable cause to believe that a man had hidden marijuana in his home, prevented that man from entering the home for about two hours while they obtained a search warrant. We must decide whether those officers violated the Fourth Amendment. We conclude that the officers acted reasonably. They did not violate the Amendment's requirements. And we reverse an Illinois court's holding to the contrary. I A On April 2, 1997, Tera McArthur asked two police officers to accompany her to the trailer where she lived with her husband, Charles, so that they could keep the peace while she removed her belongings. The two officers, Assistant Chief John Love and Officer Richard Skidis, arrived with * A brief of amici curiae urging reversal was filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, and Robert C. Maier and Matthew D. Miko, Assistant Solicitors, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, M. Jane Brady of Delaware, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Joseph P. Mazurek of Montana, Philip McLaughlin of New Hampshire, John J. Farmer, Jr., of New Jersey, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, W A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, William H. Sorrell of Vermont, Christine O. Gregoire of Washington, Thomas F. Reilly of Massachusetts, D. Michael Fisher of Pennsylvania, and Mark L. Earley of Virginia. Briefs of amici curiae urging affirmance were filed for the National Association of Criminal Defense Lawyers by Lisa B. Kemler; and for the Rutherford Institute by John W Whitehead and Steven H. Aden. 329 Tera at the trailer at about 3:15 p.m. Tera went inside, where Charles was present. The officers remained outside. When Tera emerged after collecting her possessions, she spoke to Chief Love, who was then on the porch. She suggested he check the trailer because "Chuck had dope in there." App. 15. She added (in Love's words) that she had seen Chuck "slid[e] some dope underneath the couch." Id., at 19. Love knocked on the trailer door, told Charles what Tera had said, and asked for permission to search the trailer, which Charles denied. Love then sent Officer Skidis with Tera to get a search warrant. Love told Charles, who by this time was also on the porch, that he could not reenter the trailer unless a police officer accompanied him. Charles subsequently reentered the trailer two or three times (to get cigarettes and to make phone calls), and each time Love stood just inside the door to observe what Charles did. Officer Skidis obtained the warrant by about 5 p.m. He returned to the trailer and, along with other officers, searched it. The officers found under the sofa a marijuana pipe, a box for marijuana (called a "one-hitter" box), and a small amount of marijuana. They then arrested Charles. B Illinois subsequently charged Charles McArthur with unlawfully possessing drug paraphernalia and marijuana (less than 2.5 grams), both misdemeanors. See Ill. Compo Stat., ch. 720, §§ 550/4(a), 600/3.5(a) (1998). McArthur moved to suppress the pipe, box, and marijuana on the ground that they were the "fruit" of an unlawful police seizure, namely, the refusal to let him reenter the trailer unaccompanied, which would have permitted him, he said, to "have destroyed the marijuana." App.27. The trial court granted McArthur's suppression motion. The Appellate Court of Illinois affirmed, 304 Ill. App. 3d 330 395, 713 N. E. 2d 93 (1999), and the Illinois Supreme Court denied the State's petition for leave to appeal, 185 Ill. 2d 651, 720 N. E. 2d 1101 (1999). We granted certiorari to determine whether the Fourth Amendment prohibits the kind of temporary seizure at issue here. II A The Fourth Amendment says that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U. S. Const., Amdt. 4. Its "central requirement" is one of reasonableness. See Texas v. Brown, 460 U. S. 730 , 739 (1983). In order to enforce that requirement, this Court has interpreted the Amendment as establishing rules and presumptions designed to control conduct of law enforcement officers that may significantly intrude upon privacy interests. Sometimes those rules require warrants. We have said, for example, that in "the ordinary case," seizures of personal property are "unreasonable within the meaning of the Fourth Amendment," without more, "unless ... accomplished pursuant to a judicial warrant," issued by a neutral magistrate after finding probable cause. United States v. Place, 462 U. S. 696 , 701 (1983). We nonetheless have made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable. See, e. g., Pennsylvania v. Labron, 518 U. S. 938 , 940-941 (1996) (per curiam) (search of automobile supported by probable cause); Michigan Dept. of State Police v. Sitz, 496 U. S. 444 , 455 (1990) (suspicionless stops at drunk driver checkpoint); United States v. Place, supra, at 706 (temporary seizure of luggage based on reasonable suspicion); Michigan v. 331 Summers, 452 U. S. 692 , 702-705 (1981) (temporary detention of suspect without arrest warrant to prevent flight and protect officers while executing search warrant); Terry v. Ohio, 392 U. S. 1 , 27 (1968) (temporary stop and limited search for weapons based on reasonable suspicion). In the circumstances of the case before us, we cannot say that the warrantless seizure was per se unreasonable. It involves a plausible claim of specially pressing or urgent law enforcement need, i. e., "exigent circumstances." Cf., e. g., United States v. Place, supra, at 701 ("[T]he exigencies of the circumstances" may permit temporary seizure without warrant); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 , 298-299 (1967) (warrantless search for suspect and weapons reasonable where delay posed grave danger); Schmerber v. California, 384 U. S. 757 , 770-771 (1966) (warrantless blood test for alcohol reasonable where delay would have led to loss of evidence). Moreover, the restraint at issue was tailored to that need, being limited in time and scope, cf. Terry v. Ohio, supra, at 29-30, and avoiding significant intrusion into the home itself, cf. Payton v. New York, 445 U. S. 573 , 585 (1980) (" '[T]he chief evil against which the ... Fourth Amendment is directed' " is warrantless entry and search of home) (quoting United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297 , 313 (1972)). Consequently, rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable. Cf. Delaware v. Prouse, 440 U. S. 648 ,654 (1979) (determining lawfulness by balancing privacy and law enforcement interests); United States v. BrignoniPonce, 422 U. S. 873 , 878 (1975) (same). We conclude that the restriction at issue was reasonable, and hence lawful, in light of the following circumstances, which we consider in combination. First, the police had probable cause to believe that McArthur's trailer home contained evidence of a crime and contraband, namely, unlawful 332 drugs. The police had had an opportunity to speak with Tera McArthur and make at least a very rough assessment of her reliability. They knew she had had a firsthand opportunity to observe her husband's behavior, in particular with respect to the drugs at issue. And they thought, with good reason, that her report to them reflected that opportunity. Cf. Massachusetts v. Upton, 466 U. S. 727 , 732-734 (1984) (per curiam) (upholding search warrant issued in similar circumstances). Second, the police had good reason to fear that, unless restrained, McArthur would destroy the drugs before they could return with a warrant. They reasonably might have thought that McArthur realized that his wife knew about his marijuana stash; observed that she was angry or frightened enough to ask the police to accompany her; saw that after leaving the trailer she had spoken with the police; and noticed that she had walked off with one policeman while leaving the other outside to observe the trailer. They reasonably could have concluded that McArthur, consequently suspecting an imminent search, would, if given the chance, get rid of the drugs fast. Third, the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. They neither searched the trailer nor arrested McArthur before obtaining a warrant. Rather, they imposed a significantly less restrictive restraint, preventing McArthur only from entering the trailer unaccompanied. They left his home and his belongings intact-until a neutral Magistrate, finding probable cause, issued a warrant. Fourth, the police imposed the restraint for a limited period of time, namely, two hours. Cf. Terry v. Ohio, supra, at 28 (manner in which police act is "vital ... part of ... inquiry"). As far as the record reveals, this time period was no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant. Compare United 333 States v. Place, 462 U. S., at 709-710 (holding 90-minute detention of luggage unreasonable based on nature of interference with person's travels and lack of diligence of police), with United States v. Van Leeuwen, 397 U. S. 249 , 253 (1970) (holding 29-hour detention of mailed package reasonable given unavoidable delay in obtaining warrant and minimal nature of intrusion). Given the nature of the intrusion and the law enforcement interest at stake, this brief seizure of the premises was permissible. B Our conclusion that the restriction was lawful finds significant support in this Court's case law. In Segura v. United States, 468 U. S. 796 (1984), the Court considered the admissibility of drugs which the police had found in a lawful, warrant-based search of an apartment, but only after unlawfully entering the apartment and occupying it for 19 hours. The majority held that the drugs were admissible because, had the police acted lawfully throughout, they could have discovered and seized the drugs pursuant to the validly issued warrant. See id., at 799, 814-815 (citing Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920)). The minority disagreed. However, when describing alternative lawful search and seizure methods, both majority and minority assumed, at least for argument's sake, that the police, armed with reliable information that the apartment contained drugs, might lawfully have sealed the apartment from the outside, restricting entry into the apartment while waiting for the warrant. Compare Segura v. United States, 468 U. S., at 814 ("Had police never entered the apartment, but instead conducted a perimeter stakeout to prevent anyone from entering ... and destroying evidence, the contraband ... would have been ... seized precisely as it was here"), with id., at 824, n. 15 (STEVENS, J., dissenting) ("I assume impoundment would be permissible 334 even absent exigent circumstances when it occurs 'from the outside' -when the authorities merely seal off premises pending the issuance of a warrant but do not enter"); see also Mincey v. Arizona, 437 U. S. 385 , 394 (1978) (exigent circumstances do not justify search where police guard at door could prevent loss of evidence); United States v. Jeffers, 342 U. S. 48 , 52 (1951) (same). In various other circumstances, this Court has upheld temporary restraints where needed to preserve evidence until police could obtain a warrant. See, e. g., United States v. Place, supra, at 706 (reasonable suspicion justifies brief detention of luggage pending further investigation); United States v. Van Leeuwen, supra, at 253 (reasonable suspicion justifies detaining package delivered for mailing). Cf. Richards v. Wisconsin, 520 U. S. 385 , 395 (1997) (no need to "knock and announce" when executing a search warrant where officers reasonably suspect that evidence might be destroyed); Carroll v. United States, 267 U. S. 132 , 153 (1925) (warrantless search of automobile constitutionally permissible ). We have found no case in which this Court has held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period of time. But cf. Welsh v. Wisconsin, 466 U. S. 740 , 754 (1984) (holding warrantless entry into and arrest in home unreasonable despite possibility that evidence of noncriminal offense would be lost while warrant was being obtained). C Nor are we persuaded by the countervailing considerations that the parties or lower courts have raised. McArthur argues that the police proceeded without probable cause. But McArthur has waived this argument. See 304 Ill. App. 3d, at 397, 713 N. E. 2d, at 95 (stating that McArthur 335 does not contest existence of probable cause); Brief in Opposition 7 (acknowledging probable cause). And, in any event, it is without merit. See supra, at 331-332. The Appellate Court of Illinois concluded that the police could not order McArthur to stay outside his home because McArthur's porch, where he stood at the time, was part of his home; hence the order "amounted to a constructive eviction" of McArthur from his residence. 304 Ill. App. 3d, at 402, 713 N. E. 2d, at 98. This Court has held, however, that a person standing in the doorway of a house is "in a 'public' place," and hence subject to arrest without a warrant permitting entry of the home. United States v. Santana, 427 U. S. 38 , 42 (1976). Regardless, we do not believe the difference to which the Appellate Court points-porch versus, e. g., front walk-could make a significant difference here as to the reasonableness of the police restraint; and that, from the Fourth Amendment's perspective, is what matters. The Appellate Court also found negatively significant the fact that Chief Love, with McArthur's consent, stepped inside the trailer's doorway to observe McArthur when McArthur reentered the trailer on two or three occasions. 304 Ill. App. 3d, at 402-403, 713 N. E. 2d, at 98. McArthur, however, reentered simply for his own convenience, to make phone calls and to obtain cigarettes. Under these circumstances, the reasonableness of the greater restriction (preventing reentry) implies the reasonableness of the lesser (permitting reentry conditioned on observation). Finally, McArthur points to a case (and we believe it is the only case) that he believes offers direct support, namely, Welsh v. Wisconsin, supra. In Welsh, this Court held that police could not enter a home without a warrant in order to prevent the loss of evidence (namely, the defendant's blood alcohol level) of the "nonjailable traffic offense" of driving while intoxicated. 466 U. S., at 742, 754. McArthur notes 336 that his two convictions are for misdemeanors, which, he says, are as minor, and he adds that the restraint, keeping him out of his home, was nearly as serious. We nonetheless find significant distinctions. The evidence at issue here was of crimes that were "jailable," not "nonjailable." See Ill. Compo Stat., ch. 720, § 550/4(a) (1998); ch. 730, § 5/5-8-3(3) (possession of less than 2.5 grams of marijuana punishable by up to 30 days in jail); ch. 720, § 600/ 3.5; ch. 730, § 5/5-8-3(1) (possession of drug paraphernalia punishable by up to one year in jail). In Welsh, we noted that, "[g]iven that the classification of state crimes differs widely among the States, the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense." 466 U. S., at 754, n. 14. The same reasoning applies here, where class C misdemeanors include such widely diverse offenses as drag racing, drinking alcohol in a railroad car or on a railroad platform, bribery by a candidate for public office, and assault. See, e. g., Ill. Compo Stat., ch. 65, § 5/4-8-2 (1998); ch. 610, § 90/1; ch. 625, § 5/11-504; ch. 720, § 5/12-l. And the restriction at issue here is less serious. Temporarily keeping a person from entering his home, a consequence whenever police stop a person on the street, is considerably less intrusive than police entry into the home itself in order to make a warrantless arrest or conduct a search. Cf. Payton v. New York, 445 U. S., at 585 (the Fourth Amendment's central concern is the warrantless entry and search of the home). We have explained above why we believe that the need to preserve evidence of a "jailable" offense was sufficiently urgent or pressing to justify the restriction upon entry that the police imposed. We need not decide whether the circumstances before us would have justified a greater restriction for this type of offense or the same restriction were only a "nonjailable" offense at issue. 337 III In sum, the police officers in this case had probable cause to believe that a home contained contraband, which was evidence of a crime. They reasonably believed that the home's resident, if left free of any restraint, would destroy that evidence. And they imposed a restraint that was both limited and tailored reasonably to secure law enforcement needs while protecting privacy interests. In our view, the restraint met the Fourth Amendment's demands. The judgment of the Illinois Appellate Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE SOUTER, concurring. I join the Court's opinion subject to this afterword on two points: the constitutionality of a greater intrusion than the one here and the permissibility of choosing impoundment over immediate search. Respondent McArthur's location made the difference between the exigency that justified temporarily barring him from his own dwelling and circumstances that would have supported a greater interference with his privacy and property. As long as he was inside his trailer, the police had probable cause to believe that he had illegal drugs stashed as his wife had reported and that with any sense he would flush them down the drain before the police could get a warrant to enter and search. This probability of destruction in anticipation of a warrant exemplifies the kind of present risk that undergirds the accepted exigent circumstances exception to the general warrant requirement. Schmerber v. California, 384 U. S. 757 , 770-771 (1966). That risk would have justified the police in entering McArthur's trailer promptly to make a lawful, warrantless search. United States v. Santana, 427 U. S. 38 , 42-43 (1976); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 , 298-299 (1967). When McArthur stepped 338 outside and left the trailer uninhabited, the risk abated and so did the reasonableness of entry by the police for as long as he was outside. This is so because the only justification claimed for warrantless action here is the immediate risk, and the limit of reasonable response by the police is set by the scope of the risk. See Terry v. Ohio, 392 U. S. 1 ,25-26 (1968). Since, however, McArthur wished to go back in, why was it reasonable to keep him out when the police could perfectly well have let him do as he chose, and then enjoyed the ensuing opportunity to follow him and make a warrantless search justified by the renewed danger of destruction? The answer is not that the law officiously insists on safeguarding a suspect's privacy from search, in preference to respecting the suspect's liberty to enter his own dwelling. Instead, the legitimacy of the decision to impound the dwelling follows from the law's strong preference for warrants, which underlies the rule that a search with a warrant has a stronger claim to justification on later, judicial review than a search without one. See United States v. Ventresca, 380 U. S. 102 , 106 (1965); see also 5 W. LaFave, Search and Seizure § 11.2(b), p. 38 (3d ed. 1996) ("[M]ost states follow the rule which is utilized in the federal courts: if the search or seizure was pursuant to a warrant, the defendant has the burden of proof; but if the police acted without a warrant the burden of proof is on the prosecution"). The law can hardly raise incentives to obtain a warrant without giving the police a fair chance to take their probable cause to a magistrate and get one. JUSTICE STEVENS, dissenting. The Illinois General Assembly has decided that the possession of less than 2.5 grams of marijuana is a class C misdemeanor. See Ill. Compo Stat., ch. 720, § 550/4(a) (1998). In so classifying the offense, the legislature made a concerted policy judgment that the possession of small amounts of 339 marijuana for personal use does not constitute a particularly significant public policy concern. While it is true that this offense-like feeding livestock on a public highway or offering a movie for rent without clearly displaying its rating 1_ may warrant a jail sentence of up to 30 days, the detection and prosecution of possessors of small quantities of this substance is by no means a law enforcement priority in the State of Illinois.2 Because the governmental interest implicated by the particular criminal prohibition at issue in this case is so slight, this is a poor vehicle for probing the boundaries of the government's power to limit an individual's possessory interest in his or her home pending the arrival of a search warrant. Cf. Segura v. United States, 468 U. S. 796 (1984) (seven Justices decline to address this issue because case does not require its resolution). Given my preference, I would, therefore, dismiss the writ of certiorari as improvidently granted. Compelled by the vote of my colleagues to reach the merits, I would affirm. As the majority explains, the essential inquiry in this case involves a balancing of the "privacy- 1 See Ill. Compo Stat., ch. 605, § 5/9-124.1 (1998) (making feeding livestock on a public highway a class C misdemeanor); ch. 720, §§ 395/3-395/4 (making it a class C misdemeanor to sell or rent a video that does not display the official rating of the motion picture from which it is copied). Other examples of offenses classified as class C misdemeanors in Illinois include camping on the side of a public highway, ch. 605, § 5/9-124, interfering with the "lawful taking of wild animals," ch. 720, § 125/2, and tattooing the body of a person under 21 years of age, ch. 720, § 5/12-10. 2 Nor in many other States. Under the laws of many other States, the maximum penalty McArthur would have faced for possession of 2.3 grams of marijuana would have been less than what he faced in Illinois. See, e. g., Cal. Health & Safety Code Ann. § 11357(b) (West 1991) ($100 fine); Colo. Rev. Stat. § 18-18-406(1) (1999) ($100 fine); Minn. Stat. § 152.027(4) (2000) ($200 fine and drug education); Miss. Code Ann. §41-29-139(c)(2)(A) (Supp. 1999) ($100-$250 fine); Neb. Rev. Stat. §28-416(13) (1995) ($100 fine and drug education); N. M. Stat. Ann. § 30-31-23(B) (1997) ($50-$100 fine and 15 days in jail); N. Y. Penal Law §221.05 (McKinney 2000) ($100 fine); Ore. Rev. Stat. § 475.992(4)(f) (Supp. 1998) ($100 fine). 340 related and law enforcement-related concerns to determine if the intrusion was reasonable." Ante, at 331. Under the specific facts of this case, I believe the majority gets the balance wrong. Each of the Illinois jurists who participated in the decision of this case placed a higher value on the sanctity of the ordinary citizen's home than on the prosecution of this petty offense. They correctly viewed that interest-whether the home be a humble cottage, a secondhand trailer, or a stately mansion-as one meriting the most serious constitutional protection.3 Following their analysis and the reasoning in our decision in Welsh v. Wisconsin, 466 U. S. 740 (1984) (holding that some offenses may be so minor as to make it unreasonable for police to undertake searches that would be constitutionally permissible if graver offenses were suspected), I would affirm. 3 Principled respect for the sanctity of the home has long animated this Court's Fourth Amendment jurisprudence. See, e. g., Wilson v. Layne, 526 U. S. 603 , 610 (1999) ("The Fourth Amendment embodies this centuries-old principle of respect for the privacy of the home"); Payton v. New York, 445 U. S. 573 , 601 (1980) (emphasizing "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic"); Mincey v. Arizona, 437 U. S. 385 , 393 (1978) ("[T]he Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law").

Police officers prevented the respondent from entering his home unaccompanied while they obtained a search warrant. The Supreme Court held that the brief seizure of the premises was permissible under the Fourth Amendment, considering the nature of the intrusion and the law enforcement interest at stake.

Search & Seizure

Kyllo v. U.S.

https://supreme.justia.com/cases/federal/us/533/27/

OCTOBER TERM, 2000 Syllabus KYLLO v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 99-8508. Argued February 20, 200l-Decided June 11,2001 Suspicious that marijuana was being grown in petitioner Kyllo's home in a triplex, agents used a thermal-imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllo's garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllo's home, where the agents found marijuana growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllo's life, only amorphous hot spots on his home's exterior. Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant. Pp. 31-41. (a) The question whether a warrantless search of a home is reasonable and hence constitutional must be answered no in most instances, but the antecedent question whether a Fourth Amendment "search" has occurred is not so simple. This Court has approved warrantless visual surveillance of a home, see California v. Ciraolo, 476 U. S. 207 , 213, ruling that visual observation is no "search" at all, see Dow Chemical Co. v. United States, 476 U. S. 227 , 234-235, 239. In assessing when a search is not a search, the Court has adapted a principle first enunciated in Katz v. United States, 389 U. S. 347 , 361: A "search" does not occur-even when its object is a house explicitly protected by the Fourth Amendment-unless the individual manifested a subjective 28 Syllabus expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable, see, e. g., California v. Ciraolo, supra, at 211. Pp. 31-33. (b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a home's interior-the prototypical and hence most commonly litigated area of protected privacy-there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the home's interior that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman v. United States, 365 U. S. 505 , 512, constitutes a search-at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Pp. 33-35. (c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Government's argument that the thermal imaging must be upheld because it detected only heat radiating from the home's external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technology-including imaging technology that could discern all human activity in the home. Also rejected is the Government's contention that the thermal imaging was constitutional because it did not detect "intimate details." Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details. See, e. g., United States v. Karo, 468 U. S. 705; Dow Chemical, supra, at 238, distinguished. It would also be impractical in application, failing to provide a workable accommodation between law enforcement needs and Fourth Amendment interests. See Oliver v. United States, 466 U. S. 170 , 181. Pp. 35-40. (d) Since the imaging in this case was an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant was supported by probable cause-and if not, whether there is any other basis for supporting admission of that evidence. P. 40. 190 F.3d 1041 , reversed and remanded. 29 SCALIA, J., delivered the opinion of the Court, in which SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined, post, p. 41. Kenneth Lerner, by appointment of the Court, 531 U. S. 955, argued the cause and filed briefs for petitioner. Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were former Solicitor General Waxman, Assistant Attorney General Robinson, Irving L. Gornstein, and Deborah Watson. * JUSTICE SCALIA delivered the opinion of the Court. This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth Amendment. I In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires highintensity lamps. In order to determine whether an amount of heat was emanating from petitioner's home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth-black *Briefs of amici curiae urging reversal were filed for the Liberty Project by Julie M. Carpenter; and for the National Association of Criminal Defense Lawyers et al. by James J. Tomkovicz, Lisa B. Kemler, and Steven R. Shapiro. 30 is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner's home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner's home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U. s. C. § 841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 "is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house"; it "did not show any people or activity within the walls of the structure"; "[t]he device used cannot penetrate walls or windows to reveal conversations or human activities"; and "[n]o intimate details of the home were observed." Supp. App. to Pet. for Cert. 39-40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F.3d 1249 (1998), but that 31 opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F.3d 1041 (1999), with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, id., at 1046, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous 'hot spots' on the roof and exterior wall," id., at 1047. We granted certiorari. 530 U. S. 1305 (2000). II The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "At the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U. S. 505 , 511 (1961). With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. See Illinois v. Rodriguez, 497 U. S. 177 , 181 (1990); Payton v. New York, 445 U. S. 573 , 586 (1980). On the other hand, the antecedent question whether or not a Fourth Amendment "search" has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. See, e. g., Goldman v. United States, 316 U. S. 129 , 134-136 (1942); Olmstead v. United States, 277 U. S. 438 , 464-466 (1928). Cf. Silverman v. United States, supra, at 510-512 (technical trespass not necessary for Fourth Amendment violation; it suffices if there is "actual intrusion into a constitutionally protected area"). Visual surveillance was unquestionably lawful because" 'the 32 eye cannot by the laws of England be guilty of a trespass.'" Boyd v. United States, 116 U. S. 616 , 628 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)). We have since decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property, see Rakas v. III inois, 439 U. S. 128 , 143 (1978), but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v. Ciraolo, 476 U. S. 207 , 213 (1986), "[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares." One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a "search" 1 despite the absence of trespass, is not an "unreasonable" one under the Fourth Amendment. See Minnesota v. Carter, 525 U. S. 83 , 104 (1998) (BREYER, J., concurring in judgment). But in fact we have held that visual observation is no "search" at allperhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United States, 476 U. S. 227, 234-235, 239 (1986). In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U. S. 347 (1967). Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth-a location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the 1 When the Fourth Amendment was adopted, as now, to "search" meant "[tJo look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief." N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989). 33 Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. Id., at 353. As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur-even when the explicitly protected location of a house is concerned-unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo, supra, at 211. We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v. Maryland, 442 U. S. 735 , 743744 (1979), and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley, 488 U. S. 445 (1989). The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found "it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened," 476 U. S., at 237, n. 4 (emphasis in original). III It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been 34 entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy. The Katz test-whether the individual has an expectation of privacy that society is prepared to recognize as reasonable-has often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave, Search and Seizure § 2.1(d), pp. 393-394 (3d ed. 1996); Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S. Ct. Rev. 173, 188; Carter, supra, at 97 (SCALIA, J., concurring). But see Rakas, supra, at 143-144, n.12. While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most commonly litigated area of protected privacythere is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by senseenhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U. S., at 512, constitutes a searchat least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the 35 information obtained by the thermal imager in this case was the product of a search.2 The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat radiating from the external surface of the house," Brief for United States 26. The dissent makes this its leading point, see post, at 41, contending that there is a fundamental difference between what it calls "off-the-wall" observations and "through-the-wall surveillance." But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house-and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technologyincluding imaging technology that could discern all human 2 The dissent's repeated assertion that the thermal imaging did not obtain information regarding the interior of the home, post, at 43, 44 (opinion of STEVENS, J.), is simply inaccurate. A thermal imager reveals the relative heat of various rooms in the home. The dissent may not find that information particularly private or important, see post, at 43-44, 45, 4950, but there is no basis for saying it is not information regarding the interior of the home. The dissent's comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home-for example, by observing snowmelt on the roof, post, at 43-is quite irrelevant. The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. The police might, for example, learn how many people are in a particular house by setting up year-round surveillance; but that does not make breaking and entering to find out the same information lawful. In any event, on the night of January 16, 1992, no outside observer could have discerned the relative heat of Kyllo's home without thermal imaging. 36 activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.3 The dissent's reliance on the distinction between "off-the-wall" and "through-the-wall" observation is entirely incompatible with the dissent's belief, which we discuss below, that thermal-imaging observations of the intimate details of a home are impermissible. The most sophisticated thermal-imaging devices continue to measure heat "off-the-wall" rather than "through-the-wall"; the dissent's disapproval of those more sophisticated thermalimaging devices, see post, at 49, is an acknowledgment that there is no substance to this distinction. As for the dissent's extraordinary assertion that anything learned through "an inference" cannot be a search, see post, at 44, that would validate even the "through-the-wall" technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i. e., the making of inferences). And, of course, the novel proposition that inference insulates a search is blatantly contrary to United States v. Karo, 468 U. S. 705 (1984), where the police "inferred" from the activation of a beeper that a certain can of ether was in the home. The police ac- 3 The ability to "see" through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development. The National Law Enforcement and Corrections Technology Center, a program within the United States Department of Justice, features on its Internet Website projects that include a "RadarBased Through-the-Wall Surveillance System," "Handheld Ultrasound Through the Wall Surveillance," and a "Radar Flashlight" that "will enable law enforcement officers to detect individuals through interior building walls." www.nlectc.org/techproj/ (visited May 3, 2001). Some devices may emit low levels of radiation that travel "through-the-wall," but others, such as more sophisticated thermal-imaging devices, are entirely passive, or "off-the-wall" as the dissent puts it. 37 tivity was held to be a search, and the search was held unlawfu1.4 The Government also contends that the thermal imaging was constitutional because it did not "detect private activities occurring in private areas," Brief for United States 22. It points out that in Dow Chemical we observed that the enhanced aerial photography did not reveal any "intimate details." 476 U. S., at 238. Dow Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the Fourth Amendment sanctity of the home. The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, "by even a fraction of an inch," was too much, 365 U. S., at 512, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes. Thus, in Karo, supra, the only thing detected was a can of ether in the 4 The dissent asserts, post, at 44-45, n. 3, that we have misunderstood its point, which is not that inference insulates a search, but that inference alone is not a search. If we misunderstood the point, it was only in a good-faith effort to render the point germane to the case at hand. The issue in this case is not the police's allegedly unlawful inferencing, but their allegedly unlawful thermal-imaging measurement of the emanations from a house. We say such measurement is a search; the dissent says it is not, because an inference is not a search. We took that to mean that, since the technologically enhanced emanations had to be the basis of inferences before anything inside the house could be known, the use of the emanations could not be a search. But the dissent certainly knows better than we what it intends. And if it means only that an inference is not a search, we certainly agree. That has no bearing, however, upon whether hi-tech measurement of emanations from a house is a search. 38 home; and in Arizona v. Hicks, 480 U. S. 321 (1987), the only thing detected by a physical search that went beyond what officers lawfully present could observe in "plain view" was the registration number of a phonograph turntable. These were intimate details because they were details of the home, just as was the detail of how warm-or even how relatively warm-Kyllo was heating his residence.5 Limiting the prohibition of thermal imaging to "intimate details" would not only be wrong in principle; it would be impractical in application, failing to provide "a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment," Oliver v. United States, 466 U. S. 170 , 181 (1984). To begin with, there is no necessary connection between the sophistication of the surveillance equipment and the "intimacy" of the details that it observes-which means that one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath-a detail that many would consider "intimate"; and a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on. We could not, in other words, develop a rule approving only that through-the-wall surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop a jurisprudence specifying which 5The Government cites our statement in California v. Ciraolo, 476 U. S. 207 (1986), noting apparent agreement with the State of California that aerial surveillance of a house's curtilage could become "'invasive'" if "'modern technology'" revealed "'those intimate associations, objects or activities otherwise imperceptible to police or fellow citizens.'" Id., at 215, n. 3 (quoting Brief for State of California 14-15). We think the Court's focus in this secondhand dictum was not upon intimacy but upon otherwise-imperceptibility, which is precisely the principle we vindicate today. 39 home activities are "intimate" and which are not. And even when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks up "intimate" detailsand thus would be unable to know in advance whether it is constitutional. The dissent's proposed standard-whether the technology offers the "functional equivalent of actual presence in the area being searched," post, at 47-would seem quite similar to our own at first blush. The dissent concludes that Katz was such a case, but then inexplicably asserts that if the same listening device only revealed the volume of the conversation, the surveillance would be permissible, post, at 49-50. Yet if, without technology, the police could not discern volume without being actually present in the phone booth, JUSTICE STEVENS should conclude a search has occurred. Cf. Karo, 468 U. S., at 735 (STEVENS, J., concurring in part and dissenting in part) ("I find little comfort in the Court's notion that no invasion of privacy occurs until a listener obtains some significant information by use of the device .... A bathtub is a less private area when the plumber is present even if his back is turned"). The same should hold for the interior heat of the home if only a person present in the home could discern the heat. Thus the driving force of the dissent, despite its recitation of the above standard, appears to be a distinction among different types of information-whether the "homeowner would even care if anybody noticed," post, at 50. The dissent offers no practical guidance for the application of this standard, and for reasons already discussed, we believe there can be none. The people in their houses, as well as the police, deserve more precision.6 6 The dissent argues that we have injected potential uncertainty into the constitutional analysis by noting that whether or not the technology is in general public use may be a factor. See post, at 47. That quarrel, 40 We have said that the Fourth Amendment draws "a firm line at the entrance to the house," Payton, 445 U. S., at 590. That line, we think, must be not only firm but also brightwhich requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no "significant" compromise of the homeowner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward. "The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens." Carroll v. United States, 267 U. S. 132, 149 (1925). Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant. Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause-and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced. however, is not with us but with this Court's precedent. See Ciraolo, supra, at 215 ("In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet"). Given that we can quite confidently say that thermal imaging is not "routine," we decline in this case to reexamine that factor. 41 *** The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR, and JUSTICE KENNEDY join, dissenting. There is, in my judgment, a distinction of constitutional magnitude between "through-the-wall surveillance" that gives the observer or listener direct access to information in a private area, on the one hand, and the thought processes used to draw inferences from information in the public domain, on the other hand. The Court has crafted a rule that purports to deal with direct observations of the inside of the home, but the case before us merely involves indirect deductions from "off-the-wall" surveillance, that is, observations of the exterior of the home. Those observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of petitioner's home but did not invade any constitutionally protected interest in privacy.l Moreover, I believe that the supposedly "bright-line" rule the Court has created in response to its concerns about future technological developments is unnecessary, unwise, and inconsistent with the Fourth Amendment. I There is no need for the Court to craft a new rule to decide this case, as it is controlled by established principles from 1 After an evidentiary hearing, the District Court found: "[T]he use of the thermal imaging device here was not an intrusion into Kyllo's home. No intimate details of the home were observed, and there was no intrusion upon the privacy of the individuals within the home. The device used cannot penetrate walls or windows to reveal conversations or human activities. The device recorded only the heat being emitted from the home." Supp. App. to Pet. for Cert. 40. 42 our Fourth Amendment jurisprudence. One of those core principles, of course, is that "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U. S. 573 , 586 (1980) (emphasis added). But it is equally well settled that searches and seizures of property in plain view are presumptively reasonable. See id., at 586-587.2 Whether that property is residential or commercial, the basic principle is the same: "'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.'" California v. Ciraolo, 476 U. S. 207 , 213 (1986) (quoting Katz v. United States, 389 U. S. 347 , 351 (1967)); see Florida v. Riley, 488 U. S. 445 , 449-450 (1989); California v. Greenwood, 486 U. S. 35 , 40-41 (1988); Dow Chemical Co. v. United States, 476 U. S. 227 , 235-236 (1986); Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861 , 865 (1974). That is the principle implicated here. While the Court "take[s] the long view" and decides this case based largely on the potential of yet-to-be-developed technology that might allow "through-the-wall surveillance," ante, at 38-40; see ante, at 36, n. 3, this case involves nothing more than off-the-wall surveillance by law enforcement officers to gather information exposed to the general public from the outside of petitioner's home. All that the infrared camera did in this case was passively measure heat emitted 2 Thus, for example, we have found consistent with the Fourth Amendment, even absent a warrant, the search and seizure of garbage left for collection outside the curtilage of a home, California v. Greenwood, 486 U. S. 35 (1988); the aerial surveillance of a fenced-in backyard from an altitude of 1,000 feet, California v. Ciraolo, 476 U. S. 207 (1986); the aerial observation of a partially exposed interior of a residential greenhouse from 400 feet above, Florida v. Riley, 488 U. S. 445 (1989); the aerial photography of an industrial complex from several thousand feet above, Dow Chemical Co. v. United States, 476 U. S. 227 (1986); and the observation of smoke emanating from chimney stacks, Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861 (1974). 43 from the exterior surfaces of petitioner's home; all that those measurements showed were relative differences in emission levels, vaguely indicating that some areas of the roof and outside walls were warmer than others. As still images from the infrared scans show, see Appendix, infra, no details regarding the interior of petitioner's home were revealed. Unlike an x-ray scan, or other possible "throughthe-wall" techniques, the detection of infrared radiation emanating from the home did not accomplish "an unauthorized physical penetration into the premises," Silverman v. United States, 365 U. S. 505 , 509 (1961), nor did it "obtain information that it could not have obtained by observation from outside the curtilage of the house," United States v. Karo, 468 U. S. 705 , 715 (1984). Indeed, the ordinary use of the senses might enable a neighbor or passerby to notice the heat emanating from a building, particularly if it is vented, as was the case here. Additionally, any member of the public might notice that one part of a house is warmer than another part or a nearby building if, for example, rainwater evaporates or snow melts at different rates across its surfaces. Such use of the senses would not convert into an unreasonable search if, instead, an adjoining neighbor allowed an officer onto her property to verify her perceptions with a sensitive thermometer. Nor, in my view, does such observation become an unreasonable search if made from a distance with the aid of a device that merely discloses that the exterior of one house, or one area of the house, is much warmer than another. Nothing more occurred in this case. Thus, the notion that heat emissions from the outside of a dwelling are a private matter implicating the protections of the Fourth Amendment (the text of which guarantees the right of people "to be secure in their ... houses" against unreasonable searches and seizures (emphasis added)) is not only unprecedented but also quite difficult to take seriously. Heat waves, like aromas that are generated in a kitchen, or 44 in a laboratory or opium den, enter the public domain if and when they leave a building. A subjective expectation that they would remain private is not only implausible but also surely not "one that society is prepared to recognize as 'reasonable.'" Katz, 389 U. S., at 361 (Harlan, J., concurring). To be sure, the homeowner has a reasonable expectation of privacy concerning what takes place within the home, and the Fourth Amendment's protection against physical invasions of the home should apply to their functional equivalent. But the equipment in this case did not penetrate the walls of petitioner's home, and while it did pick up "details of the home" that were exposed to the public, ante, at 38, it did not obtain "any information regarding the interior of the home," ante, at 34 (emphasis added). In the Court's own words, based on what the thermal imager "showed" regarding the outside of petitioner's home, the officers "concluded" that petitioner was engaging in illegal activity inside the home. Ante, at 30. It would be quite absurd to characterize their thought processes as "searches," regardless of whether they inferred (rightly) that petitioner was growing marijuana in his house, or (wrongly) that "the lady of the house [was taking] her daily sauna and bath." Ante, at 38. In either case, the only conclusions the officers reached concerning the interior of the home were at least as indirect as those that might have been inferred from the contents of discarded garbage, see California v. Greenwood, 486 U. S. 35 (1988), or pen register data, see Smith v. Maryland, 442 U. S. 735 (1979), or, as in this case, subpoenaed utility records, see 190 F.3d 1041 , 1043 (CA9 1999). For the first time in its history, the Court assumes that an inference can amount to a Fourth Amendment violation. See ante, at 36-37.3 3 Although the Court credits us with the "novel proposition that inference insulates a search," ante, at 36, our point simply is that an inference cannot be a search, contrary to the Court's reasoning. See supra this page. Thus, the Court's use of United States v. Karo, 468 U. S. 705 45 Notwithstanding the implications of today's decision, there is a strong public interest in avoiding constitutional litigation over the monitoring of emissions from homes, and over the inferences drawn from such monitoring. Just as "the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public," Greenwood, 486 U. S., at 41, so too public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community. In my judgment, monitoring such emissions with "sense-enhancing technology," ante, at 34, and drawing useful conclusions from such monitoring, is an entirely reasonable public service. On the other hand, the countervailing privacy interest is at best trivial. After all, homes generally are insulated to keep heat in, rather than to prevent the detection of heat going out, and it does not seem to me that society will suffer from a rule requiring the rare homeowner who both intends to engage in uncommon activities that produce extraordinary amounts of heat, and wishes to conceal that production from outsiders, to make sure that the surrounding area is well insulated. Cf. United States v. Jacobsen, 466 U. S. 109 , 122 (1984) ("The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well (1984), to refute a point we do not make underscores the fact that the Court has no real answer (either in logic or in law) to the point we do make. Of course, Karo itself does not provide any support for the Court's view that inferences can amount to unconstitutional searches. The illegality in that case was "the monitoring of a beeper in a private residence" to obtain information that "could not have [been] obtained by observation from outside," id., at 714-715, rather than any thought processes that flowed from such monitoring. 46 justified, that certain facts will not come to the attention of the authorities"). The interest in concealing the heat escaping from one's house pales in significance to "the chief evil against which the wording of the Fourth Amendment is directed," the "physical entry of the home," United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297, 313 (1972), and it is hard to believe that it is an interest the Framers sought to protect in our Constitution. Since what was involved in this case was nothing more than drawing inferences from off-the-wall surveillance, rather than any "through-the-wall" surveillance, the officers' conduct did not amount to a search and was perfectly reasonable.4 II Instead of trying to answer the question whether the use of the thermal imager in this case was even arguably unreasonable, the Court has fashioned a rule that is intended to provide essential guidance for the day when "more sophisticated systems" gain the "ability to 'see' through walls and other opaque barriers." Ante, at 36, and n. 3. The newly minted rule encompasses "obtaining [1] by senseenhancing technology [2] any information regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected area ... [4] at least where (as here) the technology in question is not in general public use." Ante, at 34 (internal quotation marks omitted). In my judgment, the 4 This view comports with that of all the Courts of Appeals that have resolved the issue. See 190 F.3d 1041 (CA9 1999); United States v. Robinson, 62 F.3d 1325 (CAll 1995) (upholding warrantless use of thermal imager); United States v. Myers, 46 F.3d 668 (CA7 1995) (same); United States v. Ishmael, 48 F.3d 850 (CA5 1995) (same); United States v. Pinson, 24 F.3d 1056 (CA8 1994) (same). But see United States v. Cusumano, 67 F.3d 1497 (CAW 1995) (warrantless use of thermal imager violated Fourth Amendment), vacated and decided on other grounds, 83 F.3d 1247 (CAW 1996) (en bane). 47 Court's new rule is at once too broad and too narrow, and is not justified by the Court's explanation for its adoption. As I have suggested, I would not erect a constitutional impediment to the use of sense-enhancing technology unless it provides its user with the functional equivalent of actual presence in the area being searched. Despite the Court's attempt to draw a line that is "not only firm but also bright," ante, at 40, the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is "in general public use," ante, at 34. Yet how much use is general public use is not even hinted at by the Court's opinion, which makes the somewhat doubtful assumption that the thermal imager used in this case does not satisfy that criterion.5 In any event, putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available. It is clear, however, that the category of "sense-enhancing technology" covered by the new rule, ibid., is far too broad. It would, for example, embrace potential mechanical substitutes for dogs trained to react when they sniff narcotics. But in United States v. Place, 462 U. S. 696 , 707 (1983), we held that a dog sniff that "discloses only the presence or absence of narcotics" does "not constitute a 'search' within the meaning of the Fourth Amendment," and it must follow that sense-enhancing equipment that identifies nothing but illegal 5 The record describes a device that numbers close to a thousand manufactured units; that has a predecessor numbering in the neighborhood of 4,000 to 5,000 units; that competes with a similar product numbering from 5,000 to 6,000 units; and that is "readily available to the public" for commercial, personal, or law enforcement purposes, and is just an 800number away from being rented from "half a dozen national companies" by anyone who wants one. App. 18. Since, by virtue of the Court's new rule, the issue is one of first impression, perhaps it should order an evidentiary hearing to determine whether these facts suffice to establish "general public use." 48 activity is not a search either. Nevertheless, the use of such a device would be unconstitutional under the Court's rule, as would the use of other new devices that might detect the odor of deadly bacteria or chemicals for making a new type of high explosive, even if the devices (like the dog sniffs) are "so limited both in the manner in which" they obtain information and "in the content of the information" they reveal. Ibid. If nothing more than that sort of information could be obtained by using the devices in a public place to monitor emissions from a house, then their use would be no more objectionable than the use of the thermal imager in this case. The application of the Court's new rule to "any information regarding the interior of the home," ante, at 34, is also unnecessarily broad. If it takes sensitive equipment to detect an odor that identifies criminal conduct and nothing else, the fact that the odor emanates from the interior of a home should not provide it with constitutional protection. See supra, at 47 and this page. The criterion, moreover, is too sweeping in that information "regarding" the interior of a home apparently is not just information obtained through its walls, but also information concerning the outside of the building that could lead to (however many) inferences "regarding" what might be inside. Under that expansive view, I suppose, an officer using an infrared camera to observe a man silently entering the side door of a house at night carrying a pizza might conclude that its interior is now occupied by someone who likes pizza, and by doing so the officer would be guilty of conducting an unconstitutional "search" of the home. Because the new rule applies to information regarding the "interior" of the home, it is too narrow as well as too broad. Clearly, a rule that is designed to protect individuals from the overly intrusive use of sense-enhancing equipment should not be limited to a home. If such equipment 49 did provide its user with the functional equivalent of access to a private place-such as, for example, the telephone booth involved in Katz, or an office building-then the rule should apply to such an area as well as to a home. See Katz, 389 U. S., at 351 ("[T]he Fourth Amendment protects people, not places"). The final requirement of the Court's new rule, that the information "could not otherwise have been obtained without physical intrusion into a constitutionally protected area," ante, at 34 (internal quotation marks omitted), also extends too far as the Court applies it. As noted, the Court effectively treats the mental process of analyzing data obtained from external sources as the equivalent of a physical intrusion into the home. See supra, at 44. As I have explained, however, the process of drawing inferences from data in the public domain should not be characterized as a search. The two reasons advanced by the Court as justifications for the adoption of its new rule are both unpersuasive. First, the Court suggests that its rule is compelled by our holding in Katz, because in that case, as in this, the surveillance consisted of nothing more than the monitoring of waves emanating from a private area into the public domain. See ante, at 35. Yet there are critical differences between the cases. In Katz, the electronic listening device attached to the outside of the phone booth allowed the officers to pick up the content of the conversation inside the booth, making them the functional equivalent of intruders because they gathered information that was otherwise available only to someone inside the private area; it would be as if, in this case, the thermal imager presented a view of the heat-generating activity inside petitioner's home. By contrast, the thermal imager here disclosed only the relative amounts of heat radiating from the house; it would be as if, in Katz, the listening device disclosed only the rela- 50 tive volume of sound leaving the booth, which presumably was discernible in the public domain.6 Surely, there is a significant difference between the general and well-settled expectation that strangers will not have direct access to the contents of private communications, on the one hand, and the rather theoretical expectation that an occasional homeowner would even care if anybody noticed the relative amounts of heat emanating from the walls of his house, on the other. It is pure hyperbole for the Court to suggest that refusing to extend the holding of Katz to this case would leave the homeowner at the mercy of "technology that could discern all human activity in the home." Ante, at 35-36. Second, the Court argues that the permissibility of "through-the-wall surveillance" cannot depend on a distinction between observing "intimate details" such as "the lady of the house [taking] her daily sauna and bath," and noticing only "the nonintimate rug on the vestibule floor" or "objects no smaller than 36 by 36 inches." Ante, at 37, 3839. This entire argument assumes, of course, that the thermal imager in this case could or did perform "through-thewall surveillance" that could identify any detail "that would previously have been unknowable without physical intrusion." Ante, at 39-40. In fact, the device could not, see n. 1, supra, and did not, see Appendix, infra, enable its user to identify either the lady of the house, the rug on the vestibule floor, or anything else inside the house, whether smaller or larger than 36 by 36 inches. Indeed, the vague thermal images of petitioner's home that are reproduced in the Appendix were submitted by him to the District Court as part of an expert report raising the question whether the device could even take "accurate, consistent infrared images" of the 6 The use of the latter device would be constitutional given Smith v. Maryland, 442 U. S. 735 , 741 (1979), which upheld the use of pen registers to record numbers dialed on a phone because, unlike "the listening device employed in Katz ... pen registers do not acquire the contents of communications." 51 outside of his house. Defendant's Exh. 107, p. 4. But even if the device could reliably show extraordinary differences in the amounts of heat leaving his home, drawing the inference that there was something suspicious occurring inside the residence-a conclusion that officers far less gifted than Sherlock Holmes would readily draw-does not qualify as "through-the-wall surveillance," much less a Fourth Amendment violation. III Although the Court is properly and commendably concerned about the threats to privacy that may flow from advances in the technology available to the law enforcement profession, it has unfortunately failed to heed the tried and true counsel of judicial restraint. Instead of concentrating on the rather mundane issue that is actually presented by the case before it, the Court has endeavored to craft an all-encompassing rule for the future. It would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with prematurely devised constitutional constraints. I respectfully dissent. [Appendix to opinion of STEVENS, J., follows this page.] 52 Appendix to opinion of STEVENS, J. APPENDIX TO OPINION OF STEVENS, J. (Images and text reproduced from defendant's exhibit 107) Top left: Infrared image of a video frame from the videotape submitted as evidence in this case. The thermogram indicates the suspect house as it appeared with the Gain and contrast in its default setting. Only the outline of the house is visible. The camera used was the Thermovision 210. Top Right: Infrared image of a subsequent videoframe taken from the videotape. The gain and contrast settings have been increased in order to make the walls and roof of the structure appear hotter than what it actually is. Bottom Left: Infrared image of the opposite side of the suspects house. The thermogram is also taken from the same videotape. The camera settings are in the default mode and the outline of the house is barely visible. Only the hot electrical transformer and the street light are identifiable. Bottom Right: The same image, but with the gain and contrast increased. This change in camera settings cause any object to appear hotter than what it actually is. The arrow indicates the overloading of an area immediately around a hot object in this case the electrical transformer and the streetlight. This overloading of the image is an inherent design flaw in the camera itself.

The Supreme Court ruled that the use of a thermal-imaging device to scan a person's home without a warrant is a violation of the Fourth Amendment. The Court held that the government's use of a device not in general public use to explore the details of a private home constitutes a "search" and is presumptively unreasonable without a warrant. The case involved the use of a thermal-imaging device to detect marijuana growth in a home, and the Court ruled that the evidence obtained without a warrant should have been suppressed.

Search & Seizure

U.S. v. Banks

https://supreme.justia.com/cases/federal/us/540/31/

OPINION OF THE COURT UNITED STATES V. BANKS 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NO. 02-473 UNITED STATES, PETITIONER v. LASHAWN LOWELL BANKS on writ of certiorari to the united states court of appeals for the ninth circuit [December 2, 2003]    Justice Souter delivered the opinion of the Court.    Officers executing a warrant to search for cocaine in respondent Banks’s apartment knocked and announced their authority. The question is whether their 15-to-20-second wait before a forcible entry satisfied the Fourth Amendment and 18 U. S. C. §3109. We hold that it did. I    With information that Banks was selling cocaine at home, North Las Vegas Police Department officers and Federal Bureau of Investigation agents got a warrant to search his two-bedroom apartment. As soon as they arrived there, about 2 o’clock on a Wednesday afternoon, officers posted in front called out “police search warrant” and rapped hard enough on the door to be heard by officers at the back door. Brief for United States 3 (internal quotation marks omitted). There was no indication whether anyone was home, and after waiting for 15 to 20 seconds with no answer, the officers broke open the front door with a battering ram. Banks was in the shower and testified that he heard nothing until the crash of the door, which brought him out dripping to confront the police. The search produced weapons, crack cocaine, and other evidence of drug dealing.    In response to drug and firearms charges, Banks moved to suppress evidence, arguing that the officers executing the search warrant waited an unreasonably short time before forcing entry, and so violated both the Fourth Amendment and 18 U. S. C. §3109.[ Footnote 1 ] The District Court denied the motion, and Banks pleaded guilty, reserving his right to challenge the search on appeal.    A divided panel of the Ninth Circuit reversed and ordered suppression of the evidence found. 282 F. 3d 699 (CA9 2002). In assessing the reasonableness of the execution of the warrant, the panel majority set out a nonexhaustive list of “factors that an officer reasonably should consider” in deciding when to enter premises identified in a warrant, after knocking and announcing their presence but receiving no express acknowledgment: “(a) size of the residence; (b) location of the residence; (c) location of the officers in relation to the main living or sleeping areas of the residence; (d) time of day; (e) nature of the suspected offense; (f) evidence demonstrating the suspect’s guilt; (g) suspect’s prior convictions and, if any, the type of offense for which he was convicted; and (h) any other observations triggering the senses of the officers that reasonably would lead one to believe that immediate entry was necessary.” Id. , at 704.    The majority also defined four categories of intrusion after knock and announcement, saying that the classification “aids in the resolution of the essential question whether the entry made herein was reasonable under the circumstances”: “(1) entries in which exigent circumstances exist and non-forcible entry is possible, permitting entry to be made simultaneously with or shortly after announcement; (2) entries in which exigent circumstances exist and forced entry by destruction of property is required, necessitating more specific inferences of exigency; (3) entries in which no exigent circumstances exist and non-forcible entry is possible, requiring an explicit refusal of admittance or a lapse of a significant amount of time; and (4) entries in which no exigent circumstances exist and forced entry by destruction of property is required, mandating an explicit refusal of admittance or a lapse of an even more substantial amount of time.” Ibid. The panel majority put the action of the officers here in the last category, on the understanding that they destroyed the door without hearing anything to suggest a refusal to admit even though sound traveled easily through the small apartment. The majority held the 15-to-20-second delay after knocking and announcing to be “[in]sufficient … to satisfy the constitutional safeguards.” Id. , at 705.    Judge Fisher dissented, saying that the majority ought to come out the other way based on the very grounds it stressed: Banks’s small apartment, the loud knock and announcement, the suspected offense of dealing in cocaine, and the time of the day. Judge Fisher thought the lapse of 15 to 20 seconds was enough to support a reasonable inference that admittance had been constructively denied. Id. , at 710. We granted certiorari to consider how to go about applying the standard of reasonableness to the length of time police with a warrant must wait before entering without permission after knocking and announcing their intent in a felony case. 537 U. S. 1187 (2003). We now reverse. II    There has never been a dispute that these officers were obliged to knock and announce their intentions when executing the search warrant, an obligation they concededly honored. Despite this agreement, we start with a word about standards for requiring or dispensing with a knock and announcement, since the same criteria bear on when the officers could legitimately enter after knocking.    The Fourth Amendment says nothing specific about formalities in exercising a warrant’s authorization, speaking to the manner of searching as well as to the legitimacy of searching at all simply in terms of the right to be “secure … against unreasonable searches and seizures.” Although the notion of reasonable execution must therefore be fleshed out, we have done that case by case, largely avoiding categories and protocols for searches. Instead, we have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones. See, e.g ., Ohio v. Robinette , 519 U. S. 33 , 39 (1996) (“[W]e have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry”); Ker v. California , 374 U. S. 23 , 33 (1963) (reasonableness not susceptible to Procrustean application); Go-Bart Importing Co. v. United States , 282 U. S. 344 , 357 (1931) (no formula for determining reasonableness; each case on its own facts and circumstances). We have, however, pointed out factual considerations of unusual, albeit not dispositive, significance.    In Wilson v. Arkansas , 514 U. S. 927 (1995), we held that the common law knock-and-announce principle is one focus of the reasonableness enquiry; and we subsequently decided that although the standard generally requires the police to announce their intent to search before entering closed premises, the obligation gives way when officers “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or … would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence,” Richards v. Wisconsin , 520 U. S. 385 , 394 (1997). When a warrant applicant gives reasonable grounds to expect futility or to suspect that one or another such exigency already exists or will arise instantly upon knocking, a magistrate judge is acting within the Constitution to authorize a “no-knock” entry.[ Footnote 2 ] And even when executing a warrant silent about that, if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in. Id. , at 394, 396, n. 7.    Since most people keep their doors locked, entering without knocking will normally do some damage, a circumstance too common to require a heightened justification when a reasonable suspicion of exigency already justifies an unwarned entry. We have accordingly held that police in exigent circumstances may damage premises so far as necessary for a no-knock entrance without demonstrating the suspected risk in any more detail than the law demands for an unannounced intrusion simply by lifting the latch. United States v. Ramirez , 523 U. S. 65 , 70–71 (1998). Either way, it is enough that the officers had a reasonable suspicion of exigent circumstances.[ Footnote 3 ] III    Like Ramirez , this case turns on the significance of exigency revealed by circumstances known to the officers, for the only substantive difference between the two situations goes to the time at which the officers reasonably anticipated some danger calling for action without delay.[ Footnote 4 ] Whereas the Ramirez Magistrate Judge found in advance that the customary warning would raise an immediate risk that a wanted felon would elude capture or pose a threat to the officers, see id. , at 68, here the Government claims that a risk of losing evidence arose shortly after knocking and announcing. Although the police concededly arrived at Banks’s door without reasonable suspicion of facts justifying a no-knock entry, they argue that announcing their presence started the clock running toward the moment of apprehension that Banks would flush away the easily disposable cocaine, prompted by knowing the police would soon be coming in. While it was held reasonable for the police in Ramirez to enter forcibly upon arrival, the Government argues it was equally reasonable for the officers to go in with force here as soon as the danger of disposal had ripened.    Banks does not, of course, deny that exigency may develop in the period beginning when officers with a warrant knock to be admitted, and the issue comes down to whether it was reasonable to suspect imminent loss of evidence after the 15 to 20 seconds the officers waited prior to forcing their way. Though we agree with Judge Fisher’s dissenting opinion that this call is a close one, 282 F. 3d, at 707, we think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer. Courts of Appeals have, indeed, routinely held similar wait times to be reasonable in drug cases with similar facts including easily disposable evidence (and some courts have found even shorter ones to be reasonable enough).[ Footnote 5 ]    A look at Banks’s counterarguments shows why these courts reached sensible results, for each of his reasons for saying that 15 to 20 seconds was too brief rests on a mistake about the relevant enquiry: the fact that he was actually in the shower and did not hear the officers is not to the point, and the same is true of the claim that it might have taken him longer than 20 seconds if he had heard the knock and headed straight for the door. As for the shower, it is enough to say that the facts known to the police are what count in judging reasonable waiting time, cf., e.g. , Graham v. Connor , 490 U. S. 386 , 396 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”), and there is no indication that the police knew that Banks was in the shower and thus unaware of an impending search that he would otherwise have tried to frustrate.    And the argument that 15 to 20 seconds was too short for Banks to have come to the door ignores the very risk that justified prompt entry. True, if the officers were to justify their timing here by claiming that Banks’s failure to admit them fairly suggested a refusal to let them in, Banks could at least argue that no such suspicion can arise until an occupant has had time to get to the door,[ Footnote 6 ] a time that will vary with the size of the establishment, perhaps five seconds to open a motel room door, or several minutes to move through a townhouse. In this case, however, the police claim exigent need to enter, and the crucial fact in examining their actions is not time to reach the door but the particular exigency claimed. On the record here, what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. That is, when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks’s. And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine.    Once the exigency had matured, of course, the officers were not bound to learn anything more or wait any longer before going in, even though their entry entailed some harm to the building. Ramirez held that the exigent need of law enforcement trumps a resident’s interest in avoiding all property damage, see 523 U. S., at 70–71, and there is no reason to treat a post-knock exigency differently from the no-knock counterpart in Ramirez itself. IV    Our emphasis on totality analysis necessarily rejects positions taken on each side of this case. Ramirez , for example, cannot be read with the breadth the Government espouses, as “reflect[ing] a general principle that the need to damage property in order to effectuate an entry to execute a search warrant should not be part of the analysis of whether the entry itself was reasonable.” Brief for the United States 18; Reply Brief for United States 4. At common law, the knock-and-announce rule was traditionally “justified in part by the belief that announcement generally would avoid ‘the destruction or breaking of any house … by which great damage and inconvenience might ensue.’ ” Wilson , 514 U. S., at 935–936 (quoting Semayne’s Case , 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K. B. 1603)). One point in making an officer knock and announce, then, is to give a person inside the chance to save his door. That is why, in the case with no reason to suspect an immediate risk of frustration or futility in waiting at all, the reasonable wait time may well be longer when police make a forced entry, since they ought to be more certain the occupant has had time to answer the door. It is hard to be more definite than that, without turning the notion of a reasonable time under all the circumstances into a set of sub-rules as the Ninth Circuit has been inclined to do. Suffice it to say that the need to damage property in the course of getting in is a good reason to require more patience than it would be reasonable to expect if the door were open. Police seeking a stolen piano may be able to spend more time to make sure they really need the battering ram.    On the other side, we disapprove of the Court of Appeals’s four-part scheme for vetting knock-and-announce entries. To begin with, the demand for enhanced evidence of exigency before a door can reasonably be damaged by a warranted no-knock intrusion was already bad law before the Court of Appeals decided this case. In Ramirez (a case from the Ninth Circuit), we rejected an attempt to subdivide felony cases by accepting “mild exigency” for entry without property damage, but requiring “more specific inferences of exigency” before damage would be reasonable. 523 U. S., at 69–71 (internal quotation marks omitted). The Court of Appeals did not cite Ramirez .    Nor did the appeals court cite United States v. Arvizu , 534 U. S. 266 (2002) (again, from the Ninth Circuit). There, we recently disapproved a framework for making reasonable suspicion determinations that attempted to reduce what the Circuit described as “troubling … uncertainty” in reasonableness analysis, by “describ[ing] and clearly delimit[ing]” an officer’s consideration of certain factors. Id. , at 272, 275 (internal quotation marks omitted). Here, as in Arvizu , the Court of Appeals’s overlay of a categorical scheme on the general reasonableness analysis threatens to distort the “totality of the circumstances” principle, by replacing a stress on revealing facts with resort to pigeonholes. Id. , at 274 (internal quotation marks omitted). Attention to cocaine rocks and pianos tells a lot about the chances of their respective disposal and its bearing on reasonable time. Instructions couched in terms like “significant amount of time,” and “an even more substantial amount of time,” 282 F. 3d, at 704, tell very little. V    Last, there is Banks’s claim that the entry violated 18 U. S. C. §3109. Ramirez held that the result should be the same under the Fourth Amendment and §3109, permitting an officer to enter by force “if, after notice of his authority and purpose, he is refused admittance.” We explained the statute’s “ ‘requirement of prior notice … before forcing entry … [as] codif[ying] a tradition embedded in Anglo-American law,’ ” 523 U. S., at 72 (quoting Miller v. United States , 357 U. S. 301 , 313 (1958)); see also Sabbath v. United States , 391 U. S. 585 , 591, n. 8 (1968), and we held that §3109 implicates the exceptions to the common law knock-and-announce requirement that inform the Fourth Amendment itself, 523 U. S., at 73. The upshot is that §3109 is subject to an exigent circumstances exception, ibid. , which qualifies the requirement of refusal after notice, just as it qualifies the obligation to announce in the first place. Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one. But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied §3109 as well as the Fourth Amendment, even without refusal of admittance.    The judgment of the Court of Appeals is reversed. So ordered. Footnote 1 The statute provides: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” Footnote 2 Some States give magistrate judges the authority to issue “no-knock” warrants, and some do not. See, e.g., Richards v. Wisconsin , 520 U. S. 385 , 396, n. 7 (1997) (collecting state statutes and cases). Footnote 3 The standard for a no-knock entry stated in Richards applies on reasonable suspicion of exigency or futility. Because the facts here go to exigency, not futility, we speak of that alone. Footnote 4 Ramirez and Richards , our cases addressing the role of exigency in assessing the reasonableness of a no-knock entry, involved searches by warrant for evidence of a felony, as does this case. In a different context governed by the Fourth Amendment, we have held that the risk of losing evidence of a minor offense is insufficient to make it reasonable to enter a dwelling to make a warrantless arrest. See Welsh v. Wisconsin , 466 U. S. 740 (1984). Courts of Appeals have applied Welsh to warrantless entries simply to search for evidence, considering the gravity of the offense in determining whether exigent circumstances exist. See , e.g. , United States v. Aquino , 836 F. 2d 1268, 1271–1273 (CA10 1988); United States v. Clement , 854 F. 2d 1116, 1120 (CA8 1988). We intimate nothing here about such warrantless entry cases. Nor do we express a view on the significance of the existence of a warrant in evaluating whether exigency justifies action in knock-and-announce cases when the reason for the search is a minor offense. Footnote 5 Several Courts of Appeals have explicitly taken into account the risk of disposal of drug evidence as a factor in evaluating the reasonableness of waiting time. See, e.g. , United States v. Goodson , 165 F. 3d 610, 612, 614 (CA8 1999) (holding a 20–second wait after a loud announcement at a one-story ranch reasonable); United States v. Spikes , 158 F. 3d 913, 925–927 (CA6 1998) (holding a 15-to-30-second wait in midmorning after a loud announcement reasonable); United States v. Spriggs , 996 F. 2d 320, 322–323 (CADC 1993) (holding a 15-second wait after a reasonably audible announcement at 7:45 a.m. on a weekday reasonable); United States v. Garcia , 983 F. 2d 1160, 1168 (CA1 1993) (holding a 10-second wait after a loud announcement reasonable); United States v. Jones , 133 F. 3d 358, 361–362 (CA5 1998) (relying specifically on the concept of exigency, holding a 15-to-20-second wait reasonable). See also United States v. Chavez-Miranda , 306 F. 3d 973, 981–982, n. 7 (CA9 2002) (“ Banks appears to be a departure from our prior decisions… .[W]e have found a 10 to 20 second wait to be reasonable in similar circumstances, albeit when the police heard sounds after the knock and announcement”); United States v. Jenkins , 175 F. 3d 1208, 1215 (CA10 1999) (holding a 14-to-20-second wait at 10 a.m. reasonable); United States v. Markling , 7 F. 3d 1309, 1318–1319 (CA7 1993) (holding a 7-second wait at a small motel room reasonable when officers acted on a specific tip that the suspect was likely to dispose of the drugs). Footnote 6 It is probably unrealistic even on its own terms. The apartment was “small,” 282 F. 3d 699, 704 (CA9 2002), and a man may walk the length of today’s small apartment in 15 seconds.

The Supreme Court held that a 15-20 second wait after knocking and announcing their presence before forcibly entering a residence to execute a search warrant was reasonable and did not violate the Fourth Amendment or 18 U.S.C. §3109. The Court considered factors such as the size and location of the residence, the time of day, and the nature of the suspected offense in determining that the entry was reasonable.

Search & Seizure

Indianapolis v. Edmond

https://supreme.justia.com/cases/federal/us/531/32/

OCTOBER TERM, 2000 Syllabus CITY OF INDIANAPOLIS ET AL. v. EDMOND ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 99-1030. Argued October 3, 2000-Decided November 28, 2000 Petitioner city operates vehicle checkpoints on its roads in an effort to interdict unlawful drugs. Respondents, who were each stopped at such a checkpoint, filed suit, claiming that the roadblocks violated the Fourth Amendment. The District Court denied respondents a preliminary injunction, but the Seventh Circuit reversed, holding that the checkpoints contravened the Fourth Amendment. Held: Because the checkpoint program's primary purpose is indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment. Pp. 37-48. (a) The rule that a search or seizure is unreasonable under the Fourth Amendment absent individualized suspicion of wrongdoing has limited exceptions. For example, this Court has upheld brief, suspicionless seizures at a fixed checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U. S. 543 , and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 . The Court has also suggested that a similar roadblock to verify drivers' licenses and registrations would be permissible to serve a highway safety interest. Delaware v. Prouse, 440 U. S. 648 , 663. However, the Court has never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Pp. 37-40. (b) The latter purpose is what principally distinguishes the checkpoints at issue from those the Court has previously approved, which were designed to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Petitioners state that the Sitz and Martinez-Fuerte checkpoints had the same ultimate purpose of arresting those suspected of committing crimes. Securing the border and apprehending drunken drivers are law enforcement activities, and authorities employ arrests and criminal prosecutions to pursue these goals. But if this case were to rest at such a high level of generality, there would be little check on the authorities' ability to construct roadblocks for almost any conceivable law enforcement purpose. The checkpoint program is also not justified by the severe and intractable nature of the drug problem. The gravity of the threat alone 33 cannot be dispositive of questions concerning what means law enforcement may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, the Court must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. Nor can the checkpoints' purpose be rationalized in terms of a highway safety concern similar to that in Sitz, or merely likened to the antismuggling purpose in MartinezFuerte. Neither Whren v. United States, 517 U. S. 806 , nor Bond v. United States, 529 U. S. 334 , precludes an inquiry into the checkpoint program's purposes. And if the program could be justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations, authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check. That is why the Court must determine the primary purpose of the checkpoint program. This holding does not alter the constitutional status of the checkpoints approved in Sitz and Martinez-Fuerte, or the type of checkpoint suggested in Prouse. It also does not affect the validity of border searches or searches in airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does it impair police officers' ability to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose. Finally, the purpose inquiry is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene. Pp. 40-48. 183 F.3d 659 , affirmed. O'CONNOR, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which THOMAS, J., joined, and in which SCALIA, J., joined as to Part I, post, p. 48. THOMAS, J., filed a dissenting opinion, post, p. 56. A. Scott Chinn argued the cause for petitioners. With him on the briefs were Anthony W Overholt, Matthew R. Gutwein, and Thomas M. Fisher. Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben. 34 Kenneth J. Falk argued the cause for respondents. With him on the brief were Jacquelyn E. Bowie, Sean C. Lemieux, and Steven R. Shapiro. * JUSTICE O'CONNOR delivered the opinion of the Court. In Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990), and United States v. Martinez-Fuerte, 428 U. S. 543 (1976), we held that brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving and intercepting illegal immigrants were constitutional. We now consider the constitutionality of a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics. I In August 1998, the city of Indianapolis began to operate vehicle checkpoints on Indianapolis roads in an effort to interdict unlawful drugs. The city conducted six such roadblocks between August and November that year, stopping *Briefs of amici curiae urging reversal were filed for the State of Kansas et al. by Carla J. Stovall, Attorney General of Kansas, Stephen R. McAllister, State Solicitor, Jared S. Maag, Assistant Attorney General, and John M. Bailey, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Karen M. Freeman-Wilson of Indiana, Thomas J. Miller of Iowa, Michael C. Moore of Mississippi, Don Stenberg of Nebraska, W A. Drew Edmondson of Oklahoma, Jan Graham of Utah, and Mark L. Earley of Virginia; for the National League of Cities et al. by Richard Ruda and James I. Crowley; and for the Washington Legal Foundation et al. by Daniel J. Popeo. Briefs of amici curiae urging affirmance were filed for the National Association of Criminal Defense Lawyers et al. by Wesley MacNeil Oliver and Barbara Bergman; and for the Rutherford Institute by John W Whitehead and Steven H. Aden. Wayne W Schmidt, James P. Manak, Richard Weintraub, and Bernard J. Farber filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae. 35 1,161 vehicles and arresting 104 motorists. Fifty-five arrests were for drug-related crimes, while 49 were for offenses unrelated to drugs. Edmond v. Goldsmith, 183 F.3d 659 , 661 (CA7 1999). The overall "hit rate" of the program was thus approximately nine percent. The parties stipulated to the facts concerning the operation of the checkpoints by the Indianapolis Police Department (IPD) for purposes of the preliminary injunction proceedings instituted below. At each checkpoint location, the police stop a predetermined number of vehicles. Approximately 30 officers are stationed at the checkpoint. Pursuant to written directives issued by the chief of police, at least one officer approaches the vehicle, advises the driver that he or she is being stopped briefly at a drug checkpoint, and asks the driver to produce a license and registration. The officer also looks for signs of impairment and conducts an open-view examination of the vehicle from the outside. A narcoticsdetection dog walks around the outside of each stopped vehicle. The directives instruct the officers that they may conduct a search only by consent or based on the appropriate quantum of particularized suspicion. The officers must conduct each stop in the same manner until particularized suspicion develops, and the officers have no discretion to stop any vehicle out of sequence. The city agreed in the stipulation to operate the checkpoints in such a way as to ensure that the total duration of each stop, absent reasonable suspicion or probable cause, would be five minutes or less. The affidavit of Indianapolis Police Sergeant Marshall DePew, although it is technically outside the parties' stipulation, provides further insight concerning the operation of the checkpoints. According to Sergeant DePew, checkpoint locations are selected weeks in advance based on such considerations as area crime statistics and traffic flow. The checkpoints are generally operated during daylight hours and are identified with lighted signs reading, "'NARCOTICS 36 CHECKPOINT __ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.'" App. to Pet. for Cert. 57a. Once a group of cars has been stopped, other traffic proceeds without interruption until all the stopped cars have been processed or diverted for further processing. Sergeant DePew also stated that the average stop for a vehicle not subject to further processing lasts two to three minutes or less. Respondents James Edmond and J oell Palmer were each stopped at a narcotics checkpoint in late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of all motorists who had been stopped or were subject to being stopped in the future at the Indianapolis drug checkpoints. Respondents claimed that the roadblocks violated the Fourth Amendment of the United States Constitution and the search and seizure provision of the Indiana Constitution. Respondents requested declaratory and injunctive relief for the class, as well as damages and attorney's fees for themselves. Respondents then moved for a preliminary injunction. Although respondents alleged that the officers who stopped them did not follow the written directives, they agreed to the stipulation concerning the operation of the checkpoints for purposes of the preliminary injunction proceedings. The parties also stipulated to certification of the plaintiff class. The United States District Court for the Southern District of Indiana agreed to class certification and denied the motion for a preliminary injunction, holding that the checkpoint program did not violate the Fourth Amendment. Edmond v. Goldsmith, 38 F. Supp. 2d 1016 (1998). A divided panel of the United States Court of Appeals for the Seventh Circuit reversed, holding that the checkpoints contravened the Fourth Amendment. 183 F.3d 659 (1999). The panel denied rehearing. We granted certiorari, 528 U. S. 1153 (2000), and now affirm. 37 II The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U. S. 305 , 308 (1997). While such suspicion is not an "irreducible" component of reasonableness, Martinez-Fuerte, 428 U. S., at 561, we have recognized only limited circumstances in which the usual rule does not apply. For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve "special needs, beyond the normal need for law enforcement." See, e. g., Vernonia School Dist. J,7J v. Acton, 515 U. S. 646 (1995) (random drug testing of studentathletes); Treasury Employees v. Von Raab, 489 U. S. 656 (1989) (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989) (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations). We have also allowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited. See, e. g., New York v. Burger, 482 U. S. 691 , 702-704 (1987) (warrantless administrative inspection of premises of "closely regulated" business); Michigan v. Tyler, 436 U. S. 499 , 507-509, 511-512 (1978) (administrative inspection of fire-damaged premises to determine cause of blaze); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 , 534-539 (1967) (administrative inspection to ensure compliance with city housing code). We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, Martinez-Fuerte, supra, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990). In addition, in Delaware v. Prouse, 440 U. S. 648 , 663 (1979), 38 we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. In Martinez-Fuerte, we entertained Fourth Amendment challenges to stops at two permanent immigration checkpoints located on major United States highways less than 100 miles from the Mexican border. We noted at the outset the particular context in which the constitutional question arose, describing in some detail the "formidable law enforcement problems" posed by the northbound tide of illegal entrants into the United States. 428 U. S., at 551-554. These problems had also been the focus of several earlier cases addressing the constitutionality of other Border Patrol traffic-checking operations. See United States v. Ortiz, 422 U. S. 891 (1975); United States v. Brignoni-Ponce, 422 U. S. 873 (1975); Almeida-Sanchez v. United States, 413 U. S. 266 (1973). In Martinez-Fuerte, we found that the balance tipped in favor of the Government's interests in policing the Nation's borders. 428 U. S., at 561-564. In so finding, we emphasized the difficulty of effectively containing illegal immigration at the border itself. Id., at 556. We also stressed the impracticality of the particularized study of a given car to discern whether it was transporting illegal aliens, as well as the relatively modest degree of intrusion entailed by the stops. Id., at 556-564. Our subsequent cases have confirmed that considerations specifically related to the need to police the border were a significant factor in our Martinez-Fuerte decision. For example, in United States v. Montoya de Hernandez, 473 U. S. 531 ,538 (1985), we counted Martinez-Fuerte as one of a number of Fourth Amendment cases that "reflect longstanding concern for the protection of the integrity of the border." Although the stops in Martinez-Fuerte did not occur at the 39 border itself, the checkpoints were located near the border and served a border control function made necessary by the difficulty of guarding the border's entire length. See Martinez-Fuerte, supra, at 556. In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitz checkpoint involved brief, suspicionless stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. 496 U. S., at 447-448. Motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. Id., at 447. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State's interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional. See id., at 451. In Prouse, we invalidated a discretionary, suspicionless stop for a spot check of a motorist's driver's license and vehicle registration. The officer's conduct in that case was unconstitutional primarily on account of his exercise of "standardless and unconstrained discretion." 440 U. S., at 661. We nonetheless acknowledged the States' "vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed." Id., at 658. Accordingly, we suggested that "[q]uestioning of all oncoming traffic at roadblock-type stops" would be a lawful means of serving this interest in highway safety. Id., at 663. We further indicated in Prouse that we considered the purposes of such a hypothetical roadblock to be distinct from a general purpose of investigating crime. The State prof- 40 fered the additional interests of "the apprehension of stolen motor vehicles and of drivers under the influence of alcohol or narcotics" in its effort to justify the discretionary spot check. Id., at 659, n. 18. We attributed the entirety of the latter interest to the State's interest in roadway safety. Ibid. We also noted that the interest in apprehending stolen vehicles may be partly subsumed by the interest in roadway safety. Ibid. We observed, however, that "[t]he remaining governmental interest in controlling automobile thefts is not distinguishable from the general interest in crime control." Ibid. Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control. III It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment. See, e. g., Sitz, supra, at 450. The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. See United States v. Place, 462 U. S. 696 , 707 (1983). Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. See ibid. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is "much less intrusive than a typical search." Ibid. Cf. United States v. Turpin, 920 F.2d 1377 , 1385 (CA8 1990). Rather, what principally distinguishes these checkpoints from those we have previously approved is their primary purpose. As petitioners concede, the Indianapolis checkpoint program unquestionably has the primary purpose of interdicting illegal narcotics. In their stipulation of facts, the parties repeatedly refer to the checkpoints as "drug checkpoints" and 41 describe them as "being operated by the City of Indianapolis in an effort to interdict unlawful drugs in Indianapolis." App. to Pet. for Cert. 51a-52a. In addition, the first document attached to the parties' stipulation is entitled "DRUG CHECKPOINT CONTACT OFFICER DIRECTIVES BY ORDER OF THE CHIEF OF POLICE." Id., at 53a. These directives instruct officers to "[a]dvise the citizen that they are being stopped briefly at a drug checkpoint." Ibid. The second document attached to the stipulation is entitled "1998 Drug Road Blocks" and contains a statistical breakdown of information relating to the checkpoints conducted. Id., at 55a. Further, according to Sergeant DePew, the checkpoints are identified with lighted signs reading, "'NARCOTICS CHECKPOINT __ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.'" Id., at 57a. Finally, both the District Court and the Court of Appeals recognized that the primary purpose of the roadblocks is the interdiction of narcotics. 38 F. Supp. 2d, at 1026 (noting that both parties "stress the primary purpose of the roadblocks as the interdiction of narcotics" and that "[t]he IPD has made it clear that the purpose for its checkpoints is to interdict narcotics traffic"); 183 F. 3d, at 665 (observing that "the City concedes that its proximate goal is to catch drug offenders"). We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in Prouse that we would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. 440 U. S., at 659, n. 18. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the 42 primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment. Petitioners propose several ways in which the narcoticsdetection purpose of the instant checkpoint program may instead resemble the primary purposes of the checkpoints in Sitz and Martinez-Fuerte. Petitioners state that the checkpoints in those cases had the same ultimate purpose of arresting those suspected of committing crimes. Brief for Petitioners 22. Securing the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals. See Sitz, 496 U. S., at 447, 450; Martinez-Fuerte, 428 U. S., at 545-550. If we were to rest the case at this high level of generality, there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life. Petitioners also emphasize the severe and intractable nature of the drug problem as justification for the checkpoint program. Brief for Petitioners 14-17, 31. There is no doubt that traffic in illegal narcotics creates social harms of the first magnitude. Cf. Von Raab, 489 U. S., at 668. The law enforcement problems that the drug trade creates likewise remain daunting and complex, particularly in light of the myriad forms of spin-off crime that it spawns. Cf. M on toya de Hernandez, 473 U. S., at 538. The same can be said of various other illegal activities, if only to a lesser degree. But the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their con- 43 nection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends. Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a highway safety concern similar to that present in Sitz. The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate. Petitioners also liken the anticontraband agenda of the Indianapolis checkpoints to the antismuggling purpose of the checkpoints in Martinez-Fuerte. Brief for Petitioners 1516. Petitioners cite this Court's conclusion in MartinezFuerte that the flow of traffic was too heavy to permit "particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens," 428 U. S., at 557, and claim that this logic has even more force here. The problem with this argument is that the same logic prevails any time a vehicle is employed to conceal contraband or other evidence of a crime. This type of connection to the roadway is very different from the close connection to roadway safety that was present in Sitz and Prouse. Further, the Indianapolis checkpoints are far removed from the border context that was crucial in Martinez-Fuerte. While the difficulty of examining each passing car was an important factor in validating the law enforcement technique employed in Martinez-Fuerte, this factor alone cannot justify a regime of suspicionless searches or seizures. Rather, we must look more closely at the nature of the public interests that such a regime is designed principally to serve. 44 The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance "the general interest in crime control," Prouse, 440 U. S., at 659, n. 18. We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and everpresent possibility that interrogation and inspection may reveal that any given motorist has committed some crime. Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. See 183 F. 3d, at 662663. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control.l 1 THE CHIEF JUSTICE'S dissent erroneously characterizes our opinion as resting on the application of a "non-law-enforcement primary purpose test." Post, at 53. Our opinion nowhere describes the purposes of the Sitz and Martinez-Fuerte checkpoints as being "not primarily related to criminal law enforcement." Post, at 50. Rather, our judgment turns on the fact that the primary purpose of the Indianapolis checkpoints is to advance the general interest in crime control. THE CHIEF JUSTICE'S dissent also erroneously characterizes our opinion as holding that the "use of a drug-sniffing dog ... annuls what is otherwise plainly constitutional under our Fourth Amendment jurisprudence." Post, at 48. Again, the constitutional defect of the program is that its primary purpose is to advance the general interest in crime control. 45 Petitioners argue that our prior cases preclude an inquiry into the purposes of the checkpoint program. For example, they cite Whren v. United States, 517 U. S. 806 (1996), and Bond v. United States, 529 U. S. 334 (2000), to support the proposition that "where the government articulates and pursues a legitimate interest for a suspicionless stop, courts should not look behind that interest to determine whether the government's 'primary purpose' is valid." Brief for Petitioners 34; see also id., at 9. These cases, however, do not control the instant situation. In Whren, we held that an individual officer's subjective intentions are irrelevant to the Fourth Amendment validity of a traffic stop that is justified objectively by probable cause to believe that a traffic violation has occurred. 517 U. S., at 810-813. We observed that our prior cases "foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved." Id., at 813. In so holding, we expressly distinguished cases where we had addressed the validity of searches conducted in the absence of probable cause. See id., at 811-812 (distinguishing Florida v. Wells, 495 U. S. 1 , 4 (1990) (stating that "an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence"), Colorado v. Bertine, 479 U. S. 367 , 372 (1987) (suggesting that the absence of bad faith and the lack of a purely investigative purpose were relevant to the validity of an inventory search), and Burger, 482 U. S., at 716-717, n. 27 (observing that a valid administrative inspection conducted with neither a warrant nor probable cause did not appear to be a pretext for gathering evidence of violations of the penal laws)). Whren therefore reinforces the principle that, while "[sJubjective intentions play no role in ordinary, probablecause Fourth Amendment analysis," 517 U. S., at 813, programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a 46 general scheme without individualized SuspICIOn. Accordingly, Whren does not preclude an inquiry into programmatic purpose in such contexts. Cf. Chandler v. Miller, 520 U. S. 305 (1997); Treasury Employees v. Von Raab, 489 U. S. 656 (1989); Burger, supra; Michigan v. Tyler, 436 U. S. 499 (1978); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 (1967). It likewise does not preclude an inquiry into programmatic purpose here. Last Term in Bond, we addressed the question whether a law enforcement officer violated a reasonable expectation of privacy in conducting a tactile examination of carry-on luggage in the overhead compartment of a bus. In doing so, we simply noted that the principle of Whren rendered the subjective intent of an officer irrelevant to this analysis. 529 U. S., at 338, n. 2. While, as petitioners correctly observe, the analytical rubric of Bond was not "ordinary, probable-cause Fourth Amendment analysis," Whren, supra, at 813, nothing in Bond suggests that we would extend the principle of Whren to all situations where individualized suspicion was lacking. Rather, subjective intent was irrelevant in Bond because the inquiry that our precedents required focused on the objective effects of the actions of an individual officer. By contrast, our cases dealing with intrusions that occur pursuant to a general scheme absent individualized suspicion have often required an inquiry into purpose at the programmatic level. Petitioners argue that the Indianapolis checkpoint program is justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations. Brief for Petitioners 31-34. If this were the case, however, law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check. For this reason, we examine the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in a purpose inquiry, courts 47 routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful. Cf. 183 F. 3d, at 665. As a result, a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.2 It goes without saying that our holding today does nothing to alter the constitutional status of the sobriety and border checkpoints that we approved in Sitz and Martinez-Fuerte, or of the type of traffic checkpoint that we suggested would be lawful in Prouse. The constitutionality of such checkpoint programs still depends on a balancing of the competing interests at stake and the effectiveness of the program. See Sitz, 496 U. S., at 450-455; Martinez-Fuerte, 428 U. S., at 556-564. When law enforcement authorities pursue primarily general crime control purposes at checkpoints such as here, however, stops can only be justified by some quantum of individualized suspicion. Our holding also does not affect the validity of border searches or searches at places like airports and government 2 Because petitioners concede that the primary purpose of the Indianapolis checkpoints is narcotics detection, we need not decide whether the State may establish a checkpoint program with the primary purpose of checking licenses or driver sobriety and a secondary purpose of interdicting narcotics. Specifically, we express no view on the question whether police may expand the scope of a license or sobriety checkpoint seizure in order to detect the presence of drugs in a stopped car. Cf. New Jersey v. T. L. Q, 469 U. S. 325 , 341 (1985) (search must be "'reasonably related in scope to the circumstances which justified the interference in the first place'" (quoting Terry v. Ohio, 392 U. S. 1 , 20 (1968))); Michigan v. Clif ford, 464 U. S. 287 , 294-295 (1984) (plurality opinion). 48 buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes beyond the general interest in crime control. Our holding also does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose, even where such action may result in the arrest of a motorist for an offense unrelated to that purpose. Finally, we caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene. Cf. Whren, supra. Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment. The judgment of the Court of Appeals is, accordingly, affirmed. It is so ordered. CHIEF JUSTICE REHNQUIST, with whom JUSTICE THOMAS joins, and with whom JUSTICE SCALIA joins as to Part I, dissenting. The State's use of a drug-sniffing dog, according to the Court's holding, annuls what is otherwise plainly constitutional under our Fourth Amendment jurisprudence: brief, standardized, discretionless, roadblock seizures of automobiles, seizures which effectively serve a weighty state interest with only minimal intrusion on the privacy of their occupants. Because these seizures serve the State's accepted and significant interests of preventing drunken driving and checking for driver's licenses and vehicle registrations, and because there is nothing in the record to indicate that the addition of the dog sniff lengthens these otherwise legitimate seizures, I dissent. 49 I As it is nowhere to be found in the Court's opinion, I begin with blackletter roadblock seizure law. "The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop." United States v. Martinez-Fuerte, 428 U. S. 543 , 566-567 (1976). Roadblock seizures are consistent with the Fourth Amendment if they are "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Brown v. Texas, 443 U. S. 47 , 51 (1979). Specifically, the constitutionality of a seizure turns upon "a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id., at 50-51. We first applied these principles in Martinez-Fuerte, supra, which approved highway checkpoints for detecting illegal aliens. In Martinez-Fuerte, we balanced the United States' formidable interest in checking the flow of illegal immigrants against the limited "objective" and "subjective" intrusion on the motorists. The objective intrusion-the stop itself,l the brief questioning of the occupants, and the visual inspection of the car-was considered "limited" because "[n]either the vehicle nor its occupants [were] searched." Id., at 558. Likewise, the subjective intrusion, or the fear and surprise engendered in law-abiding motorists by the nature of the stop, was found to be minimal because the "regularized manner in which [the] established checkpoints [were] operated [was] visible evidence, reassuring to law-abiding motorists, that the stops [were] duly authorized and believed to serve the public interest." Id., at 559. Indeed, the standardized operation of the roadblocks was viewed as 1 The record from one of the consolidated cases indicated that the stops lasted between three and five minutes. See United States v. MartinezFuerte, 428 U. S. 543 , 546-547 (1976). 50 markedly different from roving patrols, where the unbridled discretion of officers in the field could result in unlimited interference with motorists' use of the highways. Cf. United States v. Brignoni-Ponce, 422 U. S. 873 (1975). And although the decision in Martinez-Fuerte did not turn on the checkpoints' effectiveness, the record in one of the consolidated cases demonstrated that illegal aliens were found in 0.12 percent of the stopped vehicles. See 428 U. S., at 554. In Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990), we upheld the State's use of a highway sobriety checkpoint after applying the framework set out in Martinez-Fuerte, supra, and Brown v. Texas, supra. There, we recognized the gravity of the State's interest in curbing drunken driving and found the objective intrusion of the approximately 25-second seizure to be "slight." 496 U. S., at 451. Turning to the subjective intrusion, we noted that the checkpoint was selected pursuant to guidelines and was operated by uniformed officers. See id., at 453. Finally, we concluded that the program effectively furthered the State's interest because the checkpoint resulted in the arrest of two drunk drivers, or 1.6 percent of the 126 drivers stopped. See id., at 455-456. This case follows naturally from Martinez-Fuerte and Sitz. Petitioners acknowledge that the "primary purpose" of these roadblocks is to interdict illegal drugs, but this fact should not be controlling. Even accepting the Court's conclusion that the checkpoints at issue in Martinez-Fuerte and Sitz were not primarily related to criminal law enforcement,2 the 2 This gloss, see ante, at 38-40, 41-43, is not at all obvious. The respondents in Martinez-Fuerte were criminally prosecuted for illegally transporting aliens, and the Court expressly noted that "[i]nterdicting the flow of illegal entrants from Mexico poses formidable law enforcement problems." 428 U. S., at 552. And the Sitz Court recognized that if an "officer's observations suggest that the driver was intoxicated, an arrest would be made." 496 U. S., at 447. But however persuasive the distinction, the Court's opinion does not impugn the continuing validity of Martinez-Fuerte and Sitz. See ante, at 47. 51 question whether a law enforcement purpose could support a roadblock seizure is not presented in this case. The District Court found that another "purpose of the checkpoints is to check driver's licenses and vehicle registrations," App. to Pet. for Cert. 44a, and the written directives state that the police officers are to "[l]ook for signs of impairment," id., at 53a. The use of roadblocks to look for signs of impairment was validated by Sitz, and the use of roadblocks to check for driver's licenses and vehicle registrations was expressly recognized in Delaware v. Prouse, 440 U. S. 648 , 663 (1979).3 That the roadblocks serve these legitimate state interests cannot be seriously disputed, as the 49 people arrested for offenses unrelated to drugs can attest. Edmond v. Goldsmith, 183 F.3d 659 , 661 (CA7 1999). And it would be speculative to conclude-given the District Court's findings, the written directives, and the actual arrests-that petitioners would not have operated these roadblocks but for the State's interest in interdicting drugs. Because of the valid reasons for conducting these roadblock seizures, it is constitutionally irrelevant that petitioners also hoped to interdict drugs. In Whren v. United States, 517 U. S. 806 (1996), we held that an officer's subjective intent would not invalidate an otherwise objectively justifiable stop of an automobile. The reasonableness of an officer's discretionary decision to stop an automobile, at issue in Whren, turns on whether there is probable cause to believe that a traffic violation has occurred. The reasonableness of highway checkpoints, at issue here, turns on whether they effectively serve a significant state interest with minimal intrusion on motorists. The stop in Whren was objectively reasonable because the police officers had witnessed traffic violations; so too the roadblocks here are objectively 3 Several Courts of Appeals have upheld roadblocks that check for driver's licenses and vehicle registrations. See, e. g., United States v. Galindo-Gonzales, 142 F.3d 1217 (CAlO 1998); United States v. McFayden, 865 F.2d 1306 (CADC 1989). 52 reasonable because they serve the substantial interests of preventing drunken driving and checking for driver's licenses and vehicle registrations with minimal intrusion on motorists. Once the constitutional requirements for a particular seizure are satisfied, the subjective expectations of those responsible for it, be it police officers or members of a city council, are irrelevant. Cf. Scott v. United States, 436 U. S. 128 , 136 (1978) ("Subjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional"). It is the objective effect of the State's actions on the privacy of the individual that animates the Fourth Amendment. See Bond v. United States, 529 U. S. 334 , 338, n. 2 (2000) (applying Whren to determine if an officer's conduct amounted to a "search" under the Fourth Amendment because "the issue is not his state of mind, but the objective effect of his actions"). Because the objective intrusion of a valid seizure does not turn upon anyone's subjective thoughts, neither should our constitutional analysis.4 With these checkpoints serving two important state interests, the remaining prongs of the Brown v. Texas balancing test are easily met. The seizure is objectively reasonable as it lasts, on average, two to three minutes and does not involve a search. App. to Pet. for Cert. 57a. The subjective intrusion is likewise limited as the checkpoints are clearly marked and operated by uniformed officers who are directed to stop every vehicle in the same manner. Ibid. The only difference between this case and Sitz is the presence of the dog. We have already held, however, that a "sniff test" by a trained narcotics dog is not a "search" within the meaning of the Fourth Amendment because it does not require physical intrusion of the object being sniffed and it does not ex- 4 Of course we have looked to the purpose of the program in analyzing the constitutionality of certain suspicionless searches. As discussed in Part II, infra, that doctrine has never been applied to seizures of automobiles. 53 pose anything other than the contraband items. United States v. Place, 462 U. S. 696 , 706-707 (1983). And there is nothing in the record to indicate that the dog sniff lengthens the stop. Finally, the checkpoints' success rate-49 arrests for offenses unrelated to drugs-only confirms the State's legitimate interests in preventing drunken driving and ensuring the proper licensing of drivers and registration of their vehicles. 183 F. 3d, at 661.5 These stops effectively serve the State's legitimate interests; they are executed in a regularized and neutral manner; and they only minimally intrude upon the privacy of the motorists. They should therefore be constitutional. II The Court, unwilling to adopt the straightforward analysis that these precedents dictate, adds a new non-Iawenforcement primary purpose test lifted from a distinct area of Fourth Amendment jurisprudence relating to the searches of homes and businesses. As discussed above, the question that the Court answers is not even posed in this case given the accepted reasons for the seizures. But more fundamentally, whatever sense a non-law-enforcement primary purpose test may make in the search setting, it is ill suited to brief roadblock seizures, where we have consistently looked at "the scope of the stop" in assessing a program's constitutionality. Martinez-Fuerte, 428 U. S., at 567. We have already rejected an invitation to apply the nonlaw-enforcement primary purpose test that the Court now finds so indispensable. The respondents in Sitz argued that the Brown v. Texas balancing test was not the "proper method of analysis" with regards to roadblock seizures: "Respondents argue that there must be a showing of some special governmental need 'beyond the normal 5 Put in statistical terms, 4.2 percent of the 1,161 motorists stopped were arrested for offenses unrelated to drugs. 54 need' for criminal law enforcement before a balancing analysis is appropriate, and that [the State] ha[s] demonstrated no such special need. "But it is perfectly plain from a reading of [Treasury Employees v.] Von Raab[, 489 U. S. 656 (1989)], which cited and discussed with approval our earlier decision in United States v. Martinez-Fuerte, 428 U. S. 543 (1976), that it was in no way designed to repudiate our prior cases dealing with police stops of motorists on public highways. Martinez-Fuerte, supra, which utilized a balancing analysis in approving highway checkpoints for detecting illegal aliens, and Brown v. Texas, supra, are the relevant authorities here." 496 U. S., at 449, 450. Considerations of stare decisis aside, the "perfectly plain" reason for not incorporating the "special needs" test in our roadblock seizure cases is that seizures of automobiles "deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection." Martinez-Fuerte, supra, at 561. The "special needs" doctrine, which has been used to uphold certain suspicionless searches performed for reasons unrelated to law enforcement, is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing. See, e. g., Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989) (drug test search); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 (1967) (home administrative search). The doctrine permits intrusions into a person's body and home, areas afforded the greatest Fourth Amendment protection. But there were no such intrusions here. "[O]ne's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence." Martinez-Fuerte, supra, at 561. This is because "[a]utomobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls." South 55 Dakota v. Opperman, 428 U. S. 364 , 368 (1976); see also New York v. Class, 475 U. S. 106 , 113 (1986) ("[A]utomobiles are justifiably the subject of pervasive regulation by the State"); Cardwell v. Lewis, 417 U. S. 583 , 590 (1974) ("One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects"). The lowered expectation of privacy in one's automobile is coupled with the limited nature of the intrusion: a brief, standardized, nonintrusive seizure.6 The brief seizure of an automobile can hardly be compared to the intrusive search of the body or the home. Thus, just as the "special needs" inquiry serves to both define and limit the permissible scope of those searches, the Brown v. Texas balancing test serves to define and limit the permissible scope of automobile seizures. Because of these extrinsic limitations upon roadblock seizures, the Court's newfound non-law-enforcement primary purpose test is both unnecessary to secure Fourth Amendment rights and bound to produce wide-ranging litigation over the "purpose" of any given seizure. Police designing highway roadblocks can never be sure of their validity, since a jury might later determine that a forbidden purpose exists. Roadblock stops identical to the one that we upheld in Sitz 10 years ago, or to the one that we upheld 24 years ago in Martinez-Fuerte, may now be challenged on the grounds that they have some concealed forbidden purpose. Efforts to enforce the law on public highways used by millions of motorists are obviously necessary to our society. The Court's opinion today casts a shadow over what had been assumed, on the basis of stare decisis, to be a perfectly lawful activity. Conversely, if the Indianapolis police had assigned a different purpose to their activity here, but in no way changed what was done on the ground to individual 6 This fact distinguishes the roadblock seizure of an automobile from an inventory search of an automobile. Cf. Colorado v. Bertine, 479 U. S. 367 (1987) (automobile inventory search). 56 motorists, it might well be valid. See ante, at 47, n. 2. The Court's non-law-enforcement primary purpose test simply does not serve as a proxy for anything that the Fourth Amendment is, or should be, concerned about in the automobile seizure context. Petitioners' program complies with our decisions regarding roadblock seizures of automobiles, and the addition of a dog sniff does not add to the length or the intrusion of the stop. Because such stops are consistent with the Fourth Amendment, I would reverse the decision of the Court of Appeals. JUSTICE THOMAS, dissenting. Taken together, our decisions in Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990), and United States v. Martinez-Fuerte, 428 U. S. 543 (1976), stand for the proposition that suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops. I am not convinced that Sitz and Martinez-Fuerte were correctly decided. Indeed, I rather doubt that the Framers of the Fourth Amendment would have considered "reasonable" a program of indiscriminate stops of individuals not suspected of wrongdoing. Respondents did not, however, advocate the overruling of Sitz and Martinez-Fuerte, and I am reluctant to consider such a step without the benefit of briefing and argument. For the reasons given by THE CHIEF JUSTICE, I believe that those cases compel upholding the program at issue here. I, therefore, join his opinion.

The Supreme Court ruled that the city's vehicle checkpoint program, aimed at interdicting unlawful drugs, violated the Fourth Amendment as its primary purpose was indistinguishable from general crime control. The Court distinguished this case from previous approved checkpoints for border control and roadway safety, emphasizing the need for individualized suspicion and consideration of the nature of interests threatened. Justice Thomas dissented, questioning the reasonableness of suspicionless roadblock seizures and the Court's non-law-enforcement primary purpose test.

Search & Seizure

Ferguson v. Charleston

https://supreme.justia.com/cases/federal/us/532/67/

OCTOBER TERM, 2000 Syllabus FERGUSON ET AL. v. CITY OF CHARLESTON ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-936. Argued October 4, 2000-Decided March 21, 2001 In the fall of 1988, staff members at the Charleston public hospital operated by the Medical University of South Carolina (MUSC) became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment. When the incidence of cocaine use among maternity patients remained unchanged despite referrals for counseling and treatment of patients who tested positive for that drug, MUSC staff offered to cooperate with the city in prosecuting mothers whose children tested positive for drugs at birth. Accordingly, a task force made up of MUSC representatives, police, and local officials developed a policy which set forth procedures for identifying and testing pregnant patients suspected of drug use; required that a chain of custody be followed when obtaining and testing patients' urine samples; provided for education and treatment referral for patients testing positive; contained police procedures and criteria for arresting patients who tested positive; and prescribed prosecutions for drug offenses and/or child neglect, depending on the stage of the defendant's pregnancy. Other than the provisions describing the substance abuse treatment to be offered women testing positive, the policy made no mention of any change in the prenatal care of such patients, nor did it prescribe any special treatment for the newborns. Petitioners, MUSC obstetrical patients arrested after testing positive for cocaine, filed this suit challenging the policy's validity on, inter alia, the theory that warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches. Among its actions, the District Court instructed the jury to find for petitioners unless they had consented to such searches. The jury found for respondents, and petitioners appealed, arguing that the evidence was not sufficient to support the jury's consent finding. In affirming without reaching the consent question, the Fourth Circuit held that the searches in question were reasonable as a matter of law under this Court's cases recognizing that "special needs" may, in certain exceptional circumstances, justify a search policy designed to serve non-law-enforcement ends. Held: A state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. 68 Syllabus The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. Pp. 76-86. (a) Because MUSC is a state hospital, its staff members are government actors subject to the Fourth Amendment's strictures. New Jersey v. T. L. 0., 469 U. S. 325 , 335-337. Moreover, the urine tests at issue were indisputably searches within that Amendment's meaning. Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 , 617. Furthermore, both lower courts viewed the case as one involving MUSC's right to conduct searches without warrants or probable cause, and this Court must assume for purposes of decision that the tests were performed without the patients' informed consent. Pp. 76-77. (b) Because the hospital seeks to justify its authority to conduct drug tests and to turn the results over to police without the patients' knowledge or consent, this case differs from the four previous cases in which the Court considered whether comparable drug tests fit within the closely guarded category of constitutionally permissible suspicionless searches. See Chandler v. Miller, 520 U. S. 305 , 309; see also Skinner, Treasury Employees v. Von Raab, 489 U. S. 656 , and Vernonia School Dist. -'+ 7 J v. Acton, 515 U. S. 646 . Those cases employed a balancing test weighing the intrusion on the individual's privacy interest against the "special needs" that supported the program. The invasion of privacy here is far more substantial than in those cases. In previous cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. Moreover, those cases involved disqualification from eligibility for particular benefits, not the unauthorized dissemination of test results. The critical difference, however, lies in the nature of the "special need" asserted. In each of the prior cases, the "special need" was one divorced from the State's general law enforcement interest. Here, the policy's central and indispensable feature from its inception was the use of law enforcement to coerce patients into substance abuse treatment. Respondents' assertion that their ultimate purpose-namely, protecting the health of both mother and child-is a beneficent one is unavailing. While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal. Given that purpose and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of "special needs." The fact that positive test results were turned over to the 69 police does not merely provide a basis for distinguishing prior "special needs" cases. It also provides an affirmative reason for enforcing the Fourth Amendment's strictures. While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require. Cf. Miranda v. Arizona, 384 U. S. 436 . Pp.77-86. 186 F.3d 469 , reversed and remanded. STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 86. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined as to Part II, post, p. 91. Priscilla J. Smith argued the cause for petitioners. With her on the briefs were Simon Heller, Lynn Paltrow, Susan Frietsche, David S. Cohen, Susan Dunn, David Rudovsky, and Seth Kreimer. Robert H. Hood argued the cause for respondents. With him on the brief were Barbara Wynne Showers and Mary Agnes Hood Craig. * JUSTICE STEVENS delivered the opinion of the Court. In this case, we must decide whether a state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Julie E. Sternberg, Steven R. Shapiro, Sara L. Mandelbaum, Catherine Weiss, Louise Melling, Louis M. Bograd, Martha F. Davis, Yolanda S. Wu, and Roslyn Powell; for the American Medical Association by Michael Ile, Anne Murphy, and Leonard Nelson; for the American Public Health Association et al. by Daniel N. Abrahamson and David T. Goldberg; for the NARAL Foundation et al. by Nancy L. Perkins and Jodi Michael; for the National Coalition for Child Protection Reform et al. by Carolyn A. Kubitschek; and for the Rutherford Institute by John W Whitehead and Steven H. Aden. 70 unreasonable search if the patient has not consented to the procedure. More narrowly, the question is whether the interest in using the threat of criminal sanctions to deter pregnant women from using cocaine can justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. I In the fall of 1988, staff members at the public hospital operated in the city of Charleston by the Medical University of South Carolina (MUSC) became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment. 1 In response to this perceived increase, as of April 1989, MUSC began to order drug screens to be performed on urine samples from maternity patients who were suspected of using cocaine. If a patient tested positive, she was then referred by MUSC staff to the county substance abuse commission for counseling and treatment. However, despite the referrals, the incidence of cocaine use among the patients at MUSC did not appear to change. Some four months later, Nurse Shirley Brown, the case manager for the MUSC obstetrics department, heard a news broadcast reporting that the police in Greenville, South Carolina, were arresting pregnant users of cocaine on the theory that such use harmed the fetus and was therefore child abuse.2 Nurse Brown discussed the story with MUSC's general counsel, Joseph C. Good, Jr., who then contacted 1 As several witnesses testified at trial, the problem of "crack babies" was widely perceived in the late 1980's as a national epidemic, prompting considerable concern both in the medical community and among the general populace. 2 Under South Carolina law, a viable fetus has historically been regarded as a person; in 1995, the South Carolina Supreme Court held that the ingestion of cocaine during the third trimester of pregnancy constitutes criminal child neglect. Whitner v. South Carolina, 328 S. C. 1,492 S. E. 2d 777 (1995), cert. denied, 523 U. S. 1145 (1998). 71 Charleston Solicitor Charles Condon in order to offer MUSC's cooperation in prosecuting mothers whose children tested positive for drugs at birth.3 After receiving Good's letter, Solicitor Condon took the first steps in developing the policy at issue in this case. He organized the initial meetings, decided who would participate, and issued the invitations, in which he described his plan to prosecute women who tested positive for cocaine while pregnant. The task force that Condon formed included representatives of MUSC, the police, the County Substance Abuse Commission and the Department of Social Services. Their deliberations led to MUSC's adoption of a 12-page document entitled "POLICY M-7," dealing with the subject of "Management of Drug Abuse During Pregnancy." App. to Pet. for Cert. A-53. The first three pages of Policy M-7 set forth the procedure to be followed by the hospital staff to "identify/assist pregnant patients suspected of drug abuse." Id., at A-53 to A-56. The first section, entitled the "Identification of Drug Abusers," provided that a patient should be tested for cocaine through a urine drug screen if she met one or more of nine criteria.4 It also stated that a chain of custody should 3 In his letter dated August 23, 1989, Good wrote: "Please advise us if your office is anticipating future criminal action and what if anything our Medical Center needs to do to assist you in this matter." App. to Pet. for Cert. A-67. 4 Those criteria were as follows: "1. No prenatal care "2. Late prenatal care after 24 weeks gestation "3. Incomplete prenatal care "4. Abruptio placentae "5. Intrauterine fetal death "6. Preterm labor 'of no obvious cause' "7. IUGR [intrauterine growth retardation] 'of no obvious cause' "8. Previously known drug or alcohol abuse "9. Unexplained congenital anomalies." Id., at A-53 to A-54. 72 be followed when obtaining and testing urine samples, presumably to make sure that the results could be used in subsequent criminal proceedings. The policy also provided for education and referral to a substance abuse clinic for patients who tested positive. Most important, it added the threat of law enforcement intervention that "provided the necessary 'leverage' to make the [p]olicy effective." Brief for Respondents 8. That threat was, as respondents candidly acknowledge, essential to the program's success in getting women into treatment and keeping them there. The threat of law enforcement involvement was set forth in two protocols, the first dealing with the identification of drug use during pregnancy, and the second with identification of drug use after labor. Under the latter protocol, the police were to be notified without delay and the patient promptly arrested. Under the former, after the initial positive drug test, the police were to be notified (and the patient arrested) only if the patient tested positive for cocaine a second time or if she missed an appointment with a substance abuse counselor.5 In 1990, however, the policy was modified at the behest of the solicitor's office to give the patient who tested positive during labor, like the patient who tested positive during a prenatal care visit, an opportunity to avoid arrest by consenting to substance abuse treatment. The last six pages of the policy contained forms for the patients to sign, as well as procedures for the police to follow when a patient was arrested. The policy also prescribed in detail the precise offenses with which a woman could be charged, depending on the stage of her pregnancy. If the pregnancy was 27 weeks or less, the patient was to be charged with simple possession. If it was 28 weeks or more, she was to be charged with possession and distribution to a person under the age of 18-in this case, the fetus. If she 5 Despite the conditional description of the first category, when the policy was in its initial stages, a positive test was immediately reported to the police, who then promptly arrested the patient. 73 delivered "while testing positive for illegal drugs," she was also to be charged with unlawful neglect of a child. App. to Pet. for Cert. A-62. Under the policy, the police were instructed to interrogate the arrestee in order "to ascertain the identity of the subject who provided illegal drugs to the suspect." Id., at A-63. Other than the provisions describing the substance abuse treatment to be offered to women who tested positive, the policy made no mention of any change in the prenatal care of such patients, nor did it prescribe any special treatment for the newborns. II Petitioners are 10 women who received obstetrical care at MUSC and who were arrested after testing positive for cocaine. Four of them were arrested during the initial implementation of the policy; they were not offered the opportunity to receive drug treatment as an alternative to arrest. The others were arrested after the policy was modified in 1990; they either failed to comply with the terms of the drug treatment program or tested positive for a second time. Respondents include the city of Charleston, law enforcement officials who helped develop and enforce the policy, and representatives of MUSC. Petitioners' complaint challenged the validity of the policy under various theories, including the claim that warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches. Respondents advanced two principal defenses to the constitutional claim: (1) that, as a matter of fact, petitioners had consented to the searches; and (2) that, as a matter of law, the searches were reasonable, even absent consent, because they were justified by special non-law-enforcement purposes. The District Court rejected the second defense because the searches in question "were not done by the medical university for independent purposes. [Instead,] the police came in and there was an agreement reached that the positive 74 screens would be shared with the police." App. 1248-1249. Accordingly, the District Court submitted the factual defense to the jury with instructions that required a verdict in favor of petitioners unless the jury found consent.6 The jury found for respondents. Petitioners appealed, arguing that the evidence was not sufficient to support the jury's consent finding. The Court of Appeals for the Fourth Circuit affirmed, but without reaching the question of consent. 186 F.3d 469 (1999). Disagreeing with the District Court, the majority of the appellate panel held that the searches were reasonable as a matter of law under our line of cases recognizing that "special needs" may, in certain exceptional circumstances, justify a search policy designed to serve non-law-enforcement ends.7 6The instructions read: "THERE WERE NO SEARCH WARRANTS ISSUED BY A MAGISTRATE OR ANY OTHER PROPER JUDICIAL OFFICER TO PERMIT THESE URINE SCREENS TO BE TAKEN. THERE NOT BEING A WARRANT ISSUED, THEY ARE UNREASONABLE AND IN VIOLATION OF THE CONSTITUTION OF THE UNITED STATES, UNLESS THE DEFENDANTS HAVE SHOWN BY THE GREATER WEIGHT OR PREPONDERANCE OF THE EVIDENCE THAT THE PLAINTIFFS CONSENTED TO THOSE SEARCHES." App. 1314-1315. Under the judge's instructions, in order to find that the plaintiffs had consented to the searches, it was necessary for the jury to find that they had consented to the taking of the samples, to the testing for evidence of cocaine, and to the possible disclosure of the test results to the police. Respondents have not argued, as JUSTICE SCALIA does, that it is permissible for members of the staff of a public hospital to use diagnostic tests "deceivingly" to obtain incriminating evidence from their patients. See post, at 94 (dissenting opinion). 7The term "special needs" first appeared in Justice Blackmun's opinion concurring in the judgment in New Jersey v. T. L. 0., 469 U. S. 325 , 351 (1985). In his concurrence, Justice Blackmun agreed with the Court that there are limited exceptions to the probable-cause requirement, in which reasonableness is determined by "a careful balancing of governmental and private interests," but concluded that such a test should only be applied "in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probablecause requirement impracticable .... " Ibid. This Court subsequently 75 On the understanding "that MUSe personnel conducted the urine drug screens for medical purposes wholly independent of an intent to aid law enforcement efforts,"S id., at 477, the majority applied the balancing test used in Treasury Employees v. Von Raab, 489 U. S. 656 (1989), and Vernonia School Dist. J,7Jv. Acton, 515 U. S. 646 (1995), and concluded that the interest in curtailing the pregnancy complications and medical costs associated with maternal cocaine use outweighed what the majority termed a minimal intrusion on the privacy of the patients. In dissent, Judge Blake concluded that the "special needs" doctrine should not apply and adopted the "special needs" terminology in O'Connor v. Ortega, 480 U. S. 709 , 720 (1987) (plurality opinion), and Griffin v. Wisconsin, 483 U. S. 868 , 873 (1987), concluding that, in limited circumstances, a search unsupported by either warrant or probable cause can be constitutional when "special needs" other than the normal need for law enforcement provide sufficient justification. See also Vernonia School Dist. 47J v. Acton, 515 U. S. 646 , 652-653 (1995). 8 The majority stated that the District Court had made such a finding. 186 F. 3d, at 477. The text of the relevant finding, made in the context of petitioners' now abandoned Title VI claim, reads as follows: "The policy was applied in all maternity departments at MUSC. Its goal was not to arrest patients but to facilitate their treatment and protect both the mother and unborn child." App. to Pet. for Cert. A-38. That finding, however, must be read in light of this comment by the District Court with respect to the Fourth Amendment claim: " ... THESE SEARCHES WERE NOT DONE BY THE MEDICAL UNIVERSITY FOR INDEPENDENT PURPOSES. IF THEY HAD BEEN, THEN THEY WOULD NOT IMPLICATE THE FOURTH AMENDMENT. OBVIOUSLY AS I POINT OUT THERE ON PAGE 4, NORMALLY URINE SCREENS AND BLOOD TESTS AND THAT TYPE OF THING CAN BE TAKEN BY HEALTH CARE PROVIDERS WITHOUT HAVING TO WORRY ABOUT THE FOURTH AMENDMENT. THE ONLY REASON THE FOURTH AMENDMENT IS IMPLICATED HERE IS THAT THE POLICE CAME IN AND THERE WAS AN AGREEMENT REACHED THAT THE POSITIVE SCREENS WOULD BE SHARED WITH THE POLICE. AND THEN THE SCREEN IS NOT DONE INDEPENDENT OF POLICE, IT'S DONE IN CONJUNCTION WITH THE POLICE AND THAT IMPLICATES THE FOURTH AMENDMENT." App. 1248-1249. 76 that the evidence of consent was insufficient to sustain the jury's verdict. 186 F. 3d, at 487-488. We granted certiorari, 528 U. S. 1187 (2000), to review the appellate court's holding on the "special needs" issue. Because we do not reach the question of the sufficiency of the evidence with respect to consent, we necessarily assume for purposes of our decision-as did the Court of Appeals-that the searches were conducted without the informed consent of the patients. We conclude that the judgment should be reversed and the case remanded for a decision on the consent issue. III Because MUSC is a state hospital, the members of its staff are government actors, subject to the strictures of the Fourth Amendment. New Jersey v. T. L. 0., 469 U. S. 325 , 335-337 (1985). Moreover, the urine tests conducted by those staff members were indisputably searches within the meaning of the Fourth Amendment. Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 , 617 (1989).9 Neither the District Court nor the Court of Appeals concluded that any of the nine criteria used to identify the women to be searched provided either probable cause to believe that they were using cocaine, or even the basis for a reasonable suspicion of such use. Rather, the District Court and the Court of Appeals viewed the case as one involving MUSC's right 9 In arguing that the urine tests at issue were not searches, the dissent attempts to disaggregate the taking and testing of the urine sample from the reporting of the results to the police. See post, at 92. However, in our special needs cases, we have routinely treated urine screens taken by state agents as searches within the meaning of the Fourth Amendment even though the results were not reported to the police, see, e. g., Chandler v. Miller, 520 U. S. 305 (1997); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995); Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 617 (1989); Treasury Employees v. Von Raab, 489 U. S. 656 (1989), and respondents here do not contend that the tests were not searches. Rather, they argue that the searches were justified by consent and/or by special needs. 77 to conduct searches without warrants or probable cause.10 Furthermore, given the posture in which the case comes to us, we must assume for purposes of our decision that the tests were performed without the informed consent of the patients.ll Because the hospital seeks to justify its authority to conduct drug tests and to turn the results over to law enforcement agents without the knowledge or consent of the patients, this case differs from the four previous cases in which we have considered whether comparable drug tests "fit within the closely guarded category of constitutionally permissible suspicionless searches." Chandler v. Miller, 520 U. S. 305, 309 (1997). In three of those cases, we sustained drug tests for railway employees involved in train accidents, Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989), for United States Customs Service employees seeking promotion to certain sensitive positions, Treasury Employees v. Von Raab, 489 U. S. 656 (1989), and for high school students participating in interscholastic sports, Vernonia School Dist. J, 7 J v. Acton, 515 U. S. 646 (1995). In the fourth case, we struck down such testing for candidates for designated state offices as unreasonable. Chandler v. Miller, 520 U. S. 305 (1997). 10 In a footnote to their brief, respondents do argue that the searches were not entirely suspicionless. Brief for Respondents 23, n. 13. They do not, however, point to any evidence in the record indicating that any of the nine search criteria was more apt to be caused by cocaine use than by some other factor, such as malnutrition, illness, or indigency. More significantly, their legal argument and the reasoning of the majority panel opinion rest on the premise that the policy would be valid even if the tests were conducted randomly. 11 The dissent would have us do otherwise and resolve the issue of consent in favor of respondents. Because the Court of Appeals did not discuss this issue, we think it more prudent to allow that court to resolve the legal and factual issues in the first instance, and we express no view on those issues. See, e. g., Glover v. United States, 531 U. S. 198 (2001); National Collegiate Athletic Assn. v. Smith, 525 U. S. 459 , 470 (1999). 78 In each of those cases, we employed a balancing test that weighed the intrusion on the individual's interest in privacy against the "special needs" that supported the program. As an initial matter, we note that the invasion of privacy in this case is far more substantial than in those cases. In the previous four cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties.12 The use of an adverse test result to disqualify one from eligibility for a particular benefit, such as a promotion or an opportunity to participate in an extracurricular activity, involves a less serious intrusion on privacy than the unauthorized dissemination of such results to third parties. The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent. See Brief for American Medical Association as Amicus Curiae 11; Brief for American Public Health Association et al. as Amici Curiae 6, 17-19.13 In none of our prior cases was there any intrusion upon that kind of expectation.14 12 Chandler, 520 U. S., at 312, 318; Acton, 515 U. S., at 658; Skinner, 489 13 There are some circumstances in which state hospital employees, like other citizens, may have a duty to provide law enforcement officials with evidence of criminal conduct acquired in the course of routine treatment, see, e. g., S. C. Code Ann. §20-7-510 (2000) (physicians and nurses required to report to child welfare agency or law enforcement authority "when in the person's professional capacity the person" receives information that a child has been abused or neglected). While the existence of such laws might lead a patient to expect that members of the hospital staff might turn over evidence acquired in the course of treatment to which the patient had consented, they surely would not lead a patient to anticipate that hospital staff would intentionally set out to obtain incriminating evidence from their patients for law enforcement purposes. 14 In fact, we have previously recognized that an intrusion on that expectation may have adverse consequences because it may deter patients from 79 The critical difference between those four drug-testing cases and this one, however, lies in the nature of the "special need" asserted as justification for the warrantless searches. In each of those earlier cases, the "special need" that was advanced as a justification for the absence of a warrant or individualized suspicion was one divorced from the State's general interest in law enforcement.15 This point was em- receiving needed medical care. Whalen v. Roe, 429 U. S. 589 , 599-600 (1977). Cf. Poland, Dombrowski, Ager, & Sokol, Punishing pregnant drug users: enhancing the flight from care, 31 Drug and Alcohol Dependence 199-203 (1993). 15 As THE CHIEF JUSTICE recently noted: "The 'special needs' doctrine, which has been used to uphold certain suspicionless searches performed for reasons unrelated to law enforcement, is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing." Indianapolis v. Edmond, 531 U. S. 32 , 54 (2000) (dissenting opinion); see also nn. 16-17, infra. In T. L. Q, we made a point of distinguishing searches "carried out by school authorities acting alone and on their own authority" from those conducted "in conjunction with or at the behest of law enforcement agencies." 469 U. S., at 341, n. 7. The dissent, however, relying on Griffin v. Wisconsin, 483 U. S. 868 (1987), argues that the special needs doctrine "is ordinarily employe[d], precisely to enable searches by law enforcement officials who, of course, ordinarily have a law enforcement objective." Post, at 100. Viewed in the context of our special needs case law and even viewed in isolation, Griffin does not support the proposition for which the dissent invokes it. In other special needs cases, we have tolerated suspension of the Fourth Amendment's warrant or probable-cause requirement in part because there was no law enforcement purpose behind the searches in those cases, and there was little, if any, entanglement with law enforcement. See Skinner, 489 U. S., at 620-621; Von Raab, 489 U. S., at 665-666; Acton, 515 U. S., at 658. Moreover, after our decision in Griffin, we reserved the question whether "routine use in criminal prosecutions of evidence obtained pursuant to the administrative scheme would give rise to an inference of pretext, or otherwise impugn the administrative nature of the ... program." Skinner, 489 U. S., at 621, n. 5. In Griffin itself, this Court noted that "[a]lthough a probation officer is not an impartial magistrate, neither is he the police officer who normally conducts searches against the ordinary citizen." 483 U. S., at 876. Finally, we agree with petitioners 80 phasized both in the majority opinions sustaining the programs in the first three cases,16 as well as in the dissent in the Chandler case.17 In this case, however, the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment. This fact distinguishes this case from circumstances in which physicians or psychologists, in the that Griffin is properly read as limited by the fact that probationers have a lesser expectation of privacy than the public at large. Id., at 874-875. 16 In Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989), this Court noted that "[t]he FRA has prescribed toxicological tests, not to assist in the prosecution of employees, but rather 'to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.'" Id., at 620-621 (quoting 49 CFR § 219.1(a) (1987)). Similarly, in Treasury Employees v. Von Raab, 489 U. S. 656 (1989), we concluded that it was "clear that the Customs Service's drugtesting program is not designed to serve the ordinary needs of law enforcement. Test results may not be used in a criminal prosecution of the employee without the employee's consent." Id., at 665-666. In the same vein, in Acton, 515 U. S., at 658, we relied in part on the fact that "the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function" in finding the searches reasonable. 17 "Today's opinion speaks of a 'closely guarded' class of permissible suspicionless searches which must be justified by a 'special need.' But this term, as used in Skinner and Von Raab and on which the Court now relies, was used in a quite different sense than it is used by the Court today. In Skinner and Von Raab it was used to describe a basis for a search apart from the regular needs of law enforcement, Skinner, [489 U. S.], at 620; Von Raab, [489 U. S.], at 669. The 'special needs' inquiry as delineated there has not required especially great 'importan[ce],' [520 U. S.], at 318, unless one considers 'the supervision of probationers,' or the 'operation of a government office,' Skinner, supra, at 620, to be especially 'important.' Under our precedents, if there was a proper governmental purpose other than law enforcement, there was a 'special need,' and the Fourth Amendment then required the familiar balancing between that interest and the individual's privacy interest." Chandler v. Miller, 520 U. S., at 325 (REHNQUIST, C. J., dissenting). 81 course of ordinary medical procedures aimed at helping the patient herself, come across information that under rules of law or ethics is subject to reporting requirements, which no one has challenged here. See, e. g., Council on Ethical and Judicial Affairs, American Medical Association, PolicyFinder, Current Opinions E-5.05 (2000) (requiring reporting where "a patient threatens to inflict serious bodily harm to another person or to him or herself and there is a reasonable probability that the patient may carry out the threat"); Ark. Code Ann. § 12-12-602 (1999) (requiring reporting of intentionally inflicted knife or gunshot wounds); Ariz. Rev. Stat. Ann. § 13-3620 (Supp. 2000) (requiring "any ... person having responsibility for the care or treatment of children" to report suspected abuse or neglect to a peace officer or child protection agency).18 Respondents argue in essence that their ultimate purpose-namely, protecting the health of both mother and child-is a beneficent one. In Chandler, however, we did not simply accept the State's invocation of a "special need." Instead, we carried out a "close review" of the scheme at issue before concluding that the need in question was not "special," as that term has been defined in our cases. 520 U. S., at 322. In this case, a review of the M-7 policy plainly reveals that the purpose actually served by the MUSC searches "is ultimately indistinguishable from the general interest in crime control." Indianapolis v. Edmond, 531 U. S. 32 , 44 (2000). In looking to the programmatic purpose, we consider all the available evidence in order to determine the relevant primary purpose. See, e. g., id., at 45-47. In this case, as 18 Our emphasis on this distinction should make it clear that, contrary to the hyperbole in the dissent, we do not view these reporting requirements as "clearly bad." See post, at 95-96, n. 3. Those requirements are simply not in issue here. 82 Judge Blake put it in her dissent below, "it ... is clear from the record that an initial and continuing focus of the policy was on the arrest and prosecution of drug-abusing mothers .... " 186 F. 3d, at 484. Tellingly, the document codifying the policy incorporates the police's operational guidelines. It devotes its attention to the chain of custody, the range of possible criminal charges, and the logistics of police notification and arrests. Nowhere, however, does the document discuss different courses of medical treatment for either mother or infant, aside from treatment for the mother's addiction. Moreover, throughout the development and application of the policy, the Charleston prosecutors and police were extensively involved in the day-to-day administration of the policy. Police and prosecutors decided who would receive the reports of positive drug screens and what information would be included with those reports. App. 78-80, 145-146, 10581060. Law enforcement officials also helped determine the procedures to be followed when performing the screens.19 Id., at 1052-1053. See also id., at 26-27,945. In the course of the policy's administration, they had access to Nurse Brown's medical files on the women who tested positive, routinely attended the substance abuse team's meetings, and regularly received copies of team documents discussing the women's progress. Id., at 122-124, 609-610. Police took pains to coordinate the timing and circumstances of the arrests with MUSC staff, and, in particular, Nurse Brown. Id., at 1057-1058. While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment 19 Accordingly, the police organized a meeting with the staff of the police and hospital laboratory staffs, as well as Nurse Brown, in which the police went over the concept of a chain of custody system with the MUSC staff. App. 1052-1053. 83 and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes 20 in order to reach that goapl The threat of law enforcement 20We italicize those words lest our reasoning be misunderstood. See post, at 86-88 (KENNEDY, J., concurring in judgment). In none of our previous special needs cases have we upheld the collection of evidence for criminal law enforcement purposes. Our essential point is the same as JUSTICE KENNEDy's-the extensive entanglement of law enforcement cannot be justified by reference to legitimate needs. According to the dissent, the fact that MUSC performed tests prior to the development of Policy M-7 should immunize any subsequent testing policy despite the presence of a law enforcement purpose and extensive law enforcement involvement. See post, at 98-100. To say that any therapeutic purpose did not disappear is simply to miss the point. What matters is that under the new policy developed by the solicitor's office and MUSC, law enforcement involvement was the means by which that therapeutic purpose was to be met. Policy M-7 was, at its core, predicated on the use of law enforcement. The extensive involvement of law enforcement and the threat of prosecution were, as respondents admitted, essential to the program's success. 21 Accordingly, this case differs from New York v. Burger, 482 U. S. 691 (1987), in which the Court upheld a scheme in which police officers were used to carry out administrative inspections of vehicle dismantling businesses. That case involved an industry in which the expectation of privacy in commercial premises was "particularly attenuated" given the extent to which the industry in question was closely regulated. Id., at 700. More important for our purposes, the Court relied on the "plain administrative purposes" of the scheme to reject the contention that the statute was in fact "designed to gather evidence to enable convictions under the penal laws .... " Id., at 715. The discovery of evidence of other violations would have been merely incidental to the purposes of the administrative search. In contrast, in this case, the policy was specifically designed to gather evidence of violations of penal laws. This case also differs from the handful of seizure cases in which we have applied a balancing test to determine Fourth Amendment reasonableness. See, e. g., Michigan Dept. of State Police v. Sitz, 496 U. S. 444 , 455 (1990); United States v. Martinez-Fuerte, 428 U. S. 543 (1976). First, those cases involved roadblock seizures, rather than "the intrusive search of the body or the home." See Indianapolis v. Edmond, 531 U. S., at 54-55 (REHNQUIST, C. J., dissenting); Martinez-Fuerte, 428 U. S., at 561 ("[W]e deal 84 may ultimately have been intended as a means to an end, but the direct and primary purpose of MUSC's policy was to ensure the use of those means. In our opinion, this distinction is critical. Because law enforcement involvement always serves some broader social purpose or objective, under respondents' view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose.22 Such an approach is inconsistent with the Fourth Amendment. Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of "special needs." 23 The fact that positive test results were turned over to the police does not merely provide a basis for distinguishing our prior cases applying the "special needs" balancing approach to the determination of drug use. It also provides an affirmative reason for enforcing the strictures of the Fourth Amendment. While state hospital employees, like other citizens, may have a duty to provide the police with evidence neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection"). Second, the Court explicitly distinguished the cases dealing with checkpoints from those dealing with "special needs." Sitz, 496 U. S., at 450. 22 Thus, under respondents' approach, any search to generate evidence for use by the police in enforcing general criminal laws would be justified by reference to the broad social benefits that those laws might bring about (or, put another way, the social harms that they might prevent). 23 It is especially difficult to argue that the program here was designed simply to save lives. Amici claim a near consensus in the medical community that programs of the sort at issue, by discouraging women who use drugs from seeking prenatal care, harm, rather than advance, the cause of prenatal health. See Brief for American Medical Association as Amicus Curiae 6-22; Brief for American Public Health Association et al. as Amici Curiae 17-21; Brieffor NARAL Foundation et al. as Amici Curiae 18-19. 85 of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.24 Cf. Miranda v. Arizona, 384 U. S. 436 (1966). As respondents have repeatedly insisted, their motive was benign rather than punitive. Such a motive, however, cannot justify a departure from Fourth Amendment protections, given the pervasive involvement of law enforcement with the development and application of the MUSC policy. The stark 24 In fact, some MUSC staff made this distinction themselves. See PI. Exh. No. 14, Hulsey, 11-17-89, Coke Committee, 1-2 ("The use of medically indicated tests for substance abuse, obtained in conventional manners, must be distinguished from mandatory screening and collection of evidence using such methods as chain of custody, etc .... The question is raised as to whether pediatricians should function as law enforcement officials. While the reporting of criminal activity to appropriate authorities may be required and/or ethically just, the active pursuit of evidence to be used against individuals presenting for medical care may not be proper"). The dissent, however, mischaracterizes our opinion as holding that "material which a person voluntarily entrusts to someone else cannot be given by that person to the police, and used for whatever evidence it may contain." Post, at 95. But, as we have noted elsewhere, given the posture of the case, we must assume for purposes of decision that the patients did not consent to the searches, and we leave the question of consent for the Court of Appeals to determine. See n. 11, supra. The dissent further argues that our holding "leaves law enforcement officials entirely in the dark as to when they can use incriminating evidence obtained from 'trusted' sources." See post, at 95. With all due respect, we disagree. We do not address a case in which doctors independently complied with reporting requirements. Rather, as we point out above, in this case, medical personnel used the criteria set out in n. 4, supra, to collect evidence for law enforcement purposes, and law enforcement officers were extensively involved in the initiation, design, and implementation of the program. In such circumstances, the Fourth Amendment's general prohibition against nonconsensual, warrantless, and suspicionless searches applies in the absence of consent. We decline to accept the dissent's invitation to make a foray into dicta and address other situations not before us. 86 KENNEDY, J., concurring in judgment and unique fact that characterizes this case is that Policy M-7 was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions. While respondents are correct that drug abuse both was and is a serious problem, "the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose." Indianapolis v. Edmond, 531 U. S., at 42-43. The Fourth Amendment's general prohibition against nonconsensual, warrantless, and suspicionless searches necessarily applies to such a policy. See, e. g., Chandler, 520 U. S., at 308; Skinner, 489 U. S., at 619. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KENNEDY, concurring in the judgment. I agree that the search procedure in issue cannot be sustained under the Fourth Amendment. My reasons for this conclusion differ somewhat from those set forth by the Court, however, leading to this separate opinion. I The Court does not dispute that the search policy at some level serves special needs, beyond those of ordinary law enforcement, such as the need to protect the health of mother and child when a pregnant mother uses cocaine. Instead, the majority characterizes these special needs as the "ultimate goal[s]" of the policy, as distinguished from the policy's "immediate purpose," the collection of evidence of drug use, which, the Court reasons, is the appropriate inquiry for the special needs analysis. Ante, at 81-84. The majority views its distinction between the ultimate goal and immediate purpose of the policy as critical to its 87 analysis. Ante, at 83-84. The distinction the Court makes, however, lacks foundation in our special needs cases. All of our special needs cases have turned upon what the majority terms the policy's ultimate goal. For example, in Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989), had we employed the majority's distinction, we would have identified as the relevant need the collection of evidence of drug and alcohol use by railway employees. Instead, we identified the relevant need as "[t]he Government's interest in regulating the conduct of railroad employees to ensure [railroad] safety." Id., at 620. In Treasury Employees v. Von Raab, 489 U. S. 656 (1989), the majority's distinction should have compelled us to isolate the relevant need as the gathering of evidence of drug abuse by would-be drug interdiction officers. Instead, the special needs the Court identified were the necessities "to deter drug use among those eligible for promotion to sensitive positions within the [United States Customs] Service and to prevent the promotion of drug users to those positions." Id., at 666. In Vernonia School Dist. J,7J v. Acton, 515 U. S. 646 (1995), the majority's distinction would have required us to identify the immediate purpose of gathering evidence of drug use by student-athletes as the relevant "need" for purposes of the special needs analysis. Instead, we sustained the policy as furthering what to day's majority would have termed the policy's ultimate goal: "[d]eterring drug use by our Nation's schoolchildren," and particularly by student-athletes, because "the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high." Id., at 661-662. It is unsurprising that in our prior cases we have concentrated on what the majority terms a policy's ultimate goal, rather than its proximate purpose. By very definition, in almost every case the immediate purpose of a search policy will be to obtain evidence. The circumstance that a particular search, like all searches, is designed to collect evidence 88 KENNEDY, J., concurring in judgment of some sort reveals nothing about the need it serves. Put a different way, although procuring evidence is the immediate result of a successful search, until today that procurement has not been identified as the special need which justifies the search. II While the majority's reasoning seems incorrect in the respects just discussed, I agree with the Court that the search policy cannot be sustained. As the majority demonstrates and well explains, there was substantial law enforcement involvement in the policy from its inception. None of our special needs precedents has sanctioned the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives. The special needs cases we have decided do not sustain the active use of law enforcement, including arrest and prosecutions, as an integral part of a program which seeks to achieve legitimate, civil objectives. The traditional warrant and probable-cause requirements are waived in our previous cases on the explicit assumption that the evidence obtained in the search is not intended to be used for law enforcement purposes. Most of those tested for drug use under the policy at issue here were not brought into direct contact with law enforcement. This does not change the fact, however, that, as a systemic matter, law enforcement was a part of the implementation of the search policy in each of its applications. Every individual who tested positive was given a letter explaining the policy not from the hospital but from the solicitor's office. Everyone who tested positive was told a second positive test or failure to undergo substance abuse treatment would result in arrest and prosecution. As the Court holds, the hospital acted, in some respects, as an institutional arm of law enforcement for purposes of the policy. Under these circumstances, while the policy may well have served legitimate needs unrelated to law enforcement, it had 89 as well a penal character with a far greater connection to law enforcement than other searches sustained under our special needs rationale. In my view, it is necessary and prudent to be explicit in explaining the limitations of to day's decision. The beginning point ought to be to acknowledge the legitimacy of the State's interest in fetal life and of the grave risk to the life and health of the fetus, and later the child, caused by cocaine ingestion. Infants whose mothers abuse cocaine during pregnancy are born with a wide variety of physical and neurological abnormalities. See Chiriboga, Brust, Bateman, & Hauser, Dose-Response Effect of Fetal Cocaine Exposure on Newborn Neurologic Function, 103 Pediatrics 79 (1999) (finding that, compared with unexposed infants, cocaineexposed infants experienced higher rates of intrauterine growth retardation, smaller head circumference, global hypertonia, coarse tremor, and extensor leg posture). Prenatal exposure to cocaine can also result in developmental problems which persist long after birth. See Arendt, Angelopoulos, Salvator, & Singer, Motor Development of Cocaine-exposed Children at Age Two Years, 103 Pediatrics 86 (1999) (concluding that, at two years of age, children who were exposed to cocaine in utero exhibited significantly less fine and gross motor development than those not so exposed); Chasnoff et al., Prenatal Exposure to Cocaine and Other Drugs: Outcome at Four to Six Years, 846 Annals of the New York Academy of Sciences 314, 319-320 (J. Harvey and B. Kosofsky eds. 1998) (finding that 4- to 6-year-olds who were exposed to cocaine in utero exhibit higher instances of depression, anxiety, social, thought, and attention problems, and delinquent and aggressive behaviors than their unexposed counterparts). There can be no doubt that a mother's ingesting this drug can cause tragic injury to a fetus and a child. There should be no doubt that South Carolina can impose punishment upon an expectant mother who has so little regard for her own unborn that she risks causing him 90 KENNEDY, J., concurring in judgment or her lifelong damage and suffering. The State, by taking special measures to give rehabilitation and training to expectant mothers with this tragic addiction or weakness, acts well within its powers and its civic obligations. The holding of the Court, furthermore, does not call into question the validity of mandatory reporting laws such as child abuse laws which require teachers to report evidence of child abuse to the proper authorities, even if arrest and prosecution is the likely result. That in turn highlights the real difficulty. As this case comes to us, and as reputable sources confirm, see K. Farkas, Training Health Care and Human Services Personnel in Perinatal Substance Abuse, in Drug & Alcohol Abuse Reviews, Substance Abuse During Pregnancy and Childhood 13, 27-28 (R. Watson ed. 1995); u. S. Dept. of Health and Human Services, Substance Abuse and Mental Health Services Administration, Pregnant, Substance-Using Women 48 (1993), we must accept the premise that the medical profession can adopt acceptable criteria for testing expectant mothers for cocaine use in order to provide prompt and effective counseling to the mother and to take proper medical steps to protect the child. If prosecuting authorities then adopt legitimate procedures to discover this information and prosecution follows, that ought not to invalidate the testing. One of the ironies of the case, then, may be that the program now under review, which gives the cocaine user a second and third chance, might be replaced by some more rigorous system. We must, however, take the case as it comes to us; and the use of handcuffs, arrests, prosecutions, and police assistance in designing and implementing the testing and rehabilitation policy cannot be sustained under our previous cases concerning mandatory testing. III An essential, distinguishing feature of the special needs cases is that the person searched has consented, though the usual voluntariness analysis is altered because adverse con- 91 sequences (e. g., dismissal from employment or disqualification from playing on a high school sports team) will follow from refusal. The person searched has given consent, as defined to take into account that the consent was not voluntary in the full sense of the word. See Skinner, 489 U. S., at 615; Von Raab, 489 U. S., at 660-661; Acton, 515 U. S., at 650-651. The consent, and the circumstances in which it was given, bear upon the reasonableness of the whole special needs program. Here, on the other hand, the question of consent, even with the special connotation used in the special needs cases, has yet to be decided. Indeed, the Court finds it necessary to take the unreal step of assuming there was no voluntary consent at all. Thus, we have erected a strange world for deciding the case. My discussion has endeavored to address the permissibility of a law enforcement purpose in this artificial context. The role played by consent might have affected our assessment of the issues. My concurrence in the judgment, furthermore, should not be interpreted as having considered or resolved the important questions raised by JUSTICE SCALIA with reference to whether limits might be imposed on the use of the evidence if in fact it were obtained with the patient's consent and in the context of the special needs program. Had we the prerogative to discuss the role played by consent, the case might have been quite a different one. All are in agreement, of course, that the Court of Appeals will address these issues in further proceedings on remand. With these remarks, I concur in the judgment. JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join as to Part II, dissenting. There is always an unappealing aspect to the use of doctors and nurses, ministers of mercy, to obtain incriminating evidence against the supposed objects of their ministrationalthough here, it is correctly pointed out, the doctors and 92 nurses were ministering not just to the mothers but also to the children whom their cooperation with the police was meant to protect. But whatever may be the correct social judgment concerning the desirability of what occurred here, that is not the issue in the present case. The Constitution does not resolve all difficult social questions, but leaves the vast majority of them to resolution by debate and the democratic process-which would produce a decision by the citizens of Charleston, through their elected representatives, to forbid or permit the police action at issue here. The question before us is a narrower one: whether, whatever the desirability of this police conduct, it violates the Fourth Amendment's prohibition of unreasonable searches and seizures. In my view, it plainly does not. I The first step in Fourth Amendment analysis is to identify the search or seizure at issue. What petitioners, the Court, and to a lesser extent the concurrence really object to is not the urine testing, but the hospital's reporting of positive drug-test results to police. But the latter is obviously not a search. At most it may be a "derivative use of the product of a past unlawful search," which, of course, "work[s] no new Fourth Amendment wrong" and "presents a question, not of rights, but of remedies." United States v. Calandra, 414 U. S. 338 , 354 (1974). There is only one act that could conceivably be regarded as a search of petitioners in the present case: the taking of the urine sample. I suppose the testing of that urine for traces of unlawful drugs could be considered a search of sorts, but the Fourth Amendment protects only against searches of citizens' "persons, houses, papers, and effects"; and it is entirely unrealistic to regard urine as one of the "effects" (i. e., part of the property) of the person who has passed and abandoned it. Cf. California v. Greenwood, 486 U. S. 35 (1988) (garbage left at curb is not property protected by the Fourth Amendment). Some would argue, 93 I suppose, that testing of the urine is prohibited by some generalized privacy right "emanating" from the "penumbras" of the Constitution (a question that is not before us); but it is not even arguable that the testing of urine that has been lawfully obtained is a Fourth Amendment search. (I may add that, even if it were, the factors legitimizing the taking of the sample, which I discuss below, would likewise legitimize the testing of it.) It is rudimentary Fourth Amendment law that a search which has been consented to is not unreasonable. There is no contention in the present case that the urine samples were extracted forcibly. The only conceivable bases for saying that they were obtained without consent are the contentions (1) that the consent was coerced by the patients' need for medical treatment, (2) that the consent was uninformed because the patients were not told that the tests would include testing for drugs, and (3) that the consent was uninformed because the patients were not told that the results of the tests would be provided to the police. 1 (When the court below said that it was reserving the factual issue of consent, see 186 F.3d 469 , 476 (CA4 1999), it was referring at most to these three-and perhaps just to the last two.) 1 The Court asserts that it is improper to "disaggregate the taking and testing of the urine sample from the reporting of the results to the police," because "in our special needs cases, we have routinely treated urine screens taken by state agents as searches within the meaning of the Fourth Amendment." Ante, at 76, n. 9. But in all of those cases, the urine was obtained involuntarily. See Chandler v. Miller, 520 U. S. 305 (1997); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995); Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989); Treasury Employees v. Von Raab, 489 U. S. 656 (1989). Where the taking of the urine sample is unconsented (and thus a Fourth Amendment search), the subsequent testing and reporting of the results to the police are obviously part of (or infected by) the same search; but where, as here, the taking of the sample was not a Fourth Amendment search, it is necessary to consider separately whether the testing and reporting were. 94 Under our established Fourth Amendment law, the last two contentions would not suffice, even without reference to the special-needs doctrine. The Court's analogizing of this case to Miranda v. Arizona, 384 U. S. 436 (1966), and its claim that "standards of knowing waiver" apply, ante, at 85, are flatly contradicted by our jurisprudence, which shows that using lawfully (but deceivingly) obtained material for purposes other than those represented, and giving that material or information derived from it to the police, is not unconstitutional. In Hoffa v. United States, 385 U. S. 293 (1966), "[t]he argument [was] that [the informant's] failure to disclose his role as a government informant vitiated the consent that the petitioner gave" for the agent's access to evidence of criminal wrongdoing, id., at 300. We rejected that argument, because "the Fourth Amendment [does not protect] a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Id., at 302. Because the defendant had voluntarily provided access to the evidence, there was no reasonable expectation of privacy to invade. Abuse of trust is surely a sneaky and ungentlemanly thing, and perhaps there should be (as there are) laws against such conduct by the government. See, e. g., 50 U. S. C. § 403-7 (1994 ed., Supp. IV) (prohibiting the "Intelligence Community['s]" use of journalists as agents). That, however, is immaterial for Fourth Amendment purposes, for "however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities." United States v. White, 401 U. S. 745 , 749 (1971) (emphasis added). The Hoffa line of cases, I may note, does not distinguish between operations meant to catch a criminal in the act, and those meant only to gather evidence of prior wrongdoing. See, e. g., United States v. Miller, 425 U. S. 435 , 440-443 (1976); cf. Illinois v. Perkins, 496 U. S. 292 , 298 (1990) (relying on Hoffa in holding the 95 Miranda rule did not require suppression of an inmate confession given an agent posing as a fellow prisoner). Until today, we have never held-or even suggested-that material which a person voluntarily entrusts to someone else cannot be given by that person to the police, and used for whatever evidence it may contain.2 Without so much as discussing the point, the Court today opens a hole in our Fourth Amendment jurisprudence, the size and shape of which is entirely indeterminate. Today's holding would be remarkable enough if the confidential relationship violated by the police conduct were at least one protected by state law. It would be surprising to learn, for example, that in a State which recognizes a spousal evidentiary privilege the police cannot use evidence obtained from a cooperating husband or wife. But today's holding goes even beyond that, since there does not exist any physician-patient privilege in South Carolina. See, e. g., Peagler v. Atlantic Coast R. R. Co., 232 S. C. 274, 101 S. E. 2d 821 (1958). Since the Court declines even to discuss the issue, it leaves law enforcement officials entirely in the dark as to when they can use incriminating evidence obtained from "trusted" sources.3 Presumably the 2 Hoffa did say that the Fourth Amendment can be violated by "guileful as well as by forcible intrusions into a constitutionally protected area." 385 U. S., at 301. The case it cited for that proposition, however, shows what it meant: Gouled v. United States, 255 U. S. 298 (1921), found a Fourth Amendment violation where a Government agent who had obtained access to the defendant's office on pretext of a social visit carried away private papers. "Guile" (rather than force) had been used to go beyond the scope of the consented access to evidence. Whereas the search in Gouled was invalidated, the search was approved in Lewis v. United States, 385 U. S. 206 (1966), where an equally guileful agent stayed within the bounds of the access to defendant's home, carrying away only a package of drugs that had been voluntarily provided. 3 The Court contends that its opinion does not leave law enforcement officials in the dark as to when they can use incriminating evidence from trusted sources, since it "do[es] not address a case in which doctors independently complied with reporting requirements," ante, at 85, n. 24. I find it hard to understand how not addressing that point fails to leave 96 lines will be drawn in the case-by-case development of a whole new branch of Fourth Amendment jurisprudence, taking yet another social judgment (which confidential relationships ought not be invaded by the police) out of democratic control, and confiding it to the uncontrolled judgment of this Court-uncontrolled because there is no common-law precedent to guide it. I would adhere to our established law, which says that information obtained through violation of a relationship of trust is obtained consensually, and is hence not a search.4 it enshrouded in darkness-unless the Court means that such reporting requirements are clearly bad. (If voluntary betrayal of a trust in mere cooperation with the police constitutes a Fourth Amendment search, surely betrayal of a trust at the direction of the legislature must be.) But in any event, reporting requirements are an infinitesimal part of the problem. What about a doctor's--or a spouse's-voluntary provision of information to the police, without the compulsion of a statute? 4 The Court contends that I am "mischaracteriz[ing]" its opinion, since the Court is merely "assum[ing] for purposes of decision that the patients did not consent to the searches, and [leaves] the question of consent for the Court of Appeals to determine." Ibid. That is not responsive. The "question of consent" that the Court leaves open is whether the patients consented, not merely to the taking of the urine samples, but to the drug testing in particular, and to the provision of the results to the police. Consent to the taking of the samples alone-or even to the taking of the samples plus the drug testing-does not suffice. The Court's contention that the question of the sufficiency of that more limited consent is not before us because respondents did not raise it, see ante, at 74, n. 6, is simply mistaken. Part II of respondents' brief, entitled "The Petitioners consented to the searches," argues that "Petitioners ... freely and voluntarily ... provided the urine samples"; that "each of the Petitioners signed a consent to treatment form which authorized the MUSC medical staff to conduct all necessary tests of those urine samples-including drug tests"; and that "[t]here is no precedent in this Court's Fourth Amendment search and seizure jurisprudence which imposes any ... requirement that the searching agency inform the consenting party that the results of the search will be turned over to law enforcement." Brief for Respondents 38-39. The brief specifically takes issue with the District Court's charge to the jury-which the Court chooses to accept as an unexaminable "given," see ante, at 74, n. 6-that "the Respondents were required to 97 There remains to be considered the first possible basis for invalidating this search, which is that the patients were coerced to produce their urine samples by their necessitous circumstances, to wit, their need for medical treatment of their pregnancy. If that was coercion, it was not coercion applied by the government-and if such nongovernmental coercion sufficed, the police would never be permitted to use the ballistic evidence obtained from treatment of a patient with a bullet wound. And the Fourth Amendment would invalidate those many state laws that require physicians to report gunshot wounds,5 evidence of spousal abuse,6 and (like the South Carolina law relevant here, see S. C. Code Ann. § 20-7-510 (2000)) evidence of child abuse.7 show that the Petitioners consented to MUSC disclosing the information to law enforcement." Brief for Respondents 39. In sum, I think it clear that the Court's disposition requires the holding that violation of a relationship of trust constitutes a search. The opinion itself implies that in its description of the issue left for the Court of Appeals on remand, see ante, at 77, n. 11: whether "the tests were performed without the informed consent of the patients," ante, at 77 (emphasis added)-informed, that is, that the urine would be tested for drugs and that the results would be given to the police. I am happy, of course, to accept the Court's illogical assurance that it intends no such holding, and urge the Court of Appeals on remand to do the same. 5 See, e. g., Cal. Penal Code Ann. § 11160 (West Supp. 2001); N. Y. Penal Law §265.25 (McKinney 2000); S. C. Code Ann. § 16-3-1072 (Supp. 2000). 6 See, e. g., Cal. Penal Code Ann. § 11160 (West Supp. 2001); Colo. Rev. Stat. § 12-36-135 (2000). 7The Court contends that I "would have us ... resolve the issue of consent in favor of respondents," whereas the Court's opinion "more prudent[ly] allow[s] [the Court of Appeals] to resolve the legal and factual issues in the first instance, and ... express[es] no view on those issues." Ante, at 77, n. 11. That is not entirely so. The Court does not resolve the factual issue whether there was consent to the drug testing and to providing the results to the police; and neither do I. But the Court does resolve the legal issue whether that consent was necessary, see ante, at 77,84-85, and n. 24; and so do I. Since the Court concludes it was necessary, the factual inquiry is left for the Fourth Circuit on remand. Since I conclude it was not necessary (and since no one contends that the taking 98 II I think it clear, therefore, that there is no basis for saying that obtaining of the urine sample was unconstitutional. The special-needs doctrine is thus quite irrelevant, since it operates only to validate searches and seizures that are otherwise unlawful. In the ensuing discussion, however, I shall assume (contrary to legal precedent) that the taking of the urine sample was (either because of the patients' necessitous circumstances, or because of failure to disclose that the urine would be tested for drugs, or because of failure to disclose that the results of the test would be given to the police) coerced. Indeed, I shall even assume (contrary to common sense) that the testing of the urine constituted an unconsented search of the patients' effects. On those assumptions, the special-needs doctrine would become relevant; and, properly applied, would validate what was done here. The conclusion of the Court that the special-needs doctrine is inapplicable rests upon its contention that respondents "undert[ook] to obtain [drug] evidence from their patients" not for any medical purpose, but "for the specific purpose of incriminating those patients." Ante, at 85 (emphasis in original). In other words, the purported medical rationale was merely a pretext; there was no special need. See Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 , 621, n. 5 (1989). This contention contradicts the District Court's finding of fact that the goal of the testing policy "was not to arrest patients but to facilitate their treatment and protect both the mother and unborn child." App. to Pet. for Cert. A-38.8 This finding is binding upon us unless clearly erro- of the urine sample was unconsented), there is on my analysis no factual consent issue remaining. 8 The Court believes that this finding "must be read in light of" the District Court's comment that" 'these searches were not done by the medical university for independent purposes .... [T]he police came in and there was an agreement reached that the positive screens would be shared with the police. And then the screen is not done independent of police, 99 neous, see Fed. Rule Civ. Proc. 52(a). Not only do I find it supportable; I think any other finding would have to be overturned. The cocaine tests started in April 1989, neither at police suggestion nor with police involvement. Expectant mothers who tested positive were referred by hospital staff for substance-abuse treatment, ante, at 70 (opinion of the Court)-an obvious health benefit to both mother and child. See App. 43 (testimony that a single use of cocaine can cause fetal damage). And, since "[i]nfants whose mothers abuse cocaine during pregnancy are born with a wide variety of physical and neurological abnormalities," ante, at 89 (KENNEDY, J., concurring in judgment), which require medical attention, see Brief in Opposition A76-A77, the tests were of additional medical benefit in predicting needed postnatal treatment for the child. Thus, in their origin-before the police were in any way involved-the tests had an immediate, not merely an "ultimate," ante, at 82 (opinion of the Court), purpose of improving maternal and infant health. Several months after the testing had been initiated, a nurse discovered that local police were arresting pregnant users of cocaine for child abuse, the hospital's general counsel wrote the county solicitor to ask "what, if anything, our Medical Center needs to do to assist you in this matter," App. 499 (South Carolina law requires child abuse to be reported, see S. C. Code Ann. § 20-7-510), the police suggested ways to avoid tainting evidence, and the hospital and police in conjunction used the testing program as a means of securing what the Court calls the "ultimate" health benefit of coercing drug-abusing mothers into drug treatment. See ante, at 7073, 82. Why would there be any reason to believe that, once it's done in conjunction with the police and that implicates the Fourth Amendment.''' Ante, at 75, n. 8, quoting App. 1247-1249. But all this shows is that the explicit finding of medical purpose was not a finding of exclusive medical purpose. As discussed later in text, the special-needs doctrine contains no such exclusivity requirement. 100 this policy of using the drug tests for their "ultimate" health benefits had been adopted, use of them for their original, immediate, benefits somehow disappeared, and testing somehow became in its entirety nothing more than a "pretext" for obtaining grounds for arrest? On the face of it, this is incredible. The only evidence of the exclusively arrestrelated purpose of the testing adduced by the Court is that the police-cooperation policy itself does not describe how to care for cocaine-exposed infants. See ante, at 73, 82. But of course it does not, since that policy, adopted months after the cocaine testing was initiated, had as its only health object the "ultimate" goal of inducing drug treatment through threat of arrest. Does the Court really believe (or even hope) that, once invalidation of the program challenged here has been decreed, drug testing will cease? In sum, there can be no basis for the Court's purported ability to "distinguis[h] this case from circumstances in which physicians or psychologists, in the course of ordinary medical procedures aimed at helping the patient herself, come across information that ... is subject to reporting requirements," ante, at 80-81, unless it is this: That the addition of a lawenforcement-related purpose to a legitimate medical purpose destroys applicability of the "special-needs" doctrine. But that is quite impossible, since the special-needs doctrine was developed, and is ordinarily employed, precisely to enable searches by law enforcement officials who, of course, ordinarily have a law enforcement objective. Thus, in Griffin v. Wisconsin, 483 U. S. 868 (1987), a probation officer received a tip from a detective that petitioner, a felon on probation, possessed a firearm. Accompanied by police, he conducted a warrantless search of petitioner's home. The weapon was found and used as evidence in the probationer's trial for unlawful possession of a firearm. See id., at 870-872. Affirming denial of a motion to suppress, we concluded that the "special need" of assuring compliance with terms of release 101 justified a warrantless search of petitioner's home. Notably, we observed that a probation officer is not "the police officer who normally conducts searches against the ordinary citizen. He is an employee of the State Department of Health and Social Services who, while assuredly charged with protecting the public interest, is also supposed to have in mind the welfare of the probationer .... In such a setting, we think it reasonable to dispense with the warrant requirement." Id., at 876-877. Like the probation officer, the doctors here do not "ordinarily conduc[t] searches against the ordinary citizen," and they are "supposed to have in mind the welfare of the [mother and child]." That they have in mind in addition the provision of evidence to the police should make no difference. The Court suggests that if police involvement in this case was in some way incidental and after-the-fact, that would make a difference in the outcome. See ante, at 80-84. But in Griffin, even more than here, police were involved in the search from the very beginning; indeed, the initial tip about the gun came from a detective. Under the factors relied upon by the Court, the use of evidence approved in Griffin would have been permitted only if the parole officer had been untrained in chain-of-custody procedures, had not known of the possibility a gun was present, and had been unaccompanied by police when he simply happened upon the weapon. Why any or all of these is constitutionally significant is baffling. Petitioners seek to distinguish Griffin by observing that probationers enjoy a lesser expectation of privacy than does the general public. That is irrelevant to the point I make here, which is that the presence of a law enforcement purpose does not render the special-needs doctrine inapplicable. In any event, I doubt whether Griffin's reasonable expectation of privacy in his home was any less than petitioners' reasonable expectation of privacy in their urine taken, 102 or in the urine tests performed, in a hospital-especially in a State such as South Carolina, which recognizes no physician-patient testimonial privilege and requires the physician's duty of confidentiality to yield to public policy, see McCormick v. England, 328 S. C. 627, 633, 640-642, 494 S. E. 2d 431, 434, 438-439 (App. 1997); and which requires medical conditions that indicate a violation of the law to be reported to authorities, see, e. g., S. C. Code Ann. § 20-7-510 (2000) (child abuse). Cf. Whalen v. Roe, 429 U. S. 589 , 597598 (1977) (privacy interest does not forbid government to require hospitals to provide, for law enforcement purposes, names of patients receiving prescriptions of frequently abused drugs). The concurrence makes essentially the same basic error as the Court, though it puts the point somewhat differently: "The special needs cases we have decided," it says, "do not sustain the active use of law enforcement ... as an integral part of a program which seeks to achieve legitimate, civil objectives." Ante, at 88. Griffin shows that is not true. Indeed, Griffin shows that there is not even any truth in the more limited proposition that our cases do not support application of the special-needs exception where the "legitimate, civil objectives" are sought only through the use of law enforcement means. (Surely the parole officer in Griffin was using threat of reincarceration to assure compliance with parole.) But even if this latter proposition were true, it would invalidate what occurred here only if the drug testing sought exclusively the "ultimate" health benefits achieved by coercing the mothers into drug treatment through threat of prosecution. But in fact the drug testing sought, independently of law enforcement involvement, the "immediate" health benefits of identifying drug-impaired mother and child for necessary medical treatment. The concurrence concedes that if the testing is conducted for medical reasons, the fact that "prosecuting authorities then adopt legitimate procedures to discover this information and prosecution follows 103 ... ought not to invalidate the testing." Ante, at 90 (emphasis added). But here the police involvement in each case did take place after the testing was conducted for independent reasons. Surely the concurrence cannot mean that no police-suggested procedures (such as preserving the chain of custody of the urine sample) can be applied until after the testing; or that the police-suggested procedures must have been designed after the testing. The facts in Griffin (and common sense) show that this cannot be so. It seems to me that the only real distinction between what the concurrence must reasonably be thought to be approving, and what we have here, is that here the police took the lesser step of initially threatening prosecution rather than bringing it. *** As I indicated at the outset, it is not the function of this Court-at least not in Fourth Amendment cases-to weigh petitioners' privacy interest against the State's interest in meeting the crisis of "crack babies" that developed in the late 1980's. I cannot refrain from observing, however, that the outcome of a wise weighing of those interests is by no means clear. The initial goal of the doctors and nurses who conducted cocaine testing in this case was to refer pregnant drug addicts to treatment centers, and to prepare for necessary treatment of their possibly affected children. When the doctors and nurses agreed to the program providing test results to the police, they did so because (in addition to the fact that child abuse was required by law to be reported) they wanted to use the sanction of arrest as a strong incentive for their addicted patients to undertake drug-addiction treatment. And the police themselves used it for that benign purpose, as is shown by the fact that only 30 of 253 women testing positive for cocaine were ever arrested, and only 2 of those prosecuted. See App. 1125-1126. It would not be unreasonable to conclude that to day's judgment, authorizing the assessment of damages against the county 104 solicitor and individual doctors and nurses who participated in the program, proves once again that no good deed goes unpunished. But as far as the Fourth Amendment is concerned: There was no unconsented search in this case. And if there was, it would have been validated by the special-needs doctrine. For these reasons, I respectfully dissent.

The Supreme Court held that a state hospital performing a diagnostic test on a patient to obtain evidence of criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented. The court found that the hospital's interest in using criminal sanctions to deter pregnant women from using cocaine did not justify departing from the general rule that nonconsensual searches without a valid warrant are unconstitutional. The court emphasized the importance of patient consent and the need for a valid warrant in such cases.

Search & Seizure

U.S. v. Drayton

https://supreme.justia.com/cases/federal/us/536/194/

OCTOBER TERM, 2001 Syllabus UNITED STATES v. DRAYTON ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 01-631. Argued April 16, 2002-Decided June 17,2002 The driver of the bus on which respondents were traveling allowed three police officers to board the bus as part of a routine drug and weapons interdiction effort. One officer knelt on the driver's seat, facing the rear of the bus, while another officer stayed in the rear, facing forward. Officer Lang worked his way from back to front, speaking with individual passengers as he went. To avoid blocking the aisle, Lang stood next to or just behind each passenger with whom he spoke. He testified that passengers who declined to cooperate or who chose to exit the bus at any time would have been allowed to do so without argument; that most people are willing to cooperate; that passengers often leave the bus for a cigarette or a snack while officers are on board; and that, although he sometimes informs passengers of their right to refuse to cooperate, he did not do so on the day in question. As Lang approached respondents, who were seated together, he held up his badge long enough for them to identify him as an officer. Speaking just loud enough for them to hear, he declared that the police were looking for drugs and weapons and asked if respondents had any bags. When both of them pointed to a bag overhead, Lang asked if they minded if he checked it. Respondent Brown agreed, and a search of the bag revealed no contraband. Lang then asked Brown whether he minded if Lang checked his person. Brown agreed, and a patdown revealed hard objects similar to drug packages in both thigh areas. Brown was arrested. Lang then asked respondent Drayton, "Mind if I check you?" When Drayton agreed, a patdown revealed objects similar to those found on Brown, and Drayton was arrested. A further search revealed that respondents had taped cocaine between their shorts. Charged with federal drug crimes, respondents moved to suppress the cocaine on the ground that their consent to the patdown searches was invalid. In denying the motions, the District Court determined that the police conduct was not coercive and respondents' consent to the search was voluntary. The Eleventh Circuit reversed and remanded based on its prior holdings that bus passengers do not feel free to disregard officers' requests to search absent some positive indication that consent may be refused. Held: The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches. Pp. 200-208. 195 (a) Among its rulings in Florida v. Bostick, 501 U. S. 429 , this Court held that the Fourth Amendment permits officers to approach bus passengers at random to ask questions and request their consent to searches, provided a reasonable person would feel free to decline the requests or otherwise terminate the encounter, id., at 436. The Court identified as "particularly worth noting" the factors that the officer, although obviously armed, did not unholster his gun or use it in a threatening way, and that he advised respondent passenger that he could refuse consent to a search. Relying on this last factor, the Eleventh Circuit erroneously adopted what is in effect a per se rule that evidence obtained during suspicionless drug interdictions on buses must be suppressed unless the officers have advised passengers of their right not to cooperate and to refuse consent to a search. Pp. 200-203. (b) Applying Bostick's framework to this case demonstrates that the police did not seize respondents. The officers gave the passengers no reason to believe that they were required to answer questions. When Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter, or would indicate a command to answer his questions. There were ample grounds to conclude that their encounter was cooperative and not coercive or confrontational. There was no overwhelming show or application of force, no intimidating movement, no brandishing of weapons, no blocking of exits, no threat, and no command, not even an authoritative tone of voice. Had this encounter occurred on the street, it doubtless would be constitutional. The fact that an encounter takes place on a bus does not on its own transform standard police questioning into an illegal seizure. See Bostick, supra, at 439-440. Indeed, because many fellow passengers are present to witness officers' conduct, a reasonable person may feel even more secure in deciding not to cooperate on a bus than in other circumstances. Lang's display of his badge is not dispositive. See, e. g., Florida v. Rodriguez, 469 U. S. 1 , 5-6. And, because it is well known that most officers are armed, the presence of a holstered firearm is unlikely to be coercive absent active brandishing of the weapon. Officer Hoover's position at the front of the bus also does not tip the scale to respondents, since he did nothing to intimidate passengers and said or did nothing to suggest that people could not exit. See INS v. Delgado, 466 U. S. 210 , 219. Finally, Lang's testimony that only a few passengers refuse to cooperate does not suggest that a reasonable person would not feel free to terminate the encounter. See id., at 216. Drayton argues unsuccessfully that no reasonable person in his position would feel free to terminate the encounter 196 Syllabus after Brown was arrested. The arrest of one person does not mean that everyone around him has been seized. Even after arresting Brown, Lang provided Drayton with no indication that he was required to answer Lang's questions. Pp. 203-206. (c) Respondents were not subjected to an unreasonable search. Where, as here, the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts. For the foregoing reasons, respondents' consent to the search of their luggage and their persons was voluntary. When respondents told Lang they had a bag, he asked to check it. And when he asked to search their persons, he inquired first if they objected, thus indicating to a reasonable person that he or she was free to refuse. Moreover, officers need not always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. See, e. g., Schneckloth v. Bustamonte, 412 U. S. 218 , 227. While knowledge of the right to refuse is taken into account, the Government need not establish such knowledge as the sine qua non of an effective consent. Ibid. Nor does a presumption of invalidity attach if a citizen consented without explicit notification that he or she was free to refuse to cooperate. Instead, the totality of the circumstances controls, without giving extra weight to whether this type of warning was given. See, e. g., Ohio v. Robinette, 519 U. S. 33 , 39-40. Although Lang did not give such a warning, the totality of the circumstances indicates that respondents' consent was voluntary, and the searches were reasonable. Pp. 206-208. 231 F.3d 787 , reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, THOMAS, and BREYER, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined, post, p. 208. Larry D. Thompson argued the cause for the United States. On the briefs were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, Jeffrey A. Lamken, and Kathleen A. Felton. Gwendolyn Spivey, by appointment of the Court, 535 U. S. 903, argued the cause for respondents. With her on the brief were Randolph P. Murrell, Steven L. Seliger, by ap- 197 pointment of the Court, 535 U. S. 903, Jeffrey T. Green, and Jacqueline G. Cooper.* JUSTICE KENNEDY delivered the opinion of the Court. The Fourth Amendment permits police officers to approach bus passengers at random to ask questions and to request their consent to searches, provided a reasonable person would understand that he or she is free to refuse. Florida v. Bostick, 501 U. S. 429 (1991). This case requires us to determine whether officers must advise bus passengers during these encounters of their right not to cooperate. I On February 4, 1999, respondents Christopher Drayton and Clifton Brown, Jr., were traveling on a Greyhound bus en route from Ft. Lauderdale, Florida, to Detroit, Michigan. The bus made a scheduled stop in Tallahassee, Florida. The passengers were required to disembark so the bus could be refueled and cleaned. As the passengers reboarded, the driver checked their tickets and then left to complete paperwork inside the terminal. As he left, the driver allowed three members of the Tallahassee Police Department to board the bus as part of a routine drug and weapons interdiction effort. The officers were dressed in plain clothes and carried concealed weapons and visible badges. Once onboard Officer Hoover knelt on the driver's seat and faced the rear of the bus. He could observe the passengers * Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal. Leon Friedman and Joshua L. Dratel filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance. James P. Manak, Wayne W Schmidt, Richard Weintraub, Bernard J. Farber, and Carl Milazzo filed a brief for Americans For Effective Law Enforcement, Inc., et al. as amici curiae. 198 and ensure the safety of the two other officers without blocking the aisle or otherwise obstructing the bus exit. Officers Lang and Blackburn went to the rear of the bus. Blackburn remained stationed there, facing forward. Lang worked his way toward the front of the bus, speaking with individual passengers as he went. He asked the passengers about their travel plans and sought to match passengers with luggage in the overhead racks. To avoid blocking the aisle, Lang stood next to or just behind each passenger with whom he spoke. According to Lang's testimony, passengers who declined to cooperate with him or who chose to exit the bus at any time would have been allowed to do so without argument. In Lang's experience, however, most people are willing to cooperate. Some passengers go so far as to commend the police for their efforts to ensure the safety of their travel. Lang could recall five to six instances in the previous year in which passengers had declined to have their luggage searched. It also was common for passengers to leave the bus for a cigarette or a snack while the officers were on board. Lang sometimes informed passengers of their right to refuse to cooperate. On the day in question, however, he did not. Respondents were seated next to each other on the bus. Drayton was in the aisle seat, Brown in the seat next to the window. Lang approached respondents from the rear and leaned over Drayton's shoulder. He held up his badge long enough for respondents to identify him as a police officer. With his face 12-to-18 inches away from Drayton's, Lang spoke in a voice just loud enough for respondents to hear: "I'm Investigator Lang with the Tallahassee Police Department. We're conducting bus interdiction [sic], attempting to deter drugs and illegal weapons being transported on the bus. Do you have any bags on the bus?" App. 55. 199 Both respondents pointed to a single green bag in the overhead luggage rack. Lang asked, "Do you mind if I check it?," and Brown responded, "Go ahead." Id., at 56. Lang handed the bag to Officer Blackburn to check. The bag contained no contraband. Officer Lang noticed that both respondents were wearing heavy jackets and baggy pants despite the warm weather. In Lang's experience drug traffickers often use baggy clothing to conceal weapons or narcotics. The officer thus asked Brown if he had any weapons or drugs in his possession. And he asked Brown: "Do you mind if I check your person?" Brown answered, "Sure," and cooperated by leaning up in his seat, pulling a cell phone out of his pocket, and opening up his jacket. Id., at 61. Lang reached across Drayton and patted down Brown's jacket and pockets, including his waist area, sides, and upper thighs. In both thigh areas, Lang detected hard objects similar to drug packages detected on other occasions. Lang arrested and handcuffed Brown. Officer Hoover escorted Brown from the bus. Lang then asked Drayton, "Mind if I check you?" Id., at 65. Drayton responded by lifting his hands about eight inches from his legs. Lang conducted a patdown of Drayton's thighs and detected hard objects similar to those found on Brown. He arrested Drayton and escorted him from the bus. A further search revealed that respondents had ducttaped plastic bundles of powder cocaine between several pairs of their boxer shorts. Brown possessed three bundles containing 483 grams of cocaine. Drayton possessed two bundles containing 295 grams of cocaine. Respondents were charged with conspiring to distribute cocaine, in violation of 21 U. S. C. §§ 841(a)(1) and 846, and with possessing cocaine with intent to distribute it, in violation of § 841(a)(1). They moved to suppress the cocaine, arguing that the consent to the patdown search was invalid. Following a hearing at which only Officer Lang testified, the 200 United States District Court for the Northern District of Florida denied their motions to suppress. The District Court determined that the police conduct was not coercive and respondents' consent to the search was voluntary. The District Court pointed to the fact that the officers were dressed in plain clothes, did not brandish their badges in an authoritative manner, did not make a general announcement to the entire bus, and did not address anyone in a menacing tone of voice. It noted that the officers did not block the aisle or the exit, and stated that it was "obvious that [respondents] can get up and leave, as can the people ahead of them." App. 132. The District Court concluded: "[E]verything that took place between Officer Lang and Mr. Drayton and Mr. Brown suggests that it was cooperative. There was nothing coercive, there was nothing confrontational about it." Ibid. The Court of Appeals for the Eleventh Circuit reversed and remanded with instructions to grant respondents' motions to suppress. 231 F.3d 787 (2000). The court held that this disposition was compelled by its previous decisions in United States v. Washington, 151 F.3d 1354 (1998), and United States v. Guapi, 144 F.3d 1393 (1998). Those cases had held that bus passengers do not feel free to disregard police officers' requests to search absent "some positive indication that consent could have been refused." Washington, supra, at 1357. We granted certiorari. 534 U. S. 1074 (2002). The respondents, we conclude, were not seized and their consent to the search was voluntary; and we reverse. II Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. See, e. g., Florida v. Royer, 460 U. S. 491 , 497 (1983) 201 (plurality opinion); see id., at 523, n. 3 (REHNQUIST, J., dissenting); Florida v. Rodriguez, 469 U. S. 1 , 5-6 (1984) (per curiam) (holding that such interactions in airports are "the sort of consensual encounter[s] that implicat[e] no Fourth Amendment interest"). Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage-provided they do not induce cooperation by coercive means. See Florida v. Bostick, 501 U. S., at 434-435 (citations omitted). If a reasonable person would feel free to terminate the encounter, then he or she has not been seized. The Court has addressed on a previous occasion the specific question of drug interdiction efforts on buses. In Bostick, two police officers requested a bus passenger's consent to a search of his luggage. The passenger agreed, and the resulting search revealed cocaine in his suitcase. The Florida Supreme Court suppressed the cocaine. In doing so it adopted a per se rule that due to the cramped confines onboard a bus the act of questioning would deprive a person of his or her freedom of movement and so constitute a seizure under the Fourth Amendment. This Court reversed. Bostick first made it clear that for the most part per se rules are inappropriate in the Fourth Amendment context. The proper inquiry necessitates a consideration of "all the circumstances surrounding the encounter." Id., at 439. The Court noted next that the traditional rule, which states that a seizure does not occur so long as a reasonable person would feel free "to disregard the police and go about his business," California v. Hodari D., 499 U. S. 621 , 628 (1991), is not an accurate measure of the coercive effect of a bus encounter. A passenger may not want to get off a bus if there is a risk it will depart before the opportunity to reboard. Bostick, 501 U. S., at 434-436. A bus rider's movements are confined in this sense, but this is the natural result of choosing to take the bus; it says noth- 202 ing about whether the police conduct is coercive. Id., at 436. The proper inquiry "is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Ibid. Finally, the Court rejected Bostick's argument that he must have been seized because no reasonable person would consent to a search of luggage containing drugs. The reasonable person test, the Court explained, is objective and "presupposes an innocent person." Id., at 437-438. In light of the limited record, Bostick refrained from deciding whether a seizure occurred. Id., at 437. The Court, however, identified two factors "particularly worth noting" on remand. Id., at 432. First, although it was obvious that an officer was armed, he did not remove the gun from its pouch or use it in a threatening way. Second, the officer advised the passenger that he could refuse consent to the search. Ibid. Relying upon this latter factor, the Eleventh Circuit has adopted what is in effect a per se rule that evidence obtained during suspicionless drug interdiction efforts aboard buses must be suppressed unless the officers have advised passengers of their right not to cooperate and to refuse consent to a search. In United States v. Guapi, supra, the Court of Appeals described "[t]he most glaring difference" between the encounters in Guapi and in Bostick as "the complete lack of any notification to the passengers that they were in fact free to decline the search request .... Providing [this] simple notification ... is perhaps the most efficient and effective method to ensure compliance with the Constitution." 144 F. 3d, at 1395. The Court of Appeals then listed other factors that contributed to the coerciveness of the encounter: (1) the officer conducted the interdiction before the passengers disembarked from the bus at a scheduled stop; (2) the officer explained his presence in the form of a general announcement to the entire bus; (3) the officer wore a police uniform; and (4) the officer questioned passengers as he 203 moved from the front to the rear of the bus, thus obstructing the path to the exit. Id., at 1396. After its decision in Guapi the Court of Appeals decided United States v. Washington and the instant case. The court suppressed evidence obtained during similar drug interdiction efforts despite the following facts: (1) the officers in both cases conducted the interdiction after the passengers had reboarded the bus; (2) the officer in the present case did not make a general announcement to the entire bus but instead spoke with individual passengers; (3) the officers in both cases were not in uniform; and (4) the officers in both cases questioned passengers as they moved from the rear to the front of the bus and were careful not to obstruct passengers' means of egress from the bus. Although the Court of Appeals has disavowed a per se requirement, the lack of an explicit warning to passengers is the only element common to all its cases. See Washington, 151 F. 3d, at 1357 ("It seems obvious to us that if police officers genuinely want to ensure that their encounters with bus passengers remain absolutely voluntary, they can simply say so. Without such notice in this case, we do not feel a reasonable person would have felt able to decline the agents' requests"); 231 F. 3d, at 790 (noting that "[t]his case is controlled by" Guapi and Washington, and dismissing any factual differences between the three cases as irrelevant). Under these cases, it appears that the Court of Appeals would suppress any evidence obtained during suspicionless drug interdiction efforts aboard buses in the absence of a warning that passengers may refuse to cooperate. The Court of Appeals erred in adopting this approach. Applying the Bostick framework to the facts of this particular case, we conclude that the police did not seize respondents when they boarded the bus and began questioning passengers. The officers gave the passengers no reason to believe that they were required to answer the officers' questions. When Officer Lang approached respondents, he 204 did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter. There were ample grounds for the District Court to conclude that "everything that took place between Officer Lang and [respondents] suggests that it was cooperative" and that there "was nothing coercive [or] confrontational" about the encounter. App. 132. There was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice. It is beyond question that had this encounter occurred on the street, it would be constitutional. The fact that an encounter takes place on a bus does not on its own transform standard police questioning of citizens into an illegal seizure. See Bostick, 501 U. S., at 439-440. Indeed, because many fellow passengers are present to witness officers' conduct, a reasonable person may feel even more secure in his or her decision not to cooperate with police on a bus than in other circumstances. Respondents make much of the fact that Officer Lang displayed his badge. In Florida v. Rodriguez, 469 U. S., at 5-6, however, the Court rejected the claim that the defendant was seized when an officer approached him in an airport, showed him his badge, and asked him to answer some questions. Likewise, in INS v. Delgado, 466 U. S. 210 , 212-213 (1984), the Court held that Immigration and Naturalization Service (INS) agents' wearing badges and questioning workers in a factory did not constitute a seizure. And while neither Lang nor his colleagues were in uniform or visibly armed, those factors should have little weight in the analysis. Officers are often required to wear uniforms and in many circumstances this is cause for assurance, not discomfort. 205 Much the same can be said for wearing sidearms. That most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon. Officer Hoover's position at the front of the bus also does not tip the scale in respondents' favor. Hoover did nothing to intimidate passengers, and he said nothing to suggest that people could not exit and indeed he left the aisle clear. In Delgado, the Court determined there was no seizure even though several uniformed INS officers were stationed near the exits of the factory. Id., at 219. The Court noted: "The presence of agents by the exits posed no reasonable threat of detention to these workers, ... the mere possibility that they would be questioned if they sought to leave the buildings should not have resulted in any reasonable apprehension by any of them that they would be seized or detained in any meaningful way." Ibid. Finally, the fact that in Officer Lang's experience only a few passengers have refused to cooperate does not suggest that a reasonable person would not feel free to terminate the bus encounter. In Lang's experience it was common for passengers to leave the bus for a cigarette or a snack while the officers were questioning passengers. App. 70, 81. And of more importance, bus passengers answer officers' questions and otherwise cooperate not because of coercion but because the passengers know that their participation enhances their own safety and the safety of those around them. "While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." Delgado, supra, at 216. Drayton contends that even if Brown's cooperation with the officers was consensual, Drayton was seized because no reasonable person would feel free to terminate the encounter with the officers after Brown had been arrested. The Court 206 of Appeals did not address this claim; and in any event the argument fails. The arrest of one person does not mean that everyone around him has been seized by police. If anything, Brown's arrest should have put Drayton on notice of the consequences of continuing the encounter by answering the officers' questions. Even after arresting Brown, Lang addressed Drayton in a polite manner and provided him with no indication that he was required to answer Lang's questions. We turn now from the question whether respondents were seized to whether they were subjected to an unreasonable search, i. e., whether their consent to the suspicionless search was involuntary. In circumstances such as these, where the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts. And, as the facts above suggest, respondents' consent to the search of their luggage and their persons was voluntary. Nothing Officer Lang said indicated a command to consent to the search. Rather, when respondents informed Lang that they had a bag on the bus, he asked for their permission to check it. And when Lang requested to search Brown and Drayton's persons, he asked first if they objected, thus indicating to a reasonable person that he or she was free to refuse. Even after arresting Brown, Lang provided Drayton with no indication that he was required to consent to a search. To the contrary, Lang asked for Drayton's permission to search him ("Mind if I check you?"), and Drayton agreed. The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. See, e. g., Ohio v. Robinette, 519 U. S. 33 , 39-40 (1996); Schneckloth v. Bustamonte, 412 U. S. 218 , 227 (1973). "While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective 207 consent." Ibid. Nor do this Court's decisions suggest that even though there are no per se rules, a presumption of invalidity attaches if a citizen consented without explicit notification that he or she was free to refuse to cooperate. Instead, the Court has repeated that the totality of the circumstances must control, without giving extra weight to the absence of this type of warning. See, e. g., Schneckloth, supra; Robinette, supra, at 39-40. Although Officer Lang did not inform respondents of their right to refuse the search, he did request permission to search, and the totality of the circumstances indicates that their consent was voluntary, so the searches were reasonable. In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion. We need not ask the alternative question whether, after the arrest of Brown, there were grounds for a Terry stop and frisk of Drayton, Terry v. Ohio, 392 U. S. 1 (1968), though this may have been the case. It was evident that Drayton and Brown were traveling together-Officer Lang observed the pair reboarding the bus together; they were each dressed in heavy, baggy clothes that were ill-suited for the day's warm temperatures; they were seated together on the bus; and they each claimed responsibility for the single piece of green carry-on luggage. Once Lang had identified Brown as carrying what he believed to be narcotics, he may have had reasonable suspicion to conduct a Terry stop and frisk on Drayton as well. That question, however, has not been presented to us. The fact the officers may have had reasonable suspicion does not prevent them from relying on a citizen's consent to the search. It would be a paradox, and one most puzzling to law enforcement officials and courts alike, were 208 we to say, after holding that Brown's consent was voluntary, that Drayton's consent was ineffectual simply because the police at that point had more compelling grounds to detain him. After taking Brown into custody, the officers were entitled to continue to proceed on the basis of consent and to ask for Drayton's cooperation. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, dissenting. Anyone who travels by air today submits to searches of the person and luggage as a condition of boarding the aircraft. It is universally accepted that such intrusions are necessary to hedge against risks that, nowadays, even small children understand. The commonplace precautions of air travel have not, thus far, been justified for ground transportation, however, and no such conditions have been placed on passengers getting on trains or buses. There is therefore an air of unreality about the Court's explanation that bus passengers consent to searches of their luggage to "enhanc[e] their own safety and the safety of those around them." Ante, at 205. Nor are the other factual assessments underlying the Court's conclusion in favor of the Government more convincing. The issue we took to review is whether the police's examination of the bus passengers, including respondents, amounted to a suspicionless seizure under the Fourth Amendment. 1 If it did, any consent to search was plainly 1 The Court proceeds to resolve the voluntariness issue on the heels of its seizure enquiry, but the voluntariness of respondents' consent was not within the question the Court accepted for review. Accord, Reply Brief for United States 20, n. 7 (stating that the consent issue "is not presented by this case; the question here is whether there was an illegal seizure 209 invalid as a product of the illegal seizure. See Florida v. Royer, 460 U. S. 491 , 507-508 (1983) (plurality opinion) ("[T]he consent was tainted by the illegality and ... ineffective to justify the search"); id., at 509 (Powell, J., concurring); id., at 509 (Brennan, J., concurring in result). Florida v. Bostick, 501 U. S. 429 (1991), established the framework for determining whether the bus passengers were seized in the constitutional sense. In that case, we rejected the position that police questioning of bus passengers was a per se seizure, and held instead that the issue of seizure was to be resolved under an objective test considering all circumstances: whether a reasonable passenger would have felt "free to decline the officers' requests or otherwise terminate the encounter," id., at 436. We thus applied to a bus passenger the more general criterion, whether the person questioned was free "to ignore the police presence and go about his business," id., at 437 (quoting Michigan v. Chesternut, 486 U. S. 567 , 569 (1988)). Before applying the standard in this case, it may be worth getting some perspective from different sets of facts. A perfect example of police conduct that supports no colorable claim of seizure is the act of an officer who simply goes up to a pedestrian on the street and asks him a question. See Royer, 460 U. S., at 497; see id., at 523, n. 3 (REHNQUIST, J., dissenting). A pair of officers questioning a pedestrian, in the first place"). While it is true that the Eleventh Circuit purported to address the question "whether the consent given by each defendant for the search was 'uncoerced and legally voluntary,'" 231 F.3d 787 , 788 (2000), elsewhere the court made it clear that it was applying the test in Florida v. Bostick, 501 U. S. 429 (1991), which is relevant to the issue of seizure, 231 F. 3d, at 791, n. 6. There is thus no occasion here to reach any issue of consent untainted by seizure. If there were, the consent would have to satisfy the voluntariness test of Schneckloth v. Bustamonte, 412 U. S. 218 (1973), which focuses on "the nature of a person's subjective understanding," id., at 230, and requires consideration of "the characteristics of the accused [in addition to] the details of the interrogation," id., at 226. 210 without more, would presumably support the same conclusion. Now consider three officers, one of whom stands behind the pedestrian, another at his side toward the open sidewalk, with the third addressing questions to the pedestrian a foot or two from his face. Finally, consider the same scene in a narrow alley. On such barebones facts, one may not be able to say a seizure occurred, even in the last case, but one can say without qualification that the atmosphere of the encounters differed significantly from the first to the last examples. In the final instance there is every reason to believe that the pedestrian would have understood, to his considerable discomfort, what Justice Stewart described as the "threatening presence of several officers," United States v. Mendenhall, 446 U. S. 544 , 554 (1980) (opinion of Stewart, J.). The police not only carry legitimate authority but also exercise power free from immediate check, and when the attention of several officers is brought to bear on one civilian the imbalance of immediate power is unmistakable. We all understand this, as well as we understand that a display of power rising to Justice Stewart's "threatening" level may overbear a normal person's ability to act freely, even in the absence of explicit commands or the formalities of detention. As common as this understanding is, however, there is little sign of it in the Court's opinion. My own understanding of the relevant facts and their significance follows. When the bus in question made its scheduled stop in Tallahassee, the passengers were required to disembark while the vehicle was cleaned and refueled. App. 104. When the passengers returned, they gave their tickets to the driver, who kept them and then left himself, after giving three police officers permission to board the bus in his absence. Id., at 77-78. Although they were not in uniform, the officers displayed badges and identified themselves as police. One stationed himself in the driver's seat by the door at the front, facing back to observe the passengers. The two others went to the rear, from which they worked their way for- 211 ward, with one of them speaking to passengers, the other backing him up. Id., at 47-48. They necessarily addressed the passengers at very close range; the aisle was only 15 inches wide, and each seat only 18.2 The quarters were cramped further by the overhead rack, 19 inches above the top of the passenger seats. The passenger by the window could not have stood up straight, id., at 55, and the face of the nearest officer was only a foot or 18 inches from the face of the nearest passenger being addressed, id., at 57. During the exchanges, the officers looked down, and the passengers had to look up if they were to face the police. The officer asking the questions spoke quietly. He prefaced his requests for permission to search luggage and do a body patdown by identifying himself by name as a police investigator "conducting bus interdiction" and saying, "'We would like for your cooperation. Do you have any luggage on the bus?'" Id., at 82. Thus, for reasons unexplained, the driver with the tickets entitling the passengers to travel had yielded his custody of the bus and its seated travelers to three police officers, whose authority apparently superseded the driver's own. The officers took control of the entire passenger compartment, one stationed at the door keeping surveillance of all the occupants, the others working forward from the back. With one officer right behind him and the other one forward, a third officer accosted each passenger at quarters extremely close and so cramped that as many as half the passengers could not even have stood to face the speaker. None was asked whether he was willing to converse with the police or to take part in the enquiry. Instead the officer said the police were "conducting bus interdiction," in the course of which they "would like ... cooperation." Ibid. The reasonable inference was that the "interdiction" was not a consensual exercise, but one the police would carry out what- 2 The figures are from a Lodging filed by respondents (available in Clerk of Court's case file). The Government does not dispute their accuracy. 212 ever the circumstances; that they would prefer "cooperation" but would not let the lack of it stand in their way. There was no contrary indication that day, since no passenger had refused the cooperation requested, and there was no reason for any passenger to believe that the driver would return and the trip resume until the police were satisfied. The scene was set and an atmosphere of obligatory participation was established by this introduction. Later requests to search prefaced with "Do you mind ... " would naturally have been understood in the terms with which the encounter began. It is very hard to imagine that either Brown or Drayton would have believed that he stood to lose nothing if he refused to cooperate with the police, or that he had any free choice to ignore the police altogether. No reasonable passenger could have believed that, only an uncomprehending one. It is neither here nor there that the interdiction was conducted by three officers, not one, as a safety precaution. See id., at 47. The fact was that there were three, and when Brown and Drayton were called upon to respond, each one was presumably conscious of an officer in front watching, one at his side questioning him, and one behind for cover, in case he became unruly, perhaps, or "cooperation" was not forthcoming. The situation is much like the one in the alley, with civilians in close quarters, unable to move effectively, being told their cooperation is expected. While I am not prepared to say that no bus interrogation and search can pass the Bostick test without a warning that passengers are free to say no, the facts here surely required more from the officers than a quiet tone of voice. A police officer who is certain to get his way has no need to shout. It is true of course that the police testified that a bus passenger sometimes says no, App. 81, but that evidence does nothing to cast the facts here in a different light. We have no way of knowing the circumstances in which a passenger elsewhere refused a request; maybe that has happened only 213 when the police have told passengers they had a right to refuse (as the officers sometimes advised them), id., at 81-82. Nor is it fairly possible to see the facts of this case differently by recalling INS v. Delgado, 466 U. S. 210 (1984), as precedent. In that case, a majority of this Court found no seizure when a factory force was questioned by immigration officers, with an officer posted at every door leading from the workplace. Id., at 219. Whether that opinion was well reasoned or not, the facts as the Court viewed them differed from the case here. Delgado considered an order granting summary judgment in favor of respondents, with the consequence that the Court was required to construe the record and all issues of fact favorably to the Immigration and Naturalization Service. See id., at 214; id., at 221 (STEVENS, J., concurring). The Court therefore emphasized that even after "th[e] surveys were initiated, the employees were about their ordinary business, operating machinery and performing other job assignments." Id., at 218. In this case, however, Brown and Drayton were seemingly pinned-in by the officers and the customary course of events was stopped flat. The bus was going nowhere, and with one officer in the driver's seat, it was reasonable to suppose no passenger would tend to his own business until the officers were ready to let him. In any event, I am less concerned to parse this case against Delgado than to apply Bostick's totality of circumstances test, and to ask whether a passenger would reasonably have felt free to end his encounter with the three officers by saying no and ignoring them thereafter. In my view the answer is clear. The Court's contrary conclusion tells me that the majority cannot see what Justice Stewart saw, and I respectfully dissent.

The Supreme Court ruled that police officers do not need to inform bus passengers of their right to refuse consent to searches, provided a reasonable person would feel free to decline the request. In this case, the Court found that the police conduct was not coercive and the consent to search was voluntary, even without an explicit warning about the right to refuse. This decision reinforces the idea that random searches and requests for consent by officers are permissible under the Fourth Amendment as long as individuals feel free to decline or end the encounter.

Search & Seizure

Illinois v. Lidster

https://supreme.justia.com/cases/federal/us/540/419/

OPINION OF THE COURT ILLINOIS V. LIDSTER 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1060 ILLINOIS, PETITIONER v. ROBERT S. LIDSTER on writ of certiorari to the supreme court of illinois [January 13, 2004]    Justice Breyer delivered the opinion of the Court.    This Fourth Amendment case focuses upon a highway checkpoint where police stopped motorists to ask them for information about a recent hit-and-run accident. We hold that the police stops were reasonable, hence, constitutional. I    The relevant background is as follows: On Saturday, August 23, 1997, just after midnight, an unknown motorist traveling eastbound on a highway in Lombard, Illinois, struck and killed a 70-year-old bicyclist. The motorist drove off without identifying himself. About one week later at about the same time of night and at about the same place, local police set up a highway checkpoint designed to obtain more information about the accident from the motoring public.    Police cars with flashing lights partially blocked the eastbound lanes of the highway. The blockage forced traffic to slow down, leading to lines of up to 15 cars in each lane. As each vehicle drew up to the checkpoint, an officer would stop it for 10 to 15 seconds, ask the occupants whether they had seen anything happen there the previous weekend, and hand each driver a flyer. The flyer said “ALERT … FATAL HIT & RUN ACCIDENT” and requested “assistance in identifying the vehicle and driver in this accident which killed a 70 year old bicyclist.” App. 9.    Robert Lidster, the respondent, drove a minivan toward the checkpoint. As he approached the checkpoint, his van swerved, nearly hitting one of the officers. The officer smelled alcohol on Lidster’s breath. He directed Lidster to a side street where another officer administered a sobriety test and then arrested Lidster. Lidster was tried and convicted in Illinois state court of driving under the influence of alcohol.    Lidster challenged the lawfulness of his arrest and conviction on the ground that the government had obtained much of the relevant evidence through use of a checkpoint stop that violated the Fourth Amendment. The trial court rejected that challenge. But an Illinois appellate court reached the opposite conclusion. 319 Ill. App. 3d 825, 747 N. E. 2d 419 (2001). The Illinois Supreme Court agreed with the appellate court. It held (by a vote of 4 to 3) that our decision in Indianapolis v. Edmond, 531 U. S. 32 (2000), required it to find the stop unconstitutional . 202 Ill. 2d 1, 779 N. E. 2d 855 (2002).    Because lower courts have reached different conclusions about this matter, we granted certiorari. See Burns v. Commonwealth , 261 Va. 307, 541 S.E.2d 872, cert. denied, 534 U. S. 1043 (2001) (finding similar checkpoint stop constitutional). We now reverse the Illinois Supreme Court’s determination. II    The Illinois Supreme Court basically held that our decision in Edmond governs the outcome of this case. We do not agree. Edmond involved a checkpoint at which police stopped vehicles to look for evidence of drug crimes committed by occupants of those vehicles. After stopping a vehicle at the checkpoint, police would examine (from outside the vehicle) the vehicle’s interior; they would walk a drug-sniffing dog around the exterior; and, if they found sufficient evidence of drug (or other) crimes, they would arrest the vehicle’s occupants. 531 U. S., at 35. We found that police had set up this checkpoint primarily for general “crime control” purposes, i.e ., “to detect evidence of ordinary criminal wrongdoing.” Id ., at 41. We noted that the stop was made without individualized suspicion. And we held that the Fourth Amendment forbids such a stop, in the absence of special circumstances. Id ., at 44.    The checkpoint stop here differs significantly from that in Edmond. The stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals. Edmond ’s language, as well as its context, makes clear that the constitutionality of this latter, information-seeking kind of stop was not then before the Court. Edmond refers to the subject matter of its holding as “stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime .” Ibid. (emphasis added). We concede that Edmond describes the law enforcement objective there in question as a “general interest in crime control,” but it specifies that the phrase “general interest in crime control” does not refer to every “law enforcement” objective. Id ., at 44, n. 1. We must read this and related general language in Edmond as we often read general language in judicial opinions—as referring in context to circumstances similar to the circumstances then before the Court and not referring to quite different circumstances that the Court was not then considering.    Neither do we believe, Edmond aside, that the Fourth Amendment would have us apply an Edmond -type rule of automatic unconstitutionality to brief, information-seeking highway stops of the kind now before us. For one thing, the fact that such stops normally lack individualized suspicion cannot by itself determine the constitutional outcome. As in Edmond, the stop here at issue involves a motorist. The Fourth Amendment does not treat a motorist’s car as his castle. See, e.g ., New York v. Class , 475 U. S. 106 , 112–113 (1986); United States v. Martinez-Fuerte , 428 U. S. 543 , 561 (1976). And special law enforcement concerns will sometimes justify highway stops without individualized suspicion. See Michigan Dept. of State Police v. Sitz , 496 U. S. 444 (1990) (sobriety checkpoint); Martinez-Fuerte , supra (Border Patrol checkpoint). Moreover, unlike Edmond , the context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play. Like certain other forms of police activity, say, crowd control or public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual.    For another thing, information-seeking highway stops are less likely to provoke anxiety or to prove intrusive. The stops are likely brief. The police are not likely to ask questions designed to elicit self-incriminating information. And citizens will often react positively when police simply ask for their help as “responsible citizen[s]” to “give whatever information they may have to aid in law enforcement .” Miranda v. Arizona , 384 U. S. 436 , 477–478 (1966).    Further, the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime. “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” Florida v. Royer , 460 U. S. 491 , 497 (1983) . See also ALI, Model Code of Pre-Arraignment Procedure §110.1(1) (1975) (“[L]aw enforcement officer may . . . request any person to furnish information or otherwise cooperate in the investigation or prevention of crime”). That, in part, is because voluntary requests play a vital role in police investigatory work. See, e.g. , Haynes v. Washington , 373 U. S. 503 , 515 (1963) (“[I]nterrogation of witnesses . . . is undoubtedly an essential tool in effective law enforcement”); U. S. Dept. of Justice, Eyewitness Evidence: A Guide for Law Enforcement 14–15 (1999) (instructing law enforcement to gather information from witnesses near the scene).    The importance of soliciting the public’s assistance is offset to some degree by the need to stop a motorist to obtain that help—a need less likely present where a pedestrian, not a motorist, is involved. The difference is significant in light of our determinations that such an involuntary stop amounts to a “seizure” in Fourth Amendment terms. E.g. , Edmond , 531 U. S., at 40. That difference, however, is not important enough to justify an Edmond -type rule here. After all, as we have said, the motorist stop will likely be brief. Any accompanying traffic delay should prove no more onerous than many that typically accompany normal traffic congestion. And the resulting voluntary questioning of a motorist is as likely to prove important for police investigation as is the questioning of a pedestrian. Given these considerations, it would seem anomalous were the law (1) ordinarily to allow police freely to seek the voluntary cooperation of pedestrians but (2) ordinarily to forbid police to seek similar voluntary cooperation from motorists.    Finally, we do not believe that an Edmond- type rule is needed to prevent an unreasonable proliferation of police checkpoints. Cf. Lidster , 202 Ill. 2d, at 9–10, 779 N. E. 2d, at 859–860 (expressing that concern). Practical considerations—namely, limited police resources and community hostility to related traffic tie-ups—seem likely to inhibit any such proliferation. See Fell, Ferguson, Williams, & Fields, Why Aren’t Sobriety Checkpoints Widely Adopted as an Enforcement Strategy in the United States?, 35 Accident Analysis & Prevention 897 (Nov. 2003) (finding that sobriety checkpoints are not more widely used due to the lack of police resources and the lack of community support). And, of course, the Fourth Amendment’s normal insistence that the stop be reasonable in context will still provide an important legal limitation on police use of this kind of information-seeking checkpoint.    These considerations, taken together, convince us that an Edmond- type presumptive rule of unconstitutionality does not apply here. That does not mean the stop is automatically, or even presumptively, constitutional. It simply means that we must judge its reasonableness, hence, its constitutionality, on the basis of the individual circumstances. And as this Court said in Brown v. Texas, 443 U. S. 47 , 51 (1979), in judging reasonableness, we look to “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” See also Sitz , supra , at 450–455 (balancing these factors in determining reasonableness of a checkpoint stop); Martinez-Fuerte , supra , at 556–564 (same). III    We now consider the reasonableness of the checkpoint stop before us in light of the factors just mentioned, an issue that, in our view, has been fully argued here. See Brief for Petitioner 14–18; Brief for Respondent 17–27. We hold that the stop was constitutional.    The relevant public concern was grave. Police were investigating a crime that had resulted in a human death. No one denies the police’s need to obtain more information at that time. And the stop’s objective was to help find the perpetrator of a specific and known crime, not of unknown crimes of a general sort. Cf. Edmond , supra , at 44.    The stop advanced this grave public concern to a significant degree. The police appropriately tailored their checkpoint stops to fit important criminal investigatory needs. The stops took place about one week after the hit-and-run accident, on the same highway near the location of the accident, and at about the same time of night. And police used the stops to obtain information from drivers, some of whom might well have been in the vicinity of the crime at the time it occurred. See App. 28–29 (describing police belief that motorists routinely leaving work after night shifts at nearby industrial complexes might have seen something relevant).    Most importantly, the stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect. Viewed objectively, each stop required only a brief wait in line—a very few minutes at most. Contact with the police lasted only a few seconds. Cf. Martinez-Fuerte , 428 U. S., at 547 (upholding stops of three-to-five minutes); Sitz , 496 U. S., at 448 (upholding delays of 25 seconds). Police contact consisted simply of a request for information and the distribution of a flyer. Cf. Martinez-Fuerte , supra , at 546 (upholding inquiry as to motorists’ citizenship and immigration status); Sitz , supra , at 447 (upholding examination of all drivers for signs of intoxication). Viewed subjectively, the contact provided little reason for anxiety or alarm. The police stopped all vehicles systematically. Cf. Martinez-Fuerte , supra , at 558; Sitz , supra , at 452–453. And there is no allegation here that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops.    For these reasons we conclude that the checkpoint stop was constitutional.    The judgment of the Illinois Supreme Court is Reversed . 540 U. S. ____ (2004) ILLINOIS V. LIDSTER 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1060 ILLINOIS, PETITIONER v. ROBERT S. LIDSTER on writ of certiorari to the supreme court of illinois [January 13, 2004]    Justice Stevens, with whom Justice Souter and Justice Ginsburg join, concurring in part and dissenting in part.    There is a valid and important distinction between seizing a person to determine whether she has committed a crime and seizing a person to ask whether she has any information about an unknown person who committed a crime a week earlier. I therefore join Parts I and II of the Court’s opinion explaining why our decision in Indianapolis v. Edmond, 531 U. S. 32 (2000), is not controlling in this case. However, I find the issue discussed in Part III of the opinion closer than the Court does and believe it would be wise to remand the case to the Illinois state courts to address that issue in the first instance.    In contrast to pedestrians, who are free to keep walking when they encounter police officers handing out flyers or seeking information, motorists who confront a roadblock are required to stop, and to remain stopped for as long as the officers choose to detain them. Such a seizure may seem relatively innocuous to some, but annoying to others who are forced to wait for several minutes when the line of cars is lengthened—for example, by a surge of vehicles leaving a factory at the end of a shift. Still other drivers may find an unpublicized roadblock at midnight on a Saturday somewhat alarming.    On the other side of the equation, the likelihood that questioning a random sample of drivers will yield useful information about a hit-and-run accident that occurred a week earlier is speculative at best. To be sure, the sample in this case was not entirely random: The record reveals that the police knew that the victim had finished work at the Post Office shortly before the fatal accident, and hoped that other employees of the Post Office or the nearby industrial park might work on similar schedules and, thus, have been driving the same route at the same time the previous week. That is a plausible theory, but there is no evidence in the record that the police did anything to confirm that the nearby businesses in fact had shift changes at or near midnight on Saturdays, or that they had reason to believe that a roadblock would be more effective than, say, placing flyers on the employees’ cars.    In short, the outcome of the multifactor test prescribed in Brown v. Texas, 443 U. S. 47 (1979), is by no means clear on the facts of this case. Because the Illinois Appellate Court and the State Supreme Court held that the Lombard roadblock was per se unconstitutional under Indianapolis v. Edmond , neither court attempted to apply the Brown test. “We ordinarily do not decide in the first instance issues not resolved below.” Pierce County v. Guillen, 537 U. S. 129 , 148, n. 10 (2003). We should be especially reluctant to abandon our role as a court of review in a case in which the constitutional inquiry requires analysis of local conditions and practices more familiar to judges closer to the scene. I would therefore remand the case to the Illinois courts to undertake the initial analysis of the issue that the Court resolves in Part III of its opinion. To that extent, I respectfully dissent.

The Supreme Court held that police stops at a highway checkpoint to gather information about a recent hit-and-run accident were reasonable and constitutional under the Fourth Amendment. The checkpoint, which was set up about a week after the accident at the same time and place, involved police cars with flashing lights that slowed down traffic and briefly stopped each vehicle to ask occupants for information. The Court's decision focused on the balance between the public interest in obtaining information and the level of intrusion on motorists, concluding that the stops were justified. However, Justice Ginsburg dissented, expressing concern about the intrusiveness of such seizures and the uncertain benefits of questioning random drivers about a past crime.

Search & Seizure

Atwater v. Lago Vista

https://supreme.justia.com/cases/federal/us/532/318/

OCTOBER TERM, 2000 Syllabus ATWATER ET AL. v. CITY OF LAGO VISTA ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-1408. Argued December 4, 2000-Decided April 24, 2001 Texas law makes it a misdemeanor, punishable only by a fine, either for a front-seat passenger in a car equipped with safety belts not to wear one or for the driver to fail to secure any small child riding in front. The warrantless arrest of anyone violating these provisions is expressly authorized by statute, but the police may issue citations in lieu of arrest. Petitioner Atwater drove her truck in Lago Vista, Texas, with her small children in the front seat. None of them was wearing a seatbelt. Respondent Turek, then a Lago Vista policeman, observed the seatbelt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her "mug shot" and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond. She was charged with, among other things, violating the seatbelt law. She pleaded no contest to the seatbelt misdemeanors and paid a $50 fine. She and her husband (collectively Atwater) filed suit under 42 U. S. C. § 1983, alleging, inter alia, that the actions of respondents (collectively City) had violated her Fourth Amendment right to be free from unreasonable seizure. Given her admission that she had violated the law and the absence of any allegation that she was harmed or detained in any way inconsistent with the law, the District Court ruled the Fourth Amendment claim meritless and granted the City summary judgment. Sitting en banc, the Fifth Circuit affirmed. Relying on Whren v. United States, 517 U. S. 806 , 817-818, the court observed that, although the Fourth Amendment generally requires a balancing of individual and governmental interests, the result is rarely in doubt where an arrest is based on probable cause. Because no one disputed that Turek had probable cause to arrest Atwater, and there was no evidence the arrest was conducted in an extraordinary manner, unusually harmful to Atwater's privacy interests, the court held the arrest not unreasonable for Fourth Amendment purposes. Held: The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. Pp. 326-355. 319 (a) In reading the Fourth Amendment, the Court is guided by the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. E. g., Wilson v. Arkansas, 514 U. S. 927 , 931. Atwater contends that founding-era common-law rules forbade officers to make warrantless misdemeanor arrests except in cases of "breach of the peace," a category she claims was then understood narrowly as covering only those nonfelony offenses involving or tending toward violence. Although this argument is not insubstantial, it ultimately fails. Pp. 326-345. (1) Even after making some allowance for variations in the prefounding English common-law usage of "breach of the peace," the founding-era common-law rules were not nearly as clear as Atwater claims. Pp. 327-335. (i) A review of the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, demonstrates disagreement, not unanimity, with respect to officers' warrantless misdemeanor arrest power. On one side, eminent authorities support Atwater's position that the common law confined warrantless misdemeanor arrests to actual breaches of the peace. See, e. g., Queen v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352. However, there is also considerable evidence of a broader conception of common-law misdemeanor arrest authority unlimited by any breach-of-the-peace condition. See, e. g., Holyday v. Oxenbridge, Cro. Car. 234, 79 Eng. Rep. 805, 805-806; 2 M. Hale, Pleas of the Crown 88. Thus, the Court is not convinced that Atwater's is the correct, or even necessarily the better, reading of the common-law history. Pp. 328-332. (ii) A second, and equally serious, problem for Atwater's historical argument is posed by various statutes enacted by Parliament well before this Republic's founding that authorized peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence, including, among others, nightwalking, unlawful game playing, profane cursing, and negligent carriage driving. Pp. 333-335. (2) An examination of specifically American evidence is to the same effect. Neither the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwater's position. Pp. 336-345. (i) Atwater has cited no particular evidence that those who framed and ratified the Fourth Amendment sought to limit peace officers' warrantless misdemeanor arrest authority to instances of actual breach of the peace, and the Court's review of framing-era documentary 320 Syllabus history has likewise failed to reveal any such design. Nor is there in any of the modern historical accounts of the Fourth Amendment's adoption any substantial indication that the Framers intended such a restriction. Indeed, to the extent the modern histories address the issue, their conclusions are to the contrary. The evidence of actual practice also counsels against Atwater's position. During the period leading up to and surrounding the framing of the Bill of Rights, colonial and state legislatures, like Parliament before them, regularly authorized local officers to make warrantless misdemeanor arrests without a breach of the peace condition. That the Fourth Amendment did not originally apply to the States does not make state practice irrelevant in unearthing the Amendment's original meaning. A number of state constitutional search-and-seizure provisions served as models for the Fourth Amendment, and the fact that many of the original States with such constitutional limitations continued to grant their officers broad warrantless misdemeanor arrest authority undermines Atwater's position. Given the early state practice, it is likewise troublesome for Atwater's view that one year after the Fourth Amendment's ratification, Congress gave federal marshals the same powers to execute federal law as sheriffs had to execute state law. Pp. 336-340. (ii) Nor is Atwater's argument from tradition aided by the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become "woven ... into the fabric" of American law. E. g., Wilson, supra, at 933. The story, in fact, is to the contrary. First, what little this Court has said about warrantless misdemeanor arrest authority tends to cut against Atwater's argument. See, e. g., United States v. Watson, 423 U. S. 411 , 418. Second, this is not a case in which early American courts embraced an accepted common-law rule with anything approaching unanimity. See Wilson, supra, at 933. None of the 19th-century state-court decisions cited by Atwater is ultimately availing. More to the point are the numerous 19th-century state decisions expressly sustaining (often against constitutional challenge) state and local laws authorizing peace officers to make warrantless arrests for misdemeanors not involving any breach of the peace. Finally, legal commentary, for more than a century, has almost uniformly recognized the constitutionality of extending warrantless arrest power to misdemeanors without limitation to breaches of the peace. Small wonder, then, that today statutes in all 50 States and the District of Columbia permit such arrests by at least some (if not all) peace officers, as do a host of congressional enactments. Pp. 340-345. (b) The Court rejects Atwater's request to mint a new rule of constitutionallaw forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and the government 321 can show no compelling need for immediate detention. She reasons that, when historical practice fails to speak conclusively to a Fourth Amendment claim, courts must strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness. See, e. g., Wyoming v. Houghton, 526 U. S. 295 , 299-300. Atwater might well prevail under a rule derived exclusively to address the uncontested facts of her case, since her claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her. However, the Court has traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. See, e. g., United States v. Robinson, 414 U. S. 218 , 234-235. Complications arise the moment consideration is given the possible applications of the several criteria Atwater proposes for drawing a line between minor crimes with limited arrest authority and others not so restricted. The assertion that these difficulties could be alleviated simply by requiring police in doubt not to arrest is unavailing because, first, such a tie breaker would in practice amount to a constitutionally inappropriate least-restrictive-alternative limitation, see, e. g., Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 , 629, n. 9, and, second, whatever guidance the tie breaker might give would come at the price of a systematic disincentive to arrest in situations where even Atwater concedes arresting would serve an important societal interest. That warrantless misdemeanor arrests do not demand the constitutional attention Atwater seeks is indicated by a number of factors, including that the law has never jelled the way Atwater would have it; that anyone arrested without formal process is entitled to a magistrate's review of probable cause within 48 hours, County of Riverside v. McLaughlin, 500 U. S. 44 , 55-58; that many jurisdictions have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses; that it is in the police's interest to limit such arrests, which carry costs too great to incur without good reason; and that, under current doctrine, the preference for categorical treatment of Fourth Amendment claims gives way to individualized review when a defendant makes a colorable argument that an arrest, with or without a warrant, was conducted in an extraordinary manner, unusually harmful to his privacy or physical interests, e. g., Whren, 517 U. S., at 818. The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and peace officers, is a dearth of horribles demanding redress. Thus, the probable-cause standard applies to all arrests, without the 322 Syllabus need to balance the interests and circumstances involved in particular situations. Dunaway v. New York, 442 U. S. 200 , 208. An officer may arrest an individual without violating the Fourth Amendment if there is probable cause to believe that the offender has committed even a very minor criminal offense in the officer's presence. Pp. 345-354. (c) Atwater's arrest satisfied constitutional requirements. It is undisputed that Turek had probable cause to believe that Atwater committed a crime in his presence. Because she admits that neither she nor her children were wearing seatbelts, Turek was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether Atwater's arrest was in some sense necessary. Nor was the arrest made in an extraordinary manner, unusually harmful to her privacy or physical interests. See Whren, 517 U. S., at 818. Whether a search or seizure is "extraordinary" turns, above all else, on the manner in which it is executed. See, e. g., ibid. Atwater's arrest and subsequent booking, though surely humiliating, were no more harmful to her interests than the normal custodial arrest. pp. 354-355. 195 F.3d 242 , affirmed. SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 360. Robert C. DeCarli argued the cause for petitioners. With him on the briefs were Debra Irwin, Pamela McGraw, and Michael F. Sturley. R. James George, Jr., argued the cause for respondents. With him on the brief were William W Krueger III and Joanna R. Lippman. Gregory S. Coleman, Solicitor General of Texas, argued the cause for the State of Texas et al. as amici curiae urging affirmance. With him on the brief were John Cornyn, Attorney General, Andy Taylor, First Assistant Attorney General, and Lisa R. Eskow, Assistant Attorney General, and the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Ken Salazar of Colorado, M. Jane Brady of Delaware, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Joseph P. Mazurek of Montana, 323 W A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, and Mark L. Earley of Virginia. * JUSTICE SOUTER delivered the opinion of the Court. The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does not. I A In Texas, if a car is equipped with safety belts, a frontseat passenger must wear one, Tex. Transp. Code Ann. § 545.413(a) (1999), and the driver must secure any small child riding in front, § 545.413(b). Violation of either provision is "a misdemeanor punishable by a fine not less than $25 or more than $50." § 545.413(d). Texas law expressly authorizes "[a]ny peace officer [to] arrest without warrant a person found committing a violation" of these seatbelt laws, § 543.001, although it permits police to issue citations in lieu of arrest, §§ 543.003-543.005. In March 1997, petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Susan N Herman and Steven R. Shapiro; for Americans for Effective Law Enforcement, Inc., by Wayne W Schmidt, James P. Manak, and Bernard J. Farber; for the Cato Institute by Timothy Lynch; for the Institute on Criminal Justice at the University of Minnesota Law School et al. by Richard S. Frase; for the National Association of Criminal Defense Lawyers et al. by Wesley MacNeil Oliver and Joshua Dratel; and for the Texas Criminal Defense Lawyers Association by Greg Westfall and William S. Harris. Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Patricia A. Millett; for the National League of Cities et al. by Richard Ruda and James I. Crowley; and for the Texas Police Chiefs Association by James McLaughlin, Jr. 324 wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over. According to Atwater's complaint (the allegations of which we assume to be true for present purposes), Turek approached the truck and "yell[ed]" something to the effect of "[w]e've met before" and "[y]ou're going to jail." App. 20.1 He then called for backup and asked to see Atwater's driver's license and insurance documentation, which state law required her to carry. Tex. Transp. Code Ann. §§ 521.025, 601.053 (1999). When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had "heard that story two-hundred times." App.21. Atwater asked to take her "frightened, upset, and crying" children to a friend's house nearby, but Turek told her, "[y]ou're not going anywhere." Ibid. As it turned out, Atwater's friend learned what was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater's "mug shot" and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond. Atwater was charged with driving without her seatbelt fastened, failing to secure her children in seatbelts, driving without a license, and failing to provide proof of insurance. She ultimately pleaded no contest to the misdemeanor seatbelt offenses and paid a $50 fine; the other charges were dismissed. 1 Turek had previously stopped Atwater for what he had thought was a seatbelt violation, but had realized that Atwater's son, although seated on the vehicle's armrest, was in fact belted in. Atwater acknowledged that her son's seating position was unsafe, and Turek issued a verbal warning. See Record 379. 325 B Atwater and her husband, petitioner Michael Haas, filed suit in a Texas state court under 42 U. S. C. § 1983 against Turek and respondents City of Lago Vista and Chief of Police Frank Miller. So far as concerns us, petitioners (whom we will simply call Atwater) alleged that respondents (for simplicity, the City) had violated Atwater's Fourth Amendment "right to be free from unreasonable seizure," App. 23, and sought compensatory and punitive damages. The City removed the suit to the United States District Court for the Western District of Texas. Given Atwater's admission that she had "violated the law" and the absence of any allegation "that she was harmed or detained in any way inconsistent with the law," the District Court ruled the Fourth Amendment claim "meritless" and granted the City's summary judgment motion. No. A-97 CA 679 SS (WD Tex., Feb. 13, 1999), App. to Pet. for Cert. 50a-63a. A panel of the United States Court of Appeals for the Fifth Circuit reversed. 165 F.3d 380 (1999). It concluded that "an arrest for a first-time seat belt offense" was an unreasonable seizure within the meaning of the Fourth Amendment, id., at 387, and held that Turek was not entitled to qualified immunity, id., at 389. Sitting en banc, the Court of Appeals vacated the panel's decision and affirmed the District Court's summary judgment for the City. 195 F.3d 242 (CA5 1999). Relying on Whren v. United States, 517 U. S. 806 (1996), the en banc court observed that, although the Fourth Amendment generally requires a balancing of individual and governmental interests, where "an arrest is based on probable cause then 'with rare exceptions ... the result of that balancing is not in doubt.'" 195 F. 3d, at 244 (quoting Whren, supra, at 817). Because "[n]either party dispute[d] that Officer Turek had probable cause to arrest Atwater," and because "there [was] no evidence in the record that Officer Turek conducted the arrest in an 'extraordinary manner, unusually harmful' to At- 326 water's privacy interests," the en banc court held that the arrest was not unreasonable for Fourth Amendment purposes. 195 F. 3d, at 245-246 (quoting Whren, supra, at 818). Three judges issued dissenting opinions. On the understanding that citation is the "usual procedure" in a traffic stop situation, Judge Reynaldo Garza thought Atwater's arrest unreasonable, since there was no particular reason for taking her into custody. 195 F. 3d, at 246-247. Judge Weiner likewise believed that "even with probable cause, [an] officer must have a plausible, articulable reason" for making a custodial arrest. Id., at 251. Judge Dennis understood the Fourth Amendment to have incorporated an earlier, common-law prohibition on warrantless arrests for misdemeanors that do not amount to or involve a "breach of the peace." Ibid. We granted certiorari to consider whether the Fourth Amendment, either by incorporating common-law restrictions on misdemeanor arrests or otherwise, limits police officers' authority to arrest without warrant for minor criminal offenses. 530 U. S. 1260 (2000). We now affirm. II The Fourth Amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In reading the Amendment, we are guided by "the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing," Wilson v. Arkansas, 514 U. S. 927 , 931 (1995), since "[a]n examination of the common-law understanding of an officer's authority to arrest sheds light on the obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amendment might have thought to be reasonable," Payton v. New York, 445 U. S. 573 , 591 (1980) (footnote omitted). Thus, the first step here is to assess Atwater's claim that peace officers' authority to make warrantless arrests for misdemeanors was 327 restricted at common law (whether "common law" is understood strictly as law judicially derived or, instead, as the whole body of law extant at the time of the framing). Atwater's specific contention is that "founding-era common-law rules" forbade peace officers to make warrantless misdemeanor arrests except in cases of "breach of the peace," a category she claims was then understood narrowly as covering only those nonfelony offenses "involving or tending toward violence." Brief for Petitioners 13. Although her historical argument is by no means insubstantial, it ultimately fails. A We begin with the state of pre-founding English common law and find that, even after making some allowance for variations in the common-law usage of the term "breach of the peace," 2 the "founding-era common-law rules" were not 2 The term apparently meant very different things in different commonlaw contexts. For instance, under a statute enacted during the reign of Charles II forbidding service of any warrant or other court process on Sunday "except in cases of treason, felony or breach of the peace," 29 Car. II, ch. 7, § 6, 8 Statutes at Large 414 (1676), "it was held that every indictable offense was constructively a breach of the peace," Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 574 (1924); see also Ex parte Whitchurch, 1 Atk. 56, 58, 26 Eng. Rep. 37, 39 (Ch. 1749). The term carried a similarly broad meaning when employed to define the jurisdiction of justices of the peace, see 2 W. Hawkins, Pleas of the Crown, ch. 8, § 38, p. 60 (6th ed. 1787) (hereinafter Hawkins), or to delimit the scope of parliamentary privilege, see Williamson v. United States, 207 U. S. 425 , 435-446 (1908) (discussing common-law origins of Arrest Clause, U. S. Const., Art. I, § 6, cl. 1). Even when used to describe common-law arrest authority, the term's precise import is not altogether clear. See J. Turner, Kenny's Outlines of Criminal Law § 695, p. 537 (17th ed. 1958) ("Strangely enough what constitutes a 'breach of the peace' has not been authoritatively laid down"); G. Williams, Arrest for Breach of the Peace, 1954 Crim. L. Rev. 578, 578-579 ("The expression 'breach of the peace' seems clearer than it is and there is a surprising lack of authoritative definition of what one would suppose to be a fundamental concept in criminal law"); Wilgus, supra, at 573 ("What constitutes a breach of peace is not entirely certain"). More often 328 nearly as clear as Atwater claims; on the contrary, the common-law commentators (as well as the sparsely reported cases) reached divergent conclusions with respect to officers' warrantless misdemeanor arrest power. Moreover, in the years leading up to American independence, Parliament repeatedly extended express warrantless arrest authority to cover misdemeanor-level offenses not amounting to or involving any violent breach of the peace. 1 Atwater's historical argument begins with our quotation from Halsbury in Carroll v. United States, 267 U. S. 132 (1925), that "'[i]n cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.'" Id., at 157 (quoting 9 Halsbury, Laws of England § 612, p. 299 (1909)). than not, when used in reference to common-law arrest power, the term seemed to connote an element of violence. See, e. g., M. Dalton, Country Justice, ch. 3, p. 9 (1727) ("The Breach of thEe] Peace seemeth to be any injurious Force or Violence moved against the Person of another, his Goods, Lands, or other Possessions, whether by threatening words, or by furious Gesture, or Force of the Body, or any other Force used in terrorem"). On occasion, however, common-law commentators included in their descriptions of breaches of the peace offenses that do not necessarily involve violence or a threat thereof. See M. Hale, A Methodical Summary of the Principal Matters Relating to the Pleas of the Crown *134 (7th ed. 1773) ("Barretries"); 4 W. Blackstone, Commentaries on the Laws of England 149 (1769) (hereinafter Blackstone) ("[s]preading false news"). For purposes of this case, it is unnecessary to reach a definitive resolution of the uncertainty. As stated in the text, we will assume that as used in the context of common-law arrest, the phrase "breach of the peace" was understood narrowly, as entailing at least a threat of violence. 329 But the isolated quotation tends to mislead. In Carroll itself we spoke of the common-law rule as only "sometimes expressed" that way, 267 U. S., at 157, and, indeed, in the very same paragraph, we conspicuously omitted any reference to a breach-of-the-peace limitation in stating that the "usual rule" at common law was that "a police officer [could] arrest without warrant ... one guilty of a misdemeanor if committed in his presence." Id., at 156-157. Thus, what Carroll illustrates, and what others have recognized, is that statements about the common law of warrantless misdemeanor arrest simply are not uniform. Rather, "[a]t common law there is a difference of opinion among the authorities as to whether this right to arrest [without a warrant] extends to all misdemeanors." American Law Institute, Code of Criminal Procedure, Commentary to § 21, p. 231 (1930). On one side of the divide there are certainly eminent authorities supporting Atwater's position. In addition to Lord Halsbury, quoted in Carroll, James Fitzjames Stephen and Glanville Williams both seemed to indicate that the common law confined warrantless misdemeanor arrests to actual breaches of the peace. See 1 J. Stephen, A History of the Criminal Law of England 193 (1883) ("The common law did not authorise the arrest of persons guilty or suspected of misdemeanours, except in cases of an actual breach of the peace either by an affray or by violence to an individual"); G. Williams, Arrest for Breach of the Peace, 1954 Crim. L. Rev. 578, 578 ("Apart from arrest for felony ... , the only power of arrest at common law is in respect of breach of the peace"). See also Queen v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352 (Q. B. 1710) ("[A] constable cannot arrest, but when he sees an actual breach of the peace; and if the affray be over, he cannot arrest"). Sir William Blackstone and Sir Edward East might also be counted on Atwater's side, although they spoke only to the sufficiency of breach of the peace as a condition to warrant- 330 less misdemeanor arrest, not to its necessity. Blackstone recognized that at common law "[t]he constable ... hath great original and inherent authority with regard to arrests," but with respect to nonfelony offenses said only that "[h]e may, without warrant, arrest anyone for a breach of the peace, and carry him before a justice of the peace." 4 Blackstone 289. Not long after the framing of the Fourth Amendment, East characterized peace officers' common-law arrest power in much the same way: "A constable or other known conservator of the peace may lawfully interpose upon his own view to prevent a breach of the peace, or to quiet an affray .... " 1 E. East, Pleas of the Crown § 71, p. 303 (1803). The great commentators were not unanimous, however, and there is also considerable evidence of a broader conception of common-law misdemeanor arrest authority unlimited by any breach-of-the-peace condition. Sir Matthew Hale, Chief Justice of King's Bench from 1671 to 1676,3 wrote in his History of the Pleas of the Crown that, by his "original and inherent power," a constable could arrest without a warrant "for breach of the peace and some misdemeanors, less than felony." 2 M. Hale, Pleas of the Crown 88 (1736). Hale's view, posthumously published in 1736, reflected an understanding dating back at least 60 years before the appearance of his Pleas yet sufficiently authoritative to sustain a momentum extending well beyond the framing era in this country. See The Compleat Parish-Officer 11 (1744) ("[T]he Constable ... may for Breach of the Peace, and some Misdemeanors less than Felony, imprison a Man"); R. Burn, The Justice of the Peace 271 (1837) ("A constable ... may at common law, for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his view, apprehend the supposed offender without any warrant" (italics in original)); 1 J. Chitty, A Practical 3 E. Foss, The Judges of England 113 (1864). 331 Treatise on the Criminal Law 20 (5th ed. 1847) ("[A constable] may for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his view, apprehend the supposed offender virtiute officii, without any warrant"); 1 W. Russell, Crimes and Misdemeanors 725 (7th ed. 1909) (officer "may arrest any person who in his presence commits a misdemeanor or breach of the peace").4 As will be seen later, the view of warrantless arrest authority as extending to at least "some misdemeanors" beyond breaches of the peace was undoubtedly informed by statutory provisions authorizing such arrests, but it reflected common law in the strict, judge-made sense as well, for such was the holding of at least one case reported before Hale had even become a judge but which, like Hale's own commentary, continued to be cited well after the ratification of the Fourth Amendment. In Holyday v. Oxen bridge, Cro. Car. 234, 79 Eng. Rep. 805 (1631), the Court of King's Bench held that even a private person (and thus a fortiori a peace officer5) needed no warrant to arrest a "common cheater" whom he discovered "cozen[ing] with false dice." The court expressly rejected the contention that warrantless arrests were improper "unless in felony," and said instead that "there was good cause [for] staying" the gambler and, more broadly, that "it is pro bono publico to stay such offenders." Id., at 805-806. In the edition nearest to the date of the Constitution's framing, Sergeant William Hawkins's widely read Treatise of the Pleas of the Crown generalized from Holyday that "from the reason of this case it seems to follow, 4 Cf. E. Trotter, Seventeenth Century Life in the Country Parish: With Special Reference to Local Government 88 (1919) (describing broad authority of local constables and concluding that, "[i]n short, the constable must apprehend, take charge of and present for trial all persons who broke the laws, written or unwritten, against the King's peace or against the statutes of the realm ... "). 5 See 2 Hawkins, ch. 13, § 1, at 129 ("[W]herever any [warrantless] arrest may be justified by a private person, in every such case a fortiori it may be justified by any [peace] officer"). 332 That the [warrantless] arrest of any other offenders ... for offences in like manner scandalous and prejudicial to the public, may be justified." 2 Hawkins, ch. 12, § 20, at 122. A number of other common-law commentaries shared Hawkins's broad reading of Holyday. See The Law of Arrests 205 (2d ed. 1753) (In light of Holyday, "an Arrest of an Offender ... for any Crime prejudicial to the Publick, seems to be justifiable"); 1 T. Cunningham, A New and Complete Law Dictionary (1771) (definition of "arrest") (same); 1 G. Jacob, The Law Dictionary 129 (1st Am. ed. 1811) (same). See generally C. Greaves, Law of Arrest Without a Warrant, in The Criminal Law Consolidation Acts, p. lxiii (1870) ("[Holyday] is rested upon the broad ground that 'it is pro bono publico to stay such offenders,' which is equally applicable to every case of misdemeanor ... ").6 We thus find disagreement, not unanimity, among both the common-law jurists and the text writers who sought to pull the cases together and summarize accepted practice. Having reviewed the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, we simply are not convinced that Atwater's is the correct, or even necessarily the better, reading of the common-law history. 6 King v. Wilkes, 2 Wils. K. B. 151,95 Eng. Rep. 737 (1763), and Money v. Leach, 3 Burr. 1742,97 Eng. Rep. 1075 (K. B. 1765), two of the decisions arising out of the controversy that generated Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763), the "paradigm search and seizure case for Americans" of the founding generation, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 772 (1994), also contain dicta suggesting a somewhat broader conception of common-law arrest power than the one Atwater advances. See, e. g., King v. Wilkes, supra, at 158, 95 Eng. Rep., at 741 ("[I]f a crime be done in his sight," a justice of the peace "may commit the criminal upon the spot"); Money v. Leach, supra, at 1766,97 Eng. Rep., at 1088 ("The common law, in many cases, gives authority to arrest without a warrant; more especially, where taken in the very act ... "). 333 2 A second, and equally serious, problem for Atwater's historical argument is posed by the "divers Statutes," M. Dalton, Country Justice, ch. 170, § 4, p. 582 (1727), enacted by Parliament well before this Republic's founding that authorized warrantless misdemeanor arrests without reference to violence or turmoil. Quite apart from Hale and Blackstone, the legal background of any conception of reasonableness the Fourth Amendment's Framers might have entertained would have included English statutes, some centuries old, authorizing peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence. The so-called "nightwalker" statutes are perhaps the most notable examples. From the enactment of the Statute of Winchester in 1285, through its various readoptions and until its repeal in 1827,7 night watchmen were authorized and charged "as ... in Times past" to "watch the Town continually all Night, from the Sun-setting unto the Sun-rising" and were directed that "if any Stranger do pass by them, he shall be arrested until Morning .... " 13 Edw. I, ch. 4, §§ 5-6, 1 Statutes at Large 232-233; see also 5 Edw. III, ch. 14, 1 Statutes at Large 448 (1331) (confirming and extending the powers of watchmen). Hawkins emphasized that the Statute of Winchester "was made" not in derogation but rather "in affirmance of the common law," for "every private person may by the common law arrest any suspicious night-walker, and detain him till he give good account of himself .... " 2 Hawkins, ch. 13, § 6, at 130. And according to Blackstone, these watchmen had virtually limitless warrantless nighttime arrest power: "Watchmen, either those appointed by the statute of Winchester ... or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly nightwalkers, and commit them to custody till the morning." 4 Blackstone 289; see 77 & 8 Geo. IV, ch. 27, 67 Statutes at Large 153. 334 also 2 Hale, Pleas of the Crown, at 97 (describing broad arrest powers of watchmen even over and above those conferred by the Statute of Winchester).8 The Statute of Winchester, moreover, empowered peace officers not only to deal with nightwalkers and other nighttime "offenders," but periodically to "make Inquiry of all Persons being lodged in the Suburbs, or in foreign Places of the Towns." On that score, the Statute provided that "if they do find any that have lodged or received any Strangers or suspicious Person, against the Peace, the Bailiffs shall do Righttherein," 13 Edw. I, ch. 4, §§ 3-4, 1 Statutes at Large 232-233, which Hawkins understood "surely" to mean that officers could "lawfully arrest and detain any such stranger[s]," 2 Hawkins, ch. 13, § 12, at 134. Nor were the nightwalker statutes the only legislative sources of warrantless arrest authority absent real or threatened violence, as the parties and their amici here seem to have assumed. On the contrary, following the Edwardian legislation and throughout the period leading up to the framing, Parliament repeatedly extended warrantless arrest power to cover misdemeanor-level offenses not involving any breach of the peace. One 16th-century statute, for instance, authorized peace officers to arrest persons playing "unlawful game[s]" like bowling, tennis, dice, and cards, and for good measure extended the authority beyond players to include persons "haunting" the "houses, places and alleys where such games shall be suspected to be holden, exercised, used 8 Atwater seeks to distinguish the nightwalker statutes by arguing that they "just reflected the reasonable notion that, in an age before lighting, finding a person walking about in the dead of night equaled probable suspicion that the person was a felon." Reply Brief for Petitioners 7, n. 6. Hale indicates, however, that nightwalkers and felons were not considered to be one and the same. 2 Hale, Pleas of the Crown, at 97 ("And such a watchman may apprehend night-walkers and commit them to custody till the morning, and also felons and persons suspected of felony"). 335 or occupied." 33 Hen. VIII, ch. 9, §§ 11-16, 5 Statutes at Large 84-85 (1541). A 17th-century act empowered "any person ... whatsoever to seize and detain any ... hawker, pedlar, petty chapman, or other trading person" found selling without a license. 8 & 9 Wm. III, ch. 25, §§ 3, 8, 10 Statutes at Large 81-83 (1697). And 18th-century statutes authorized the warrantless arrest of "rogues, vagabonds, beggars, and other idle and disorderly persons" (defined broadly to include jugglers, palm readers, and unlicensed play actors), 17 Geo. II, ch. 5, §§ 1-2, 5, 18 Statutes at Large 144, 145-147 (1744); "horrid" persons who "profanely swear or curse," 19 Geo. II, ch. 21, § 3, 18 Statutes at Large 445 (1746); individuals obstructing "publick streets, lanes or open passages" with "pipes, butts, barrels, casks or other vessels" or an "empty cart, car, dray or other carriage," 30 Geo. II, ch. 22, §§ 5, 13, 22 Statutes at Large 107-108, 111 (1757); and, most significantly of all given the circumstances of the case before us, negligent carriage drivers, 27 Geo. II, ch. 16, § 7, 21 Statutes at Large 188 (1754). See generally S. Blackerby, The Justice of Peace: His Companion, or a Summary of all the Acts of Parliament (1723) (cataloguing statutes); S. Welch, An Essay on the Office of Constable 19-22 (1758) (describing same). The significance of these early English statutes lies not in proving that any common-law rule barring warrantless misdemeanor arrests that might have existed would have been subject to statutory override; the sovereign Parliament could of course have wiped away any judge-made rule. The point is that the statutes riddle Atwater's supposed common-law rule with enough exceptions to unsettle any contention that the law of the mother country would have left the Fourth Amendment's Framers of a view that it would necessarily have been unreasonable to arrest without warrant for a misdemeanor unaccompanied by real or threatened violence. 336 B An examination of specifically American evidence is to the same effect. N either the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwater's position. 1 To begin with, Atwater has cited no particular evidence that those who framed and ratified the Fourth Amendment sought to limit peace officers' warrantless misdemeanor arrest authority to instances of actual breach of the peace, and our own review of the recent and respected compilations of framing-era documentary history has likewise failed to reveal any such design. See The Complete Bill of Rights 223263 (N. Cogan ed. 1997) (collecting original sources); 5 The Founders' Constitution 219-244 (P. Kurland & R. Lerner eds. 1987) (same). Nor have we found in any of the modern historical accounts of the Fourth Amendment's adoption any substantial indication that the Framers intended such a restriction. See, e. g., L. Levy, Origins of the Bill of Rights 150-179 (1999); T. Taylor, Two Studies in Constitutional Interpretation 19-93 (1969); J. Landynski, Search and Seizure and the Supreme Court 19-48 (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 79-105 (1937); Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999); Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994); Bradley, Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817 (1989). Indeed, to the extent these modern histories address the issue, their conclusions are to the contrary. See Landynski, supra, at 45 (Fourth Amendment arrest rules are "based on common-law practice," which "dispensed with" a warrant requirement for misdemeanors "committed in the presence of the arresting officer"); Davies, supra, at 551 ("[T]he Framers did not address 337 warrantless intrusions at all in the Fourth Amendment or in the earlier state provisions; thus, they never anticipated that 'unreasonable' might be read as a standard for warrantless intrusions"). The evidence of actual practice also counsels against Atwater's position. During the period leading up to and surrounding the framing of the Bill of Rights, colonial and state legislatures, like Parliament before them, supra, at 333-335, regularly authorized local peace officers to make warrantless misdemeanor arrests without conditioning statutory authority on breach of the peace. See, e. g., First Laws of the State of Connecticut 214-215 (Cushing ed. 1982) (1784 compilation; exact date of Act unknown) (authorizing warrantless arrests of "all Persons unnecessarily travelling on the Sabbath or Lord's Day"); id., at 23 ("such as are guilty of Drunkenness, profane Swearing, Sabbath-breaking, also vagrant Persons [and] unseasonable Night-walkers"); Digest of the Laws of the State of Georgia 1755-1800, p. 411 (H. Marbury & w. Crawford eds. 1802) (1762 Act) (breakers of the Sabbath laws); id., at 252 (1764 Act) (persons "gaming ... in any licensed public house, or other house selling liquors"); Colonial Laws of Massachusetts 139 (1889) (1646 Act) ("such as are overtaken with drink, swearing, Sabbath breaking, Lying, vagrant persons, [and] night-walkers"); Laws of the State of New Hampshire 549 (1800) (1799 Act) (persons "travelling unnecessarily" on Sunday); Digest of the Laws of New Jersey 1709-1838, pp. 585-586 (L. Elmer ed. 1838) (1799 Act) ("vagrants or vagabonds, common drunkards, common night-walkers, and common prostitutes," as well as fortunetellers and other practitioners of "crafty science"); Laws of the State of New York, 1777-1784, pp. 358-359 (1886) (1781 Act) ("hawker[s]" and "pedlar[s]"); Earliest Printed Laws of New York, 1665-1693, p. 133 (J. Cushing ed. 1978) (Duke of York's Laws, 1665-1675) ("such as are overtaken with Drink, Swearing, Sabbath breaking, Vagrant persons or night walkers"); 3 Laws of the Commonwealth of Pennsylvania 177-183 338 (1810) (1794 Act) (persons "profanely curs[ing]," drinking excessively, "cock-fighting," or "play[ing] at cards, dice, billiards, bowls, shuffle-boards, or any game of hazard or address, for money").9 What we have here, then, is just the opposite of what we had in Wilson v. Arkansas. There, we emphasized that during the founding era a number of States had "enacted statutes specifically embracing" the common-law knock-andannounce rule, 514 U. S., at 933; here, by contrast, those very same States passed laws extending warrantless arrest authority to a host of nonviolent misdemeanors, and in so doing acted very much inconsistently with Atwater's claims about the Fourth Amendment's object. Of course, the Fourth 9 Given these early colonial and state laws, the fact that a number of States that ratified the Fourth Amendment generally incorporated common-law principles into their own constitutions or statutes, see Wil son v. Arkansas, 514 U. S. 927 , 934 (1995), cannot aid Atwater here. Founding-era receptions of common law, whether by state constitution or state statute, generally provided that common-law rules were subject to statutory alteration. See, e. g., Del. Const., Art. 25 (1776), 2 W. Swindler, Sources and Documents of United States Constitutions 203 (1973) (hereinafter Swindler) ("The common law of England ... shall remain in force, unless [it] shall be altered by a future law of the legislature"); N. J. Const., Art. XXII (1776), 6 Swindler 452 ("[T]he common law of England ... shall still remain in force, until [it] shall be altered by a future law of the Legislature"); N. Y. Const., Art. XXXV (1777), 7 Swindler 177-178 ("[S]uch parts of the common law of England, and of the statute law of England and Great Britain ... as together did form the law of [New York on April 19, 1775,] shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same"); N. C. Laws 1778, ch. V, in 1 First Laws of the State of North Carolina 353 (J. Cushing ed. 1984) ("[A]ll such ... Parts of the Common Law, as were heretofore in Force and Use within this Territory ... which have not been ... abrogated [or] repealed ... are hereby declared to be in full Force within this State"); Ordinances of May 1776, ch. 5, § 6, 9 Statutes at Large of Virginia 127 (W. Hening ed. 1821) ("[T]he common law of England ... shall be the rule of decision, and shall be considered in full force, until the same shall be altered by the legislative power of this colony"). 339 Amendment did not originally apply to the States, see Barron v. Mayor of Baltimore, 7 Pet. 243 (1833), but that does not make state practice irrelevant in unearthing the Amendment's original meaning. A number of state constitutional search-and-seizure provisions served as models for the Fourth Amendment, see, e. g., N. H. Const. of 1784, pt. I, Art. XIX; Pa. Const. of 1776 (Declaration of Rights), Art. X, and the fact that many of the original States with such constitutionallimitations continued to grant their own peace officers broad warrantless misdemeanor arrest authority undermines Atwater's contention that the founding generation meant to bar federal law enforcement officers from exercising the same authority. Given the early state practice, it is likewise troublesome for Atwater's view that just one year after the ratification of the Fourth Amendment, Congress vested federal marshals with "the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states." Act of May 2, 1792, ch. 28, § 9, 1 Stat. 265. Thus, as we have said before in only slightly different circumstances, the Second Congress apparently "saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers" to make warrantless arrests. United States v. Watson, 423 U. S. 411 , 420 (1976).10 The record thus supports Justice Powell's observation that "[t]here is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at 10 Courts and commentators alike have read the 1792 Act as conferring broad warrantless arrest authority on federal officers, and, indeed, the Act's passage "so soon after the adoption of the Fourth Amendment itself underscores the probability that the constitutional provision was intended to restrict entirely different practices." Watson, 423 U. S., at 429 (Powell, J., concurring); see also Amar, Fourth Amendment First Principles, 107 Harv. L. Rev., at 764, and n. 14. 340 all concerned about warrantless arrests by local constables and other peace officers." Id., at 429 (concurring opinion). We simply cannot conclude that the Fourth Amendment, as originally understood, forbade peace officers to arrest without a warrant for misdemeanors not amounting to or involving breach of the peace. 2 Nor does Atwater's argument from tradition pick up any steam from the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become "woven ... into the fabric" of American law. Wilson, supra, at 933; see also Payton v. New York, 445 U. S., at 590 (emphasizing "the clear consensus among the States adhering to [a] well-settled common-law rule"). The story, on the contrary, is of two centuries of uninterrupted (and largely unchallenged) state and federal practice permitting warrantless arrests for misdemeanors not amounting to or involving breach of the peace. First, there is no support for Atwater's position in this Court's cases (apart from the isolated sentence in Carroll, already explained). Although the Court has not had much to say about warrantless misdemeanor arrest authority, what little we have said tends to cut against Atwater's argument. In discussing this authority, we have focused on the circumstance that an offense was committed in an officer's presence, to the omission of any reference to a breach-of-the-peace limitation.ll See, e. g., United States v. Watson, supra, at 418 ("The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony 11 We need not, and thus do not, speculate whether the Fourth Amendment entails an "in the presence" requirement for purposes of misdemeanor arrests. Cf. Welsh v. Wisconsin, 466 U. S. 740 , 756 (1984) (White, J., dissenting) ("[T]he requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth Amendment"). 341 committed in his presence ... "); Carroll, 267 U. S., at 156157 ("The usual rule is that a police officer may arrest without warrant one ... guilty of a misdemeanor if committed in his presence"); Bad Elk v. United States, 177 U. S. 529 , 534, 536, n. 1 (1900) (noting common-law pedigree of state statute permitting warrantless arrest "[f]or a public offense committed or attempted in [officer's] presence"); Kurtz v. Moffitt, 115 U. S. 487 , 499 (1885) (common-law presence requirement); cf. also Welsh v. Wisconsin, 466 U. S. 740 , 756 (1984) (White, J., dissenting) (" '[A]uthority to arrest without a warrant in misdemeanor cases may be enlarged by statute' "). Second, and again in contrast with Wilson, it is not the case here that "[e]arly American courts ... embraced" an accepted common-law rule with anything approaching unanimity. Wilson v. Arkansas, 514 U. S., at 933. To be sure, Atwater has cited several 19th-century decisions that, at least at first glance, might seem to support her contention that "warrantless misdemeanor arrest was unlawful when not [for] a breach of the peace." Brief for Petitioners 17 (citing Pow v. Beckner, 3 Ind. 475, 478 (1852), Commonwealth v. Carey, 66 Mass. 246, 250 (1853), and Robison v. Miner, 68 Mich. 549, 556-559, 37 N. W. 21, 25 (1888)). But none is ultimately availing. Pow is fundamentally a "presence" case; it stands only for the proposition, not at issue here, see n. 11, supra, that a nonfelony arrest should be made while the offense is "in [the officer's] view and ... still continuing" and not subsequently "upon vague information communicated to him." 3 Ind., at 478. The language Atwater attributes to Carey ("[E]ven if he were a constable, he had no power to arrest for any misdemeanor without a warrant, except to stay a breach of the peace, or to prevent the commission of such an offense") is taken from the reporter's summary of one of the party's arguments, not from the opinion of the court. While the court in Carey (through Chief Justice Shaw) said that "the old established rule of the common law" was that "a constable or other peace officer could not 342 arrest one without a warrant ... if such crime were not an offence amounting in law to felony," it said just as clearly that the common-law rule could be "altered by the legislature" (notwithstanding Massachusetts's own Fourth Amendment equivalent in its State Constitution). 66 Mass., at 252. Miner, the third and final case upon which Atwater relies, was expressly overruled just six years after it was decided. In Burroughs v. Eastman, 101 Mich. 419, 59 N. W. 817 (1894), the Supreme Court of Michigan held that the language from Miner upon which the plaintiff there (and presumably Atwater here) relied "should not be followed," and then went on to offer the following: "[T]he question has arisen in many of our sister states, and the power to authorize arrest on view for offenses not amounting to breaches of the peace has been affirmed. Our attention has been called to no case, nor have we in our research found one, in which the contrary doctrine has been asserted." 101 Mich., at 425, 59 N. w., at 819 (collecting cases from, e. g., Illinois, Indiana, Massachusetts, Minnesota, Missouri, New Hampshire, New York, Ohio, and Texas). The reports may well contain early American cases more favorable to Atwater's position than the ones she has herself invoked. But more to the point, we think, are the numerous early- and mid-19th-century decisions expressly sustaining (often against constitutional challenge) state and local laws authorizing peace officers to make warrantless arrests for misdemeanors not involving any breach of the peace. See, e. g., Mayo v. Wilson, 1 N. H. 53 (1817) (upholding statute authorizing warrantless arrests of those unnecessarily traveling on Sunday against challenge based on state due process and search-and-seizure provisions); Holcomb v. Cornish, 8 Conn. 375 (1831) (upholding statute permitting warrantless arrests for "drunkenness, profane swearing, cursing or sabbath-breaking" against argument that "[t]he power of a justice of the peace to arrest and detain a citizen without complaint or warrant against him, is surely not given by the 343 common law"); Jones v. Root, 72 Mass. 435 (1856) (rebuffing constitutional challenge to statute authorizing officers "without a warrant [to] arrest any person or persons whom they may find in the act of illegally selling, transporting, or distributing intoxicating liquors"); Main v. McCarty, 15 Ill. 441, 442 (1854) (concluding that a law expressly authorizing arrests for city-ordinance violations was "not repugnant to the constitution or the general provisions of law"); White v. Kent, 11 Ohio St. 550 (1860) (upholding municipal ordinance permitting warrantless arrest of any person found violating any city ordinance or state law); Davis v. American Soc. for Prevention of Cruelty to Animals, 75 N. Y. 362 (1878) (upholding statute permitting warrantless arrest for misdemeanor violation of cruelty-to-animals prohibition). See generally Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 550, and n. 54 (1924) (collecting cases and observing that "[t]he states may, by statute, enlarge the common law right to arrest without a warrant, and have quite generally done so or authorized municipalities to do so, as for example, an officer may be authorized by statute or ordinance to arrest without a warrant for various misdemeanors and violations of ordinances, other than breaches of the peace, if committed in his presence"); id., at 706, nn. 570, 571 (collecting cases); 1 J. Bishop, New Criminal Procedure §§ 181, 183, pp. 101, n. 2, 103, n. 5 (4th ed. 1895) (same); W. Clark, Handbook of Criminal Procedure § 12, p. 50, n. 8 (2d ed. 1918) (same). Finally, both the legislative tradition of granting warrantless misdemeanor arrest authority and the judicial tradition of sustaining such statutes against constitutional attack are buttressed by legal commentary that, for more than a century now, has almost uniformly recognized the constitutionality of extending warrantless arrest power to misdemeanors without limitation to breaches of the peace. See, e. g., E. Fisher, Laws of Arrest § 59, p. 130 (1967) ("[I]t is generally recognized today that the common law authority to arrest without a warrant in misdemeanor cases may be enlarged by 344 statute, and this has been done in many of the states"); Wilgus, supra, at 705-706 ("Statutes and municipal charters have quite generally authorized an officer to arrest for any misdemeanor whether a breach of the peace or not, without a warrant, if committed in the officer's presence. Such statutes are valid" (footnote omitted)); Clark, supra, § 12, at 50 ("In most, if not all, the states there are statutes and city ordinances, which are clearly valid, authorizing officers to arrest for certain misdemeanors without a warrant, when committed in their presence"); J. Beale, Criminal Pleading and Practice § 21, p. 20, and n. 7 (1899) ("By statute the power of peace officers to arrest without a warrant is often extended to all misdemeanors committed in their presence." "Such a statute is constitutional"); 1 Bishop, supra, § 183, at 103 ("[T]he power of arrest extends, possibly, to any indictable wrong in [an officer's] presence .... And statutes and ordinances widely permit these arrests for violations of municipal by-laws"); J. Bassett, Criminal Pleading and Practice § 89, p. 104 (2d ed. 1885) ("[A]s to the lesser misdemeanors, except breaches of the peace, the power extends only so far as some statute gives it"). But cf. H. Vorhees, Law of Arrest § 131, pp. 78-79 (1904) (acknowledging that "by authority of statute, city charter, or ordinance, [an officer] may arrest without a warrant, one who ... commits a misdemeanor other than a breach of the peace," but suggesting that courts look with "disfavor" on such legislative enactments "as interfering with the constitutional liberties of the subject"). Small wonder, then, that today statutes in all 50 States and the District of Columbia permit warrantless misdemeanor arrests by at least some (if not all) peace officers without requiring any breach of the peace,12 as do a host of congressional enactments.13 The American Law Institute 12 See Appendix, infra. 13 See, e. g., 18 U. S. C. § 3052 (Federal Bureau of Investigation agents authorized to "make arrests without warrant for any offense against the United States committed in their presence"); § 3053 (same, for United 345 has long endorsed the validity of such legislation, see American Law Institute, Code of Criminal Procedure § 21(a), p. 28 (1930); American Law Institute, Model Code of PreArraignment Procedure § 120.1(1)(c), p. 13 (1975), and the consensus, as stated in the current literature, is that statutes "remov[ing] the breach of the peace limitation and thereby permit[ting] arrest without warrant for any misdemeanor committed in the arresting officer's presence" have" 'never been successfully challenged and stan[d] as the law of the land.'" 3 W. LaFave, Search and Seizure § 5.1(b), pp. 13-14, and n. 76 (1996) (quoting Higbee v. San Diego, 911 F.2d 377 , 379 (CA9 1990)) (emphasis in original; footnote omitted). This, therefore, simply is not a case in which the claimant can point to "a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since." County of Riverside v. McLaughlin, 500 U. S. 44 , 60 (1991) (SCALIA, J., dissenting). III While it is true here that history, if not unequivocal, has expressed a decided, majority view that the police need not obtain an arrest warrant merely because a misdemeanor stopped short of violence or a threat of it, Atwater does not wager all on history.14 Instead, she asks us to mint a new States marshals and deputies); § 3056(c)(I)(C) (same, for Secret Service agents); § 3061(a)(2) (same, for postal inspectors); § 3063(a)(3) (same, for Environmental Protection Agency officers); 19 U. S. C. § 1589a(3) (same, for customs officers); 21 U. S. C. § 878(a)(3) (same, for Drug Enforcement Administration agents); 25 U. S. C. § 2803(3)(A) (same, for Bureau of Indian Mfairs officers). 14 And, indeed, the dissent chooses not to deal with history at all. See post, p. 360 (opinion of O'CONNOR, J.). As is no doubt clear from the text, the historical record is not nearly as murky as the dissent suggests. See, e. g., supra, at 333-335 (parliamentary statutes clearly authorizing warrantless arrests for misdemeanor-level offenses), 337-338 (colonial and founding-era state statutes clearly authorizing same). History, moreover, is not just "one of the tools" relevant to a Fourth Amendment inquiry, post, at 361. JUSTICE O'CONNOR herself has observed that courts must 346 rule of constitutional law on the understanding that when historical practice fails to speak conclusively to a claim grounded on the Fourth Amendment, courts are left to strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness. See Wyoming v. Houghton, 526 U. S. 295 , 299-300 (1999); Vernonia School Dist. J,7J v. Acton, 515 U. S. 646 , 652-653 (1995). Atwater accordingly argues for a modern arrest rule, one not necessarily requiring violent breach of the peace, but nonetheless forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and when the government shows no compelling need for immediate detention. 15 If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail. She was a known and established resident of Lago Vista with no place to hide and no incentive to flee, and common sense says she would almost certainly have buckled up as a condition of driving off with a citation. In her case, the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising be "reluctant ... to conclude that the Fourth Amendment proscribes a practice that was accepted at the time of adoption of the Bill of Rights and has continued to receive the support of many state legislatures," Ten nessee v. Garner, 471 U. S. 1 , 26 (1985) (dissenting opinion), as the practice of making warrantless misdemeanor arrests surely was and has, see supra, at 337-345. Because here the dissent "c1aim[s] that [a] practic[e] accepted when the Fourth Amendment was adopted [is] now constitutionally impermissible," the dissent bears the "heavy burden" of justifying a departure from the historical understanding. 471 U. S., at 26. 15 Although it is unclear from Atwater's briefs whether the rule she proposes would bar custodial arrests for fine-only offenses even when made pursuant to a warrant, at oral argument Atwater's counsel "concede[d] that if a warrant were obtained, this arrest ... would ... be reasonable." Tr. of Oral Arg. 5. 347 extremely poor judgment. Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case. But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. See, e. g., United States v. Robinson, 414 U. S. 218 , 234-235 (1973). Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made. Courts attempting to strike a reasonable Fourth Amendment balance thus credit the government's side with an essential interest in readily administrable rules. See New York v. Belton, 453 U. S. 454, 458 (1981) (Fourth Amendment rules" 'ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged'" and not" 'qualified by all sorts of ifs, ands, and buts' ").16 At first glance, Atwater's argument may seem to respect the values of clarity and simplicity, so far as she claims that the Fourth Amendment generally forbids warrantless arrests for minor crimes not accompanied by violence or some 16 Terry v. Ohio, 392 U. S. 1 (1968), upon which the dissent relies, see post, at 366, is not to the contrary. Terry certainly supports a more finely tuned approach to the Fourth Amendment when police act without the traditional justification that either a warrant (in the case of a search) or probable cause (in the case of arrest) provides; but at least in the absence of "extraordinary" circumstances, Whren v. United States, 517 U. S. 806 , 818 (1996), there is no comparable cause for finicking when police act with such justification. 348 demonstrable threat of it (whether "minor crime" be defined as a fine-only traffic offense, a fine-only offense more generally, or a misdemeanor17). But the claim is not ultimately so simple, nor could it be, for complications arise the moment we begin to think about the possible applications of the several criteria Atwater proposes for drawing a line between minor crimes with limited arrest authority and others not so restricted. One line, she suggests, might be between "jailable" and "fine-only" offenses, between those for which conviction could result in commitment and those for which it could not. The trouble with this distinction, of course, is that an officer on the street might not be able to tell. It is not merely that we cannot expect every police officer to know the details of frequently complex penalty schemes, see Berkemer v. McCarty, 468 U. S. 420 , 431, n. 13 (1984) ("[O]fficers in the field frequently 'have neither the time nor the competence to determine' the severity of the offense for which they are considering arresting a person"), but that penalties for ostensibly identical conduct can vary on account of facts difficult (if not impossible) to know at the scene of an arrest. Is this the first offense or is the suspect a repeat offender? 18 Is the weight of the marijuana a gram above or a gram below 17 Compare, e. g., Brief for Petitioners 46 ("fine-only") with, e. g., Tr. of Oral Arg. 11 (misdemeanors). Because the difficulties attendant to any major crime-minor crime distinction are largely the same, we treat them together. 18 See, e. g., Welsh, 466 U. S., at 756 (first DUI offense subject to maximum fine of $200; subsequent offense punishable by one year's imprisonment); Carroll v. United States, 267 U. S. 132 , 154 (1925) (first offense of smuggling liquor subject to maximum fine of $500; subsequent offense punishable by 90 days' imprisonment); 21 U. S. C. §§ 844a(a), (c) (first offense for possession of "personal use amount" of controlled substance subject to maximum $10,000 fine; subsequent offense punishable by imprisonment); Tex. Penal Code Ann. §§ 42.01, 49.02, 12.23, 12.43 (1994 and Supp. 2001) (first public drunkenness or disorderly conduct offense subject to maximum $500 fine; third offense punishable by 180 days' imprisonment). 349 the fine-only line? 19 Where conduct could implicate more than one criminal prohibition, which one will the district attorney ultimately decide to charge? 20 And so on. But Atwater's refinements would not end there. She represents that if the line were drawn at nonjailable traffic offenses, her proposed limitation should be qualified by a proviso authorizing warrantless arrests where "necessary for enforcement of the traffic laws or when [an] offense would otherwise continue and pose a danger to others on the road." Brief for Petitioners 46 (internal quotation marks omitted). (Were the line drawn at misdemeanors generally, a comparable qualification would presumably apply.) The proviso only compounds the difficulties. Would, for instance, either exception apply to speeding? At oral argument, Atwater's counsel said that "it would not be reasonable to arrest a driver for speeding unless the speeding rose to the level of reckless driving." Tr. of Oral Arg. 16. But is it not fair to expect that the chronic speeder will speed again despite a citation in his pocket, and should that not qualify as showing that the "offense would ... continue" under Atwater's rule? And why, as a constitutional matter, should we assume that only reckless driving will "pose a danger to others on the road" while speeding will not? 19 See, e. g., 21 U. S. C. §§ 844, 844a (possession of "personal use amount" of a controlled substance subject to maximum $10,000 fine; possession of larger amount punishable by one year's imprisonment); Tex. Health & Safety Code Ann. § 481.121 (b) (Supp. 2001) (possession of four ounces or less of marijuana a misdemeanor; possession of more than four ounces a felony). See generally National Survey of State Laws 151-188 (3d R. Leiter ed. 1999) (surveying state laws concerning drug possession). 20 For instance, the act of allowing a small child to stand unrestrained in the front seat of a moving vehicle at least arguably constitutes child endangerment, which under Texas law is a state jail felony. Tex. Penal Code Ann. §§22.041(c), (f) (Supp. 2001). Cf. also 21 Am. Jur. 2d, Criminal Law § 28 (1998) ("[S]ome statutory schemes permit courts in their discretion to term certain offenses as felonies or as misdemeanors"). 350 There is no need for more examples to show that Atwater's general rule and limiting proviso promise very little in the way of administrability. It is no answer that the police routinely make judgments on grounds like risk of immediate repetition; they surely do and should. But there is a world of difference between making that judgment in choosing between the discretionary leniency of a summons in place of a clearly lawful arrest, and making the same judgment when the question is the lawfulness of the warrantless arrest itself. It is the difference between no basis for legal action challenging the discretionary judgment, on the one hand, and the prospect of evidentiary exclusion or (as here) personal § 1983 liability for the misapplication of a constitutional standard, on the other. Atwater's rule therefore would not only place police in an almost impossible spot but would guarantee increased litigation over many of the arrests that would occur.21 For all these reasons, Atwater's various distinctions between permissible and impermissible arrests for minor crimes strike us as "very unsatisfactory line[sJ" to require police officers to draw on a moment's notice. Carroll One may ask, of course, why these difficulties may not be answered by a simple tie breaker for the police to follow in the field: if in doubt, do not arrest. The first answer is that in practice the tie breaker would boil down to something akin to a least-restrictive-alternative limitation, which is itself one of those "ifs, ands, and buts" rules, New York v. Belton, 453 U. S., at 458, generally thought inappropriate in working out Fourth Amendment protection. See, e. g., Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 , 21 See United States v. Watson, 423 U. S. 411 , 423-424 (1976) ("[T]he judgment of the Nation and Congress has ... long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like"). 351 629, n. 9 (1989) (collecting cases); United States v. MartinezFuerte, 428 U. S. 543 , 557-558, n. 12 (1976) ("The logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all searchand-seizure powers"). Beyond that, whatever help the tie breaker might give would come at the price of a systematic disincentive to arrest in situations where even Atwater concedes that arresting would serve an important societal interest. An officer not quite sure that the drugs weighed enough to warrant jail time or not quite certain about a suspect's risk of flight would not arrest, even though it could perfectly well turn out that, in fact, the offense called for incarceration and the defendant was long gone on the day of trial. Multiplied many times over, the costs to society of such underenforcement could easily outweigh the costs to defendants of being needlessly arrested and booked, as Atwater herself acknowledges.22 Just how easily the costs could outweigh the benefits may be shown by asking, as one Member of this Court did at oral argument, "how bad the problem is out there." Tr. of Oral Arg. 20. The very fact that the law has never jelled the way Atwater would have it leads one to wonder whether warrantless misdemeanor arrests need constitutional atten- 22 The doctrine of qualified immunity is not the panacea the dissent believes it to be. See post, at 367-368. As the dissent itself rightly acknowledges, even where personal liability does not ultimately materialize, the mere "specter of liability" may inhibit public officials in the discharge of their duties, post, at 368, for even those officers with airtight qualified immunity defenses are forced to incur "the expenses of litigation" and to endure the "diversion of [their] official energy from pressing public issues," Harlow v. Fitzgerald, 457 U. S. 800 , 814 (1982). Further, and somewhat perversely, the disincentive to arrest produced by Atwater's opaque standard would be most pronounced in the very situations in which police officers can least afford to hesitate: when acting "on the spur (and in the heat) of the moment," supra, at 347. We could not seriously expect that when events were unfolding fast, an officer would be able to tell with much confidence whether a suspect's conduct qualified, or even "reasonably" qualified, under one of the exceptions to Atwater's general no-arrests rule. 352 tion, and there is cause to think the answer is no. So far as such arrests might be thought to pose a threat to the probable-cause requirement, anyone arrested for a crime without formal process, whether for felony or misdemeanor, is entitled to a magistrate's review of probable cause within 48 hours, County of Riverside v. McLaughlin, 500 U. S., at 55-58, and there is no reason to think the procedure in this case atypical in giving the suspect a prompt opportunity to request release, see Tex. Transp. Code Ann. § 543.002 (1999) (persons arrested for traffic offenses to be taken "immediately" before a magistrate). Many jurisdictions, moreover, have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses. See, e. g., Ala. Code § 32-1-4 (1999); Cal. Veh. Code Ann. § 40504 (West 2000); Ky. Rev. Stat. Ann. §§ 431.015(1), (2) (Michie 1999); La. Rev. Stat. Ann. § 32:391 (West 1989); Md. Transp. Code Ann. § 26-202(a)(2) (1999); S. D. Codified Laws § 32-33-2 (1998); Tenn. Code Ann. § 40-7-118(b)(1) (1997); Va. Code Ann. § 46.2-936 (Supp. 2000). It is of course easier to devise a minor-offense limitation by statute than to derive one through the Constitution, simply because the statute can let the arrest power turn on any sort of practical consideration without having to subsume it under a broader principle. It is, in fact, only natural that States should resort to this sort of legislative regulation, for, as Atwater's own amici emphasize, it is in the interest of the police to limit pettyoffense arrests, which carry costs that are simply too great to incur without good reason. See Brief for Institute on Criminal Justice at the University of Minnesota Law School and Eleven Leading Experts on Law Enforcement and Corrections Administration and Policy as Amici Curiae 11 (the use of custodial arrests for minor offenses "[a]ctually [c]ontradicts [l]aw [e]nforcement [i]nterests"). Finally, and significantly, under current doctrine the preference for categorical treatment of Fourth Amendment claims gives way to individualized review when a defendant makes a colorable 353 argument that an arrest, with or without a warrant, was "conducted in an extraordinary manner, unusually harmful to [his] privacy or even physical interests." Whren v. United States, 517 U. S., at 818; see also Graham v. Connor, 490 U. S. 386 , 395-396 (1989) (excessive force actionable under § 1983). The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles demanding redress. Indeed, when Atwater's counsel was asked at oral argument for any indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one.23 We are sure that there are others,24 but just as surely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests.25 That fact caps the reasons for rejecting Atwater's request 23 He referred to a newspaper account of a girl taken into custody for eating french fries in a Washington, D. C., subway station. Tr. of Oral Arg. 20-21; see also Washington Post, Nov. 16, 2000, p. Al (describing incident). Not surprisingly, given the practical and political considerations discussed in text, the Washington Metro Transit Police recently revised their "zero-tolerance" policy to provide for citation in lieu of custodial arrest of subway snackers. Washington Post, Feb. 27, 2001, at Bl. 24 One of Atwater's amici described a handful in its brief. Brief for American Civil Liberties Union et al. as Amici Curiae 7-8 (reporting arrests for littering, riding a bicycle without a bell or gong, operating a business without a license, and "walking as to create a hazard"). 25 The dissent insists that a minor traffic infraction "may often serve as an excuse" for harassment, and that fine-only misdemeanor prohibitions "may be enforced" in an arbitrary manner. Post, at 372. Thus, the dissent warns, the rule that we recognize today "has potentially serious consequences for the everyday lives of Americans" and "carries with it grave potential for abuse." Post, at 371, 372. But the dissent's own language (e. g., "may," "potentially") betrays the speculative nature of its claims. Noticeably absent from the parade of horribles is any indication that the "potential for abuse" has ever ripened into a reality. In fact, as we have pointed out in text, there simply is no evidence of widespread abuse of minor-offense arrest authority. 354 for the development of a new and distinct body of constitutionallaw. Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause "applie[s] to all arrests, without the need to 'balance' the interests and circumstances involved in particular situations." Dunaway v. New York, 442 U. S. 200 , 208 (1979). If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender. IV Atwater's arrest satisfied constitutional requirements. There is no dispute that Officer Turek had probable cause to believe that Atwater had committed a crime in his presence. She admits that neither she nor her children were wearing seatbelts, as required by Tex. Transp. Code Ann. § 545.413 (1999). Turek was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater's arrest was in some sense necessary. Nor was the arrest made in an "extraordinary manner, unusually harmful to [her] privacy or ... physical interests." Whren v. United States, 517 U. S., at 818. As our citations in Whren make clear, the question whether a search or seizure is "extraordinary" turns, above all else, on the manner in which the search or seizure is executed. See ibid. (citing Tennessee v. Garner, 471 U. S. 1 (1985) ("seizure by means of deadly force"), Wilson v. Arkansas, 514 U. S. 927 (1995) ("unannounced entry into a home"), Welsh v. Wisconsin, 466 U. S. 740 (1984) ("entry into a home without a warrant"), and Winston v. Lee, 470 U. S. 753 (1985) ("physical penetration of the body")). Atwater's arrest was surely "humiliating," as she says in her brief, but it was no more "harmful to ... privacy or ... physical interests" than the normal custodial arrest. She was handcuffed, placed in a squad car, and 355 taken to the local police station, where officers asked her to remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her photograph and placed her in a cell, alone, for about an hour, after which she was taken before a magistrate, and released on $310 bond. The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment. The Court of Appeals's en banc judgment is affirmed. It is so ordered. APPENDIX TO OPINION OF THE COURT State Statutes Authorizing Warrantless Misdemeanor Arrests Ala. Code § 15-10-3(a)(1) (Supp. 2000) (authorizing warrantless arrest for any "public offense" committed in the presence of the officer); Alaska Stat. Ann. § 12.25.030(a)(1) (2000) ("for a crime committed ... in the presence of the person making the arrest"); Ariz. Rev. Stat. Ann. § 13-3883(a)(2) (Supp. 2000) (for a misdemeanor committed in the officer's presence); Ark. Code Ann. § 16-81-106(b)(2)(a) (Supp. 1999) ("where a public offense is committed in [the officer's] presence"); Cal. Penal Code Ann. § 836(a)(1) (West Supp. 2001) (where "the person to be arrested has committed a public offense in the officer's presence"); Colo. Rev. Stat. § 16-3-102(1)(b) (2000) (when "[a]ny crime has been or is being committed" in the officer's presence); Conn. Gen. Stat. § 54-lf(a) (Supp. 2000) (for "any offense" when arrestee is taken in the act); Del. Code Ann., Tit. 11, § 1904(a)(1) (1995) (for any misdemeanor committed in the officer's presence); 356 Appendix to opinion of the Court D. C. Code Ann. § 23-581(a)(1)(B) (1996) (where officer has probable cause to believe a person has committed an offense in the officer's presence); Fla. Stat. § 901.15(1) (Supp. 2001) (for misdemeanor or ordinance violation committed in presence of the officer); Ga. Code Ann. § 17-4-20(a) (Supp. 1996) ("for a crime ... if the offense is committed in [the] officer's presence"); Haw. Rev. Stat. § 803-5(a) (1999) ("when the officer has probable cause to believe that [a] person has committed any offense"); Idaho Code § 19-603(1) (1997) ("[f]or a public offense committed or attempted in [officer's] presence"); Ill. Compo Stat., ch. 725, § 5/107-2(1)(c) (1992) (when the officer "has reasonable grounds to believe that the person is committing or has committed an offense"); Ind. Code § 35-33-1-1(a)(4) (Supp. 2000) (when the officer has probable cause to believe a person "is committing or attempting to commit a misdemeanor in the officer's presence"); Iowa Code § 804.7(1) (1994) ("[f]or a public offense committed or attempted in the peace officer's presence"); Kan. Stat. Ann. § 22-2401(d) (1999 Cum. Supp.) (for "[a]ny crime, except a traffic infraction or a cigarette or tobacco infraction," committed in the officer's view); Ky. Rev. Stat. Ann. § 431.005(1)(d) (Michie 1999) (for any offense punishable by confinement committed in the officer's presence); § 431.015(2) (Supp. 2000) (officer should generally issue citation rather than arrest for certain minor "violations"); La. Code Crim. Proc. Ann., Art. 213(3) (West 1991) (where the officer "has reasonable cause to believe that the person to be arrested has committed an offense"); Me. Rev. Stat. Ann., Tit. 15, § 704 (1980) ("persons found violating any law of the State or any legal ordinance or bylaw 357 of a town"); Tit. 17-A, § 15(1)(B) (1983 and Supp. 2000) (for misdemeanors committed in the officer's presence); Md. Ann. Code, Art. 27, § 594B(a) (1996 and 2000 Supp.) (any person who commits, or attempts to commit, "any felony or misdemeanor" in the presence of an officer); Mass. Gen. Laws, ch. 276, § 28 (1997) (for designated misdemeanor offenses); ch. 272, § 60 (for littering offenses where identity of arrestee is not known to officer); Mich. Compo Laws Ann. § 764.15(1)(a) (West 2000) (for felony, misdemeanor, or ordinance violation committed in the officer's presence); Minn. Stat. § 629.34(1)(c)(1) (Supp. 2001) ("when a public offense has been committed or attempted in the officer's presence"); Miss. Code Ann. § 99-3-7 (Supp. 1998) (for indictable offense committed in presence of officer); § 45-3-21(1)(a)(vi) (by Highway Safety Patrol Officers of "any person or persons committing or attempting to commit any misdemeanor, felony or breach of the peace within their presence or view"); Mo. Rev. Stat. § 479.110 (2000) (of "any person who commits an offense in [the officer's] presence"); Mont. Code Ann. § 46-6-311(1) (1997) (if "the officer has probable cause to believe that the person is committing an offense"); Neb. Rev. Stat. § 29-404.02(2)(d) (1995) (when the officer has probable cause to believe that the person has committed a misdemeanor in his presence); Nev. Rev. Stat. § 171.172 (1997) (in fresh pursuit of a person who commits "any criminal offense" in the presence of the officer); N. H. Rev. Stat. Ann. § 614:7 (Supp. 2000) (in fresh pursuit of any person who has committed "any criminal offense" in the presence of the officer); § 594:10(I)(a) (upon probable 358 Appendix to opinion of the Court cause for misdemeanor or violation committed in officer's presence); N. J. Stat. Ann. § 53:2-1 (West Supp. 2000) ("for violations of the law committed in [the officers'] presence"); N. M. Stat. Ann. § 3-13-2(A)(4)(d) (1999) ("any person in the act of violating the laws of the state or the ordinances of the municipality"); § 30-16-16(B) (1994) (for falsely obtaining services or accommodations); § 30-16-23 (of any person officer has probable cause to believe has committed the crime of shoplifting); N. Y. Crim. Proc. Law §§ 140.10(1)(a) and (2) (McKinney Supp. 2001) (when officer has probable cause to believe any offense has been committed in his presence and probable cause to believe person to be arrested committed the offense); N. C. Gen. Stat. § 15A-401(b) (1999) (where an officer has probable cause to believe the person has committed "a criminal offense" in the officer's presence and for misdemeanors out of the officers presence in certain circumstances); N. D. Cent. Code § 29-06-15(1)(a) (Supp. 1999) ("[f]or a public offense, committed or attempted in the officer's presence"); Ohio Rev. Code Ann. § 2935.03 (1997 and Supp. 2000) (of a person "found violating ... a law of this state, an ordinance of a municipal corporation, or a resolution of a township"); but see § 2935.26 (1997) (providing that notwithstanding any other provision of the Revised Code, when a law enforcement officer is otherwise authorized to arrest a person for the commission of a minor misdemeanor, the officer shall not arrest the person, but shall issue a citation, except in specified circumstances); Okla. Stat., Tit. 22, § 196(1) (Supp. 2001) ("[f]or a public offense, committed or attempted in [the officer's] presence"); Ore. Rev. Stat. § 133.310(1) (1997) (upon probable cause for any felony, Class A misdemeanor, or any other offense in the 359 officer's presence except "traffic infractions" and minor "violations"); Pa. Stat. Ann., Tit. 71, § 252(a) (Purdon 1990) ("for all violations of the law, including laws regulating the use of the highways, which they may witness"); R. 1. Gen. Laws § 12-7-3 (2000) (for misdemeanors and petty misdemeanors where "[t]he officer has reasonable grounds to believe that [the] person cannot be arrested later, or [m]ay cause injury to himself or herself or others or loss or damage to property unless immediately arrested"); S. C. Code Ann. § 17-13-30 (1985) (of persons who, in the presence of the officer, "violate any of the criminal laws of this State if such arrest be made at the time of such violation of law or immediately thereafter"); S. D. Codified Laws § 23A-3-2 (1998) ("[f]or a public offense, other than a petty offense, committed or attempted in [the officer's] presence"); Tenn. Code Ann. § 40-7-103(a)(1) (Supp. 2000) ("[f]or a public offense committed or a breach of the peace threatened in the officer's presence"); see also § 40-7-118(b)(1) (1997) (officer who has arrested a person for the commission of a misdemeanor should generally issue a citation to such arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate); Tex. Code Crim. Proc. Ann., Art. 14.01 (Vernon 1977) ("for any offense committed in his presence or within his view"); Utah Code Ann. § 10-3-915 (1999) (for "any offense directly prohibited by the laws of this state or by ordinance"); § 777-2 (for any public offense committed in presence of officer); Vt. Rule Crim. Proc. 3(a) (2000) (where officer has probable cause to believe that "a crime" is committed in his presence); see also Rule 3(c) (law enforcement officer acting without warrant who is authorized to arrest a person for a misdemeanor should generally issue a citation to appear before a judicial officer in lieu of arrest); 360 Va. Code Ann. § 19.2-81 (2000) (of "any person who commits any crime in the presence of [an] officer"); Wash. Rev. Code § 10.31.100 (Supp. 2001), as amended by 2000 Wash. Laws 119, § 4 (for misdemeanors committed in the presence of the officer); W. Va. Code § 62-10-9 (2000) ("for all violations of any of the criminal laws of the United States, or of this state, when committed in [an officer's] presence"); Wis. Stat. § 968.07(1)(d) (1998) (when "[t]here are reasonable grounds to believe that the person is committing or has committed a crime"); and Wyo. Stat. Ann. § 7-2-102(b)(i) (1999) (when "[a]ny criminal offense" is committed "in the officer's presence"). JUSTICE O'CONNOR, with whom JUSTICE STEVENS, JusTICE GINSBURG, and JUSTICE BREYER join, dissenting. The Fourth Amendment guarantees the right to be free from "unreasonable searches and seizures." The Court recognizes that the arrest of Gail Atwater was a "pointless indignity" that served no discernible state interest, ante, at 347, and yet holds that her arrest was constitutionally permissible. Because the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent. I A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential seizure. See Payton v. New York, 445 U. S. 573 , 585 (1980). When a full custodial arrest is effected without a warrant, the plain language of the Fourth Amendment requires that the arrest be reasonable. See ibid. It is beyond cavil that "[t]he touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" Pennsylvania v. Mimms, 434 U. S. 106 , 108-109 (1977) (per curiam) (quoting Terry v. Ohio, 392 U. S. 1 , 19 361 (1968)). See also, e. g., United States v. Ramirez, 523 U. S. 65 , 71 (1998); Maryland v. Wilson, 519 U. S. 408 , 411 (1997); Ohio v. Robinette, 519 U. S. 33 , 39 (1996); Florida v. Jimeno, 500 U. S. 248 , 250 (1991); United States v. Chadwick, 433 U. S. 1 ,9(1977). We have "often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity." Tennessee v. Garner, 471 U. S. 1 , 13 (1985). But history is just one of the tools we use in conducting the reasonableness inquiry. See id., at 13-19; see also Wilson v. Arkansas, 514 U. S. 927 , 929 (1995); Wyoming v. Houghton, 526 U. S. 295 , 307 (1999) (BREYER, J., concurring). And when history is inconclusive, as the majority amply demonstrates it is in this case, see ante, at 326-345, we will "evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, supra, at 300. See also, e. g., Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 , 619 (1989); Tennessee v. Garner, supra, at 8; Delaware v. Prouse, 440 U. S. 648 , 654 (1979); Pennsylvania v. Mimms, supra, at 109. In other words, in determining reasonableness, "[e]ach case is to be decided on its own facts and circumstances." Go-Bart Importing Co. v. United States, 282 U. S. 344 , 357 (1931). The majority gives a brief nod to this bedrock principle of our Fourth Amendment jurisprudence, and even acknowledges that "Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case." Ante, at 347. But instead of remedying this imbalance, the majority allows itself to be swayed by the worry that "every discretionary judgment in the field [will] be converted into an occasion for constitutional review." Ibid. It therefore mints a new rule that "[i]f an officer has probable cause to believe that an indi- 362 vidual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Ante, at 354. This rule is not only unsupported by our precedent, but runs contrary to the principles that lie at the core of the Fourth Amendment. As the majority tacitly acknowledges, we have never considered the precise question presented here, namely, the constitutionality of a warrantless arrest for an offense punishable only by fine. Cf. ibid. Indeed, on the rare occasions that Members of this Court have contemplated such an arrest, they have indicated disapproval. See, e. g., Gustafson v. Florida, 414 U. S. 260 , 266-267 (1973) (Stewart, J., concurring) ("[A] persuasive claim might have been made ... that the custodial arrest of the petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments. But no such claim has been made"); United States v. Robinson, 414 U. S. 218 , 238, n. 2 (1973) (Powell, J., concurring) (the validity of a custodial arrest for a minor traffic offense is not "self-evident"). To be sure, we have held that the existence of probable cause is a necessary condition for an arrest. See Dunaway v. New York, 442 U. S. 200 , 213-214 (1979). And in the case of felonies punishable by a term of imprisonment, we have held that the existence of probable cause is also a sufficient condition for an arrest. See United States v. Watson, 423 U. S. 411 , 416-417 (1976). In Watson, however, there was a clear and consistently applied common law rule permitting warrantless felony arrests. See id., at 417-422. Accordingly, our inquiry ended there and we had no need to assess the reasonableness of such arrests by weighing individual liberty interests against state interests. Cf. Wyoming v. Houghton, supra, at 299-300; Tennessee v. Garner, supra, at 26 (O'CONNOR, J., dissenting) (criticizing majority for disregarding undisputed common law rule). Here, however, we have no such luxury. The Court's thorough exegesis makes it abundantly clear that warrantless 363 misdemeanor arrests were not the subject of a clear and consistently applied rule at common law. See, e. g., ante, at 332 (finding "disagreement, not unanimity, among both the common-law jurists and the text writers"); ante, at 335 (acknowledging that certain early English statutes serve only to "riddle Atwater's supposed common-law rule with enough exceptions to unsettle any contention [that there was a clear common-law rule barring warrantless arrests for misdemeanors that were not breaches of the peace]"). We therefore must engage in the balancing test required by the Fourth Amendment. See Wyoming v. Houghton, supra, at 299-300. While probable cause is surely a necessary condition for warrantless arrests for fine-only offenses, see Dunaway v. New York, supra, at 213-214, any realistic assessment of the interests implicated by such arrests demonstrates that probable cause alone is not a sufficient condition. See infra, at 364-366. Our decision in Whren v. United States, 517 U. S. 806 (1996), is not to the contrary. The specific question presented there was whether, in evaluating the Fourth Amendment reasonableness of a traffic stop, the subjective intent of the police officer is a relevant consideration. Id., at 808, 814. We held that it is not, and stated that "[t]he making of a traffic stop ... is governed by the usual rule that probable cause to believe the law has been broken 'outbalances' private interest in avoiding police contact." Id., at 818. We of course did not have occasion in Whren to consider the constitutional preconditions for warrantless arrests for fine-only offenses. Nor should our words be taken beyond their context. There are significant qualitative differences between a traffic stop and a full custodial arrest. While both are seizures that fall within the ambit of the Fourth Amendment, the latter entails a much greater intrusion on an individual's liberty and privacy interests. As we have said, "[a] motorist's expectations, when he sees a policeman's light flashing behind him, are that he will be obliged to spend 364 a short period of time answering questions and waiting while the officer checks his license and registration, that he may be given a citation, but that in the end he most likely will be allowed to continue on his way." Berkemer v. McCarty, 468 U. S. 420, 437 (1984). Thus, when there is probable cause to believe that a person has violated a minor traffic law, there can be little question that the state interest in law enforcement will justify the relatively limited intrusion of a traffic stop. It is by no means certain, however, that where the offense is punishable only by fine, "probable cause to believe the law has been broken [will] 'outbalanc[eJ' private interest in avoiding" a full custodial arrest. Whren v. United States, supra, at 818. Justifying a full arrest by the same quantum of evidence that justifies a traffic stop-even though the offender cannot ultimately be imprisoned for her conduct-defies any sense of proportionality and is in serious tension with the Fourth Amendment's proscription of unreasonable seizures. A custodial arrest exacts an obvious toll on an individual's liberty and privacy, even when the period of custody is relatively brief. The arrestee is subject to a full search of her person and confiscation of her possessions. United States v. Robinson, supra. If the arrestee is the occupant of a car, the entire passenger compartment of the car, including packages therein, is subject to search as well. See New York v. Belton, 453 U. S. 454 (1981). The arrestee may be detained for up to 48 hours without having a magistrate determine whether there in fact was probable cause for the arrest. See County of Riverside v. McLaughlin, 500 U. S. 44 (1991). Because people arrested for all types of violent and nonviolent offenses may be housed together awaiting such review, this detention period is potentially dangerous. Rosazza & Cook, Jail Intake: Managing A Critical Function-Part One: Resources, 13 American Jails 35 (Mar.lApr. 1999). And once the period of custody is over, the fact of the arrest is a per- 365 manent part of the public record. Cf. Paul v. Davis, 424 U. S. 693 (1976). We have said that "the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense." Welsh v. Wisconsin, 466 U. S. 740 , 754, n. 14 (1984). If the State has decided that a fine, and not imprisonment, is the appropriate punishment for an offense, the State's interest in taking a person suspected of committing that offense into custody is surely limited, at best. This is not to say that the State will never have such an interest. A full custodial arrest may on occasion vindicate legitimate state interests, even if the crime is punishable only by fine. Arrest is the surest way to abate criminal conduct. It may also allow the police to verify the offender's identity and, if the offender poses a flight risk, to ensure her appearance at trial. But when such considerations are not present, a citation or summons may serve the State's remaining law enforcement interests every bit as effectively as an arrest. Cf. Lodging for State of Texas et al. as Amici Curiae (Texas Department of Public Safety, Student Handout, Traffic Law Enforcement 1 (1999)) ("Citations .... Definition-a means of getting violators to court without physical arrest. A citation should be used when it will serve this purpose except when by issuing a citation and releasing the violator, the safety of the public and/or the violator might be imperiled as in the case of D. W. 1."). Because a full custodial arrest is such a severe intrusion on an individual's liberty, its reasonableness hinges on "the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U. S., at 300. In light of the availability of citations to promote a State's interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance. Giving police 366 officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment's command that seizures be reasonable. Instead, I would require that when there is probable cause to believe that a fine-only offense has been committed, the police officer should issue a citation unless the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion" of a full custodial arrest. Terry v. Ohio, 392 U. S., at 21. The majority insists that a bright-line rule focused on probable cause is necessary to vindicate the State's interest in easily administrable law enforcement rules. See ante, at 347-351. Probable cause itself, however, is not a model of precision. "The quantum of information which constitutes probable cause-evidence which would 'warrant a man of reasonable caution in the belief' that a [crime] has been committed-must be measured by the facts of the particular case." Wong Sun v. United States, 371 U. S. 471 , 479 (1963) (citation omitted). The rule I propose-which merely requires a legitimate reason for the decision to escalate the seizure into a full custodial arrest-thus does not undermine an otherwise "clear and simple" rule. Cf. ante, at 347. While clarity is certainly a value worthy of consideration in our Fourth Amendment jurisprudence, it by no means trumps the values of liberty and privacy at the heart of the Amendment's protections. What the Terry rule lacks in precision it makes up for in fidelity to the Fourth Amendment's command of reasonableness and sensitivity to the competing values protected by that Amendment. Over the past 30 years, it appears that the Terry rule has been workable and easily applied by officers on the street. At bottom, the majority offers two related reasons why a bright-line rule is necessary: the fear that officers who arrest for fine-only offenses will be subject to "personal [42 U. S. C.] 367 § 1983 liability for the misapplication of a constitutional standard," ante, at 350, and the resulting "systematic disincentive to arrest ... where ... arresting would serve an important societal interest," ante, at 351. These concerns are certainly valid, but they are more than adequately resolved by the doctrine of qualified immunity. Qualified immunity was created to shield government officials from civil liability for the performance of discretionary functions so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U. S. 800 , 818 (1982). This doctrine is "the best attainable accommodation of competing values," namely, the obligation to enforce constitutional guarantees and the need to protect officials who are required to exercise their discretion. Id., at 814. In Anderson v. Creighton, 483 U. S. 635 (1987), we made clear that the standard of reasonableness for a search or seizure under the Fourth Amendment is distinct from the standard of reasonableness for qualified immunity purposes. Id., at 641. If a law enforcement officer "reasonably but mistakenly conclude[sJ" that the constitutional predicate for a search or seizure is present, he "should not be held personally liable." Ibid. This doctrine thus allays any concerns about liability or disincentives to arrest. If, for example, an officer reasonably thinks that a suspect poses a flight risk or might be a danger to the community if released, cf. ante, at 351, he may arrest without fear of the legal consequences. Similarly, if an officer reasonably concludes that a suspect may possess more than four ounces of marijuana and thus might be guilty of a felony, cf. ante, at 348-349, and n. 19,351, the officer will be insulated from liability for arresting the suspect even if the initial assessment turns out to be factually incorrect. As we have said, "officials will not be liable for mere mistakes in judgment." Butz v. Economou, 438 U. S. 478 , 507 368 (1978). Of course, even the specter of liability can entail substantial social costs, such as inhibiting public officials in the discharge of their duties. See, e. g., Harlow v. Fitzgerald, supra, at 814. We may not ignore the central command of the Fourth Amendment, however, to avoid these costs. II The record in this case makes it abundantly clear that Ms. Atwater's arrest was constitutionally unreasonable. Atwater readily admits-as she did when Officer Turek pulled her over-that she violated Texas' seatbelt law. Brief for Petitioners 2-3; Record 381, 384. While Turek was justified in stopping Atwater, see Whren v. United States, 517 U. S., at 819, neither law nor reason supports his decision to arrest her instead of simply giving her a citation. The officer's actions cannot sensibly be viewed as a permissible means of balancing Atwater's Fourth Amendment interests with the State's own legitimate interests. There is no question that Officer Turek's actions severely infringed Atwater's liberty and privacy. Turek was loud and accusatory from the moment he approached Atwater's car. Atwater's young children were terrified and hysterical. Yet when Atwater asked Turek to lower his voice because he was scaring the children, he responded by jabbing his finger in Atwater's face and saying, "You're going to jaiL" Record 382,384. Having made the decision to arrest, Turek did not inform Atwater of her right to remain silent. Id., at 390, 704. He instead asked for her license and insurance information. Id., at 382. But cf. Miranda v. Arizona, 384 U. S. 436 (1966). Atwater asked if she could at least take her children to a friend's house down the street before going to the police station. Record 384. But Turek-who had just castigated Atwater for not caring for her children-refused and said he would take the children into custody as well. Id., at 384, 427, 704-705. Only the intervention of neighborhood 369 children who had witnessed the scene and summoned one of Atwater's friends saved the children from being hauled to jail with their mother. Id., at 382, 385-386. With the children gone, Officer Turek handcuffed Ms. Atwater with her hands behind her back, placed her in the police car, and drove her to the police station. Id., at 386-387. Ironically, Turek did not secure Atwater in a seatbelt for the drive. Id., at 386. At the station, Atwater was forced to remove her shoes, relinquish her possessions, and wait in a holding cell for about an hour. Id., at 387, 706. A judge finally informed Atwater of her rights and the charges against her, and released her when she posted bond. Id., at 387-388, 706. Atwater returned to the scene of the arrest, only to find that her car had been towed. Id., at 389. Ms. Atwater ultimately pleaded no contest to violating the seatbelt law and was fined $50. Id., at 403. Even though that fine was the maximum penalty for her crime, Tex. Transp. Code Ann. § 545.413(d) (1999), and even though Officer Turek has never articulated any justification for his actions, the city contends that arresting Atwater was constitutionally reasonable because it advanced two legitimate interests: "the enforcement of child safety laws and encouraging [Atwater] to appear for trial." Brief for Respondents 15. It is difficult to see how arresting Atwater served either of these goals any more effectively than the issuance of a citation. With respect to the goal of law enforcement generally, Atwater did not pose a great danger to the community. She had been driving very slowly-approximately 15 miles per hour-in broad daylight on a residential street that had no other traffic. Record 380. Nor was she a repeat offender; until that day, she had received one traffic citation in her life-a ticket, more than 10 years earlier, for failure to signal a lane change. Id., at 378. Although Officer Turek had stopped Atwater approximately three months earlier because he thought that Atwater's son was not wearing a seatbelt, id., at 420, Turek had been mistaken, id., at 379, 703. 370 Moreover, Atwater immediately accepted responsibility and apologized for her conduct. Id., at 381, 384, 420. Thus, there was every indication that Atwater would have buckled herself and her children in had she been cited and allowed to leave. With respect to the related goal of child welfare, the decision to arrest Atwater was nothing short of counterproductive. Atwater's children witnessed Officer Turek yell at their mother and threaten to take them all into custody. Ultimately, they were forced to leave her behind with Turek, knowing that she was being taken to jail. Understandably, the 3-year-old boy was "very, very, very traumatized." Id., at 393. After the incident, he had to see a child psychologist regularly, who reported that the boy "felt very guilty that he couldn't stop this horrible thing ... he was powerless to help his mother or sister." Id., at 396. Both of Atwater's children are now terrified at the sight of any police car. Id., at 393, 395. According to Atwater, the arrest "just never leaves us. It's a conversation we have every other day, once a week, and it's-it raises its head constantly in our lives." Id., at 395. Citing Atwater surely would have served the children's interests well. It would have taught Atwater to ensure that her children were buckled up in the future. It also would have taught the children an important lesson in accepting responsibility and obeying the law. Arresting Atwater, though, taught the children an entirely different lesson: that "the bad person could just as easily be the policeman as it could be the most horrible person they could imagine." Ibid. Respondents also contend that the arrest was necessary to ensure Atwater's appearance in court. Atwater, however, was far from a flight risk. A 16-year resident of Lago Vista, population 2,486, Atwater was not likely to abscond. See Record 376; Texas State Data Center, 1997 Total Population Estimates for Texas Places 15 (Sept. 1998). Although she 371 was unable to produce her driver's license because it had been stolen, she gave Officer Turek her license number and address. Record 386. In addition, Officer Turek knew from their previous encounter that Atwater was a local resident. The city's justifications fall far short of rationalizing the extraordinary intrusion on Gail Atwater and her children. Measuring "the degree to which [Atwater's custodial arrest was] needed for the promotion of legitimate governmental interests," against "the degree to which it intrud[ed] upon [her] privacy," Wyoming v. Houghton, 526 U. S., at 300, it can hardly be doubted that Turek's actions were disproportionate to Atwater's crime. The majority's assessment that "Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case," ante, at 347, is quite correct. In my view, the Fourth Amendment inquiry ends there. III The Court's error, however, does not merely affect the disposition of this case. The per se rule that the Court creates has potentially serious consequences for the everyday lives of Americans. A broad range of conduct falls into the category of fine-only misdemeanors. In Texas alone, for example, disobeying any sort of traffic warning sign is a misdemeanor punishable only by fine, see Tex. Transp. Code Ann. § 472.022 (1999 and Supp. 2000-2001), as is failing to pay a highway toll, see § 284.070, and driving with expired license plates, see § 502.407. Nor are fine-only crimes limited to the traffic context. In several States, for example, littering is a criminal offense punishable only by fine. See, e. g., Cal. Penal Code Ann. § 374.7 (West 1999); Ga. Code Ann. § 167-43 (1996); Iowa Code §§ 321.369, 805.8(2)(af) (Supp. 2001). To be sure, such laws are valid and wise exercises of the States' power to protect the public health and welfare. My concern lies not with the decision to enact or enforce these 372 laws, but rather with the manner in which they may be enforced. Under to day's holding, when a police officer has probable cause to believe that a fine-only misdemeanor offense has occurred, that officer may stop the suspect, issue a citation, and let the person continue on her way. Cf. Whren v. United States, 517 U. S., at 806. Or, if a traffic violation, the officer may stop the car, arrest the driver, see ante, at 354, search the driver, see United States v. Robinson, 414 U. S., at 235, search the entire passenger compartment of the car including any purse or package inside, see New York v. Belton, 453 U. S., at 460, and impound the car and inventory all of its contents, see Colorado v. Bertine, 479 U. S. 367 , 374 (1987); Florida v. Wells, 495 U. S. 1 , 4-5 (1990). Although the Fourth Amendment expressly requires that the latter course be a reasonable and proportional response to the circumstances of the offense, the majority gives officers unfettered discretion to choose that course without articulating a single reason why such action is appropriate. Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of "an epidemic of unnecessary minor-offense arrests." Ante, at 353, and n. 25. But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officer's subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop. See Whren v. United States, supra, at 813. But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers' posts top actions-which are properly within our reach-comport with the Fourth Amendment's guarantee of reasonableness. 373 *** The Court neglects the Fourth Amendment's express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. I respectfully dissent.

The case of Atwater v. City of Lago Vista concerns the warrantless arrest of Gail Atwater for a minor criminal offense, specifically, a misdemeanor seatbelt violation punishable only by a fine. Atwater argued that her Fourth Amendment rights were violated during the arrest, as she was handcuffed, taken to the police station, and detained in a jail cell before being released on bond. The Court of Appeals affirmed the District Court's ruling that the Fourth Amendment claim was meritless, given Atwater's admission of violating the law and the absence of any unusual harm or inconsistent detention. The Supreme Court upheld the lower courts' decisions, holding that the Fourth Amendment does not prohibit warrantless arrests for minor criminal offenses.

Search & Seizure

Thornton v. U.S.

https://supreme.justia.com/cases/federal/us/541/615/

OPINION OF THE COURT THORNTON V. UNITED STATES 541 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-5165 MARCUS THORNTON, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the fourth circuit [May 24, 2004]    Chief Justice Rehnquist delivered the opinion of the Court except as to footnote 4.    In New York v. Belton, 453 U. S. 454 (1981), we held that when a police officer has made a lawful custodial arrest of an occupant of an automobile, the Fourth Amendment allows the officer to search the passenger compartment of that vehicle as a contemporaneous incident of arrest. We have granted certiorari twice before to determine whether Belton ’s rule is limited to situations where the officer makes contact with the occupant while the occupant is inside the vehicle, or whether it applies as well when the officer first makes contact with the arrestee after the latter has stepped out of his vehicle. We did not reach the merits in either of those two cases. Arizona v. Gant , 540 U. S. ___ (2003) (vacating and remanding for reconsideration in light of State v. Dean , 206 Ariz. 158, 76 P.3d 429 (2003)); Florida v. Thomas, 532 U. S. 774 (2001) (dismissing for lack of jurisdiction). We now reach that question and conclude that Belton governs even when an officer does not make contact until the person arrested has left the vehicle.    Officer Deion Nichols of the Norfolk, Virginia, Police Department, who was in uniform but driving an unmarked police car, first noticed petitioner Marcus Thornton when petitioner slowed down so as to avoid driving next to him. Nichols suspected that petitioner knew he was a police officer and for some reason did not want to pull next to him. His suspicions aroused, Nichols pulled off onto a side street and petitioner passed him. After petitioner passed him, Nichols ran a check on petitioner’s license tags, which revealed that the tags had been issued to a 1982 Chevy two-door and not to a Lincoln Town Car, the model of car petitioner was driving. Before Nichols had an opportunity to pull him over, petitioner drove into a parking lot, parked, and got out of the vehicle. Nichols saw petitioner leave his vehicle as he pulled in behind him. He parked the patrol car, accosted petitioner, and asked him for his driver’s license. He also told him that his license tags did not match the vehicle that he was driving.    Petitioner appeared nervous. He began rambling and licking his lips; he was sweating. Concerned for his safety, Nichols asked petitioner if he had any narcotics or weapons on him or in his vehicle. Petitioner said no. Nichols then asked petitioner if he could pat him down, to which petitioner agreed. Nichols felt a bulge in petitioner’s left front pocket and again asked him if he had any illegal narcotics on him. This time petitioner stated that he did, and he reached into his pocket and pulled out two individual bags, one containing three bags of marijuana and the other containing a large amount of crack cocaine. Nichols handcuffed petitioner, informed him that he was under arrest, and placed him in the back seat of the patrol car. He then searched petitioner’s vehicle and found a BryCo .9-millimeter handgun under the driver’s seat.    A grand jury charged petitioner with possession with intent to distribute cocaine base, 84 Stat. 1260, 21 U. S. C. §841(a)(1), possession of a firearm after having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, 18 U. S. C. §922(g)(1), and possession of a firearm in furtherance of a drug trafficking crime, §924(c)(1). Petitioner sought to suppress, inter alia , the firearm as the fruit of an unconstitutional search. After a hearing, the District Court denied petitioner’s motion to suppress, holding that the automobile search was valid under New York v. Belton, supra, and alternatively that Nichols could have conducted an inventory search of the automobile. A jury convicted petitioner on all three counts; he was sentenced to 180 months’ imprisonment and 8 years of supervised release.    Petitioner appealed, challenging only the District Court’s denial of the suppression motion. He argued that Belton was limited to situations where the officer initiated contact with an arrestee while he was still an occupant of the car. The United States Court of Appeals for the Fourth Circuit affirmed. 325 F. 3d 189 (2003). It held that “the historical rationales for the search incident to arrest doctrine—‘the need to disarm the suspect in order to take him into custody’ and ‘the need to preserve evidence for later use at trial,’ ” id. , at 195 (quoting Knowles v. Iowa, 525 U. S. 113 , 116 (1998)), did not require Belton to be limited solely to situations in which suspects were still in their vehicles when approached by the police. Noting that petitioner conceded that he was in “close proximity, both temporally and spatially,” to his vehicle, the court concluded that the car was within petitioner’s immediate control, and thus Nichols’ search was reasonable under Belton .[ Footnote 1 ] 325 F. 3d, at 196. We granted certiorari, 540 U. S. ___ (2003), and now affirm.    In Belton , an officer overtook a speeding vehicle on the New York Thruway and ordered its driver to pull over. 453 U. S., at 455. Suspecting that the occupants possessed marijuana, the officer directed them to get out of the car and arrested them for unlawful possession. Id ., at 454–455. He searched them and then searched the passenger compartment of the car. Id ., at 455. We considered the constitutionally permissible scope of a search in these circumstances and sought to lay down a workable rule governing that situation.    We first referred to Chimel v. California, 395 U. S. 752 (1969), a case where the arrestee was arrested in his home, and we had described the scope of a search incident to a lawful arrest as the person of the arrestee and the area immediately surrounding him. 453 U. S., at 457 (citing Chimel , supra, at 763). This rule was justified by the need to remove any weapon the arrestee might seek to use to resist arrest or to escape, and the need to prevent the concealment or destruction of evidence. 453 U. S., at 457. Although easily stated, the Chimel principle had proved difficult to apply in specific cases. We pointed out that in United States v. Robinson, 414 U. S. 218 (1973), a case dealing with the scope of the search of the arrestee’s person, we had rejected a suggestion that “ ‘there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority’ ” to conduct such a search. 453 U. S., at 459 (quoting Robinson , supra, at 235). Similarly, because “courts ha[d] found no workable definition of the ‘area within the immediate control of the arrestee’ when that area arguably include[d] the interior of an automobile and the arrestee [wa]s its recent occupant,” 453 U. S., at 460, we sought to set forth a clear rule for police officers and citizens alike. We therefore held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Ibid. (footnotes omitted).    In so holding, we placed no reliance on the fact that the officer in Belton ordered the occupants out of the vehicle, or initiated contact with them while they remained within it. Nor do we find such a factor persuasive in distinguishing the current situation, as it bears no logical relationship to Belton ’s rationale. There is simply no basis to conclude that the span of the area generally within the arrestee’s immediate control is determined by whether the arrestee exited the vehicle at the officer’s direction, or whether the officer initiated contact with him while he remained in the car. We recognized as much, albeit in dicta, in Michigan v. Long, 463 U. S. 1032 (1983), where officers observed a speeding car swerve into a ditch. The driver exited and the officers met him at the rear of his car. Although there was no indication that the officers initiated contact with the driver while he was still in the vehicle, we observed that “[i]t is clear … that if the officers had arrested [respondent] … they could have searched the passenger compartment under New York v. Belton .” Id. , at 1035–1036, and n. 1.    In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle. An officer may search a suspect’s vehicle under Belton only if the suspect is arrested. See Knowles, supra , at 117–118. A custodial arrest is fluid and “[t]he danger to the police officer flows from the fact of the arrest , and its attendant proximity, stress, and uncertainty,” Robinson, supra , at 234–235, and n. 5 (emphasis added). See Washington v. Chrisman, 455 U. S. 1 , 7 (1982) (“Every arrest must be presumed to present a risk of danger to the arresting officer”). The stress is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle. In either case, the officer faces a highly volatile situation. It would make little sense to apply two different rules to what is, at bottom, the same situation.    In some circumstances it may be safer and more effective for officers to conceal their presence from a suspect until he has left his vehicle. Certainly that is a judgment officers should be free to make. But under the strictures of petitioner’s proposed “contact initiation” rule, officers who do so would be unable to search the car’s passenger compartment in the event of a custodial arrest, potentially compromising their safety and placing incriminating evidence at risk of concealment or destruction. The Fourth Amendment does not require such a gamble.    Petitioner argues, however, that Belton will fail to provide a “bright-line” rule if it applies to more than vehicle “occupants.” Brief for Petitioner 29–34. But Belton allows police to search the passenger compartment of a vehicle incident to a lawful custodial arrest of both “occupants” and “recent occupants.” 453 U. S., at 460. Indeed, the respondent in Belton was not inside the car at the time of the arrest and search; he was standing on the highway. In any event, while an arrestee’s status as a “recent occupant” may turn on his temporal or spatial relationship to the car at the time of the arrest and search,[ Footnote 2 ] it certainly does not turn on whether he was inside or outside the car at the moment that the officer first initiated contact with him.    To be sure, not all contraband in the passenger compartment is likely to be readily accessible to a “recent occupant.” It is unlikely in this case that petitioner could have reached under the driver’s seat for his gun once he was outside of his automobile. But the firearm and the passenger compartment in general were no more inaccessible than were the contraband and the passenger compartment in Belton . The need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment, justifies the sort of generalization which Belton enunciated.[ Footnote 3 ] Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment.    Rather than clarifying the constitutional limits of a Belton search, petitioner’s “contact initiation” rule would obfuscate them. Under petitioner’s proposed rule, an officer approaching a suspect who has just alighted from his vehicle would have to determine whether he actually confronted or signaled confrontation with the suspect while he remained in the car, or whether the suspect exited his vehicle unaware of, and for reasons unrelated to, the officer’s presence. This determination would be inherently subjective and highly fact specific, and would require precisely the sort of ad hoc determinations on the part of officers in the field and reviewing courts that Belton sought to avoid. Id., at 459–460. Experience has shown that such a rule is impracticable, and we refuse to adopt it. So long as an arrestee is the sort of “recent occupant” of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest.[ Footnote 4 ]    The judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 The Court of Appeals did not reach the District Court’s alternative holding that Nichols could have conducted a lawful inventory search. 325 F. 3d, at 196. Footnote 2 Petitioner argues that if we reject his proposed “contact initiation” rule, we should limit the scope of Belton to “recent occupants” who are within “reaching distance” of the car. Brief for Petitioner 35–36. We decline to address petitioner’s argument, however, as it is outside the question on which we granted certiorari, see this Court’s Rule 14.1(a), and was not addressed by the Court of Appeals, see Peralta v. Heights Medical Center, Inc., 485 U. S. 80 , 86 (1988). We note that it is unlikely that petitioner would even meet his own standard as he apparently conceded in the Court of Appeals that he was in “close proximity, both temporally and spatially,” to his vehicle when he was approached by Nichols. 325 F. 3d 189, 196 (CA4 2003). Footnote 3 Justice Stevens contends that Belton ’s bright-line rule “is not needed for cases in which the arrestee is first accosted when he is a pedestrian, because Chimel [v. California, 395 U. S. 752 (1969),] itself provides all the guidance that is necessary.” Post , at 4 (dissenting opinion). Under Justice Stevens’ approach, however, even if the car itself was within the arrestee’s reaching distance under Chimel , police officers and courts would still have to determine whether a particular object within the passenger compartment was also within an arrestee’s reaching distance under Chimel . This is exactly the type of unworkable and fact-specific inquiry that Belton rejected by holding that the entire passenger compartment may be searched when “ ‘the area within the immediate control of the arrestee’ . . . arguably includes the interior of an automobile and the arrestee is its recent occupant.” 453 U. S., at 460. Footnote 4 Whatever the merits of Justice Scalia’s opinion concurring in the judgment, this is the wrong case in which to address them. Petitioner has never argued that Belton should be limited “to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle,” post , at 9, nor did any court below consider Justice Scalia’s reasoning. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206 , 212–213 (1998) (“ ‘Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them’ ” (quoting Adickes v. S. H. Kress & Co., 398 U. S. 144 , 147, n. 2 (1970))). The question presented—“[w]hether the bright-line rule announced in New York v. Belton is confined to situations in which the police initiate contact with the occupant of a vehicle while that person is in the vehicle,” Pet. for Cert.—does not fairly encompass Justice Scalia’s analysis. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). And the United States has never had an opportunity to respond to such an approach. See Yee v. Escondido, 503 U. S. 519 , 536 (1992). Under these circumstances, it would be imprudent to overrule, for all intents and purposes, our established constitutional precedent, which governs police authority in a common occurrence such as automobile searches pursuant to arrest, and we decline to do so at this time. 541 U. S. ____ (2004) 541 U. S. ____ (2004) 541 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-5165 MARCUS THORNTON, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the fourth circuit [May 24, 2004]    Justice O’Connor, concurring in part.    I join all but footnote 4 of the Court’s opinion. Although the opinion is a logical extension of the holding of New York v. Belton, 453 U. S. 454 (1981), I write separately to express my dissatisfaction with the state of the law in this area. As Justice Scalia forcefully argues, post , p. 2-5 (opinion concurring in judgment), lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California, 395 U. S. 752 (1969). That erosion is a direct consequence of Belton ’s shaky foundation. While the approach Justice Scalia proposes appears to be built on firmer ground, I am reluctant to adopt it in the context of a case in which neither the Government nor the petitioner has had a chance to speak to its merit. SCALIA, J., CONCURRING IN JUDGMENT THORNTON V. UNITED STATES 541 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-5165 MARCUS THORNTON, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the fourth circuit [May 24, 2004]    Justice Scalia, with whom Justice Ginsburg joins, concurring in the judgment.    In Chimel v. California, 395 U. S. 752 , 762–763 (1969), we held that a search incident to arrest was justified only as a means to find weapons the arrestee might use or evidence he might conceal or destroy. We accordingly limited such searches to the area within the suspect’s “ ‘immediate control’ ”— i.e. , “the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].” Id. , at 763. In New York v. Belton, 453 U. S. 454 , 460 (1981), we set forth a bright-line rule for arrests of automobile occupants, holding that, because the vehicle’s entire passenger compartment is “in fact generally, even if not inevitably,” within the arrestee’s immediate control, a search of the whole compartment is justified in every case.    When petitioner’s car was searched in this case, he was neither in, nor anywhere near, the passenger compartment of his vehicle. Rather, he was handcuffed and secured in the back of the officer’s squad car. The risk that he would nevertheless “grab a weapon or evidentiary ite[m]” from his car was remote in the extreme. The Court’s effort to apply our current doctrine to this search stretches it beyond its breaking point, and for that reason I cannot join the Court’s opinion. I    I see three reasons why the search in this case might have been justified to protect officer safety or prevent concealment or destruction of evidence. None ultimately persuades me.    The first is that, despite being handcuffed and secured in the back of a squad car, petitioner might have escaped and retrieved a weapon or evidence from his vehicle—a theory that calls to mind Judge Goldberg’s reference to the mythical arrestee “possessed of the skill of Houdini and the strength of Hercules.” United States v. Frick , 490 F. 2d 666, 673 (CA5 1973) (opinion concurring in part and dissenting in part). The United States, endeavoring to ground this seemingly speculative fear in reality, points to a total of seven instances over the past 13 years in which state or federal officers were attacked with weapons by handcuffed or formerly handcuffed arrestees. Brief for United States 38–39, and n. 12. These instances do not, however, justify the search authority claimed. Three involved arrestees who retrieved weapons concealed on their own person . See United States v. Sanders , 994 F. 2d 200, 210, n. 60 (CA5 1993) (two instances); U. S. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 49 (2001). Three more involved arrestees who seized a weapon from the arresting officer . See Sanders , supra , at 210, n. 60 (two instances); U. S. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 49 (1998). Authority to search the arrestee’s own person is beyond question; and of course no search could prevent seizure of the officer’s gun. Only one of the seven instances involved a handcuffed arrestee who escaped from a squad car to retrieve a weapon from somewhere else: In Plakas v. Drinski , 19 F. 3d 1143, 1144–1146 (CA7 1994), the suspect jumped out of the squad car and ran through a forest to a house, where (still in handcuffs) he struck an officer on the wrist with a fireplace poker before ultimately being shot dead.    Of course, the Government need not document specific instances in order to justify measures that avoid obvious risks. But the risk here is far from obvious, and in a context as frequently recurring as roadside arrests, the Government’s inability to come up with even a single example of a handcuffed arrestee’s retrieval of arms or evidence from his vehicle undermines its claims. The risk that a suspect handcuffed in the back of a squad car might escape and recover a weapon from his vehicle is surely no greater than the risk that a suspect handcuffed in his residence might escape and recover a weapon from the next room—a danger we held insufficient to justify a search in Chimel , supra , at 763.    The second defense of the search in this case is that, since the officer could have conducted the search at the time of arrest (when the suspect was still near the car), he should not be penalized for having taken the sensible precaution of securing the suspect in the squad car first. As one Court of Appeals put it: “ ‘[I]t does not make sense to prescribe a constitutional test that is entirely at odds with safe and sensible police procedures.’ ” United States v. Mitchell , 82 F. 3d 146, 152 (CA7 1996) (quoting United States v. Karlin , 852 F. 2d 968, 971 (CA7 1988)); see also United States v. Wesley , 293 F. 3d 541, 548–549 (CADC 2002). The weakness of this argument is that it assumes that, one way or another, the search must take place. But conducting a Chimel search is not the Government’s right; it is an exception—justified by necessity—to a rule that would otherwise render the search unlawful. If “sensible police procedures” require that suspects be handcuffed and put in squad cars, then police should handcuff suspects, put them in squad cars, and not conduct the search. Indeed, if an officer leaves a suspect unrestrained nearby just to manufacture authority to search, one could argue that the search is unreasonable precisely because the dangerous conditions justifying it existed only by virtue of the officer’s failure to follow sensible procedures.    The third defense of the search is that, even though the arrestee posed no risk here, Belton searches in general are reasonable, and the benefits of a bright-line rule justify upholding that small minority of searches that, on their particular facts, are not reasonable. The validity of this argument rests on the accuracy of Belton ’s claim that the passenger compartment is “in fact generally, even if not inevitably,” within the suspect’s immediate control. 453 U. S., at 460. By the United States’ own admission, however, “[t]he practice of restraining an arrestee on the scene before searching a car that he just occupied is so prevalent that holding that Belton does not apply in that setting would … ‘largely render Belton a dead letter.’ ” Brief for United States 36–37 (quoting Wesley , supra , at 548). Reported cases involving this precise factual scenario—a motorist handcuffed and secured in the back of a squad car when the search takes place—are legion. See, e.g. , United States v. Doward , 41 F. 3d 789, 791 (CA1 1994); United States v. White , 871 F. 2d 41, 44 (CA6 1989); Mitchell , supra , at 152; United States v. Snook , 88 F. 3d 605, 606 (CA8 1996); United States v. McLaughlin , 170 F. 3d 889, 890 (CA9 1999); United States v. Humphrey , 208 F. 3d 1190, 1202 (CA10 2000); Wesley , supra , at 544; see also 3 W. LaFave, Search and Seizure §7.1(c), pp. 448–449, n. 79 (3d ed. 1996 and Supp. 2004) (citing cases). Some courts uphold such searches even when the squad car carrying the handcuffed arrestee has already left the scene. See, e.g. , McLaughlin , supra , at 890–891 (upholding search because only five minutes had elapsed since squad car left).    The popularity of the practice is not hard to fathom. If Belton entitles an officer to search a vehicle upon arresting the driver despite having taken measures that eliminate any danger, what rational officer would not take those measures? Cf. Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton , 2002 Wis. L. Rev. 657, 665–666 (citing police training materials). If it was ever true that the passenger compartment is “in fact generally, even if not inevitably,” within the arrestee’s immediate control at the time of the search, 453 U. S., at 460, it certainly is not true today. As one judge has put it: “[I]n our search for clarity, we have now abandoned our constitutional moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find.” McLaughlin , supra , at 894 (Trott, J., concurring). I agree entirely with that assessment. II    If Belton searches are justifiable, it is not because the arrestee might grab a weapon or evidentiary item from his car, but simply because the car might contain evidence relevant to the crime for which he was arrested. This more general sort of evidence-gathering search is not without antecedent. For example, in United States v. Rabinowitz, 339 U. S. 56 (1950), we upheld a search of the suspect’s place of business after he was arrested there. We did not restrict the officers’ search authority to “the area into which [the] arrestee might reach in order to grab a weapon or evidentiary ite[m],” Chimel , 395 U. S., at 763, and we did not justify the search as a means to prevent concealment or destruction of evidence.[ Footnote 1 ] Rather, we relied on a more general interest in gathering evidence relevant to the crime for which the suspect had been arrested. See 339 U. S., at 60–64; see also Harris v. United States, 331 U. S. 145 , 151–152 (1947); Marron v. United States, 275 U. S. 192 , 199 (1927); Agnello v. United States, 269 U. S. 20 , 30 (1925); cf. Weeks v. United States, 232 U. S. 383 , 392 (1914).    Numerous earlier authorities support this approach, referring to the general interest in gathering evidence related to the crime of arrest with no mention of the more specific interest in preventing its concealment or destruction. See United States v. Wilson , 163 F. 338, 340, 343 (CC SDNY 1908); Smith v. Jerome , 47 Misc. 22, 23–24, 93 N. Y. S. 202, 202–203 (1905); Thornton v. State , 117 Wis. 338, 346–347, 93 N. W. 1107, 1110 (1903); Ex parte Hurn , 92 Ala. 102, 112, 9 So. 515, 519–520 (1891); Thatcher v. Weeks , 79 Me. 547, 548–549, 11 A. 599, 599–600 (1887); 1 F. Wharton, Criminal Procedure §97, pp. 136–137 (J. Kerr 10th ed. 1918); 1 J. Bishop, Criminal Procedure §211, p. 127 (2d ed. 1872); cf. Spalding v. Preston , 21 Vt. 9, 15 (1848) (seizure authority); Queen v. Frost , 9 Car. & P. 129, 131–134 (1839) (same); King v. Kinsey , 7 Car. & P. 447 (1836) (same); King v. O’Donnell , 7 Car. & P. 138 (1835) (same); King v. Barnett , 3 Car. & P. 600, 601 (1829) (same). Bishop’s 1872 articulation is typical: “The officer who arrests a man on a criminal charge should consider the nature of the charge; and, if he finds about the prisoner’s person, or otherwise in his possession, either goods or moneys which there is reason to believe are connected with the supposed crime as its fruits, or as the instruments with which it was committed, or as directly furnishing evidence relating to the transaction, he may take the same, and hold them to be disposed of as the court may direct.” Bishop, supra , §211, at 127. Only in the years leading up to Chimel did we start consistently referring to the narrower interest in frustrating concealment or destruction of evidence. See Sibron v. New York, 392 U. S. 40 , 67 (1968); Preston v. United States, 376 U. S. 364 , 367 (1964).    There is nothing irrational about broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested. The fact of prior lawful arrest distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging. Moreover, it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended.    Nevertheless, Chimel ’s narrower focus on concealment or destruction of evidence also has historical support. See Holker v. Hennessey , 141 Mo. 527, 539–540, 42 S. W. 1090, 1093 (1897); Dillon v. O’Brien , 16 Cox C. C. 245, 250 (Ex. Div. Ire. 1887); Reifsnyder v. Lee , 44 Iowa 101, 103 (1876); S. Welch, Essay on the Office of Constable 17 (1758).[ Footnote 2 ] And some of the authorities supporting the broader rule address only searches of the arrestee’s person , as to which Chimel ’s limitation might fairly be implicit. Moreover, carried to its logical end, the broader rule is hard to reconcile with the influential case of Entick v. Carrington , 19 How. St. Tr. 1029, 1031, 1063–1074 (C. P. 1765) (disapproving search of plaintiff’s private papers under general warrant, despite arrest). But cf. Dillon , supra , at 250–251 (distinguishing Entick ); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 , 303–304 (1967).    In short, both Rabinowitz and Chimel are plausible accounts of what the Constitution requires, and neither is so persuasive as to justify departing from settled law. But if we are going to continue to allow Belton searches on stare decisis grounds, we should at least be honest about why we are doing so. Belton cannot reasonably be explained as a mere application of Chimel . Rather, it is a return to the broader sort of search incident to arrest that we allowed before Chimel —limited, of course, to searches of motor vehicles, a category of “effects” which give rise to a reduced expectation of privacy, see Wyoming v. Houghton, 526 U. S. 295 , 303 (1999), and heightened law enforcement needs, see id. , at 304; Rabinowitz , 339 U. S., at 73 (Frankfurter, J., dissenting).    Recasting Belton in these terms would have at least one important practical consequence. In United States v. Robinson, 414 U. S. 218 , 235 (1973), we held that authority to search an arrestee’s person does not depend on the actual presence of one of Chimel ’s two rationales in the particular case; rather, the fact of arrest alone justifies the search. That holding stands in contrast to Rabinowitz , where we did not treat the fact of arrest alone as sufficient, but upheld the search only after noting that it was “not general or exploratory for whatever might be turned up” but reflected a reasonable belief that evidence would be found. 339 U. S., at 62–63; see also Smith , supra , at 24, 93 N. Y. S., at 203 (“This right and duty of search and seizure extend, however, only to articles which furnish evidence against the accused”); cf. Barnett , supra , at 601 (seizure authority limited to relevant evidence); Bishop, supra , §211, at 127 (officer should “consider the nature of the charge” before searching). The two different rules make sense: When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment. But in the context of a general evidence-gathering search, the state interests that might justify any overbreadth are far less compelling. A motorist may be arrested for a wide variety of offenses; in many cases, there is no reasonable basis to believe relevant evidence might be found in the car. See Atwater v. Lago Vista, 532 U. S. 318 , 323–324 (2001); cf. Knowles v. Iowa, 525 U. S. 113 , 118 (1998). I would therefore limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.    In this case, as in Belton , petitioner was lawfully arrested for a drug offense. It was reasonable for Officer Nichols to believe that further contraband or similar evidence relevant to the crime for which he had been arrested might be found in the vehicle from which he had just alighted and which was still within his vicinity at the time of arrest. I would affirm the decision below on that ground.[ Footnote 3 ] Footnote 1 We did characterize the entire office as under the defendant’s “immediate control,” 339 U. S., at 61, but we used the term in a broader sense than the one it acquired in Chimel . Compare 339 U. S., at 61, with 395 U. S., at 763. Footnote 2 Chimel ’s officer-safety rationale has its own pedigree. See Thornton v. State , 117 Wis. 338, 346–347, 93 N. W. 1107, 1110 (1903); Ex parte Hurn , 92 Ala. 102, 112, 9 So. 515, 519–520 (1891); Closson v. Morrison , 47 N. H. 482, 484–485 (1867); Leigh v. Cole , 6 Cox C. C. 329, 332 (Oxford Cir. 1853); Welch, Essay on the Office of Constable, at 17. Footnote 3 The Court asserts that my opinion goes beyond the scope of the question presented, citing this Court’s Rule 14.1(a). Ante , at 8, n. 4. That Rule, however, does not constrain our authority to reach issues presented by the case, see Vance v. Terrazas, 444 U. S. 252 , 259, n. 5 (1980); Tennessee Student Assistance Corp. v. Hood , 541 U. S. ___, ___ (2004) (slip op., at 1), and in any event does not apply when the issue is necessary to an intelligent resolution of the question presented, see Ohio v. Robinette, 519 U. S. 33 , 38 (1996). STEVENS, J., DISSENTING THORNTON V. UNITED STATES 541 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-5165 MARCUS THORNTON, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the fourth circuit [May 24, 2004]    Justice Stevens, with whom Justice Souter joins, dissenting.    Prior to our decision in New York v. Belton, 453 U. S. 454 (1981), there was a widespread conflict among both federal and state courts over the question “whether, in the course of a search incident to the lawful custodial arrest of the occupants of an automobile, police may search inside the automobile after the arrestees are no longer in it.” Id., at 459. In answering that question, the Court expanded the authority of the police in two important respects. It allowed the police to conduct a broader search than our decision in Chimel v. California , 395 U. S. 752 , 762–763 (1969), would have permitted,[ Footnote 1 ] and it authorized them to open closed containers that might be found in the vehicle’s passenger compartment.[ Footnote 2 ] Belton ’s basic rationale for both expansions rested not on a concern for officer safety, but rather on an overriding desire to hew “to a straightforward rule, easily applied, and predictably enforced.” 453 U. S., at 459.[ Footnote 3 ] When the case was decided, I was persuaded that the important interest in clarity and certainty adequately justified the modest extension of the Chimel rule to permit an officer to examine the interior of a car pursuant to an arrest for a traffic violation. But I took a different view with respect to the search of containers within the car absent probable cause, because I thought “it palpably unreasonable to require the driver of a car to open his briefcase or his luggage for inspection by the officer.” Robbins v. California, 453 U. S. 420 , 451–452 (1981) (dissenting opinion).[ Footnote 4 ] I remain convinced that this aspect of the Belton opinion was both unnecessary and erroneous. Whether one agrees or disagrees with that view, however, the interest in certainty that supports Belton ’s bright-line rule surely does not justify an expansion of the rule that only blurs those clear lines. Neither the rule in Chimel nor Belton ’s modification of that rule would have allowed the search of petitioner’s car.    A fair reading of the Belton opinion itself, and of the conflicting cases that gave rise to our grant of certiorari, makes clear that we were not concerned with the situation presented in this case. The Court in Belton noted that the lower courts had discovered Chimel ’s reaching-distance principle difficult to apply in the context of automobile searches incident to arrest, and that “no straightforward rule ha[d] emerged from the litigated cases.” 453 U. S., at 458–459. None of the cases cited by the Court to demonstrate the disarray in the lower courts involved a pedestrian who was in the vicinity, but outside the reaching distance, of his or her car.[ Footnote 5 ] Nor did any of the decisions cited in the petition for a writ of certiorari[ Footnote 6 ] present such a case.[ Footnote 7 ] Thus, Belton was demonstrably concerned only with the narrow but common circumstance of a search occasioned by the arrest of a suspect who was seated in or driving an automobile at the time the law enforcement official approached. Normally, after such an arrest has occurred, the officer’s safety is no longer in jeopardy, but he must decide what, if any, search for incriminating evidence he should conduct. Belton provided previously unavailable and therefore necessary guidance for that category of cases.    The bright-line rule crafted in Belton is not needed for cases in which the arrestee is first accosted when he is a pedestrian, because Chimel itself provides all the guidance that is necessary. The only genuine justification for extending Belton to cover such circumstances is the interest in uncovering potentially valuable evidence. In my opinion, that goal must give way to the citizen’s constitutionally protected interest in privacy when there is already in place a well-defined rule limiting the permissible scope of a search of an arrested pedestrian. The Chimel rule should provide the same protection to a “recent occupant” of a vehicle as to a recent occupant of a house.    Unwilling to confine the Belton rule to the narrow class of cases it was designed to address, the Court extends Belton ’s reach without supplying any guidance for the future application of its swollen rule. We are told that officers may search a vehicle incident to arrest “[s]o long as [the] arrestee is the sort of ‘recent occupant’ of a vehicle such as petitioner was here.” Ante , at 8. But we are not told how recent is recent, or how close is close, perhaps because in this case “the record is not clear.” 325 F. 3d 189, 196 (CA4 2003). As the Court cautioned in Belton itself, “[w]hen a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.” 453 U. S., at 459–460. Without some limiting principle, I fear that today’s decision will contribute to “a massive broadening of the automobile exception,” Robbins , 453 U. S., at 452 (Stevens, J., dissenting), when officers have probable cause to arrest an individual but not to search his car.    Accordingly, I respectfully dissent. Footnote 1 The Court gleaned from the case law “the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].’ ” Belton , 453 U. S., at 460 (quoting Chimel , 395 U. S., at 763). “In order to establish the workable rule this category of cases require[d],” the Court then read “ Chimel’ s definition of the limits of the area that may be searched in light of that generalization.” Thus, Belton held “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U. S., at 460 (footnote omitted). Footnote 2 Because police lawfully may search the passenger compartment of the automobile, the Court reasoned, it followed “that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach… . Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.” Id., at 460–461 (footnote omitted). Footnote 3 The Court extolled the virtues of “ ‘[a] single, familiar standard … to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ ” Id ., at 458 (quoting Dunaway v. New York, 442 U. S. 200 , 213–214 (1979)). Footnote 4 In Robbins , a companion case to Belton , the Court held that police officers cannot open closed, opaque containers found in the trunk of a car during a lawful but warrantless search. 453 U. S., at 428 (plurality opinion). Because the officer in Robbins had probable cause to believe the car contained marijuana, I would have applied the automobile exception to sustain the search. Id ., at 452 (dissenting opinion). But I expressed concern that authorizing police officers to search containers in the passenger compartment without probable cause would “provide the constitutional predicate for broader vehicle searches than any neutral magistrate could authorize by issuing a warrant.” Ibid . Footnote 5 See United States v. Benson , 631 F. 2d 1336, 1337 (CA8 1980) (defendant arrested “while sitting in a car”); United States v. Sanders , 631 F. 2d 1309, 1311-1312 (CA8 1980) (occupants in car at time officers approached); United States v. Rigales , 630 F. 2d 364, 365 (CA5 1980) (defendant apprehended during traffic stop); United States v. Dixon , 558 F. 2d 919, 922 (CA9 1977) (“[T]he agents placed appellant under arrest while he was still in his car”); United States v. Frick , 490 F. 2d 666, 668, 669 (CA5 1973) (defendant arrested “at his car in the parking lot adjacent to his apartment building”; at time of arrest, attaché case in question was lying on back seat of car “approximately two feet from the defendant” and “readily accessible” to him); Hinkel v. Anchorage , 618 P. 2d 1069 (Alaska 1980) (defendant arrested while in car immediately following collision); Ulesky v. State , 379 So. 2d 121, 123 (Fla. App. 1979) (defendant arrested while in car during traffic stop). Footnote 6 Pet. for Cert. in New York v. Belton , O. T. 1980, No. 80–328, p. 7. Footnote 7 See United States v. Agostino , 608 F.2d 1035, 1036 (CA5 1979) (suspect in car when notified of police presence); United States v. Neumann , 585 F. 2d 355, 356 (CA8 1978) (defendant stopped by police while in car); United States v. Foster , 584 F. 2d 997, 999–1000 (CADC 1978) (suspects seated in parked car when approached by officer); State v. Hunter , 299 N. C. 29, 33, 261 S. E. 2d 189, 192 (1980) (defendant pulled over and arrested while in car); State v. Wilkens , 364 So. 2d 934, 936 (La. 1978) (defendant arrested in automobile).

In the case of Thornton v. United States, the Supreme Court ruled that police officers are permitted to search the passenger compartment of a vehicle during a lawful custodial arrest, regardless of whether the officer makes contact with the occupant while they are inside or outside the vehicle. This extends the ruling of New York v. Belton, which established the right of officers to search a vehicle during a lawful arrest.

Search & Seizure

Illinois v. Caballes

https://supreme.justia.com/cases/federal/us/543/405/

OPINION OF THE COURT ILLINOIS V. CABALLES 543 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-923 ILLINOIS, PETITIONER v. ROY I. CABALLES on writ of certiorari to the supreme court of illinois [January 24, 2005]    Justice Stevens delivered the opinion of the Court.    Illinois State Trooper Daniel Gillette stopped respondent for speeding on an interstate highway. When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcotics-detection dog. When they arrived, respondent’s car was on the shoulder of the road and respondent was in Gillette’s vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10 minutes.    Respondent was convicted of a narcotics offense and sentenced to 12 years’ imprisonment and a $256,136 fine. The trial judge denied his motion to suppress the seized evidence and to quash his arrest. He held that the officers had not unnecessarily prolonged the stop and that the dog alert was sufficiently reliable to provide probable cause to conduct the search. Although the Appellate Court affirmed, the Illinois Supreme Court reversed, concluding that because the canine sniff was performed without any “ ‘specific and articulable facts’ ” to suggest drug activity, the use of the dog “unjustifiably enlarg[ed] the scope of a routine traffic stop into a drug investigation.” 207 Ill. 2d 504, 510, 802 N. E. 2d 202, 205 (2003).    The question on which we granted certiorari, 541 U. S. 972 (2004), is narrow: “Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” Pet. for Cert. i. Thus, we proceed on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding; accordingly, we have omitted any reference to facts about respondent that might have triggered a modicum of suspicion.    Here, the initial seizure of respondent when he was stopped on the highway was based on probable cause, and was concededly lawful. It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v. Jacobsen, 466 U. S. 109 , 124 (1984). A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox , 202 Ill. 2d 462, 782 N. E. 2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.    In the state-court proceedings, however, the judges carefully reviewed the details of Officer Gillette’s conversations with respondent and the precise timing of his radio transmissions to the dispatcher to determine whether he had improperly extended the duration of the stop to enable the dog sniff to occur. We have not recounted those details because we accept the state court’s conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop.    Despite this conclusion, the Illinois Supreme Court held that the initially lawful traffic stop became an unlawful seizure solely as a result of the canine sniff that occurred outside respondent’s stopped car. That is, the court characterized the dog sniff as the cause rather than the consequence of a constitutional violation. In its view, the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful. In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.    Official conduct that does not “compromise any legitimate interest in privacy” is not a search subject to the Fourth Amendment. Jacobsen, 466 U. S., at 123 . We have held that any interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legitimate privacy interest.” Ibid. This is because the expectation “that certain facts will not come to the attention of the authorities” is not the same as an interest in “privacy that society is prepared to consider reasonable.” Id., at 122 (punctuation omitted). In United States v. Place, 462 U. S. 696 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as " sui generis " because it "discloses only the presence or absence of narcotics, a contraband item." Id., at 707; see also Indianapolis v. Edmond, 531 U. S. 32 , 40 (2000). Respondent likewise concedes that “drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband.” Brief for Respondent 17. Although respondent argues that the error rates, particularly the existence of false positives, call into question the premise that drug-detection dogs alert only to contraband, the record contains no evidence or findings that support his argument. Moreover, respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk.    Accordingly, the use of a well-trained narcotics-detection dog—one that "does not expose noncontraband items that otherwise would remain hidden from public view," Place , 462 U. S., at 707—during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation. Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.    This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U. S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity—in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id ., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.    The judgment of the Illinois Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.    The Chief Justice took no part in the decision of this case. SOUTER, J., DISSENTING ILLINOIS V. CABALLES 543 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-923 ILLINOIS, PETITIONER v. ROY I. CABALLES on writ of certiorari to the supreme court of illinois [January 24, 2005]    Justice Souter, dissenting.    I would hold that using the dog for the purposes of determining the presence of marijuana in the car’s trunk was a search unauthorized as an incident of the speeding stop and unjustified on any other ground. I would accordingly affirm the judgment of the Supreme Court of Illinois, and I respectfully dissent.    In United States v. Place, 462 U. S. 696 (1983), we categorized the sniff of the narcotics-seeking dog as “sui generis” under the Fourth Amendment and held it was not a search. Id., at 707. The classification rests not only upon the limited nature of the intrusion, but on a further premise that experience has shown to be untenable, the assumption that trained sniffing dogs do not err. What we have learned about the fallibility of dogs in the years since Place was decided would itself be reason to call for reconsidering Place ’s decision against treating the intentional use of a trained dog as a search. The portent of this very case, however, adds insistence to the call, for an uncritical adherence to Place would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks; if a sniff is not preceded by a seizure subject to Fourth Amendment notice, it escapes Fourth Amendment review entirely unless it is treated as a search. We should not wait for these developments to occur before rethinking Place ’s analysis, which invites such untoward consequences.[ Footnote 1 ]    At the heart both of Place and the Court’s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband.[ Footnote 2 ] See ibid. (“[T]he sniff discloses only the presence or absence of narcotics, a contraband item”); ante, at 3–4 (assuming “that a canine sniff by a well-trained narcotics dog will only reveal ‘the presence or absence of narcotics, a contraband item’ ” (quoting Place, supra, at 707)). Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the sniff “does not implicate legitimate privacy interests” and is not to be treated as a search. Ante, at 4.    The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. See, e.g. , United States v. Kennedy , 131 F. 3d 1371, 1378 (CA10 1997) (describing a dog that had a 71% accuracy rate); United States v. Scarborough , 128 F. 3d 1373, 1378, n. 3 (CA10 1997) (describing a dog that erroneously alerted 4 times out of 19 while working for the postal service and 8% of the time over its entire career); United States v. Limares , 269 F. 3d 794, 797 (CA7 2001) (accepting as reliable a dog that gave false positives between 7 and 38% of the time); Laime v. State , 347 Ark. 142, 159, 60 S. W. 3d 464, 476 (2001) (speaking of a dog that made between 10 and 50 errors); United States v. $242,484.00 , 351 F. 3d 499, 511 (CA11 2003) (noting that because as much as 80% of all currency in circulation contains drug residue, a dog alert “is of little value”), vacated on other grounds by rehearing en banc, 357 F. 3d 1225 (CA11 2004); United States v. Carr , 25 F. 3d 1194, 1214–1217 (CA3 1994) (Becker, J., concurring in part and dissenting in part) (“[A] substantial portion of United States currency … is tainted with sufficient traces of controlled substances to cause a trained canine to alert to their presence”). Indeed, a study cited by Illinois in this case for the proposition that dog sniffs are “generally reliable” shows that dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of the time, depending on the length of the search. See Reply Brief for Petitioner 13; K. Garner et al., Duty Cycle of the Detector Dog: A Baseline Study 12 (Apr. 2001) (prepared under Federal Aviation Administration grant by the Institute for Biological Detection Systems of Auburn University). In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.    Once the dog’s fallibility is recognized, however, that ends the justification claimed in Place for treating the sniff as sui generis under the Fourth Amendment: the sniff alert does not necessarily signal hidden contraband, and opening the container or enclosed space whose emanations the dog has sensed will not necessarily reveal contraband or any other evidence of crime. This is not, of course, to deny that a dog’s reaction may provide reasonable suspicion, or probable cause, to search the container or enclosure; the Fourth Amendment does not demand certainty of success to justify a search for evidence or contraband. The point is simply that the sniff and alert cannot claim the certainty that Place assumed, both in treating the deliberate use of sniffing dogs as sui generis and then taking that characterization as a reason to say they are not searches subject to Fourth Amendment scrutiny. And when that aura of uniqueness disappears, there is no basis in Place ’s reasoning, and no good reason otherwise, to ignore the actual function that dog sniffs perform. They are conducted to obtain information about the contents of private spaces beyond anything that human senses could perceive, even when conventionally enhanced. The information is not provided by independent third parties beyond the reach of constitutional limitations, but gathered by the government’s own officers in order to justify searches of the traditional sort, which may or may not reveal evidence of crime but will disclose anything meant to be kept private in the area searched. Thus in practice the government’s use of a trained narcotics dog functions as a limited search to reveal undisclosed facts about private enclosures, to be used to justify a further and complete search of the enclosed area. And given the fallibility of the dog, the sniff is the first step in a process that may disclose “intimate details” without revealing contraband, just as a thermal-imaging device might do, as described in Kyllo v. United States, 533 U. S. 27 (2001).[ Footnote 3 ]    It makes sense, then, to treat a sniff as the search that it amounts to in practice, and to rely on the body of our Fourth Amendment cases, including Kyllo , in deciding whether such a search is reasonable. As a general proposition, using a dog to sniff for drugs is subject to the rule that the object of enforcing criminal laws does not, without more, justify suspicionless Fourth Amendment intrusions. See Indianapolis v. Edmond, 531 U. S. 32 , 41–42 (2000). Since the police claim to have had no particular suspicion that Caballes was violating any drug law,[ Footnote 4 ] this sniff search must stand or fall on its being ancillary to the traffic stop that led up to it. It is true that the police had probable cause to stop the car for an offense committed in the officer’s presence, which Caballes concedes could have justified his arrest. See Brief for Respondent 31. There is no occasion to consider authority incident to arrest, however, see Knowles v. Iowa, 525 U. S. 113 (1998), for the police did nothing more than detain Caballes long enough to check his record and write a ticket. As a consequence, the reasonableness of the search must be assessed in relation to the actual delay the police chose to impose, and as Justice Ginsburg points out in her opinion, post, at 3–4, the Fourth Amendment consequences of stopping for a traffic citation are settled law.    In Berkemer v. McCarty , 468 U. S. 420 , 439–440 (1984), followed in Knowles, supra, at 488, we held that the analogue of the common traffic stop was the limited detention for investigation authorized by Terry v. Ohio, 392 U. S. 1 (1968). While Terry authorized a restricted incidental search for weapons when reasonable suspicion warrants such a safety measure, id., at 25–26, the Court took care to keep a Terry stop from automatically becoming a foot in the door for all investigatory purposes; the permissible intrusion was bounded by the justification for the detention, id., at 29–30.[ Footnote 5 ] Although facts disclosed by enquiry within this limit might give grounds to go further, the government could not otherwise take advantage of a suspect’s immobility to search for evidence unrelated to the reason for the detention. That has to be the rule unless Terry is going to become an open-sesame for general searches, and that rule requires holding that the police do not have reasonable grounds to conduct sniff searches for drugs simply because they have stopped someone to receive a ticket for a highway offense. Since the police had no indication of illegal activity beyond the speed of the car in this case, the sniff search should be held unreasonable under the Fourth Amendment and its fruits should be suppressed.    Nothing in the case relied upon by the Court, United States v. Jacobsen, 466 U. S. 109 (1984), unsettled the limit of reasonable enquiry adopted in Terry. In Jacobsen , the Court found that no Fourth Amendment search occurred when federal agents analyzed powder they had already lawfully obtained. The Court noted that because the test could only reveal whether the powder was cocaine, the owner had no legitimate privacy interest at stake. 466 U. S., at 123. As already explained, however, the use of a sniffing dog in cases like this is significantly different and properly treated as a search that does indeed implicate Fourth Amendment protection.    In Jacobsen , once the powder was analyzed, that was effectively the end of the matter: either the powder was cocaine, a fact the owner had no legitimate interest in concealing, or it was not cocaine, in which case the test revealed nothing about the powder or anything else that was not already legitimately obvious to the police. But in the case of the dog sniff, the dog does not smell the disclosed contraband; it smells a closed container. An affirmative reaction therefore does not identify a substance the police already legitimately possess, but informs the police instead merely of a reasonable chance of finding contraband they have yet to put their hands on. The police will then open the container and discover whatever lies within, be it marijuana or the owner’s private papers. Thus, while Jacobsen could rely on the assumption that the enquiry in question would either show with certainty that a known substance was contraband or would reveal nothing more, both the certainty and the limit on disclosure that may follow are missing when the dog sniffs the car.[ Footnote 6 ]    The Court today does not go so far as to say explicitly that sniff searches by dogs trained to sense contraband always get a free pass under the Fourth Amendment, since it reserves judgment on the constitutional significance of sniffs assumed to be more intrusive than a dog’s walk around a stopped car, ante, at 4. For this reason, I do not take the Court’s reliance on Jacobsen as actually signaling recognition of a broad authority to conduct suspicionless sniffs for drugs in any parked car, about which Justice Ginsburg is rightly concerned, post, at 5–6, or on the person of any pedestrian minding his own business on a sidewalk. But the Court’s stated reasoning provides no apparent stopping point short of such excesses. For the sake of providing a workable framework to analyze cases on facts like these, which are certain to come along, I would treat the dog sniff as the familiar search it is in fact, subject to scrutiny under the Fourth Amendment.[ Footnote 7 ] Footnote 1 I also join Justice Ginsburg’s dissent, post, p. ___ . Without directly reexamining the soundness of the Court’s analysis of government dog sniffs in Place , she demonstrates that investigation into a matter beyond the subject of the traffic stop here offends the rule in Terry v. Ohio, 392 U. S. 1 (1968), the analysis I, too, adopt. Footnote 2 Another proffered justification for sui generis status is that a dog sniff is a particularly nonintrusive procedure. United States v. Place, 462 U. S. 696 , 707 (1983). I agree with Justice Ginsburg that the introduction of a dog to a traffic stop (let alone an encounter with someone walking down the street) can in fact be quite intrusive. Post, at 4–5 (dissenting opinion). Footnote 3 Kyllo was concerned with whether a search occurred when the police used a thermal-imaging device on a house to detect heat emanations associated with high-powered marijuana-growing lamps. In concluding that using the device was a search, the Court stressed that the “Government [may not] us[e] a device … to explore details of the home that would previously have been unknowable without physical intrusion.” 533 U. S., at 40. Any difference between the dwelling in Kyllo and the trunk of the car here may go to the issue of the reasonableness of the respective searches, but it has no bearing on the question of search or no search. Nor is it significant that Kyllo’ s imaging device would disclose personal details immediately, whereas they would be revealed only in the further step of opening the enclosed space following the dog’s alert reaction; in practical terms the same values protected by the Fourth Amendment are at stake in each case. The justifications required by the Fourth Amendment may or may not differ as between the two practices, but if constitutional scrutiny is in order for the imager, it is in order for the dog. Footnote 4 Despite the remarkable fact that the police pulled over a car for going 71 miles an hour on I–80, the State maintains that excessive speed was the only reason for the stop, and the case comes to us on that assumption. Footnote 5 Thus, in Place itself, the Government officials had independent grounds to suspect that the luggage in question contained contraband before they employed the dog sniff. 462 U. S., at 698 (describing how Place had acted suspiciously in line at the airport and had labeled his luggage with inconsistent and fictional addresses). Footnote 6 It would also be error to claim that some variant of the plain-view doctrine excuses the lack of justification for the dog sniff in this case. When an officer observes an object left by its owner in plain view, no search occurs because the owner has exhibited “no intention to keep [the object] to himself.” Katz v. United States, 389 U. S. 347 , 361 (1967) (Harlan, J., concurring). In contrast, when an individual conceals his possessions from the world, he has grounds to expect some degree of privacy. While plain view may be enhanced somewhat by technology, see, e.g., Dow Chemical Co. v. United States, 476 U. S. 227 (1986) (allowing for aerial surveillance of an industrial complex), there are limits. As Kyllo v. United States, 533 U. S. 27 , 33 (2001), explained in treating the thermal-imaging device as outside the plain-view doctrine, “[w]e have previously reserved judgment as to how much technological enhancement of ordinary perception” turns mere observation into a Fourth Amendment search. While Kyllo laid special emphasis on the heightened privacy expectations that surround the home, closed car trunks are accorded some level of privacy protection. See, e.g., New York v. Belton, 453 U. S. 454 , 460, n. 4 (1981) (holding that even a search incident to arrest in a vehicle does not itself permit a search of the trunk). As a result, if Fourth Amendment protections are to have meaning in the face of superhuman, yet fallible, techniques like the use of trained dogs, those techniques must be justified on the basis of their reasonableness, lest everything be deemed in plain view. Footnote 7 I should take care myself to reserve judgment about a possible case significantly unlike this one. All of us are concerned not to prejudge a claim of authority to detect explosives and dangerous chemical or biological weapons that might be carried by a terrorist who prompts no individualized suspicion. Suffice it to say here that what is a reasonable search depends in part on demonstrated risk. Unreasonable sniff searches for marijuana are not necessarily unreasonable sniff searches for destructive or deadly material if suicide bombs are a societal risk. GINSBURG, J., DISSENTING ILLINOIS V. CABALLES 543 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-923 ILLINOIS, PETITIONER v. ROY I. CABALLES on writ of certiorari to the supreme court of illinois [January 24, 2005]    Justice Ginsburg, with whom Justice Souter joins, dissenting.    Illinois State Police Trooper Daniel Gillette stopped Roy Caballes for driving 71 miles per hour in a zone with a posted speed limit of 65 miles per hour. Trooper Craig Graham of the Drug Interdiction Team heard on the radio that Trooper Gillette was making a traffic stop. Although Gillette requested no aid, Graham decided to come to the scene to conduct a dog sniff. Gillette informed Caballes that he was speeding and asked for the usual documents—driver’s license, car registration, and proof of insurance. Caballes promptly provided the requested documents but refused to consent to a search of his vehicle. After calling his dispatcher to check on the validity of Caballes’ license and for outstanding warrants, Gillette returned to his vehicle to write Caballes a warning ticket. Interrupted by a radio call on an unrelated matter, Gillette was still writing the ticket when Trooper Graham arrived with his drug-detection dog. Graham walked the dog around the car, the dog alerted at Caballes’ trunk, and, after opening the trunk, the troopers found marijuana. 207 Ill. 2d 504, 506–507, 802 N. E. 2d 202, 203 (2003).    The Supreme Court of Illinois held that the drug evidence should have been suppressed. Id., at 506, 802 N. E. 2d, at 202. Adhering to its decision in People v. Cox , 202 Ill. 2d 462, 782 N. E. 2d 275 (2002), the court employed a two-part test taken from Terry v. Ohio, 392 U. S. 1 (1968), to determine the overall reasonableness of the stop. 207 Ill. 2d, at 508, 802 N. E. 2d, at 204. The court asked first “whether the officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Ibid. (quoting People v. Brownlee , 186 Ill. 2d 501, 518–519, 713 N. E. 2d 556, 565 (1999) (in turn quoting Terry , 392 U. S., at 19–20)). “[I]t is undisputed,” the court observed, “that the traffic stop was properly initiated”; thus, the dispositive inquiry trained on the “second part of the Terry test,” in which “[t]he State bears the burden of establishing that the conduct remained within the scope of the stop.” 207 Ill. 2d, at 509, 802 N. E. 2d, at 204.    The court concluded that the State failed to offer sufficient justification for the canine sniff: “The police did not detect the odor of marijuana in the car or note any other evidence suggesting the presence of illegal drugs.” Ibid. Lacking “specific and articulable facts” supporting the canine sniff, ibid. (quoting Cox , 202 Ill. 2d, at 470–471, 782 N. E. 2d, at 281), the court ruled, “the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation.” 207 Ill. 2d, at 509, 802 N. E. 2d, at 204.[ Footnote 1 ] I would affirm the Illinois Supreme Court’s judgment and hold that the drug sniff violated the Fourth Amendment.    In Terry v. Ohio , the Court upheld the stop and subsequent frisk of an individual based on an officer’s observation of suspicious behavior and his reasonable belief that the suspect was armed. See 392 U. S., at 27–28. In a Terry -type investigatory stop, “the officer’s action [must be] justified at its inception, and … reasonably related in scope to the circumstances which justified the interference in the first place.” Id., at 20. In applying Terry , the Court has several times indicated that the limitation on “scope” is not confined to the duration of the seizure; it also encompasses the manner in which the seizure is conducted. See, e.g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. ___, ___ (2004) (slip op., at 9) (an officer’s request that an individual identify himself “has an immediate relation to the purpose, rationale, and practical demands of a Terry stop”); United States v. Hensley, 469 U. S. 221 , 235 (1985) (examining, under Terry , both “the length and intrusiveness of the stop and detention”); Florida v. Royer, 460 U. S. 491 , 500 (1983) (plurality opinion) (“[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop [and] … the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion … .”).    “A routine traffic stop,” the Court has observed, “is a relatively brief encounter and ‘is more analogous to a so-called Terry stop … than to a formal arrest.’ ” Knowles v. Iowa, 525 U. S. 113 , 117 (1998) (quoting Berkemer v. McCarty , 468 U. S. 420 , 439 (1984)); see also ante , at 6 (Souter, J., dissenting) (The government may not “take advantage of a suspect’s immobility to search for evidence unrelated to the reason for the detention.”).[ Footnote 2 ] I would apply Terry ’s reasonable-relation test, as the Illinois Supreme Court did, to determine whether the canine sniff impermissibly expanded the scope of the initially valid seizure of Caballes.    It is hardly dispositive that the dog sniff in this case may not have lengthened the duration of the stop. Cf. ante , at 2 (“A seizure … can become unlawful if it is prolonged beyond the time reasonably required to complete [the initial] mission.”). Terry , it merits repetition, instructs that any investigation must be “reasonably related in scope to the circumstances which justified the interference in the first place.” 392 U. S., at 20 (emphasis added). The unwarranted and nonconsensual expansion of the seizure here from a routine traffic stop to a drug investigation broadened the scope of the investigation in a manner that, in my judgment, runs afoul of the Fourth Amendment.[ Footnote 3 ]    The Court rejects the Illinois Supreme Court’s judgment and, implicitly, the application of Terry to a traffic stop converted, by calling in a dog, to a drug search. The Court so rules, holding that a dog sniff does not render a seizure that is reasonable in time unreasonable in scope. Ante , at 2–3. Dog sniffs that detect only the possession of contraband may be employed without offense to the Fourth Amendment, the Court reasons, because they reveal no lawful activity and hence disturb no legitimate expectation of privacy. Ante , at 3–4.    In my view, the Court diminishes the Fourth Amendment’s force by abandoning the second Terry inquiry (was the police action “reasonably related in scope to the circumstances [justifiying] the [initial] interference”). 392 U. S., at 20. A drug-detection dog is an intimidating animal. Cf. United States v. Williams , 356 F. 3d 1268, 1276 (CA10 2004) (McKay, J., dissenting) (“drug dogs are not lap dogs”). Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer. Caballes—who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit—was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs. Even if the drug sniff is not characterized as a Fourth Amendment “search,” cf. Indianapolis v. Edmond, 531 U. S. 32 , 40 (2000); United States v. Place, 462 U. S. 696 , 707 (1983), the sniff surely broadened the scope of the traffic-violation-related seizure.    The Court has never removed police action from Fourth Amendment control on the ground that the action is well calculated to apprehend the guilty. See, e.g., United States v. Karo, 468 U. S. 705 , 717 (1984) (Fourth Amendment warrant requirement applies to police monitoring of a beeper in a house even if “the facts [justify] believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity.”); see also Minnesota v. Carter, 525 U. S. 83 , 110 (1998) (Ginsburg, J., dissenting) (“Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.”). Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population.    The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the police to search for contraband despite the absence of cause to suspect its presence. Today’s decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. Compare, e.g., United States v. Ludwig , 10 F. 3d 1523, 1526–1527 (CA10 1993) (upholding a search based on a canine drug sniff of a parked car in a motel parking lot conducted without particular suspicion), with United States v. Quinn , 815 F. 2d 153, 159 (CA1 1987) (officers must have reasonable suspicion that a car contains narcotics at the moment a dog sniff is performed), and Place , 462 U. S., at 706–707 (Fourth Amendment not violated by a dog sniff of a piece of luggage that was seized, pre-sniff, based on suspicion of drugs). Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green.    Today’s decision also undermines this Court’s situation-sensitive balancing of Fourth Amendment interests in other contexts. For example, in Bond v. United States, 529 U. S. 334 , 338–339 (2000), the Court held that a bus passenger had an expectation of privacy in a bag placed in an overhead bin and that a police officer’s physical manipulation of the bag constituted an illegal search. If canine drug sniffs are entirely exempt from Fourth Amendment inspection, a sniff could substitute for an officer’s request to a bus passenger for permission to search his bag, with this significant difference: The passenger would not have the option to say “No.”    The dog sniff in this case, it bears emphasis, was for drug detection only. A dog sniff for explosives, involving security interests not presented here, would be an entirely different matter. Detector dogs are ordinarily trained not as all-purpose sniffers, but for discrete purposes. For example, they may be trained for narcotics detection or for explosives detection or for agricultural products detection. See, e.g., U. S. Customs & Border Protection, Canine Enforcement Training Center, Training Program Course Descriptions, http://www.cbp.gov/xp/cgov/border_security/ canines/training_program.xml (all Internet materials as visited Dec. 16, 2004, and available in the Clerk of Court’s case file) (describing Customs training courses in narcotics detection); Transportation Security Administration, Canine and Explosives Program, http://www.tsa.gov/ public/display? theme=32 (describing Transportation Security Administration’s explosives detection canine program); U. S. Dept. of Agriculture, Animal and Plant Health Inspection Service, USDA’s Detector Dogs: Pro- tecting American Agriculture (Oct. 2001), available at http://www.aphis.usda.gov/oa/pubs/detdogs.pdf (describing USDA Beagle Brigade detector dogs trained to detect prohibited fruits, plants, and meat); see also Jennings, Origins and History of Security and Detector Dogs, in Canine Sports Medicine and Surgery 16, 18–19 (M. Bloomberg, J. Dee, & R. Taylor eds. 1998) (describing narcotics detector dogs used by Border Patrol and Customs, and bomb detector dogs used by the Federal Aviation Administration and the Secret Service, but noting the possibility in some circumstances of cross training dogs for multiple tasks); S. Chapman, Police Dogs in North America 64, 70–79 (1990) (describing narcotics- and explosives-detection dogs and noting the possibility of cross training). There is no indication in this case that the dog accompanying Trooper Graham was trained for anything other than drug detection. See 207 Ill. 2d, at 507, 802 N. E. 2d, at 203 (“Trooper Graham arrived with his drug-detection dog … .”); Brief for Petitioner 3 (“Trooper Graham arrived with a drug-detection dog … .”).    This Court has distinguished between the general interest in crime control and more immediate threats to public safety. In Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990), this Court upheld the use of a sobriety traffic checkpoint. Balancing the State’s interest in preventing drunk driving, the extent to which that could be accomplished through the checkpoint program, and the degree of intrusion the stops involved, the Court determined that the State’s checkpoint program was consistent with the Fourth Amendment. Id., at 455. Ten years after Sitz , in Indianapolis v. Edmond, 531 U. S. 32 , this Court held that a drug interdiction checkpoint violated the Fourth Amendment. Despite the illegal narcotics traffic that the Nation is struggling to stem, the Court explained, a “general interest in crime control” did not justify the stops. Id., at 43–44. The Court distinguished the sobriety checkpoints in Sitz on the ground that those checkpoints were designed to eliminate an “immediate, vehicle-bound threat to life and limb.” 531 U. S., at 43.    The use of bomb-detection dogs to check vehicles for explosives without doubt has a closer kinship to the sobriety checkpoints in Sitz than to the drug checkpoints in Edmond . As the Court observed in Edmond: “[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack … .” 531 U. S., at 44. Even if the Court were to change course and characterize a dog sniff as an independent Fourth Amendment search, see ante , p. ___ (Souter, J., dissenting), the immediate, present danger of explosives would likely justify a bomb sniff under the special needs doctrine. See, e.g., ante , at 8, n. 7 (Souter, J., dissenting); Griffin v. Wisconsin, 483 U. S. 868 , 873 (1987) (permitting exceptions to the warrant and probable-cause requirements for a search when “special needs, beyond the normal need for law enforcement,” make those requirements impracticable (quoting New Jersey v. T. L. O., 469 U. S. 325 , 351 (1985) (Blackmun, J., concurring in judgment))). ***    For the reasons stated, I would hold that the police violated Caballes’ Fourth Amendment rights when, without cause to suspect wrongdoing, they conducted a dog sniff of his vehicle. I would therefore affirm the judgment of the Illinois Supreme Court. Footnote 1 The Illinois Supreme Court held insufficient to support a canine sniff Gillette’s observations that (1) Caballes said he was moving to Chicago, but his only visible belongings were two sport coats in the backseat; (2) the car smelled of air freshener; (3) Caballes was dressed for business, but was unemployed; and (4) Caballes seemed nervous. Even viewed together, the court said, these observations gave rise to “nothing more than a vague hunch” of “possible wrongdoing.” 207 Ill. 2d 504, 509–510, 802 N. E. 2d 202, 204–205 (2003). This Court proceeds on “the assumption that the officer conducting the dog sniff had no information about [Caballes].” Ante , at 2. Footnote 2 The Berkemer Court cautioned that by analogizing a traffic stop to a Terry stop, it did “not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.” 468 U. S., at 439, n. 29. This Court, however, looked to Terry earlier in deciding that an officer acted reasonably when he ordered a motorist stopped for driving with expired license tags to exit his car, Pennsylvania v. Mimms, 434 U. S. 106 , 109–110 (1977) (per curiam) , and later reaffirmed the Terry analogy when evaluating a police officer’s authority to search a vehicle during a routine traffic stop, Knowles , 525 U. S., at 117. Footnote 3 The question whether a police officer inquiring about drugs without reasonable suspicion unconstitutionally broadens a traffic investigation is not before the Court. Cf. Florida v. Bostick, 501 U. S. 429 , 434 (1991) (police questioning of a bus passenger, who might have just said “No,” did not constitute a seizure).

The Supreme Court ruled that a lawful traffic stop can become unlawful if prolonged beyond the time required to complete the mission of issuing a warning or ticket. In this case, the additional time taken to conduct a dog sniff for drugs without reasonable suspicion of drug activity violated the Fourth Amendment.

Search & Seizure

Groh v. Ramirez

https://supreme.justia.com/cases/federal/us/540/551/

OPINION OF THE COURT FONT SCAPS="1">GROH V. RAMIREZ 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-811 JEFF GROH, PETITIONER v. JOSEPH R. RAMIREZ et al. on writ of certiorari to the united states court of appeals for the ninth circuit [February 24, 2004]    Justice Stevens delivered the opinion of the Court.    Petitioner conducted a search of respondents’ home pursuant to a warrant that failed to describe the “persons or things to be seized.” U. S. Const., Amdt. 4. The questions presented are (1) whether the search violated the Fourth Amendment, and (2) if so, whether petitioner nevertheless is entitled to qualified immunity, given that a Magistrate Judge (Magistrate), relying on an affidavit that particularly described the items in question, found probable cause to conduct the search. I    Respondents, Joseph Ramirez and members of his family, live on a large ranch in Butte-Silver Bow County, Montana. Petitioner, Jeff Groh, has been a Special Agent for the Bureau of Alcohol, Tobacco and Firearms (ATF) since 1989. In February 1997, a concerned citizen informed petitioner that on a number of visits to respondents’ ranch the visitor had seen a large stock of weaponry, including an automatic rifle, grenades, a grenade launcher, and a rocket launcher.[ Footnote 1 ] Based on that information, petitioner prepared and signed an application for a warrant to search the ranch. The application stated that the search was for “any automatic firearms or parts to automatic weapons, destructive devices to include but not limited to grenades, grenade launchers, rocket launchers, and any and all receipts pertaining to the purchase or manufacture of automatic weapons or explosive devices or launchers.” App. to Pet. for Cert. 28a. Petitioner supported the application with a detailed affidavit, which he also prepared and executed, that set forth the basis for his belief that the listed items were concealed on the ranch. Petitioner then presented these documents to a Magistrate, along with a warrant form that petitioner also had completed. The Magistrate signed the warrant form.    Although the application particularly described the place to be searched and the contraband petitioner expected to find, the warrant itself was less specific; it failed to identify any of the items that petitioner intended to seize. In the portion of the form that called for a description of the “person or property” to be seized, petitioner typed a description of respondents’ two-story blue house rather than the alleged stockpile of firearms.[ Footnote 2 ] The warrant did not incorporate by reference the itemized list contained in the application. It did, however, recite that the Magistrate was satisfied the affidavit established probable cause to believe that contraband was concealed on the premises, and that sufficient grounds existed for the warrant’s issuance.[ Footnote 3 ]    The day after the Magistrate issued the warrant, petitioner led a team of law enforcement officers, including both federal agents and members of the local sheriff’s department, in the search of respondents’ premises. Although respondent Joseph Ramirez was not home, his wife and children were. Petitioner states that he orally described the objects of the search to Mrs. Ramirez in person and to Mr. Ramirez by telephone. According to Mrs. Ramirez, however, petitioner explained only that he was searching for “ ‘an explosive device in a box.’ ” Ramirez v. Butte-Silver Bow County , 298 F. 3d 1022, 1026 (CA9 2002). At any rate, the officers’ search uncovered no illegal weapons or explosives. When the officers left, petitioner gave Mrs. Ramirez a copy of the search warrant, but not a copy of the application, which had been sealed. The following day, in response to a request from respondents’ attorney, petitioner faxed the attorney a copy of the page of the application that listed the items to be seized. No charges were filed against the Ramirezes.    Respondents sued petitioner and the other officers under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and Rev. Stat. §1979, 42 U. S. C. §1983, raising eight claims, including violation of the Fourth Amendment. App. 17–27. The District Court entered summary judgment for all defendants. The court found no Fourth Amendment violation, because it considered the case comparable to one in which the warrant contained an inaccurate address, and in such a case, the court reasoned, the warrant is sufficiently detailed if the executing officers can locate the correct house. App. to Pet. for Cert. 20a– 22a. The court added that even if a constitutional violation occurred, the defendants were entitled to qualified immunity because the failure of the warrant to describe the objects of the search amounted to a mere “typographical error.” Id ., at 22a–24a.    The Court of Appeals affirmed the judgment with respect to all defendants and all claims, with the exception of respondents’ Fourth Amendment claim against petitioner. 298 F. 3d, at 1029–1030. On that claim, the court held that the warrant was invalid because it did not “describe with particularity the place to be searched and the items to be seized,” and that oral statements by petitioner during or after the search could not cure the omission. Id ., at 1025–1026. The court observed that the warrant’s facial defect “increased the likelihood and degree of confrontation between the Ramirezes and the police” and deprived respondents of the means “to challenge officers who might have exceeded the limits imposed by the magistrate.” Id ., at 1027. The court also expressed concern that “permitting officers to expand the scope of the warrant by oral statements would broaden the area of dispute between the parties in subsequent litigation.” Ibid . The court nevertheless concluded that all of the officers except petitioner were protected by qualified immunity. With respect to petitioner, the court read our opinion in United States v. Leon, 468 U. S. 897 (1984), as precluding qualified immunity for the leader of a search who fails to “read the warrant and satisfy [himself] that [he] understand[s] its scope and limitations, and that it is not defective in some obvious way.” 298 F. 3d, at 1027. The court added that “[t]he leaders of the search team must also make sure that a copy of the warrant is available to give to the person whose property is being searched at the commencement of the search, and that such copy has no missing pages or other obvious defects.” Ibid . (footnote omitted). We granted certiorari. 537 U. S. 1231 (2003). II    The warrant was plainly invalid. The Fourth Amendment states unambiguously that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ” (Emphasis added.) The warrant in this case complied with the first three of these requirements: It was based on probable cause and supported by a sworn affidavit, and it described particularly the place of the search. On the fourth requirement, however, the warrant failed altogether. Indeed, petitioner concedes that “the warrant … was deficient in particularity because it provided no description of the type of evidence sought.” Brief for Petitioner 10.    The fact that the application adequately described the “things to be seized” does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U. S. 981 , 988, n. 5 (1984) (“[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional”); see also United States v. Stefonek , 179 F. 3d 1030, 1033 (CA7 1999) (“The Fourth Amendment requires that the warrant particularly describe the things to be seized, not the papers presented to the judicial officer … asked to issue the warrant”). And for good reason: “The presence of a search warrant serves a high function,” McDonald v. United States, 335 U. S. 451 , 455 (1948), and that high function is not necessarily vindicated when some other document, somewhere, says something about the objects of the search, but the contents of that document are neither known to the person whose home is being searched nor available for her inspection. We do not say that the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. See, e.g. , United States v. McGrew , 122 F. 3d 847, 849–850 (CA9 1997); United States v. Williamson , 1 F. 3d 1134, 1136, n. 1 (CA10 1993); United States v. Blakeney , 942 F. 2d 1001, 1025–1026 (CA6 1991); United States v. Maxwell , 920 F. 2d 1028, 1031 (CADC 1990); United States v. Curry , 911 F. 2d 72, 76–77 (CA8 1990); United States v. Roche , 614 F. 2d 6, 8 (CA1 1980). But in this case the warrant did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) accompany the warrant. Hence, we need not further explore the matter of incorporation.    Petitioner argues that even though the warrant was invalid, the search nevertheless was “reasonable” within the meaning of the Fourth Amendment. He notes that a Magistrate authorized the search on the basis of adequate evidence of probable cause, that petitioner orally described to respondents the items to be seized, and that the search did not exceed the limits intended by the Magistrate and described by petitioner. Thus, petitioner maintains, his search of respondents’ ranch was functionally equivalent to a search authorized by a valid warrant.    We disagree. This warrant did not simply omit a few items from a list of many to be seized, or misdescribe a few of several items. Nor did it make what fairly could be characterized as a mere technical mistake or typographical error. Rather, in the space set aside for a description of the items to be seized, the warrant stated that the items consisted of a “single dwelling residence … blue in color.” In other words, the warrant did not describe the items to be seized at all . In this respect the warrant was so obviously deficient that we must regard the search as “warrantless” within the meaning of our case law. See Leon, 468 U. S., at 923; cf . Maryland v. Garrison, 480 U. S. 79 , 85 (1987); Steele v. United States, 267 U. S. 498 , 503–504 (1925). “We are not dealing with formalities.” McDonald, 335 U. S., at 455. Because “ ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion’ ” stands “ ‘[a]t the very core’ of the Fourth Amendment,” Kyllo v. United States, 533 U. S. 27 , 31 (2001) (quoting Silverman v. United States, 365 U. S. 505 , 511 (1961)), our cases have firmly established the “ ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable,” Payton v. New York, 445 U. S. 573 , 586 (1980) (footnote omitted). Thus, “absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.” Id. , at 587–588 (footnote omitted). See Kyllo , 533 U. S., at 29; Illinois v. Rodriguez, 497 U. S. 177 , 181 (1990); Chimel v. California, 395 U. S. 752 , 761–763 (1969); McDonald, 335 U. S., at 454; Johnson v. United States, 333 U. S. 10 (1948).    We have clearly stated that the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant. In Sheppard , for instance, the petitioner argued that even though the warrant was invalid for lack of particularity, “the search was constitutional because it was reasonable within the meaning of the Fourth Amendment.” 468 U. S., at 988, n. 5. In squarely rejecting that position, we explained: “The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional. Stanford v. Texas , 379 U. S. 476 (1965); United States v. Cardwell , 680 F. 2d 75, 77–78 (CA9 1982); United States v. Crozier , 674 F. 2d 1293, 1299 (CA9 1982); United States v. Klein , 565 F. 2d 183, 185 (CA1 1977); United States v. Gardner , 537 F. 2d 861, 862 (CA6 1976); United States v. Marti , 421 F. 2d 1263, 1268–1269 (CA2 1970). That rule is in keeping with the well-established principle that ‘except in certain carefully defined classes of cases, a search of private property without proper consent is “unreasonable” unless it has been authorized by a valid search warrant.’ Camara v. Municipal Court , 387 U. S. 523 , 528–529 (1967). See Steagald v. United States , 451 U. S. 204 , 211–212 (1981); Jones v. United States , 357 U. S. 493 , 499 (1958).” Ibid. Petitioner asks us to hold that a search conducted pursuant to a warrant lacking particularity should be exempt from the presumption of unreasonableness if the goals served by the particularity requirement are otherwise satisfied. He maintains that the search in this case satisfied those goals—which he says are “to prevent general searches, to prevent the seizure of one thing under a warrant describing another, and to prevent warrants from being issued on vague or dubious information,” Brief for Petitioner 16—because the scope of the search did not exceed the limits set forth in the application. But unless the particular items described in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search), there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit. See McDonald , 335 U. S., at 455 (“Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done … so that an objective mind might weigh the need to invade [the citizen’s] privacy in order to enforce the law”). In this case, for example, it is at least theoretically possible that the Magistrate was satisfied that the search for weapons and explosives was justified by the showing in the affidavit, but not convinced that any evidentiary basis existed for rummaging through respondents’ files and papers for receipts pertaining to the purchase or manufacture of such items. Cf. Stanford v. Texas, 379 U. S. 476 , 485–486 (1965). Or, conceivably, the Magistrate might have believed that some of the weapons mentioned in the affidavit could have been lawfully possessed and therefore should not be seized. See 26 U. S. C. §5861 (requiring registration, but not banning possession of, certain firearms). The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant’s request. Even though petitioner acted with restraint in conducting the search, “the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.” Katz v. United States, 389 U. S. 347 , 356 (1967).[ Footnote 4 ]    We have long held, moreover, that the purpose of the particularity requirement is not limited to the prevention of general searches. See Garrison , 480 U. S., at 84. A particular warrant also “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” United States v. Chadwick, 433 U. S. 1 , 9 (1977) (citing Camara v. Municipal Court of City and County of San Francisco , 387 U. S. 523 , 532 (1967)), abrogated on other grounds, California v. Acevedo, 500 U. S. 565 (1991). See also Illinois v. Gates, 462 U. S. 213 , 236 (1983) (“[P]ossession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct”).[ Footnote 5 ]    Petitioner argues that even if the goals of the particularity requirement are broader than he acknowledges, those goals nevertheless were served because he orally described to respondents the items for which he was searching. Thus, he submits, respondents had all of the notice that a proper warrant would have accorded. But this case presents no occasion even to reach this argument, since respondents, as noted above, dispute petitioner’s account. According to Mrs. Ramirez, petitioner stated only that he was looking for an “ ‘explosive device in a box.’ ” 298 F. 3d, at 1026. Because this dispute is before us on petitioner’s motion for summary judgment, App. to Pet. for Cert. 13a, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor,” Anderson v. Liberty Lobby, Inc., 477 U. S. 242 , 255 (1986) (citation omitted). The posture of the case therefore obliges us to credit Mrs. Ramirez’s account, and we find that petitioner’s description of “ ‘an explosive device in a box’ ” was little better than no guidance at all. See Stefonek , 179 F. 3d, at 1032–1033 (holding that a search warrant for “ ‘evidence of crime’ ” was “[s]o open-ended” in its description that it could “only be described as a general warrant”).    It is incumbent on the officer executing a search warrant to ensure the search is lawfully authorized and lawfully conducted.[ Footnote 6 ] Because petitioner did not have in his possession a warrant particularly describing the things he intended to seize, proceeding with the search was clearly “unreasonable” under the Fourth Amendment. The Court of Appeals correctly held that the search was unconstitutional. III    Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation. See Wilson v. Layne, 526 U. S. 603 , 609 (1999). The answer depends on whether the right that was transgressed was “ ‘clearly established’ ”—that is, “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U. S. 194 , 202 (2001).    Given that the particularity requirement is set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid. See Harlow v. Fitzgerald, 457 U. S. 800 , 818–819 (1982) (“If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct”). Moreover, because petitioner himself prepared the invalid warrant, he may not argue that he reasonably relied on the Magistrate’s assurance that the warrant contained an adequate description of the things to be seized and was therefore valid. Cf. Sheppard , 468 U. S., at 989–990. In fact, the guidelines of petitioner’s own department placed him on notice that he might be liable for executing a manifestly invalid warrant. An ATF directive in force at the time of this search warned: “Special agents are liable if they exceed their authority while executing a search warrant and must be sure that a search warrant is sufficient on its face even when issued by a magistrate.” Searches and Examinations, ATF Order O 3220.1(7)(d) (Feb. 13, 1997). See also id., at 3220.1(23)(b) (“If any error or deficiency is discovered and there is a reasonable probability that it will invalidate the warrant, such warrant shall not be executed. The search shall be postponed until a satisfactory warrant has been obtained”).[ Footnote 7 ] And even a cursory reading of the warrant in this case—perhaps just a simple glance—would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal.    No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional. See Payton , 445 U. S., at 586–588. Indeed, as we noted nearly 20 years ago in Sheppard: “The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.” 468 U. S., at 988, n. 5.[ Footnote 8 ] Because not a word in any of our cases would suggest to a reasonable officer that this case fits within any exception to that fundamental tenet, petitioner is asking us, in effect, to craft a new exception. Absent any support for such an exception in our cases, he cannot reasonably have relied on an expectation that we would do so.    Petitioner contends that the search in this case was the product, at worst, of a lack of due care, and that our case law requires more than negligent behavior before depriving an official of qualified immunity. See Malley v. Briggs, 475 U. S. 335 , 341 (1986). But as we observed in the companion case to Sheppard , “a warrant may be so facially deficient— i.e. , in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U. S., at 923. This is such a case.[ Footnote 9 ]     Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 Possession of these items, if unregistered, would violate 18 U. S. C. §922( o )(1) and 26 U. S. C. §5861. Footnote 2 The warrant stated: “[T]here is now concealed [on the specified premises] a certain person or property, namely [a] single dwelling residence two story in height which is blue in color and has two additions attached to the east. The front entrance to the residence faces in a southerly direction.” App. to Pet. for Cert. 26a. Footnote 3 The affidavit was sealed. Its sufficiency is not disputed. Footnote 4 For this reason petitioner’s argument that any constitutional error was committed by the Magistrate, not petitioner, is misplaced. In Massachusetts v. Sheppard, 468 U. S. 981 (1984), we suggested that “the judge, not the police officers,” may have committed “[a]n error of constitutional dimension,” id ., at 990, because the judge had assured the officers requesting the warrant that he would take the steps necessary to conform the warrant to constitutional requirements, id ., at 986. Thus, “it was not unreasonable for the police in [that] case to rely on the judge’s assurances that the warrant authorized the search they had requested.” Id ., at 990, n. 6. In this case, by contrast, petitioner did not alert the Magistrate to the defect in the warrant that petitioner had drafted, and we therefore cannot know whether the Magistrate was aware of the scope of the search he was authorizing. Nor would it have been reasonable for petitioner to rely on a warrant that was so patently defective, even if the Magistrate was aware of the deficiency. See United States v. Leon, 468 U. S. 897 , 915, 922, n. 23 (1984). Footnote 5 It is true, as petitioner points out, that neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure requires the executing officer to serve the warrant on the owner before commencing the search. Rule 41(f)(3) provides that “[t]he officer executing the warrant must: (A) give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken; or (B) leave a copy of the warrant and receipt at the place where the officer took the property.” Quite obviously, in some circumstances—a surreptitious search by means of a wiretap, for example, or the search of empty or abandoned premises—it will be impracticable or imprudent for the officers to show the warrant in advance. See Katz v. United States, 389 U. S. 347 , 355, n. 16 (1967); Ker v. California , 374 U. S. 23 , 37–41 (1963). Whether it would be unreasonable to refuse a request to furnish the warrant at the outset of the search when, as in this case, an occupant of the premises is present and poses no threat to the officers’ safe and effective performance of their mission, is a question that this case does not present. Footnote 6 The Court of Appeals’ decision is consistent with this principle. Petitioner mischaracterizes the court’s decision when he contends that it imposed a novel proofreading requirement on officers executing warrants. The court held that officers leading a search team must “mak[e] sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct.” 298 F. 3d 1022, 1027 (CA9 2002). That is not a duty to proofread; it is, rather, a duty to ensure that the warrant conforms to constitutional requirements. Footnote 7 We do not suggest that an official is deprived of qualified immunity whenever he violates an internal guideline. We refer to the ATF Order only to underscore that petitioner should have known that he should not execute a patently defective warrant. Footnote 8 Although both Sheppard and Leon involved the application of the “good faith” exception to the Fourth Amendment’s general exclusionary rule, we have explained that “the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon defines the qualified immunity accorded an officer.” Malley v. Briggs, 475 U. S. 335 , 344 (1986) (citation omitted). Footnote 9 Justice Kennedy argues in dissent that we have not allowed “ ‘ample room for mistaken judgments,’ ” post , at 6 (quoting Malley , 475 U. S., at 343), because “difficult and important tasks demand the officer’s full attention in the heat of an ongoing and often dangerous criminal investigation,” post , at 3. In this case, however, petitioner does not contend that any sort of exigency existed when he drafted the affidavit, the warrant application, and the warrant, or when he conducted the search. This is not the situation, therefore, in which we have recognized that “officers in the dangerous and difficult process of making arrests and executing search warrants” require “some latitude.” Maryland v. Garrison, 480 U. S. 79 , 87 (1987).    Nor are we according “the correctness of paper forms” a higher status than “substantive rights.” Post , at 6. As we have explained, the Fourth Amendment’s particularity requirement assures the subject of the search that a magistrate has duly authorized the officer to conduct a search of limited scope. This substantive right is not protected when the officer fails to take the time to glance at the authorizing document and detect a glaring defect that Justice Kennedy agrees is of constitutional magnitude, post , at 1. KENNEDY, J., DISSENTING FONT SCAPS="1">GROH V. RAMIREZ 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-811 JEFF GROH, PETITIONER v. JOSEPH R. RAMIREZ et al. on writ of certiorari to the united states court of appeals for the ninth circuit [February 24, 2004]    Justice Kennedy, with whom The Chief Justice joins, dissenting.    I agree with the Court that the Fourth Amendment was violated in this case. The Fourth Amendment states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The warrant issued in this case did not particularly describe the things to be seized, and so did not comply with the Fourth Amendment. I disagree with the Court on whether the officer who obtained the warrant and led the search team is entitled to qualified immunity for his role in the search. In my view, the officer should receive qualified immunity.    An officer conducting a search is entitled to qualified immunity if “a reasonable officer could have believed” that the search was lawful “in light of clearly established law and the information the searching officers possessed.” Anderson v. Creighton, 483 U. S. 635 , 641 (1987). As the Court notes, this is the same objective reasonableness standard applied under the “good faith” exception to the exclusionary rule. See ante , at 13, n. 8 (citing Malley v. Briggs, 475 U. S. 335 , 344 (1986)). The central question is whether someone in the officer’s position could reasonably but mistakenly conclude that his conduct complied with the Fourth Amendment. Creighton, supra, at 641. See also Saucier v. Katz, 533 U. S. 194 , 206 (2001); Hunter v. Bryant, 502 U. S. 224 , 227 (1991) (per curiam). An officer might reach such a mistaken conclusion for several reasons. He may be unaware of existing law and how it should be applied. See, e.g., Saucier , supra . Alternatively, he may misunderstand important facts about the search and assess the legality of his conduct based on that misunderstanding. See, e.g., Arizona v. Evans, 514 U. S. 1 (1995). Finally, an officer may misunderstand elements of both the facts and the law. See, e.g., Creighton , supra . Our qualified immunity doctrine applies regardless of whether the officer’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact. Butz v. Economou, 438 U. S. 478 , 507 (1978) (noting that qualified immunity covers “mere mistakes in judgment, whether the mistake is one of fact or one of law”).    The present case involves a straightforward mistake of fact. Although the Court does not acknowledge it directly, it is obvious from the record below that the officer simply made a clerical error when he filled out the proposed warrant and offered it to the Magistrate Judge. The officer used the proper description of the property to be seized when he completed the affidavit. He also used the proper description in the accompanying application. When he typed up the description a third time for the proposed warrant, however, the officer accidentally entered a description of the place to be searched in the part of the warrant form that called for a description of the property to be seized. No one noticed the error before the search was executed. Although the record is not entirely clear on this point, the mistake apparently remained undiscovered until the day after the search when respondents’ attorney reviewed the warrant for defects. The officer, being unaware of his mistake, did not rely on it in any way. It is uncontested that the officer trained the search team and executed the warrant based on his mistaken belief that the warrant contained the proper description of the items to be seized.    The question is whether the officer’s mistaken belief that the warrant contained the proper language was a reasonable belief. In my view, it was. A law enforcement officer charged with leading a team to execute a search warrant for illegal weapons must fulfill a number of serious responsibilities. The officer must establish probable cause to believe the crime has been committed and that evidence is likely to be found at the place to be searched; must articulate specific items that can be seized, and a specific place to be searched; must obtain the warrant from a magistrate judge; and must instruct a search team to execute the warrant within the time allowed by the warrant. The officer must also oversee the execution of the warrant in a way that protects officer safety, directs a thorough and professional search for the evidence, and avoids unnecessary destruction of property. These difficult and important tasks demand the officer’s full attention in the heat of an ongoing and often dangerous criminal investigation.    An officer who complies fully with all of these duties can be excused for not being aware that he had made a clerical error in the course of filling out the proposed warrant. See Maryland v. Garrison, 480 U. S. 79 , 87 (1987) (recognizing “the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants”). An officer who drafts an affidavit, types up an application and proposed warrant, and then obtains a judge’s approval naturally assumes that he has filled out the warrant form correctly. Even if the officer checks over the warrant, he may very well miss a mistake. We all tend toward myopia when looking for our own errors. Every lawyer and every judge can recite examples of documents that they wrote, checked, and doublechecked, but that still contained glaring errors. Law enforcement officers are no different. It would be better if the officer recognizes the error, of course. It would be better still if he does not make the mistake in the first place. In the context of an otherwise proper search, however, an officer’s failure to recognize his clerical error on a warrant form can be a reasonable mistake.    The Court reaches a different result by construing the officer’s error as a mistake of law rather than a mistake of fact. According to the Court, the officer should not receive qualified immunity because “no reasonable officer could believe that a warrant that plainly did not comply with [the particularity] requirement was valid.” Ante , at 12. The majority is surely right that a reasonable officer must know that a defective warrant is invalid. This much is obvious, if not tautological. It is also irrelevant, for the essential question here is whether a reasonable officer in petitioner’s position would necessarily know that the warrant had a clerical error in the first place. The issue in this case is whether an officer can reasonably fail to recognize a clerical error, not whether an officer who recognizes a clerical error can reasonably conclude that a defective warrant is legally valid.    The Court gives little attention to this important and difficult question. It receives only two sentences at the very end of the Court’s opinion. In the first sentence, the Court quotes dictum from United States v. Leon, 468 U. S. 897 , 923 (1984), to the effect that “ ‘a warrant may be so facially deficient— i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.’ ” Ante , at 13–14. In the second sentence, the Court informs us without explanation that “[t]his is such a case.” Ante, at 14. This reasoning is not convincing.    To understand the passage from Leon that the Court relies upon, it helps to recognize that most challenges to defective search warrants arise when officers rely on the defect and conduct a search that should not have occurred. The target of the improper search then brings a civil action challenging the improper search, or, if charges have been filed, moves to suppress the fruits of the search. The inquiry in both instances is whether the officers’ reliance on the defect was reasonable. See, e.g. , Garrison, supra, (apartment wrongly searched because the searching officers did not realize that there were two apartments on the third floor and obtained a warrant to search the entire floor); Arizona v. Evans, 514 U. S. 1 (1995) (person wrongly arrested and searched because a court employee’s clerical error led officer to believe a warrant existed for person’s arrest); McLeary v. Navarro , 504 U. S. 966 (1992) (White, J., dissenting from denial of certiorari) (house wrongly searched because informant told officers the suspect lived in the second house on the right, but the suspect lived in the third house on the right).    The language the Court quotes from Leon comes from a discussion of when “an officer [who] has obtained a [defective] warrant and abided by its terms” has acted reasonably. 468 U. S., at 922. The discussion notes that there are some cases in which “no reasonably well trained officer should rely on the warrant.” Id. , at 923. The passage also includes several examples, among them the one that the Court relies on in this case: “depending on the circumstances of the particular case, a warrant may be so facially deficient— i.e ., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Ibid .    The Court interprets this language to mean that a clerical mistake can be so obvious that an officer who fails to recognize the mistake should not receive qualified immunity. Read in context, however, the quoted language is addressed to a quite different issue. The most natural interpretation of the language is that a clerical mistake can be so obvious that the officer cannot reasonably rely on the mistake in the course of executing the warrant. In other words, a defect can be so clear that an officer cannot reasonably “abid[e] by its terms” and execute the warrant as written. Id., at 922.    We confront no such issue here, of course. No one suggests that the officer reasonably could have relied on the defective language in the warrant. This is a case about an officer being unaware of a clerical error, not a case about an officer relying on one. The respondents do not make the usual claim that they were injured by a defect that led to an improper search. Rather, they make an unusual claim that they were injured simply because the warrant form did not contain the correct description of the property to be seized, even though no property was seized. The language from Leon is not on point.    Our Court has stressed that “the purpose of encouraging recourse to the warrant procedure” can be served best by rejecting overly technical standards when courts review warrants. Illinois v. Gates, 462 U. S. 213 , 237 (1983). We have also stressed that qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U. S., at 341. The Court’s opinion is inconsistent with these principles. Its analysis requires our Nation’s police officers to concentrate more on the correctness of paper forms than substantive rights. The Court’s new “duty to ensure that the warrant conforms to constitutional requirements” sounds laudable, ante , at 11, n. 6, but would be more at home in a regime of strict liability than within the “ample room for mistaken judgments” that our qualified immunity jurisprudence traditionally provides. Malley, supra, at 343 . For these reasons, I dissent. THOMAS, J., DISSENTING FONT SCAPS="1">GROH V. RAMIREZ 540 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-811 JEFF GROH, PETITIONER v. JOSEPH R. RAMIREZ et al. on writ of certiorari to the united states court of appeals for the ninth circuit [February 24, 2004]    Justice Thomas, with whom Justice Scalia joins, and with whom The Chief Justice joins as to Part III, dissenting.    The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The precise relationship between the Amendment’s Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While “it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness,” California v. Acevedo, 500 U. S. 565 , 582 (1991) (Scalia, J., concurring in judgment), the text of the Fourth Amendment certainly does not mandate this result. Nor does the Amendment’s history, which is clear as to the Amendment’s principal target (general warrants), but not as clear with respect to when warrants were required, if ever. Indeed, because of the very different nature and scope of federal authority and ability to conduct searches and arrests at the founding, it is possible that neither the history of the Fourth Amendment nor the common law provides much guidance.    As a result, the Court has vacillated between imposing a categorical warrant requirement and applying a general reasonableness standard. Compare Thompson v. Louisiana, 469 U. S. 17 , 20 (1984) (per curiam) , with United States v. Rabinowitz, 339 U. S. 56 , 65 (1950). The Court has most frequently held that warrantless searches are presumptively unreasonable, see, e.g., Katz v. United States, 389 U. S. 347 , 357 (1967); Payton v. New York, 445 U. S. 573 , 583 (1980), but has also found a plethora of exceptions to presumptive unreasonableness, see, e.g., Chimel v. California, 395 U. S. 752 , 762–763 (1969) (searches incident to arrest); United States v. Ross, 456 U. S. 798 , 800 (1982) (automobile searches); United States v. Biswell, 406 U. S. 311 , 315–317 (1972) (searches of “pervasively regulated” businesses); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 , 534–539 (1967) (administrative searches); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 , 298 (1967) (exigent circumstances); California v. Carney, 471 U. S. 386 , 390–394 (1985) (mobile home searches); Illinois v. Lafayette, 462 U. S. 640 , 648 (1983) (inventory searches); Almeida&nbhyph;Sanchez v. United States, 413 U. S. 266 , 272 (1973) (border searches). That is, our cases stand for the illuminating proposition that warrantless searches are per se unreasonable, except, of course, when they are not.    Today the Court holds that the warrant in this case was “so obviously deficient” that the ensuing search must be regarded as a warrantless search and thus presumptively unreasonable. Ante , at 6–7. However, the text of the Fourth Amendment, its history, and the sheer number of exceptions to the Court’s categorical warrant requirement seriously undermine the bases upon which the Court today rests its holding. Instead of adding to this confusing jurisprudence, as the Court has done, I would turn to first principles in order to determine the relationship between the Warrant Clause and the Unreasonableness Clause. But even within the Court’s current framework, a search conducted pursuant to a defective warrant is constitutionally different from a “warrantless search.” Consequently, despite the defective warrant, I would still ask whether this search was unreasonable and would conclude that it was not. Furthermore, even if the Court were correct that this search violated the Constitution (and in particular, respondents’ Fourth Amendment rights), given the confused state of our Fourth Amendment jurisprudence and the reasonableness of petitioner’s actions, I cannot agree with the Court’s conclusion that petitioner is not entitled to qualified immunity. For these reasons, I respectfully dissent. I    “[A]ny Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless ‘reasonable’ within the meaning of the first.” United States v. Leon, 468 U. S. 897 , 961 (1984) (Stevens, J., dissenting). By categorizing the search here to be a “warrantless” one, the Court declines to perform a reasonableness inquiry and ignores the fact that this search is quite different from searches that the Court has considered to be “warrantless” in the past. Our cases involving “warrantless” searches do not generally involve situations in which an officer has obtained a warrant that is later determined to be facially defective, but rather involve situations in which the officers neither sought nor obtained a warrant. See, e.g., Anderson v. Creighton, 483 U. S. 635 (1987) (officer entitled to qualified immunity despite conducting a warrantless search of respondents’ home in the mistaken belief that a robbery suspect was hiding there); Payton v. New York, supra, (striking down a New York statute authorizing the warrantless entry into a private residence to make a routine felony arrest). By simply treating this case as if no warrant had even been sought or issued, the Court glosses over what should be the key inquiry: whether it is always appropriate to treat a search made pursuant to a warrant that fails to describe particularly the things to be seized as presumptively unreasonable.    The Court bases its holding that a defect in the particularity of the warrant by itself renders a search “warrantless” on a citation of a single footnote in Massachusetts v. Sheppard, 468 U. S. 981 (1984). In Sheppard , the Court, after noting that “the sole issue … in th[e] case is whether the officers reasonably believed that the search they conducted was authorized by a valid warrant,” id ., at 988, rejected the petitioner’s argument that despite the invalid warrant, the otherwise reasonable search was constitutional, id. , at 988, n. 5. The Court recognized that under its case law a reasonableness inquiry would be appropriate if one of the exceptions to the warrant requirement applied. But the Court declined to consider whether such an exception applied and whether the search actually violated the Fourth Amendment because that question presented merely a “fact-bound issue of little importance.” Ibid. Because the Court in Sheppard did not conduct any sort of inquiry into whether a Fourth Amendment violation actually occurred, it is clear that the Court assumed a violation for the purposes of its analysis. Rather than rely on dicta buried in a footnote in Sheppard , the Court should actually analyze the arguably dispositive issue in this case.    The Court also rejects the argument that the details of the warrant application and affidavit save the warrant, because “ ‘[t]he presence of a search warrant serves a high function.’ ” Ante , at 5 (quoting McDonald v. United States, 335 U. S. 451 , 455 (1948)). But it is not only the physical existence of the warrant and its typewritten contents that serve this high function. The Warrant Clause’s principal protection lies in the fact that the “Fourth Amendment has interposed a magistrate between the citizen and the police … . so that an objective mind might weigh the need to invade [the searchee’s] privacy in order to enforce the law.” Ibid. The Court has further explained, “The point of the Fourth Amendment … is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers… . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” Johnson v. United States, 333 U. S. 10 , 13–14 (1948) (footnotes omitted). But the actual contents of the warrant are simply manifestations of this protection. Hence, in contrast to the case of a truly warrantless search, a warrant (due to a mistake) does not specify on its face the particular items to be seized but the warrant application passed on by the magistrate judge contains such details, a searchee still has the benefit of a determination by a neutral magistrate that there is probable cause to search a particular place and to seize particular items. In such a circumstance, the principal justification for applying a rule of presumptive unreasonableness falls away.    In the instant case, the items to be seized were clearly specified in the warrant application and set forth in the affidavit, both of which were given to the Judge (Magistrate). The Magistrate reviewed all of the documents and signed the warrant application and made no adjustment or correction to this application. It is clear that respondents here received the protection of the Warrant Clause, as described in Johnson and McDonald . Under these circumstances, I would not hold that any ensuing search constitutes a presumptively unreasonable warrantless search. Instead, I would determine whether, despite the invalid warrant, the resulting search was reasonable and hence constitutional. II    Because the search was not unreasonable, I would conclude that it was constitutional. Prior to execution of the warrant, petitioner briefed the search team and provided a copy of the search warrant application, the supporting affidavit, and the warrant for the officers to review. Petitioner orally reviewed the terms of the warrant with the officers, including the specific items for which the officers were authorized to search. Petitioner and his search team then conducted the search entirely within the scope of the warrant application and warrant; that is, within the scope of what the Magistrate had authorized. Finding no illegal weapons or explosives, the search team seized nothing. Ramirez v. Butte-Silver Bow County, 298 F. 3d 1022, 1025 (CA9 2002). When petitioner left, he gave respondents a copy of the search warrant. Upon request the next day, petitioner faxed respondent a copy of the more detailed warrant application. Indeed, putting aside the technical defect in the warrant, it is hard to imagine how the actual search could have been carried out any more reasonably.    The Court argues that this eminently reasonable search is nonetheless unreasonable because “there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit” “unless the particular items described in the affidavit are also set forth in the warrant itself.” Ante , at 8. The Court argues that it was at least possible that the Magistrate intended to authorize a much more limited search than the one petitioner requested. Ibid . As a theoretical matter, this may be true. But the more reasonable inference is that the Magistrate intended to authorize everything in the warrant application, as he signed the application and did not make any written adjustments to the application or the warrant itself.    The Court also attempts to bolster its focus on the faulty warrant by arguing that the purpose of the particularity requirement is not only to prevent general searches, but also to assure the searchee of the lawful authority for the search. Ante , at 10. But as the Court recognizes, neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 requires an officer to serve the warrant on the searchee before the search. Ante , at 10, n. 5. Thus, a search should not be considered per se unreasonable for failing to apprise the searchee of the lawful authority prior to the search, especially where, as here, the officer promptly provides the requisite information when the defect in the papers is detected. Additionally, unless the Court adopts the Court of Appeals’ view that the Constitution protects a searchee’s ability to “be on the lookout and to challenge officers,” while the officers are actually carrying out the search, 298 F. 3d, at 1027, petitioner’s provision of the requisite information the following day is sufficient to satisfy this interest. III    Even assuming a constitutional violation, I would find that petitioner is entitled to qualified immunity. The qualified immunity inquiry rests on “the ‘objective legal reasonableness’ of the action, Harlow [v. Fitzgerald, 457 U. S. 800 , 819 (1982)], assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U. S., at 639. The outcome of this inquiry “depends substantially upon the level of generality at which the relevant ‘legal rule’ is … identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause … violates a clearly established right.” Ibid. To apply the standard at such a high level of generality would allow plaintiffs “to convert the rule of qualified immunity … into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” Ibid . The Court in Anderson criticized the Court of Appeals for considering the qualified immunity question only in terms of the petitioner’s “right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances.” Id ., at 640. The Court of Appeals should have instead considered “the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.” Id. , at 641.    The Court errs not only by defining the question at too high a level of generality but also by assessing the question without regard to the relevant circumstances. Even if it were true that no reasonable officer could believe that a search of a home pursuant to a warrant that fails the particularity requirement is lawful absent exigent circumstances—a proposition apparently established by dicta buried in a footnote in Sheppard —petitioner did not know when he carried out the search that the search warrant was invalid—let alone legally nonexistent. Petitioner’s entitlement to qualified immunity, then, turns on whether his belief that the search warrant was valid was objectively reasonable. Petitioner’s belief surely was reasonable.    The Court has stated that “depending on the circumstances of the particular case, a warrant may be so facially deficient … that the executing officers cannot reasonably presume it to be valid.” United States v. Leon, 468 U. S., at 923. This language makes clear that this exception to Leon ’s good-faith exception does not apply in every circumstance. And the Court does not explain why it should apply here. As an initial matter, the Court does not even argue that the fact that petitioner made a mistake in preparing the warrant was objectively unreasonable, nor could it. Given the sheer number of warrants prepared and executed by officers each year, combined with the fact that these same officers also prepare detailed and sometimes somewhat comprehensive documents supporting the warrant applications, it is inevitable that officers acting reasonably and entirely in good faith will occasionally make such errors.    The only remaining question is whether petitioner’s failure to notice the defect was objectively unreasonable. The Court today points to no cases directing an officer to proofread a warrant after it has been passed on by a neutral magistrate, where the officer is already fully aware of the scope of the intended search and the magistrate gives no reason to believe that he has authorized anything other than the requested search. Nor does the Court point to any case suggesting that where the same officer both prepares and executes the invalid warrant, he can never rely on the magistrate’s assurance that the warrant is proper. Indeed, in Massachusetts v. Sheppard, 468 U. S. 981 (1984), the Court suggested that although an officer who is not involved in the warrant application process would normally read the issued warrant to determine the object of the search, an executing officer who is also the affiant might not need to do so. Id. , at 989, n. 6.    Although the Court contends that it does not impose a proofreading requirement upon officers executing warrants, ante , at 11, n. 6, I see no other way to read its decision, particularly where, as here, petitioner could have done nothing more to ensure the reasonableness of his actions than to proofread the warrant. After receiving several allegations that respondents possessed illegal firearms and explosives, petitioner prepared an application for a warrant to search respondents’ ranch, along with a supporting affidavit detailing the history of allegations against respondents, petitioner’s investigation into these allegations, and petitioner’s verification of the sources of the allegations. Petitioner properly filled out the warrant application, which described both the place to be searched and the things to be seized, and obtained the Magistrate’s signature on both the warrant application and the warrant itself. Prior to execution of the warrant, petitioner briefed the search team to ensure that each officer understood the limits of the search. Petitioner and his search team then executed the warrant within those limits. And when the error in the search warrant was discovered, petitioner promptly faxed the missing information to respondents. In my view, petitioner’s actions were objectively reasonable, and thus he should be entitled to qualified immunity.    For the foregoing reasons, I respectfully dissent.

In Groh v. Ramirez, the Supreme Court held that a search warrant that failed to describe the items to be seized violated the Fourth Amendment, but the officer who obtained and executed the warrant was entitled to qualified immunity. The Court found that the officer's failure to notice the defect in the warrant was not objectively unreasonable, given the number of warrants prepared and executed by officers each year and the fact that the officer had already taken steps to ensure the reasonableness of the search. The dissent argued that the officer should be entitled to qualified immunity because he had acted in good faith and taken extensive steps to ensure the search was reasonable.

Search & Seizure

Arizona v. Johnson

https://supreme.justia.com/cases/federal/us/555/323/

OPINION OF THE COURT ARIZONA V. JOHNSON 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-1122 ARIZONA, PETITIONER v. LEMON MONTREA JOHNSON on writ of certiorari to the court of appeals of arizona, division two [January 26, 2009]    Justice Ginsburg delivered the opinion of the Court.    This case concerns the authority of police officers to “stop and frisk” a passenger in a motor vehicle temporarily seized upon police detection of a traffic infraction. In a pathmarking decision, Terry v. Ohio , 392 U. S. 1 (1968), the Court considered whether an investigatory stop (temporary detention) and frisk (patdown for weapons) may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures. The Court upheld “stop and frisk” as constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.    For the duration of a traffic stop, we recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California , 551 U. S. 249 , 255 (2007). Accordingly, we hold that, in a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous. I    On April 19, 2002, Officer Maria Trevizo and Detectives Machado and Gittings, all members of Arizona’s gang task force, were on patrol in Tucson near a neighborhood associated with the Crips gang. At approximately 9 p.m., the officers pulled over an automobile after a license plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation. Under Arizona law, the violation for which the vehicle was stopped constituted a civil infraction warranting a citation. At the time of the stop, the vehicle had three occupants—the driver, a front-seat passenger, and a passenger in the back seat, Lemon Montrea Johnson, the respondent here. In making the stop the officers had no reason to suspect anyone in the vehicle of criminal activity. See App. 29–30.    The three officers left their patrol car and approached the stopped vehicle. Machado instructed all of the occupants to keep their hands visible. Id. , at 14. He asked whether there were any weapons in the vehicle; all responded no. Id. , at 15. Machado then directed the driver to get out of the car. Gittings dealt with the front-seat passenger, who stayed in the vehicle throughout the stop. See id. , at 31. While Machado was getting the driver’s license and information about the vehicle’s registra- tion and insurance, see id. , at 42–43, Trevizo attended to Johnson.    Trevizo noticed that, as the police approached, Johnson looked back and kept his eyes on the officers. Id. , at 12. When she drew near, she observed that Johnson was wearing clothing, including a blue bandana, that she considered consistent with Crips membership. Id. , at 17. She also noticed a scanner in Johnson’s jacket pocket, which “struck [her] as highly unusual and cause [for] concern,” because “most people” would not carry around a scanner that way “unless they’re going to be involved in some kind of criminal activity or [are] going to try to evade the police by listening to the scanner.” Id. , at 16. In response to Trevizo’s questions, Johnson provided his name and date of birth but said he had no identification with him. He volunteered that he was from Eloy, Arizona, a place Trevizo knew was home to a Crips gang. Johnson further told Trevizo that he had served time in prison for burglary and had been out for about a year. 217 Ariz. 58, 60, 170 P. 3d 667, 669 (App. 2007).    Trevizo wanted to question Johnson away from the front-seat passenger to gain “intelligence about the gang [Johnson] might be in.” App. 19. For that reason, she asked him to get out of the car. Ibid. Johnson complied. Based on Trevizo’s observations and Johnson’s answers to her questions while he was still seated in the car, Trevizo suspected that “he might have a weapon on him.” Id. , at 20. When he exited the vehicle, she therefore “patted him down for officer safety.” Ibid. During the patdown, Trevizo felt the butt of a gun near Johnson’s waist. 217 Ariz., at 60, 170 P. 3d, at 669. At that point Johnson began to struggle, and Trevizo placed him in handcuffs. Ibid. Johnson was charged in state court with , inter alia , possession of a weapon by a prohibited possessor. He moved to suppress the evidence as the fruit of an unlawful search. The trial court denied the motion, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. See App. 74–78. A jury convicted Johnson of the gun-possession charge. See 217 Ariz., at 60–61, 170 P. 3d, at 669–670.    A divided panel of the Arizona Court of Appeals reversed Johnson’s conviction. Id. , at 59, 170 P. 3d, at 668. Recognizing that “Johnson was [lawfully] seized when the officers stopped the car,” id. , at 62, 170 P. 3d, at 671, the court nevertheless concluded that prior to the frisk the detention had “evolved into a separate, consensual encounter stemming from an unrelated investigation by Trevizo of Johnson’s possible gang affiliation,” id. , at 64, 170 P. 3d, at 673. Absent “reason to believe Johnson was involved in criminal activity,” the Arizona appeals court held, Trevizo “had no right to pat him down for weapons, even if she had reason to suspect he was armed and dangerous.” Ibid. Judge Espinosa dissented. He found it “highly unrealistic to conclude that merely because [Trevizo] was courteous and Johnson cooperative, the ongoing and virtually simultaneous chain of events [had] somehow ‘evolved into a consensual encounter’ in the few short moments involved.” Id. , at 66, 170 P. 3d, at 675. Throughout the episode, he stressed, Johnson remained “seized as part of [a] valid traffic stop.” Ibid. Further, he maintained, Trevizo “had a reasonable basis to consider [Johnson] dangerous,” id. , at 67, 170 P. 3d, at 676, and could therefore ensure her own safety and that of others at the scene by patting down Johnson for weapons.    The Arizona Supreme Court denied review. No. CR–07–0290–PR, 2007 Ariz. LEXIS 154 (Nov. 29, 2007). We granted certiorari, 554 U. S. ___ (2008), and now reverse the judgment of the Arizona Court of Appeals. II A    We begin our consideration of the constitutionality of Officer Trevizo’s patdown of Johnson by looking back to the Court’s leading decision in Terry v. Ohio , 392 U. S. 1 (1968). Terry involved a stop for interrogation of men whose conduct had attracted the attention of a patrolling police officer. The officer’s observation led him reasonably to suspect that the men were casing a jewelry shop in preparation for a robbery. He conducted a patdown, which disclosed weapons concealed in the men’s overcoat pockets. This Court upheld the lower courts’ determinations that the interrogation was warranted and the patdown, permissible. See id. , at 8. Terry established the legitimacy of an investigatory stop “in situations where [the police] may lack probable cause for an arrest.” Id. , at 24. When the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot, the Court explained, the police officer must be positioned to act instantly on reasonable suspicion that the persons temporarily detained are armed and dangerous. Ibid . Recognizing that a limited search of outer clothing for weapons serves to protect both the officer and the public, the Court held the patdown reasonable under the Fourth Amendment. Id. , at 23–24, 27, 30–31.    “[M]ost traffic stops,” this Court has observed, “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry .” Berkemer v. McCarty , 468 U. S. 420 , 439, n. 29 (1984). Furthermore, the Court has recognized that traffic stops are “especially fraught with danger to police officers.” Michigan v. Long , 463 U. S. 1032 , 1047 (1983). “ ‘The risk of harm to both the police and the occupants [of a stopped vehicle] is minimized,’ ” we have stressed, “ ‘if the officers routinely exercise unquestioned command of the situation.’ ” Maryland v. Wilson , 519 U. S. 408 , 414 (1997) (quoting Michigan v. Summers , 452 U. S. 692 , 702–703 (1981)); see Brendlin , 551 U. S., at 258. Three decisions cumulatively portray Terry ’s application in a traffic-stop setting: Pennsylvania v. Mimms , 434 U. S. 106 (1977) (per curiam); Maryland v. Wilson , 519 U. S. 408 (1997); and Brendlin v. California , 551 U. S. 249 (2007).    In Mimms , the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” 434 U. S., at 111, n. 6. The government’s “legitimate and weighty” interest in officer safety, the Court said, outweighs the “ de minimis ” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle. Id. , at 110–111. Citing Terry as controlling, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver “might be armed and presently dangerous.” 434 U. S., at 112. Wilson held that the Mimms rule applied to passengers as well as to drivers. Specifically, the Court instructed that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” 519 U. S., at 415. “[T]he same weighty interest in officer safety,” the Court observed, “is present regardless of whether the occupant of the stopped car is a driver or passenger.” Id. , at 413.    It is true, the Court acknowledged, that in a lawful traffic stop, “[t]here is probable cause to believe that the driver has committed a minor vehicular offense,” but “there is no such reason to stop or detain the passengers.” Ibid. On the other hand, the Court emphasized, the risk of a violent encounter in a traffic-stop setting “stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.” Id. , at 414. “[T]he motivation of a passenger to employ violence to prevent apprehension of such a crime,” the Court stated, “is every bit as great as that of the driver.” Ibid. Moreover, the Court noted, “as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle,” id. , at 413–414, so “the additional intrusion on the passenger is minimal,” id. , at 415.    Completing the picture, Brendlin held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” 551 U. S., at 263. A passenger therefore has standing to challenge a stop’s constitutionality. Id. , at 256–259.    After Wilson , but before Brendlin , the Court had stated, in dictum, that officers who conduct “routine traffic stop[s]” may “perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” Knowles v. Iowa , 525 U. S. 113 , 117–118 (1998). That forecast, we now confirm, accurately captures the combined thrust of the Court’s decisions in Mimms , Wilson , and Brendlin . B    The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger. See 217 Ariz., at 64, 170 P. 3d, at 673. But, that court concluded, once Officer Trevizo undertook to question Johnson on a matter unrelated to the traffic stop, i.e. , Johnson’s gang affiliation, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. See id. , at 65, 170 P. 3d, at 674. In support of the Arizona court’s portrayal of Trevizo’s interrogation of Johnson as “consensual,” Johnson emphasizes Trevizo’s testimony at the suppression hearing. Responding to the prosecutor’s questions, Trevizo affirmed her belief that Johnson could have “refused to get out of the car” and “to turn around for the pat down.” App. 41.    It is not clear why the prosecutor, in opposing the suppression motion, sought to portray the episode as consensual. Cf. Florida v. Bostick , 501 U. S. 429 (1991) (holding that police officers’ search of a bus passenger’s luggage can be based on consent). In any event, Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. See App . 45. And during cross-examination, Trevizo did not disagree when defense counsel asked “in fact you weren’t seeking [Johnson’s] permission … ?” Id. , at 36. As the dissenting judge observed, “consensual” is an “unrealistic” characterization of the Trevizo-Johnson interaction. “[T]he encounter … took place within minutes of the stop”; the patdown followed “within mere moments” of Johnson’s exit from the vehicle; beyond genuine debate, the point at which Johnson could have felt free to leave had not yet occurred. See 217 Ariz., at 66, 170 P. 3d, at 675.[ Footnote 1 ]    A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. See Brendlin , 551 U. S., at 258. An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. See Muehler v. Mena , 544 U. S. 93 , 100–101 (2005).    In sum, as stated in Brendlin , a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. See 551 U. S., at 257. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Ibid. Officer Trevizo surely was not constitutionally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.[ Footnote 2 ] *  *  *    For the reasons stated, the judgment of the Arizona Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The Court of Appeals majority did not assert that Johnson reasonably could have felt free to leave. Instead, the court said “a reasonable person in Johnson’s position would have felt free to remain in the vehicle.” 217 Ariz. 58, 64, 170 P. 3d 667, 673 (2007). That position, however, appears at odds with our decision in Maryland v. Wilson , 519 U. S. 408 (1997). See supra , at 6–7. Footnote 2 The Arizona Court of Appeals assumed, “without deciding, that Trevizo had reasonable suspicion that Johnson was armed and dangerous.” 217 Ariz., at 64, 170 P. 3d, at 673. We do not foreclose the appeals court’s consideration of that issue on remand.

Police officers may stop and frisk a passenger in a vehicle that has been temporarily seized due to a traffic violation if they have reasonable suspicion that the passenger is armed and dangerous. This extends the Terry v. Ohio ruling, which allows for stop and frisk if there is reasonable suspicion of criminal activity, to traffic violations. The seizure of a vehicle includes all occupants, and officers need not suspect individual occupants of criminal activity to initiate a stop and frisk. In this case, an officer's patdown of a passenger during a traffic stop was lawful as the passenger could not have reasonably felt free to leave, and the officer had reasonable suspicion that the passenger was armed and dangerous.

Search & Seizure

Herring v. U.S.

https://supreme.justia.com/cases/federal/us/555/135/

OPINION OF THE COURT HERRING V. UNITED STATES 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-513 BENNIE DEAN HERRING, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eleventh circuit [January 14, 2009]    Chief Justice Roberts delivered the opinion of the Court.    The Fourth Amendment forbids “unreasonable searches and seizures,” and this usually requires the police to have probable cause or a warrant before making an arrest. What if an officer reasonably believes there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee? The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment, but dispute whether contraband found during a search incident to that arrest must be excluded in a later prosecution.    Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence. I    On July 7, 2004, Investigator Mark Anderson learned that Bennie Dean Herring had driven to the Coffee County Sheriff’s Department to retrieve something from his impounded truck. Herring was no stranger to law enforcement, and Anderson asked the county’s warrant clerk, Sandy Pope, to check for any outstanding warrants for Herring’s arrest. When she found none, Anderson asked Pope to check with Sharon Morgan, her counterpart in neighboring Dale County. After checking Dale County’s computer database, Morgan replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge. Pope relayed the information to Anderson and asked Morgan to fax over a copy of the warrant as confirmation. Anderson and a deputy followed Herring as he left the impound lot, pulled him over, and arrested him. A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle. App. 17–23.    There had, however, been a mistake about the warrant. The Dale County sheriff’s computer records are supposed to correspond to actual arrest warrants, which the office also maintains. But when Morgan went to the files to retrieve the actual warrant to fax to Pope, Morgan was unable to find it. She called a court clerk and learned that the warrant had been recalled five months earlier. Normally when a warrant is recalled the court clerk’s office or a judge’s chambers calls Morgan, who enters the information in the sheriff’s computer database and disposes of the physical copy. For whatever reason, the information about the recall of the warrant for Herring did not appear in the database. Morgan immediately called Pope to alert her to the mixup, and Pope contacted Anderson over a secure radio. This all unfolded in 10 to 15 minutes, but Herring had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff’s office. Id., at 26, 35–42, 54–55.    Herring was indicted in the District Court for the Middle District of Alabama for illegally possessing the gun and drugs, violations of 18 U. S. C. §922(g)(1) and 21 U. S. C. §844(a). He moved to suppress the evidence on the ground that his initial arrest had been illegal because the warrant had been rescinded. The Magistrate Judge recommended denying the motion because the arresting officers had acted in a good-faith belief that the warrant was still outstanding. Thus, even if there were a Fourth Amendment violation, there was “no reason to believe that application of the exclusionary rule here would deter the occurrence of any future mistakes.” App. 70. The District Court adopted the Magistrate Judge’s recommendation, 451 F. Supp. 2d 1290 (2005), and the Court of Appeals for the Eleventh Circuit affirmed, 492 F. 3d 1212 (2007).    The Eleventh Circuit found that the arresting officers in Coffee County “were entirely innocent of any wrongdoing or carelessness.” id., at 1218. The court assumed that whoever failed to update the Dale County sheriff’s records was also a law enforcement official, but noted that “the conduct in question [wa]s a negligent failure to act, not a deliberate or tactical choice to act.” Ibid. Because the error was merely negligent and attenuated from the arrest, the Eleventh Circuit concluded that the benefit of suppressing the evidence “would be marginal or nonexistent,” ibid. (internal quotation marks omitted), and the evidence was therefore admissible under the good-faith rule of United States v. Leon , 468 U. S. 897 (1984).    Other courts have required exclusion of evidence obtained through similar police errors, e.g ., Hoay v. State , 348 Ark. 80, 86–87, 71 S. W. 3d 573, 577 (2002), so we granted Herring’s petition for certiorari to resolve the conflict, 552 U. S. ___ (2008). We now affirm the Eleventh Circuit’s judgment. II    When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation. The very phrase “probable cause” confirms that the Fourth Amendment does not demand all possible precision. And whether the error can be traced to a mistake by a state actor or some other source may bear on the analysis. For purposes of deciding this case, however, we accept the parties’ assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied. A    The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” Arizona v. Evans , 514 U. S. 1 , 10 (1995). Nonetheless, our decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. See, e.g. , Weeks v. United States , 232 U. S. 383 , 398 (1914). We have stated that this judicially created rule is “designed to safeguard Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra , 414 U. S. 338 , 348 (1974).    In analyzing the applicability of the rule, Leon admonished that we must consider the actions of all the police officers involved. 468 U. S., at 923, n. 24 (“It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination”). The Coffee County officers did nothing improper. Indeed, the error was noticed so quickly because Coffee County requested a faxed confirmation of the warrant.    The Eleventh Circuit concluded, however, that somebody in Dale County should have updated the computer database to reflect the recall of the arrest warrant. The court also concluded that this error was negligent, but did not find it to be reckless or deliberate. 492 F. 3d, at 1218.[ Footnote 1 ] That fact is crucial to our holding that this error is not enough by itself to require “the extreme sanction of exclusion.” Leon , supra , at 916. B    1. The fact that a Fourth Amendment violation occurred— i.e. , that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Illinois v. Gates , 462 U. S. 213 , 223 (1983). Indeed, exclusion “has always been our last resort, not our first impulse,” Hudson v. Michigan , 547 U. S. 586 , 591 (2006), and our precedents establish important principles that constrain application of the exclusionary rule.    First, the exclusionary rule is not an individual right and applies only where it “ ‘result[s] in appreciable deterrence.’ ” Leon , supra, at 909 (quoting United States v. Janis , 428 U. S. 433 , 454 (1976)). We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation. Leon, supra, at 905–906; Evans , supra, at 13–14; Pennsylvania Bd. of Probation and Parole v. Scott , 524 U. S. 357 , 363 (1998). Instead we have focused on the efficacy of the rule in deterring Fourth Amendment violations in the future. See Calandra , supra , at 347–355; Stone v. Powell , 428 U. S. 465 , 486 (1976).[ Footnote 2 ]    In addition, the benefits of deterrence must outweigh the costs. Leon , supra , at 910. “We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” Scott , supra, at 368. “[T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs.” Illinois v. Krull , 480 U. S. 340 , 352–353 (1987) (internal quotation marks omitted). The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that “offends basic concepts of the criminal justice system.” Leon , supra, at 908. “[T]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.” Scott , supra, at 364–365 (internal quotation marks omitted); see also United States v. Havens , 446 U. S. 620 , 626–627 (1980); United States v. Payner , 447 U. S. 727 , 734 (1980).    These principles are reflected in the holding of Leon : When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted “in objectively reasonable reliance” on the subsequently invalidated search warrant. 468 U. S., at 922. We (perhaps confusingly) called this objectively reasonable reliance “good faith.” Ibid. , n. 23. In a companion case, Massachusetts v. Sheppard , 468 U. S. 981 (1984), we held that the exclusionary rule did not apply when a warrant was invalid because a judge forgot to make “clerical corrections” to it. Id., at 991.    Shortly thereafter we extended these holdings to warrantless administrative searches performed in good-faith reliance on a statute later declared unconstitutional. Krull , supra , at 349–350. Finally, in Evans , 514 U. S. 1 , we applied this good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding. We held that a mistake made by a judicial employee could not give rise to exclusion for three reasons: The exclusionary rule was crafted to curb police rather than judicial misconduct; court employees were unlikely to try to subvert the Fourth Amendment; and “most important, there [was] no basis for believing that application of the exclusionary rule in [those] circumstances” would have any significant effect in deterring the errors. Id., at 15. Evans left unresolved “whether the evidence should be suppressed if police personnel were responsible for the error,”[ Footnote 3 ] an issue not argued by the State in that case, id., at 16, n. 5, but one that we now confront.    2. The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct. As we said in Leon , “an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus” of applying the exclusionary rule. 468 U. S., at 911. Similarly, in Krull we elaborated that “evidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ ” 480 U. S., at 348–349 (quoting United States v. Peltier , 422 U. S. 531 , 542 (1975)).    Anticipating the good-faith exception to the exclusionary rule, Judge Friendly wrote that “[t]he beneficent aim of the exclusionary rule to deter police misconduct can be sufficiently accomplished by a practice . . . outlawing evidence obtained by flagrant or deliberate violation of rights.” The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 953 (1965) (footnotes omitted); see also Brown v. Illinois , 422 U. S. 590 , 610–611 (1975) (Powell, J., concurring in part) (“[T]he deterrent value of the exclusionary rule is most likely to be effective” when “official conduct was flagrantly abusive of Fourth Amendment rights”).    Indeed, the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional. In Weeks, 232 U. S. 383 , a foundational exclusionary rule case, the officers had broken into the defendant’s home (using a key shown to them by a neighbor), confiscated incriminating papers, then returned again with a U. S. Marshal to confiscate even more. Id ., at 386. Not only did they have no search warrant, which the Court held was required, but they could not have gotten one had they tried. They were so lacking in sworn and particularized information that “not even an order of court would have justified such procedure.” Id ., at 393–394. Silverthorne Lumber Co. v. United States , 251 U. S. 385 (1920), on which petitioner repeatedly relies, was similar; federal officials “without a shadow of authority” went to the defendants’ office and “made a clean sweep” of every paper they could find. Id. , at 390. Even the Government seemed to acknowledge that the “seizure was an outrage.” Id., at 391.    Equally flagrant conduct was at issue in Mapp v. Ohio , 367 U. S. 643 (1961), which overruled Wolf v. Colorado , 338 U. S. 25 (1949), and extended the exclusionary rule to the States. Officers forced open a door to Ms. Mapp’s house, kept her lawyer from entering, brandished what the court concluded was a false warrant, then forced her into handcuffs and canvassed the house for obscenity. 367 U. S., at 644–645. See Friendly, supra , at 953, and n. 127 (“[T]he situation in Mapp ” featured a “flagrant or deliberate violation of rights”). An error that arises from nonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adopt the rule in the first place. And in fact since Leon , we have never applied the rule to exclude evidence obtained in violation of the Fourth Amendment, where the police conduct was no more intentional or culpable than this.    3. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.[ Footnote 4 ]    Our decision in Franks v. Delaware , 438 U. S. 154 (1978), provides an analogy. Cf. Leon , supra , at 914. In Franks , we held that police negligence in obtaining a warrant did not even rise to the level of a Fourth Amendment violation, let alone meet the more stringent test for triggering the exclusionary rule. We held that the Constitution allowed defendants, in some circumstances, “to challenge the truthfulness of factual statements made in an affidavit supporting the warrant,” even after the warrant had issued. 438 U. S., at 155–156. If those false statements were necessary to the Magistrate Judge’s probable-cause determination, the warrant would be “voided.” Ibid. But we did not find all false statements relevant: “There must be allegations of deliberate falsehood or of reckless disregard for the truth,” and “[a]llegations of negligence or innocent mistake are insufficient.” Id ., at 171.    Both this case and Franks concern false information provided by police. Under Franks , negligent police miscommunications in the course of acquiring a warrant do not provide a basis to rescind a warrant and render a search or arrest invalid. Here, the miscommunications occurred in a different context—after the warrant had been issued and recalled—but that fact should not require excluding the evidence obtained.    The pertinent analysis of deterrence and culpability is objective, not an “inquiry into the subjective awareness of arresting officers,” Reply Brief for Petitioner 4–5. See also post , at 10, n. 7 (Ginsburg, J., dissenting). We have already held that “our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal” in light of “all of the circumstances.” Leon , 468 U. S., at 922, n. 23. These circumstances frequently include a particular officer’s knowledge and experience, but that does not make the test any more subjective than the one for probable cause, which looks to an officer’s knowledge and experience, Ornelas v. United States , 517 U. S. 690 , 699–700 (1996), but not his subjective intent, Whren v. United States , 517 U. S. 806 , 812–813 (1996).    4. We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion. In Leon we held that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” 468 U. S., at 922. The same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant.    If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation. We said as much in Leon , explaining that an officer could not “obtain a warrant on the basis of a ‘bare bones’ affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search.” Id. , at 923, n. 24 (citing Whiteley v. Warden, Wyo. State Penitentiary , 401 U. S. 560 , 568 (1971)). Petitioner’s fears that our decision will cause police departments to deliberately keep their officers ignorant, Brief for Petitioner 37–39, are thus unfounded.    The dissent also adverts to the possible unreliability of a number of databases not relevant to this case. Post , at 8–9. In a case where systemic errors were demonstrated, it might be reckless for officers to rely on an unreliable warrant system. See Evans , 514 U. S., at 17 (O’Connor, J., concurring) (“Surely it would not be reasonable for the police to rely . . . on a recordkeeping system . . . that routinely leads to false arrests” (second emphasis added)); Hudson , 547 U. S., at 604 (Kennedy, J., concurring) (“If a widespread pattern of violations were shown … there would be reason for grave concern” (emphasis added)). But there is no evidence that errors in Dale County’s system are routine or widespread. Officer Anderson testified that he had never had reason to question information about a Dale County warrant, App. 27, and both Sandy Pope and Sharon Morgan testified that they could remember no similar miscommunication ever happening on their watch, id ., at 33, 61–62. That is even less error than in the database at issue in Evans , where we also found reliance on the database to be objectively reasonable. 514 U. S., at 15 (similar error “every three or four years”). Because no such showings were made here, see 451 F. Supp. 2d, at 1292,[ Footnote 5 ] the Eleventh Circuit was correct to affirm the denial of the motion to suppress. *  *  *    Petitioner’s claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule, as they have been explained in our cases. In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g ., Leon , 468 U. S., at 909–910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its way.” Id., at 907–908, n. 6 (internal quotation marks omitted). In such a case, the criminal should not “go free because the constable has blundered.” People v. Defore , 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion of the Court by Cardozo, J.).    The judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Footnote 1 At an earlier point in its opinion, the Eleventh Circuit described the error as “ ‘at the very least negligent,’ ” 492 F. 3d 1212, 1217 (2007) (quoting Michigan v. Tucker , 417 U. S. 433 , 447 (1974)). But in the next paragraph, it clarified that the error was “a negligent failure to act, not a deliberate or tactical choice to act,” 492 F. 3d, at 1218. The question presented treats the error as a “negligen[t]” one, see Pet. for Cert. i; Brief in Opposition (I), and both parties briefed the case on that basis. Footnote 2 Justice Ginsburg’s dissent champions what she describes as “ ‘a more majestic conception’ of . . . the exclusionary rule,” post , at 5 (quoting Arizona v. Evans , 514 U. S. 1 , 18 (1995) (Stevens, J., dissenting)), which would exclude evidence even where deterrence does not justify doing so. Majestic or not, our cases reject this conception, see, e.g ., United States v. Leon , 468 U. S. 897 , 921, n. 22 (1984), and perhaps for this reason, her dissent relies almost exclusively on previous dissents to support its analysis. Footnote 3 We thus reject Justice Breyer’s suggestion that Evans was entirely “premised on a distinction between judicial errors and police errors,” post , at 1 (dissenting opinion). Were that the only rationale for our decision, there would have been no reason for us expressly and carefully to leave police error unresolved. In addition, to the extent Evans is viewed as presaging a particular result here, it is noteworthy that the dissent’s view in that case was that the distinction Justice Breyer regards as determinative was instead “artificial.” 514 U. S., at 29 (Ginsburg, J., dissenting). Footnote 4 We do not quarrel with Justice Ginsburg’s claim that “liability for negligence . . . creates an incentive to act with greater care,” post, at 7, and we do not suggest that the exclusion of this evidence could have no deterrent effect. But our cases require any deterrence to “be weighed against the ‘substantial social costs exacted by the exclusionary rule,’ ” Illinois v. Krull , 480 U. S. 340 , 352–353 (1987) (quoting Leon , 468 U. S., at 907), and here exclusion is not worth the cost. Footnote 5 Justice Ginsburg notes that at an earlier suppression hearing Morgan testified—apparently in confusion—that there had been miscommunications “[s]everal times.” Post , at 3, n. 2 (quoting App. to Pet. for Cert. 17a). When she later realized that she had misspoken, Morgan emphatically corrected the record. App. 61–62. Noting this, the District Court found that “Morgan’s ‘several times’ statement is confusing and essentially unhelpful,” and concluded that there was “no credible evidence of routine problems with disposing of recalled warrants.” 451 F. Supp. 2d, at 1292. This factual determination, supported by the record and credited by the Court of Appeals, see 492 F. 3d, at 1219, is of course entitled to deference. GINSBURG, J., DISSENTING HERRING V. UNITED STATES 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-513 BENNIE DEAN HERRING, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eleventh circuit [January 14, 2009]    Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.    Petitioner Bennie Dean Herring was arrested, and subjected to a search incident to his arrest, although no warrant was outstanding against him, and the police lacked probable cause to believe he was engaged in criminal activity. The arrest and ensuing search therefore violated Herring’s Fourth Amendment right “to be secure … against unreasonable searches and seizures.” The Court of Appeals so determined, and the Government does not contend otherwise. The exclusionary rule provides redress for Fourth Amendment violations by placing the government in the position it would have been in had there been no unconstitutional arrest and search. The rule thus strongly encourages police compliance with the Fourth Amendment in the future. The Court, however, holds the rule inapplicable because careless recordkeeping by the police—not flagrant or deliberate misconduct—accounts for Herring’s arrest.    I would not so constrict the domain of the exclusionary rule and would hold the rule dispositive of this case: “[I]f courts are to have any power to discourage [police] error of [the kind here at issue], it must be through the application of the exclusionary rule.” Arizona v. Evans , 514 U. S. 1 , 22–23 (1995) (Stevens, J., dissenting). The unlawful search in this case was contested in court because the police found methamphetamine in Herring’s pocket and a pistol in his truck. But the “most serious impact” of the Court’s holding will be on innocent persons “wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base.” Id. , at 22. I A warrant for Herring’s arrest was recalled in February 2004, apparently because it had been issued in error. See Brief for Petitioner 3, n. 1 (citing App. 63). The warrant database for the Dale County Sheriff’s Department, however, does not automatically update to reflect such changes. App. 39–40, 43, 45. A member of the Dale County Sheriff’s Department—whom the parties have not identified—returned the hard copy of the warrant to the County Circuit Clerk’s office, but did not correct the Department’s database to show that the warrant had been recalled. Id. , at 60. The erroneous entry for the warrant remained in the database, undetected, for five months. On a July afternoon in 2004, Herring came to the Coffee County Sheriff’s Department to retrieve his belongings from a vehicle impounded in the Department’s lot. Id. , at 17. Investigator Mark Anderson, who was at the Department that day, knew Herring from prior interactions: Herring had told the district attorney, among others, of his suspicion that Anderson had been involved in the killing of a local teenager, and Anderson had pursued Herring to get him to drop the accusations. Id. , at 63–64. Informed that Herring was in the impoundment lot, Anderson asked the Coffee County warrant clerk whether there was an outstanding warrant for Herring’s arrest. Id. , at 18. The clerk, Sandy Pope, found no warrant. Id. , at 19. Anderson then asked Pope to call the neighboring Dale County Sheriff’s Department to inquire whether a warrant to arrest Herring was outstanding there. Upon receiving Pope’s phone call, Sharon Morgan, the warrant clerk for the Dale County Department, checked her computer database. As just recounted, that Department’s database preserved an error. Morgan’s check therefore showed—incorrectly—an active warrant for Herring’s arrest. Id. , at 41. Morgan gave the misinformation to Pope, ibid ., who relayed it to Investigator Anderson, id. , at 35. Armed with the report that a warrant existed, Anderson promptly arrested Herring and performed an incident search minutes before detection of the error. The Court of Appeals concluded, and the Government does not contest, that the “failure to bring the [Dale County Sheriff’s Department] records up to date [was] ‘at the very least negligent.’ ” 492 F. 3d 1212, 1217 (CA11 2007) (quoting Michigan v. Tucker , 417 U. S. 433 , 447 (1974)). And it is uncontested here that Herring’s arrest violated his Fourth Amendment rights. The sole question presented, therefore, is whether evidence the police obtained through the unlawful search should have been suppressed.[ Footnote 1 ] The Court holds that suppression was unwarranted because the exclusionary rule’s “core concerns” are not raised by an isolated, negligent recordkeeping error attenuated from the arrest. Ante , at 9, 12.[ Footnote 2 ] In my view, the Court’s opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in law enforcement. II A The Court states that the exclusionary rule is not a defendant’s right, ante , at 5; rather, it is simply a remedy applicable only when suppression would result in appreciable deterrence that outweighs the cost to the justice system, ante , at 12. See also ante , at 9 (“[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”). The Court’s discussion invokes a view of the exclusionary rule famously held by renowned jurists Henry J. Friendly and Benjamin Nathan Cardozo. Over 80 years ago, Cardozo, then seated on the New York Court of Appeals, commented critically on the federal exclusionary rule, which had not yet been applied to the States. He suggested that in at least some cases the rule exacted too high a price from the criminal justice system. See People v. Defore , 242 N. Y. 13, 24–25, 150 N. E. 585, 588–589 (1926). In words often quoted, Cardozo questioned whether the criminal should “go free because the constable has blundered.” Id. , at 21, 150 N. E., at 587. Judge Friendly later elaborated on Cardozo’s query. “The sole reason for exclusion,” Friendly wrote, “is that experience has demonstrated this to be the only effective method for deterring the police from violating the Constitution.” The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 951 (1965). He thought it excessive, in light of the rule’s aim to deter police conduct, to require exclusion when the constable had merely “blundered”—when a police officer committed a technical error in an on-the-spot judgment, id., at 952, or made a “slight and unintentional miscalculation,” id. , at 953. As the Court recounts, Judge Friendly suggested that deterrence of police improprieties could be “sufficiently accomplished” by confining the rule to “evidence obtained by flagrant or deliberate violation of rights.” Ibid.; ante , at 8. B Others have described “a more majestic conception” of the Fourth Amendment and its adjunct, the exclusionary rule. Evans , 514 U. S., at 18 (Stevens, J., dissenting). Protective of the fundamental “right of the people to be secure in their persons, houses, papers, and effects,” the Amendment “is a constraint on the power of the sovereign, not merely on some of its agents.” Ibid. (internal quotation marks omitted); see Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365 (1983). I share that vision of the Amendment. The exclusionary rule is “a remedy necessary to ensure that” the Fourth Amendment’s prohibitions “are observed in fact.” Id. , at 1389; see Kamisar, Does (Did) (Should) The Exclusionary Rule Rest On A “Principled Basis” Rather Than An “Empirical Proposition”? 16 Creighton L. Rev. 565, 600 (1983). The rule’s service as an essential auxiliary to the Amendment earlier inclined the Court to hold the two inseparable. See Whiteley v. Warden, Wyo. State Penitentiary , 401 U. S. 560 , 568–569 (1971). Cf. Olmstead v. United States , 277 U. S. 438 , 469–471 (1928) (Holmes, J., dissenting); id. , at 477–479, 483–485 (Brandeis, J., dissenting). Beyond doubt, a main objective of the rule “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” Elkins v. United States , 364 U. S. 206 , 217 (1960). But the rule also serves other important purposes: It “enabl[es] the judiciary to avoid the taint of partnership in official lawlessness,” and it “assur[es] the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.” United States v. Calandra , 414 U. S. 338 , 357 (1974) (Brennan, J., dissenting). See also Terry v. Ohio , 392 U. S. 1 , 13 (1968) (“A rule admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.”); Kamisar, supra , at 604 (a principal reason for the exclusionary rule is that “the Court’s aid should be denied ‘in order to maintain respect for law [and] to preserve the judicial process from contamination’ ” (quoting Olmstead , 277 U. S., at 484 (Brandeis, J., dissenting)). The exclusionary rule, it bears emphasis, is often the only remedy effective to redress a Fourth Amendment violation. See Mapp v. Ohio , 367 U. S. 643 , 652 (1961) (noting “the obvious futility of relegating the Fourth Amendment to the protection of other remedies”); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 360 (1974) (describing the exclusionary rule as “the primary instrument for enforcing the [F]ourth [A]mendment”). Civil liability will not lie for “the vast majority of [F]ourth [A]mendment violations—the frequent infringements motivated by commendable zeal, not condemnable malice.” Stewart, 83 Colum. L. Rev., at 1389. Criminal prosecutions or administrative sanctions against the offending officers and injunctive relief against widespread violations are an even farther cry. See id. , at 1386–1388. III The Court maintains that Herring’s case is one in which the exclusionary rule could have scant deterrent effect and therefore would not “pay its way.” Ante , at 13 (internal quotation marks omitted). I disagree. A The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. See ante , at 9, 11. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e. , lack of due care, creates an incentive to act with greater care. The Government so acknowledges. See Brief for United States 21; cf. Reply Brief 12. That the mistake here involved the failure to make a computer entry hardly means that application of the exclusionary rule would have minimal value. “Just as the risk of respondeat superior liability encourages employers to supervise … their employees’ conduct [more carefully], so the risk of exclusion of evidence encourages policymakers and systems managers to monitor the performance of the systems they install and the personnel employed to operate those systems.” Evans , 514 U. S., at 29, n. 5 (Ginsburg, J., dissenting). Consider the potential impact of a decision applying the exclusionary rule in this case. As earlier observed, see supra , at 2, the record indicates that there is no electronic connection between the warrant database of the Dale County Sheriff’s Department and that of the County Circuit Clerk’s office, which is located in the basement of the same building. App. 39–40, 43, 45. When a warrant is recalled, one of the “many different people that have access to th[e] warrants,” id. , at 60, must find the hard copy of the warrant in the “two or three different places” where the department houses warrants, id. , at 41, return it to the Clerk’s office, and manually update the Department’s database, see id. , at 60. The record reflects no routine practice of checking the database for accuracy, and the failure to remove the entry for Herring’s warrant was not discovered until Investigator Anderson sought to pursue Herring five months later. Is it not altogether obvious that the Department could take further precautions to ensure the integrity of its database? The Sheriff’s Department “is in a position to remedy the situation and might well do so if the exclusionary rule is there to remove the incentive to do otherwise.” 1 W. LaFave, Search and Seizure §1.8(e), p. 313 (4th ed. 2004). See also Evans , 514 U. S., at 21 (Stevens, J., dissenting). B Is the potential deterrence here worth the costs it imposes? See ante , at 9. In light of the paramount importance of accurate recordkeeping in law enforcement, I would answer yes, and next explain why, as I see it, Herring’s motion presents a particularly strong case for suppression. Electronic databases form the nervous system of contemporary criminal justice operations. In recent years, their breadth and influence have dramatically expanded. Police today can access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watchlists, the Federal Government’s employee eligibility system, and various commercial databases. Brief for Electronic Privacy Information Center (EPIC) et al. as Amicus Curiae 6. Moreover, States are actively expanding information sharing between jurisdictions. Id. , at 8–13. As a result, law enforcement has an increasing supply of information within its easy electronic reach. See Brief for Petitioner 36–37. The risk of error stemming from these databases is not slim. Herring’s amici warn that law enforcement databases are insufficiently monitored and often out of date. Brief for Amicus EPIC 13–28. Government reports describe, for example, flaws in NCIC databases,[ Footnote 3 ] terrorist watchlist databases,[ Footnote 4 ] and databases associated with the Federal Government’s employment eligibility verification system.[ Footnote 5 ] Inaccuracies in expansive, interconnected collections of electronic information raise grave concerns for individual liberty. “The offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base” is evocative of the use of general warrants that so outraged the authors of our Bill of Rights. Evans , 514 U. S., at 23 (Stevens, J., dissenting). C The Court assures that “exclusion would certainly be justified” if “the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests.” Ante , at 11. This concession provides little comfort. First, by restricting suppression to bookkeeping errors that are deliberate or reckless, the majority leaves Herring, and others like him, with no remedy for violations of their constitutional rights. See supra , at 6. There can be no serious assertion that relief is available under 42 U. S. C. §1983. The arresting officer would be sheltered by qualified immunity, see Harlow v. Fitzgerald , 457 U. S. 800 (1982), and the police department itself is not liable for the negligent acts of its employees, see Monell v. New York City Dept. of Social Servs. , 436 U. S. 658 (1978). Moreover, identifying the department employee who committed the error may be impossible. Second, I doubt that police forces already possess sufficient incentives to maintain up-to-date records. The Government argues that police have no desire to send officers out on arrests unnecessarily, because arrests consume resources and place officers in danger. The facts of this case do not fit that description of police motivation. Here the officer wanted to arrest Herring and consulted the Department’s records to legitimate his predisposition. See App. 17–19.[ Footnote 6 ] Third, even when deliberate or reckless conduct is afoot, the Court’s assurance will often be an empty promise: How is an impecunious defendant to make the required showing? If the answer is that a defendant is entitled to discovery (and if necessary, an audit of police databases), see Tr. of Oral Arg. 57–58, then the Court has imposed a considerable administrative burden on courts and law enforcement.[ Footnote 7 ] IV Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. Such errors present no occasion to further erode the exclusionary rule. The rule “is needed to make the Fourth Amendment something real; a guarantee that does not carry with it the exclusion of evidence obtained by its violation is a chimera.” Calandra , 414 U. S., at 361 (Brennan, J., dissenting). In keeping with the rule’s “core concerns,” ante , at 9, suppression should have attended the unconstitutional search in this case. *  *  * For the reasons stated, I would reverse the judgment of the Eleventh Circuit. Footnote 1 That the recordkeeping error occurred in Dale County rather than Coffee County is inconsequential in the suppression analysis. As the Court notes, “we must consider the actions of all the police officers involved.” Ante , at 4. See also United States v. Leon , 468 U. S. 897 , 923, n. 24 (1984). Footnote 2 It is not altogether clear how “isolated” the error was in this case. When the Dale County Sheriff’s Department warrant clerk was first asked: “[H]ow many times have you had or has Dale County had problems, any problems with communicating about warrants,” she responded: “Several times.” App. to Pet. for Cert. 17a (internal quotation marks omitted). Footnote 3 See Dept. of Justice, Bureau of Justice Statistics, P. Brien, Improving Access to and Integrity of Criminal History Records, NCJ 200581 (July 2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/iaichr.pdf (All Internet materials as visited Jan. 12, 2009, and included in Clerk of Court’s case file.). Footnote 4 See Dept. of Justice, Office of Inspector General, Audit of the U. S. Department of Justice Terrorist Watchlist Nomination Processes, Audit Rep. 08–16 (Mar. 2008), http://www.usdoj.gov/oig/reports/plus/a0816/ final.pdf. Footnote 5 See Social Security Admin., Office of Inspector General, Congressional Response Report: Accuracy of the Social Security Administration’s Numident File, A–08–06–26100 (Dec. 2006), http://www.ssa.gov/ oig/ADOBEPDF/A–08–06–26100.pdf. Footnote 6 It has been asserted that police departments have become sufficiently “professional” that they do not need external deterrence to avoid Fourth Amendment violations. See Tr. of Oral Arg. 24–25; cf. Hudson v. Michigan , 547 U. S. 586 , 598–599 (2006). But professionalism is a sign of the exclusionary rule’s efficacy—not of its superfluity. Footnote 7 It is not clear how the Court squares its focus on deliberate conduct with its recognition that application of the exclusionary rule does not require inquiry into the mental state of the police. See ante , at 10; Whren v. United States , 517 U. S. 806 , 812–813 (1996). 555 U. S. ____ (2009) HERRING V. UNITED STATES 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-513 BENNIE DEAN HERRING, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eleventh circuit [January 14, 2009]    Justice Breyer, with whom Justice Souter joins, dissenting.    I agree with Justice Ginsburg and join her dissent. I write separately to note one additional supporting factor that I believe important. In Arizona v. Evans , 514 U. S. 1 (1995), we held that recordkeeping errors made by a court clerk do not trigger the exclusionary rule, so long as the police reasonably relied upon the court clerk’s recordkeeping. Id. , at 14; id. , at 16–17 (O’Connor, J., concurring). The rationale for our decision was premised on a distinction between judicial errors and police errors, and we gave several reasons for recognizing that distinction. First , we noted that “the exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees.” Id. , at 14 (emphasis added). Second , we found “no evidence that court employees are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.” Id. , at 14–15. Third , we recognized that there was “no basis for believing that application of the exclusionary rule… [would] have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, they have no stake in the outcome of particular criminal prosecutions.” Id. , at 15 (citation omitted). Taken together, these reasons explain why police recordkeeping errors should be treated differently than judicial ones.    Other cases applying the “good faith” exception to the exclusionary rule have similarly recognized the distinction between police errors and errors made by others, such as judicial officers or legislatures. See United States v. Leon , 468 U. S. 897 (1984) (police reasonably relied on magistrate’s issuance of warrant); Massachusetts v. Sheppard , 468 U. S. 981 (1984) (same); Illinois v. Krull , 480 U. S. 340 (1987) (police reasonably relied on statute’s constitutionality).    Distinguishing between police recordkeeping errors and judicial ones not only is consistent with our precedent, but also is far easier for courts to administer than The Chief Justice’s case-by-case, multifactored inquiry into the degree of police culpability. I therefore would apply the exclusionary rule when police personnel are responsible for a recordkeeping error that results in a Fourth Amendment violation.    The need for a clear line, and the recognition of such a line in our precedent, are further reasons in support of the outcome that Justice Ginsburg’s dissent would reach.

In *Herring v. United States*, the Supreme Court held that evidence obtained during a search incident to an unlawful arrest due to police negligence in record-keeping may be admissible in court. The Court considered the exclusionary rule, which typically bars the use of evidence obtained through Fourth Amendment violations, and the degree of police culpability in the negligence. The majority opinion, delivered by Chief Justice Roberts, emphasized the isolated nature of the negligence and its attenuation from the arrest, concluding that a jury should be able to consider all the evidence. However, Justice Breyer's dissenting opinion highlighted the distinction between police and judicial errors, arguing for the exclusion of evidence when police personnel are responsible for record-keeping mistakes.

Search & Seizure

Georgia v. Randolph

https://supreme.justia.com/cases/federal/us/547/103/

OPINION OF THE COURT GEORGIA V. RANDOLPH 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1067 GEORGIA, PETITIONER v. SCOTT FITZ RANDOLPH on writ of certiorari to the supreme court of georgia [March 22, 2006]    Justice Souter delivered the opinion of the Court.    The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained. Illinois v. Rodriguez, 497 U. S. 177 (1990); United States v. Matlock, 415 U. S. 164 (1974). The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him. I    Respondent Scott Randolph and his wife, Janet, separated in late May 2001, when she left the marital residence in Americus, Georgia, and went to stay with her parents in Canada, taking their son and some belongings. In July, she returned to the Americus house with the child, though the record does not reveal whether her object was reconciliation or retrieval of remaining possessions.    On the morning of July 6, she complained to the police that after a domestic dispute her husband took their son away, and when officers reached the house she told them that her husband was a cocaine user whose habit had caused financial troubles. She mentioned the marital problems and said that she and their son had only recently returned after a stay of several weeks with her parents. Shortly after the police arrived, Scott Randolph returned and explained that he had removed the child to a neighbor’s house out of concern that his wife might take the boy out of the country again; he denied cocaine use, and countered that it was in fact his wife who abused drugs and alcohol.    One of the officers, Sergeant Murray, went with Janet Randolph to reclaim the child, and when they returned she not only renewed her complaints about her husband’s drug use, but also volunteered that there were “ ‘items of drug evidence’ ” in the house. Brief for Petitioner 3. Sergeant Murray asked Scott Randolph for permission to search the house, which he unequivocally refused.    The sergeant turned to Janet Randolph for consent to search, which she readily gave. She led the officer upstairs to a bedroom that she identified as Scott’s, where the sergeant noticed a section of a drinking straw with a powdery residue he suspected was cocaine. He then left the house to get an evidence bag from his car and to call the district attorney’s office, which instructed him to stop the search and apply for a warrant. When Sergeant Murray returned to the house, Janet Randolph withdrew her consent. The police took the straw to the police station, along with the Randolphs. After getting a search warrant, they returned to the house and seized further evidence of drug use, on the basis of which Scott Randolph was indicted for possession of cocaine.    He moved to suppress the evidence, as products of a warrantless search of his house unauthorized by his wife’s consent over his express refusal. The trial court denied the motion, ruling that Janet Randolph had common authority to consent to the search.    The Court of Appeals of Georgia reversed, 264 Ga. App. 396, 590 S. E. 2d 834 (2003), and was itself sustained by the State Supreme Court, principally on the ground that “the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search.” 278 Ga. 614, 604 S. E. 2d 835, 836 (2004). The Supreme Court of Georgia acknowledged this Court’s holding in Matlock, 415 U. S. 164 , that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared,” id. , at 170, and found Matlock distinguishable just because Scott Randolph was not “absent” from the colloquy on which the police relied for consent to make the search. The State Supreme Court stressed that the officers in Matlock had not been “faced with the physical presence of joint occupants, with one consenting to the search and the other objecting.” 278 Ga., at 615, 604 S. E. 2d, at 837. It held that an individual who chooses to live with another assumes a risk no greater than “ ‘an inability to control access to the premises during [his] absence,’ ” ibid. (quoting 3 W. LaFave, Search and Seizure §8.3(d), p. 731 (3d ed. 1996) (hereinafter LaFave)), and does not contemplate that his objection to a request to search commonly shared premises, if made, will be overlooked.    We granted certiorari to resolve a split of authority on whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search.[ Footnote 1 ] 544 U. S. 973 (2005). We now affirm. II    To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se , Payton v. New York, 445 U. S. 573 , 586 (1980); Coolidge v. New Hampshire, 403 U. S. 443 , 454–455 (1971), one “jealously and carefully drawn” exception, Jones v. United States, 357 U. S. 493 , 499 (1958), recognizes the validity of searches with the voluntary consent of an individual possessing authority, Rodriguez, 497 U. S., at 181. That person might be the householder against whom evidence is sought, Schneckloth v. Bustamonte, 412 U. S. 218 , 222 (1973), or a fellow occupant who shares common authority over property, when the suspect is absent, Matlock, supra, at 170, and the exception for consent extends even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant, Rodriguez , supra, at 186. None of our co-occupant consent-to-search cases, however, has presented the further fact of a second occupant physically present and refusing permission to search, and later moving to suppress evidence so obtained.[ Footnote 2 ] The significance of such a refusal turns on the underpinnings of the co-occupant consent rule, as recognized since Matlock . A    The defendant in that case was arrested in the yard of a house where he lived with a Mrs. Graff and several of her relatives, and was detained in a squad car parked nearby. When the police went to the door, Mrs. Graff admitted them and consented to a search of the house. 415 U. S., at 166. In resolving the defendant’s objection to use of the evidence taken in the warrantless search, we said that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Id. , at 170. Consistent with our prior understanding that Fourth Amendment rights are not limited by the law of property, cf. Katz v. United States, 389 U. S. 347 , 352–353 (1967), we explained that the third party’s “common authority” is not synonymous with a technical property interest: “The authority which justified the third-party consent does not rest upon the law of property, with its attendant historical and legal refinement, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” 415 U. S., at 171, n. 7 (citations omitted). See also Frazier v. Cupp, 394 U. S. 731 , 740 (1969) (“[I]n allowing [his cousin to share use of a duffel bag] and in leaving it in his house, [the suspect] must be taken to have assumed the risk that [the cousin] would allow someone else to look inside”). The common authority that counts under the Fourth Amendment may thus be broader than the rights accorded by property law, see Rodriguez , supra, at 181–182 (consent is sufficient when given by a person who reasonably appears to have common authority but who, in fact, has no property interest in the premises searched), although its limits, too, reflect specialized tenancy arrangements apparent to the police, see Chapman v. United States, 365 U. S. 610 (1961) (landlord could not consent to search of tenant’s home).    The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules. Cf. Rakas v. Illinois, 439 U. S. 128 , 144, n. 12 (1978) (an expectation of privacy is reasonable if it has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society”). Matlock accordingly not only holds that a solitary co-inhabitant may sometimes consent to a search of shared premises, but stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other’s interests. B Matlock ’s example of common understanding is readily apparent. When someone comes to the door of a domestic dwelling with a baby at her hip, as Mrs. Graff did, she shows that she belongs there, and that fact standing alone is enough to tell a law enforcement officer or any other visitor that if she occupies the place along with others, she probably lives there subject to the assumption tenants usually make about their common authority when they share quarters. They understand that any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another. As Matlock put it, shared tenancy is understood to include an “assumption of risk,” on which police officers are entitled to rely, and although some group living together might make an exceptional arrangement that no one could admit a guest without the agreement of all, the chance of such an eccentric scheme is too remote to expect visitors to investigate a particular household’s rules before accepting an invitation to come in. So, Matlock relied on what was usual and placed no burden on the police to eliminate the possibility of atypical arrangements, in the absence of reason to doubt that the regular scheme was in place.    It is also easy to imagine different facts on which, if known, no common authority could sensibly be suspected. A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant. See Chapman v. United States, supra (landlord); Stoner v. California, 376 U. S. 483 (1964) (hotel manager). A tenant in the ordinary course does not take rented premises subject to any formal or informal agreement that the landlord may let visitors into the dwelling, Chapman , supra, at 617, and a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room, see Stoner , supra, at 489; see also United States v. Jeffers , 342 U. S. 48 , 51 (1951) (hotel staff had access to room for purposes of cleaning and maintenance, but no authority to admit police). In these circumstances, neither state-law property rights, nor common contractual arrangements, nor any other source points to a common understanding of authority to admit third parties generally without the consent of a person occupying the premises. And when it comes to searching through bureau drawers, there will be instances in which even a person clearly belonging on premises as an occupant may lack any perceived authority to consent; “a child of eight might well be considered to have the power to consent to the police crossing the threshold into that part of the house where any caller, such as a pollster or salesman, might well be admitted,” 4 LaFave §8.4(c), at 207 (4th ed. 2004), but no one would reasonably expect such a child to be in a position to authorize anyone to rummage through his parents’ bedroom. C    Although we have not dealt directly with the reasonableness of police entry in reliance on consent by one occupant subject to immediate challenge by another, we took a step toward the issue in an earlier case dealing with the Fourth Amendment rights of a social guest arrested at premises the police entered without a warrant or the benefit of any exception to the warrant requirement. Minnesota v. Olson, 495 U. S. 91 (1990), held that overnight houseguests have a legitimate expectation of privacy in their temporary quarters because “it is unlikely that [the host] will admit someone who wants to see or meet with the guest over the objection of the guest,” id. , at 99. If that customary expectation of courtesy or deference is a foundation of Fourth Amendment rights of a houseguest, it presumably should follow that an inhabitant of shared premises may claim at least as much, and it turns out that the co-inhabitant naturally has an even stronger claim.    To begin with, it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, “stay out.” Without some very good reason, no sensible person would go inside under those conditions. Fear for the safety of the occupant issuing the invitation, or of someone else inside, would be thought to justify entry, but the justification then would be the personal risk, the threats to life or limb, not the disputed invitation.[ Footnote 3 ]    The visitor’s reticence without some such good reason would show not timidity but a realization that when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation, not by appeals to authority. Unless the people living together fall within some recognized hierarchy, like a household of parent and child or barracks housing military personnel of different grades, there is no societal understanding of superior and inferior, a fact reflected in a standard formulation of domestic property law, that “[e]ach cotenant . . . has the right to use and enjoy the entire property as if he or she were the sole owner, limited only by the same right in the other cotenants.” 7 R. Powell, Powell on Real Property §50.03[1], p. 50–14 (M. Wolf gen. ed. 2005). The want of any recognized superior authority among disagreeing tenants is also reflected in the law’s response when the disagreements cannot be resolved. The law does not ask who has the better side of the conflict; it simply provides a right to any co-tenant, even the most unreasonable, to obtain a decree partitioning the property (when the relationship is one of co-ownership) and terminating the relationship. See, e.g., 2 H. Tiffany, Real Property §§468, 473, 474, pp. 297, 307–309 (3d ed. 1939 and 2006 Cum. Supp.). And while a decree of partition is not the answer to disagreement among rental tenants, this situation resembles co-ownership in lacking the benefit of any understanding that one or the other rental co-tenant has a superior claim to control the use of the quarters they occupy together. In sum, there is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders. D    Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all. Accordingly, in the balancing of competing individual and governmental interests entailed by the bar to unreasonable searches, Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 , 536–537 (1967), the cooperative occupant’s invitation adds nothing to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place. Since we hold to the “centuries-old principle of respect for the privacy of the home,” Wilson v. Layne , 526 U. S. 603 , 610 (1999), “it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people,” Minnesota v. Carter , 525 U. S. 83 , 99 (1998) (Kennedy, J., concurring). We have, after all, lived our whole national history with an understanding of “the ancient adage that a man’s home is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown,” Miller v. United States , 357 U. S. 301 , 307 (1958) (internal quotation marks omitted).[ Footnote 4 ]    Disputed permission is thus no match for this central value of the Fourth Amendment, and the State’s other countervailing claims do not add up to outweigh it.[ Footnote 5 ] Yes, we recognize the consenting tenant’s interest as a citizen in bringing criminal activity to light, see Coolidge , 403 U. S., at 488 (“[I]t is no part of the policy underlying the Fourth … Amendmen[t] to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals”). And we understand a co-tenant’s legitimate self-interest in siding with the police to deflect suspicion raised by sharing quarters with a criminal, see 4 LaFave §8.3(d), at 162, n. 72 (“The risk of being convicted of possession of drugs one knows are present and has tried to get the other occupant to remove is by no means insignificant”); cf. Schneckloth, 412 U. S., at 243 (evidence obtained pursuant to a consent search “may insure that a wholly innocent person is not wrongly charged with a criminal offense”).    But society can often have the benefit of these interests without relying on a theory of consent that ignores an inhabitant’s refusal to allow a warrantless search. The co-tenant acting on his own initiative may be able to deliver evidence to the police, Coolidge , supra, at 487–489 (suspect’s wife retrieved his guns from the couple’s house and turned them over to the police), and can tell the police what he knows, for use before a magistrate in getting a warrant.[ Footnote 6 ] The reliance on a co-tenant’s information instead of disputed consent accords with the law’s general partiality toward “police action taken under a warrant [as against] searches and seizures without one,” United States v. Ventresca, 380 U. S. 102 , 107 (1965); “the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers,” United States v. Lefkowitz, 285 U. S. 452 , 464 (1932). Nor should this established policy of Fourth Amendment law be undermined by the principal dissent’s claim that it shields spousal abusers and other violent co-tenants who will refuse to allow the police to enter a dwelling when their victims ask the police for help, post , at 12 (opinion of Roberts, C. J.) (hereinafter the dissent). It is not that the dissent exaggerates violence in the home; we recognize that domestic abuse is a serious problem in the United States. See U. S. Dept. of Justice, National Institute of Justice, P. Tjaden & N. Thoennes, Full Report of the Prevalence, Incidence, and Consequence of Violence Against Women 25–26 (2000) (noting that over 20 million women and 6 million men will, in the course of their lifetimes, be the victims of intimate-partner abuse); U. S. Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States 19 (2003) (finding that nearly 5.3 million intimate partner victimizations, which result in close to 2 million injuries and 1300 deaths, occur among women in the United States each year); U. S. Dept. of Justice, Bureau of Justice Statistics, Crime Data Brief, C. Rennison, Intimate Partner Violence, 1993–2001 (Feb. 2003) (noting that in 2001 intimate partner violence made up 20% of violent crime against women); see also Becker, The Politics of Women’s Wrongs and the Bill of “Rights”: A Bicentennial Perspective, 59 U. Chi. L. Rev. 454, 507–508 (1992) (noting that women may feel physical insecurity in their homes as a result of abuse from domestic partners). But this case has no bearing on the capacity of the police to protect domestic victims. The dissent’s argument rests on the failure to distinguish two different issues: when the police may enter without committing a trespass, and when the police may enter to search for evidence. No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected. (And since the police would then be lawfully in the premises, there is no question that they could seize any evidence in plain view or take further action supported by any consequent probable cause, see Texas v. Brown, 460 U. S. 730 , 737–739 (1983) (plurality opinion).) Thus, the question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes. See 4 LaFave §8.3(d), at 161 (“[E]ven when . . . two persons quite clearly have equal rights in the place, as where two individuals are sharing an apartment on an equal basis, there may nonetheless sometimes exist a basis for giving greater recognition to the interests of one over the other. . . . [W]here the defendant has victimized the third-party . . . the emergency nature of the situation is such that the third-party consent should validate a warrantless search despite defendant’s objections” (internal quotation marks omitted; third omission in original)). The undoubted right of the police to enter in order to protect a victim, however, has nothing to do with the question in this case, whether a search with the consent of one co-tenant is good against another, standing at the door and expressly refusing consent.[ Footnote 7 ] None of the cases cited by the dissent support its improbable view that recognizing limits on merely evidentiary searches would compromise the capacity to protect a fearful occupant. In the circumstances of those cases, there is no danger that the fearful occupant will be kept behind the closed door of the house simply because the abusive tenant refuses to consent to a search. See United States v. Donlin, 982 F. 2d 31, 32 (CA1 1992) (victimized individual was already outside of her apartment when police arrived and, for all intents and purposes, within the protective custody of law enforcement officers); United States v. Hendrix, 595 F. 2d 883, 885–886 (CADC 1979) (per curiam) (even if the consent of the threatened co-occupant did not justify a warrantless search, the police entry was nevertheless allowable on exigent-circumstances grounds); People v. Sanders, 904 P. 2d 1311, 1313–1315 (Colo. 1995) (victimized individual gave her consent-to-search away from her home and was not present at the time of the police visit; alternatively, exigent circumstances existed to satisfy the warrantless exception); Brandon v. State, 778 P. 2d 221, 223–224 (Alaska App. 1989) (victimized individual consented away from her home and was not present at the time of the police visit); United States v. Davis, 290 F. 3d 1239, 1241 (CA10 2002) (immediate harm extinguished after husband “order[ed]” wife out of the home). The dissent’s red herring aside, we know, of course, that alternatives to disputed consent will not always open the door to search for evidence that the police suspect is inside. The consenting tenant may simply not disclose enough information, or information factual enough, to add up to a showing of probable cause, and there may be no exigency to justify fast action. But nothing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection. We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.[ Footnote 8 ] E There are two loose ends, the first being the explanation given in Matlock for the constitutional sufficiency of a co-tenant’s consent to enter and search: it “rests … on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right … .” 415 U. S., at 171, n. 7. If Matlock ’s co-tenant is giving permission “in his own right,” how can his “own right” be eliminated by another tenant’s objection? The answer appears in the very footnote from which the quoted statement is taken: the “right” to admit the police to which Matlock refers is not an enduring and enforceable ownership right as understood by the private law of property, but is instead the authority recognized by customary social usage as having a substantial bearing on Fourth Amendment reasonableness in specific circumstances. Thus, to ask whether the consenting tenant has the right to admit the police when a physically present fellow tenant objects is not to question whether some property right may be divested by the mere objection of another. It is, rather, the question whether customary social understanding accords the consenting tenant authority powerful enough to prevail over the co-tenant’s objection. The Matlock Court did not purport to answer this question, a point made clear by another statement (which the dissent does not quote): the Court described the co-tenant’s consent as good against “the absent, nonconsenting” resident.” Id. , at 170. The second loose end is the significance of Matlock and Rodriguez after today’s decision. Although the Matlock defendant was not present with the opportunity to object, he was in a squad car not far away; the Rodriguez defendant was actually asleep in the apartment, and the police might have roused him with a knock on the door before they entered with only the consent of an apparent co-tenant. If those cases are not to be undercut by today’s holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out. This is the line we draw, and we think the formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it. For the very reason that Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent, we think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received. There is no ready reason to believe that efforts to invite a refusal would make a difference in many cases, whereas every co-tenant consent case would turn into a test about the adequacy of the police’s efforts to consult with a potential objector. Better to accept the formalism of distinguishing Matlock from this case than to impose a requirement, time-consuming in the field and in the courtroom, with no apparent systemic justification. The pragmatic decision to accept the simplicity of this line is, moreover, supported by the substantial number of instances in which suspects who are asked for permission to search actually consent,[ Footnote 9 ] albeit imprudently, a fact that undercuts any argument that the police should try to locate a suspected inhabitant because his denial of consent would be a foregone conclusion. III This case invites a straightforward application of the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant. Scott Randolph’s refusal is clear, and nothing in the record justifies the search on grounds independent of Janet Randolph’s consent. The State does not argue that she gave any indication to the police of a need for protection inside the house that might have justified entry into the portion of the premises where the police found the powdery straw (which, if lawfully seized, could have been used when attempting to establish probable cause for the warrant issued later). Nor does the State claim that the entry and search should be upheld under the rubric of exigent circumstances, owing to some apprehension by the police officers that Scott Randolph would destroy evidence of drug use before any warrant could be obtained. The judgment of the Supreme Court of Georgia is therefore affirmed. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 All four Courts of Appeals to have considered this question have concluded that consent remains effective in the face of an express objection. See United States v. Morning, 64 F. 3d 531, 533–536 (CA9 1995); United States v. Donlin, 982 F. 2d 31, 33 (CA1 1992); United States v. Hendrix, 595 F. 2d 883, 885 (CADC 1979) (per curiam); United States v. Sumlin, 567 F. 2d 684, 687–688 (CA6 1977). Of the state courts that have addressed the question, the majority have reached that conclusion as well. See, e.g., Love v. State, 355 Ark. 334, 342, 138 S. W. 3d 676, 680 (2003); Laramie v. Hysong, 808 P. 2d 199, 203–205 (Wyo. 1991); but cf. State v. Leach, 113 Wash. 2d 735, 744, 782 P. 2d 1035, 1040 (1989) (en banc) (requiring consent of all present co-occupants). Footnote 2 Mindful of the multiplicity of living arrangements, we vary the terms used to describe residential co-occupancies. In so doing we do not mean, however, to suggest that the rule to be applied to them is similarly varied. Footnote 3 Cf. Mincey v. Arizona, 437 U. S. 385 , 393 (1978) (acknowledging the right of police to respond to emergency situations “threatening life or limb” and indicating that police may conduct a warrantless search provided that the search is “ ‘strictly circumscribed by the exigencies which justify its initiation’ ”). Footnote 4 In the dissent’s view, the centuries of special protection for the privacy of the home are over. The principal dissent equates inviting the police into a co-tenant’s home over his contemporaneous objection with reporting a secret, post , at 13–14 (opinion of Roberts, C. J.), and the emphasis it places on the false equation suggests a deliberate intent to devalue the importance of the privacy of a dwelling place. The same attitude that privacy of a dwelling is not special underlies the dissent’s easy assumption that privacy shared with another individual is privacy waived for all purposes including warrantless searches by the police. Post , at 5. Footnote 5 A generalized interest in expedient law enforcement cannot, without more, justify a warrantless search. See Mincey, supra , at 393 (“[T]he privacy of a person’s home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law”); Coolidge v . New Hampshire, 403 U. S. 443 , 481 (1971) (“The warrant requirement … is not an inconvenience to be somehow ‘weighed’ against the claims of police efficiency”). Footnote 6 Sometimes, of course, the very exchange of information like this in front of the objecting inhabitant may render consent irrelevant by creating an exigency that justifies immediate action on the police’s part; if the objecting tenant cannot be incapacitated from destroying easily disposable evidence during the time required to get a warrant , see Illinois v. McArthur , 531 U. S. 326 , 331–332 (2001) (denying suspect access to his trailer home while police applied for a search warrant), a fairly perceived need to act on the spot to preserve evidence may justify entry and search under the exigent circumstances exception to the warrant requirement, cf. Schmerber v. California , 384 U. S. 757 , 770–771 (1966) (warrantless search permitted when “the delay necessary to obtain a warrant … threatened the destruction of evidence” (internal quotation marks omitted)). Additional exigent circumstances might justify warrantless searches. See, e.g., Warden, Md. Penitentiary v. Hayden , 387 U. S. 294 , 298 (1967) (hot pursuit); Chimel v. California , 395 U. S. 752 (1969) (protecting the safety of the police officers); Michigan v. Tyler , 436 U. S. 499 (1978) (imminent destruction to building); Johnson v. United States , 333 U. S. 10 , 15 (1948) (likelihood that suspect will imminently flee). Footnote 7 We understand the possibility that a battered individual will be afraid to express fear candidly, but this does not seem to be a reason to think such a person would invite the police into the dwelling to search for evidence against another. Hence, if a rule crediting consent over denial of consent were built on hoping to protect household victims, it would distort the Fourth Amendment with little, if any, constructive effect on domestic abuse investigations. Footnote 8 The dissent is critical that our holding does not pass upon the constitutionality of such a search as to a third tenant against whom the government wishes to use evidence seized after a search with consent of one co-tenant subject to the contemporaneous objection of another, post , at 11. We decide the case before us, not a different one. Footnote 9 See 4 LaFave §8.1, at 4 (“The so-called consent search is frequently relied upon by police as a means of investigating suspected criminal conduct” (footnote omitted)); Strauss, Reconstructing Consent, 92 J. Crim. L. & C. 211, 214 (2001–2002) (“Although precise figures detailing the number of searches conducted pursuant to consent are not—and probably can never be—available, there is no dispute that these type of searches affect tens of thousands, if not hundreds of thousands, of people every year” (footnote omitted)). BREYER, J., CONCURRING GEORGIA V. RANDOLPH 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1067 GEORGIA, PETITIONER v. SCOTT FITZ RANDOLPH on writ of certiorari to the supreme court of georgia [March 22, 2006]    Justice Breyer, concurring.    If Fourth Amendment law forced us to choose between two bright-line rules, (1) a rule that always found one tenant’s consent sufficient to justify a search without a warrant and (2) a rule that never did, I believe we should choose the first. That is because, as The Chief Justice’s dissent points out, a rule permitting such searches can serve important law enforcement needs (for example, in domestic abuse cases) and the consenting party’s joint tenancy diminishes the objecting party’s reasonable expectation of privacy.    But the Fourth Amendment does not insist upon bright-line rules. Rather, it recognizes that no single set of legal rules can capture the ever changing complexity of human life. It consequently uses the general terms “unreasonable searches and seizures.” And this Court has continuously emphasized that “[r]easonableness … is measured … by examining the totality of the circumstances.” Ohio v. Robinette, 519 U. S. 33 , 39 (1996); see also Illinois v. Wardlow, 528 U. S. 119 , 136 (2000) (Stevens, J., concurring in part and dissenting in part); Florida v. Bostick, 501 U. S. 429 , 439 (1991); Michigan v. Chesternut, 486 U. S. 567 , 572–573 (1988); Florida v. Royer, 460 U. S. 491 , 506 (1983) (plurality opinion).    The circumstances here include the following: The search at issue was a search solely for evidence. The objecting party was present and made his objection known clearly and directly to the officers seeking to enter the house. The officers did not justify their search on grounds of possible evidence destruction. Cf. Thornton v. United States, 541 U. S. 615 , 620–622 (2004); Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602 , 623 (1989); Schmerber v. California, 384 U. S. 757 , 770–771 (1966). And, as far as the record reveals, the officers might easily have secured the premises and sought a warrant permitting them to enter. See Illinois v. McArthur, 531 U. S. 326 (2001). Thus, the “totality of the circumstances” present here do not suffice to justify abandoning the Fourth Amendment’s traditional hostility to police entry into a home without a warrant.    I stress the totality of the circumstances, however, because, were the circumstances to change significantly, so should the result. The Court’s opinion does not apply where the objector is not present “and object[ing].” Ante , at 17.    Moreover, the risk of an ongoing crime or other exigent circumstance can make a critical difference. Consider, for example, instances of domestic abuse. See ante , at 13. “Family disturbance calls . . . constitute the largest single category of calls received by police departments each year.” Mederer & Gelles, Compassion or Control: Intervention in Cases of Wife Abuse, 4 Journal of Interpersonal Violence 25 (Mar. 1989) (emphasis deleted); see also, e.g., Office of the Attorney General, California Criminal Justice Statistics Center, Domestic Violence Related Calls for Assistance, 1987–2003, County by Year, http://ag.ca.gov/cjsc/publications/misc/dvsr/tabs/ 8703.pdf (as visited Mar. 1, 2006, and available in Clerk of Court’s case file) (providing data showing that California police received an average of 207,848 domestic violence related calls each year); Cessato, Defenders Against Domestic Abuse, Washington Post, Aug. 25, 2002, p. B8 (“In the District [of Columbia], police report that almost half of roughly 39,000 violent crime calls received in 2000 involved domestic violence”); Zorza, Women Battering: High Costs and the State of the Law, Clearinghouse Review, p. 385 (Special Issue 1994) (“One-third of all police time is spent responding to domestic disturbance calls”). And, law enforcement officers must be able to respond effectively when confronted with the possibility of abuse.    If a possible abuse victim invites a responding officer to enter a home or consents to the officer’s entry request, that invitation (or consent) itself could reflect the victim’s fear about being left alone with an abuser. It could also indicate the availability of evidence, in the form of an immediate willingness to speak, that might not otherwise exist. In that context, an invitation (or consent) would provide a special reason for immediate, rather than later, police entry. And, entry following invitation or consent by one party ordinarily would be reasonable even in the face of direct objection by the other. That being so, contrary to the The Chief Justice’s suggestion, post , at 13, today’s decision will not adversely affect ordinary law enforcement practices.    Given the case-specific nature of the Court’s holding, and with these understandings, I join the Court’s holding and its opinion. STEVENS, J., CONCURRING GEORGIA V. RANDOLPH 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1067 GEORGIA, PETITIONER v. SCOTT FITZ RANDOLPH on writ of certiorari to the supreme court of georgia [March 22, 2006]    Justice Stevens, concurring.    The study of history for the purpose of ascertaining the original understanding of constitutional provisions is much like the study of legislative history for the purpose of ascertaining the intent of the lawmakers who enact statutes. In both situations the facts uncovered by the study are usually relevant but not necessarily dispositive. This case illustrates why even the most dedicated adherent to an approach to constitutional interpretation that places primary reliance on the search for original understanding would recognize the relevance of changes in our society.    At least since 1604 it has been settled that in the absence of exigent circumstances, a government agent has no right to enter a “house” or “castle” unless authorized to do so by a valid warrant. See Semayne’s Case , 5 Co. Rep. 91a, 77 Eng. Rep. 194 (K.B.). Every occupant of the home has a right—protected by the common law for centuries and by the Fourth Amendment since 1791—to refuse entry. When an occupant gives his or her consent to enter, he or she is waiving a valuable constitutional right. To be sure that the waiver is voluntary, it is sound practice—a practice some Justices of this Court thought necessary to make the waiver voluntary[ Footnote 1 ]—for the officer to advise the occupant of that right.[ Footnote 2 ] The issue in this case relates to the content of the advice that the officer should provide when met at the door by a man and a woman who are apparently joint tenants or joint owners of the property.    In the 18th century, when the Fourth Amendment was adopted, the advice would have been quite different from what is appropriate today. Given the then-prevailing dramatic differences between the property rights of the husband and the far lesser rights of the wife, only the consent of the husband would matter. Whether “the master of the house” consented or objected, his decision would control. Thus if “original understanding” were to govern the outcome of this case, the search was clearly invalid because the husband did not consent. History, however, is not dispositive because it is now clear, as a matter of constitutional law, that the male and the female are equal partners. Reed v. Reed , 404 U. S. 71 (1971).    In today’s world the only advice that an officer could properly give should make it clear that each of the partners has a constitutional right that he or she may independently assert or waive. Assuming that both spouses are competent, neither one is a master possessing the power to override the other’s constitutional right to deny entry to their castle.    With these observations, I join the Court’s opinion. Footnote 1 See, e.g. , Schneckloth v. Bustamonte, 412 U. S. 218 , 284–285 (1973) (Marshall, J., dissenting) (pointing out that it is hard to comprehend “how a decision made without knowledge of available alternatives can be treated as choice at all,” and arguing that “[i]f consent to search means that a person has chosen to forego his right to exclude the police from the place they seek to search, it follows that his consent cannot be considered a meaningful choice unless he knew that he could in fact exclude the police”). Footnote 2 Such advice is surely preferable to an officer’s expression of his or her desire to enter and to search in words that may be construed either as a command or a question. See id. , at 275–276 (Douglas, J., dissenting) (noting that “ ‘[u]nder many circumstances a reasonable person might read an officer’s “May I” as the courteous expression of a demand backed by force of law.’ ” (quoting Bustamonte v. Schneckloth , 448 F. 2d 669, 701 (CA9 1971))). ROBERTS, C. J., DISSENTING GEORGIA V. RANDOLPH 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1067 GEORGIA, PETITIONER v. SCOTT FITZ RANDOLPH on writ of certiorari to the supreme court of georgia [March 22, 2006]    Chief Justice Roberts, with whom Justice Scalia joins, dissenting.    The Court creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation. The rule the majority fashions does not implement the high office of the Fourth Amendment to protect privacy, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room. And the cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a nonconsenting abuser.    The correct approach to the question presented is clearly mapped out in our precedents: The Fourth Amendment protects privacy. If an individual shares information, papers, or places with another, he assumes the risk that the other person will in turn share access to that information or those papers or places with the government. And just as an individual who has shared illegal plans or incriminating documents with another cannot interpose an objection when that other person turns the information over to the government, just because the individual happens to be present at the time, so too someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police, simply because the objecting individual happens to be present.    A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it. Co-occupants have “assumed the risk that one of their number might permit [a] common area to be searched.” United States v. Matlock, 415 U. S. 164 , 171, n. 7 (1974). Just as Mrs. Randolph could walk upstairs, come down, and turn her husband’s cocaine straw over to the police, she can consent to police entry and search of what is, after all, her home, too. I    In Illinois v. Rodriguez , 497 U. S. 177 (1990), this Court stated that “[w]hat [a person] is assured by the Fourth Amendment … is not that no government search of his house will occur unless he consents; but that no such search will occur that is ‘unreasonable.’ ” Id. , at 183. One element that can make a warrantless government search of a home “ ‘reasonable’ ” is voluntary consent. Id. , at 184; Schneckloth v. Bustamonte, 412 U. S. 218 , 219 (1973). Proof of voluntary consent “is not limited to proof that consent was given by the defendant,” but the government “may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises.” Matlock , supra , at 171. Today’s opinion creates an exception to this otherwise clear rule: A third-party consent search is unreasonable, and therefore constitutionally impermissible, if the co-occupant against whom evidence is obtained was present and objected to the entry and search.    This exception is based on what the majority describes as “widely shared social expectations” that “when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation.” Ante , at 6, 9. But this fundamental predicate to the majority’s analysis gets us nowhere: Does the objecting cotenant accede to the consenting cotenant’s wishes, or the other way around? The majority’s assumption about voluntary accommodation simply leads to the common stalemate of two gentlemen insisting that the other enter a room first.    Nevertheless, the majority is confident in assuming—confident enough to incorporate its assumption into the Constitution—that an invited social guest who arrives at the door of a shared residence, and is greeted by a disagreeable co-occupant shouting “ ‘stay out,’ ” would simply go away. Ante , at 8. The Court observes that “no sensible person would go inside under those conditions,” ante , at 8–9, and concludes from this that the inviting co-occupant has no “authority” to insist on getting her way over the wishes of her co-occupant, ante , at 10. But it seems equally accurate to say—based on the majority’s conclusion that one does not have a right to prevail over the express wishes of his co-occupant—that the objector has no “authority” to insist on getting his way over his co-occupant’s wish that her guest be admitted.    The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations. A relative or good friend of one of two feuding roommates might well enter the apartment over the objection of the other roommate. The reason the invitee appeared at the door also affects expectations: A guest who came to celebrate an occupant’s birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate’s objection. The nature of the place itself is also pertinent: Invitees may react one way if the feuding roommates share one room, differently if there are common areas from which the objecting roommate could readily be expected to absent himself. Altering the numbers might well change the social expectations: Invitees might enter if two of three co-occupants encourage them to do so, over one dissenter.    The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or to go away. Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption—that an invited guest encountering two disagreeing co-occupants would flee—beyond a hunch about how people would typically act in an atypical situation.    And in fact the Court has not looked to such expectations to decide questions of consent under the Fourth Amendment, but only to determine when a search has occurred and whether a particular person has standing to object to a search. For these latter inquiries, we ask whether a person has a subjective expectation of privacy in a particular place, and whether “the expectation [is] one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347 , 361 (1967) (Harlan, J., concurring); see Minnesota v. Olson, 495 U. S. 91 , 95–96, 100 (1990) (extending Katz test to standing inquiry). But the social expectations concept has not been applied to all questions arising under the Fourth Amendment, least of all issues of consent. A criminal might have a strong expectation that his longtime confidant will not allow the government to listen to their private conversations, but however profound his shock might be upon betrayal, government monitoring with the confidant’s consent is reasonable under the Fourth Amendment. See United States v. White , 401 U. S. 745 , 752 (1971).    The majority suggests that “widely shared social expectations” are a “constant element in assessing Fourth Amendment reasonableness,” ante , at 6 (citing Rakas v. Illinois, 439 U. S. 128 , 144, n. 12 (1978)), but that is not the case; the Fourth Amendment precedents the majority cites refer instead to a “legitimate expectation of privacy .” Ibid. (emphasis added; internal quotation marks omitted). Whatever social expectation the majority seeks to protect, it is not one of privacy. The very predicate giving rise to the question in cases of shared information, papers, containers, or places is that privacy has been shared with another. Our common social expectations may well be that the other person will not, in turn, share what we have shared with them with another—including the police—but that is the risk we take in sharing. If two friends share a locker and one keeps contraband inside, he might trust that his friend will not let others look inside. But by sharing private space, privacy has “already been frustrated” with respect to the lockermate. United States v. Jacobsen , 466 U. S. 109 , 117 (1984). If two roommates share a computer and one keeps pirated software on a shared drive, he might assume that his roommate will not inform the government. But that person has given up his privacy with respect to his roommate by saving the software on their shared computer.    A wide variety of often subtle social conventions may shape expectations about how we act when another shares with us what is otherwise private, and those conventions go by a variety of labels—courtesy, good manners, custom, protocol, even honor among thieves. The Constitution, however, protects not these but privacy, and once privacy has been shared, the shared information, documents, or places remain private only at the discretion of the confidant. II    Our cases reflect this understanding. In United States v. White , we held that one party to a conversation can consent to government eavesdropping, and statements made by the other party will be admissible at trial. 401 U. S., at 752. This rule is based on privacy: “Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police… . [I]f he has no doubts, or allays them, or risks what doubt he has, the risk is his.” Ibid. The Court has applied this same analysis to objects and places as well. In Frazier v. Cupp, 394 U. S. 731 (1969), a duffel bag “was being used jointly” by two cousins. Id. , at 740. The Court held that the consent of one was effective to result in the seizure of evidence used against both: “[I]n allowing [his cousin] to use the bag and in leaving it in his house, [the defendant] must be taken to have assumed the risk that [his cousin] would allow someone else to look inside.” Ibid. As the Court explained in United States v. Jacobsen , supra: “It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information: ‘This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed.’ ” Id. , at 117 (quoting United States v. Miller, 425 U. S. 435 , 443 (1976)).    The same analysis applies to the question whether our privacy can be compromised by those with whom we share common living space. If a person keeps contraband in common areas of his home, he runs the risk that his co-occupants will deliver the contraband to the police. In Coolidge v. New Hampshire, 403 U. S. 443 (1971), Mrs. Coolidge retrieved four of her husband’s guns and the clothes he was wearing the previous night and handed them over to police. We held that these items were properly admitted at trial because “when Mrs. Coolidge of her own accord produced the guns and clothes for inspection, … it was not incumbent on the police to stop her or avert their eyes.” Id. , at 489.    Even in our most private relationships, our observable actions and possessions are private at the discretion of those around us. A husband can request that his wife not tell a jury about contraband that she observed in their home or illegal activity to which she bore witness, but it is she who decides whether to invoke the testimonial marital privilege. Trammel v. United States, 445 U. S. 40 , 53 (1980). In Trammel , we noted that the former rule prohibiting a wife from testifying about her husband’s observable wrongdoing at his say so “goes far beyond making ‘every man’s house his castle,’ and permits a person to convert his house into ‘a den of thieves.’ ” Id. , at 51–52 (quoting 5 J. Bentham, Rationale of Judicial Evidence 340 (1827)).    There is no basis for evaluating physical searches of shared space in a manner different from how we evaluated the privacy interests in the foregoing cases, and in fact the Court has proceeded along the same lines in considering such searches. In Matlock , police arrested the defendant in the front yard of a house and placed him in a squad car, and then obtained permission from Mrs. Graff to search a shared bedroom for evidence of Matlock’s bank robbery. 415 U. S., at 166. Police certainly could have assumed that Matlock would have objected were he consulted as he sat handcuffed in the squad car outside. And in Rodriguez , where Miss Fischer offered to facilitate the arrest of her sleeping boyfriend by admitting police into an apartment she apparently shared with him, 497 U. S., at 179, police might have noted that this entry was undoubtedly contrary to Rodriguez’s social expectations. Yet both of these searches were reasonable under the Fourth Amendment because Mrs. Graff had authority, and Miss Fischer apparent authority, to admit others into areas over which they exercised control, despite the almost certain wishes of their present co-occupants.    The common thread in our decisions upholding searches conducted pursuant to third-party consent is an understanding that a person “assume[s] the risk” that those who have access to and control over his shared property might consent to a search. Matlock , 415 U. S., at 171, n. 7. In Matlock , we explained that this assumption of risk is derived from a third party’s “joint access or control for most purposes” of shared property. Ibid. And we concluded that shared use of property makes it “reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right.” Ibid. In this sense, the risk assumed by a joint occupant is comparable to the risk assumed by one who reveals private information to another. If a person has incriminating information, he can keep it private in the face of a request from police to share it, because he has that right under the Fifth Amendment. If a person occupies a house with incriminating information in it, he can keep that information private in the face of a request from police to search the house, because he has that right under the Fourth Amendment. But if he shares the information—or the house—with another, that other can grant access to the police in each instance.[ Footnote 1 ]    To the extent a person wants to ensure that his possessions will be subject to a consent search only due to his own consent, he is free to place these items in an area over which others do not share access and control, be it a private room or a locked suitcase under a bed. Mr. Randolph acknowledged this distinction in his motion to suppress, where he differentiated his law office from the rest of the Randolph house by describing it as an area that “was solely in his control and dominion.” App. 3. As to a “common area,” however, co-occupants with “joint access or control” may consent to an entry and search. Matlock , supra, at 171, n. 7.    By emphasizing the objector’s presence and noting an occupant’s understanding that obnoxious guests might “be admitted in [one’s] absence,” ante , at 7, the majority appears to resurrect an agency theory of consent suggested in our early cases. See Stoner v. California , 376 U. S. 483 , 489 (1964) (stating that a hotel clerk could not consent to a search of a guest’s room because the guest had not waived his rights “by word or deed, either directly or through an agent”); Chapman v. United States , 365 U. S. 610 , 616–617 (1961). This agency theory is belied by the facts of Matlock and Rodriguez —both defendants were present but simply not asked for consent—and the Court made clear in those cases that a co-occupant’s authority to consent rested not on an absent occupant’s delegation of choice to an agent, but on the consenting co-occupant’s “joint access or control” of the property. Matlock , supra , at 171, n. 7; see Rodriguez , supra , at 181; United States v. McAlpine , 919 F. 2d 1461, 1464, n. 2 (CA10 1990) (“[A]gency analysis [was] put to rest by the Supreme Court’s reasoning in Matlock ”).    The law acknowledges that although we might not expect our friends and family to admit the government into common areas, sharing space entails risk. A person assumes the risk that his co-occupants—just as they might report his illegal activity or deliver his contraband to the government—might consent to a search of areas over which they have access and control. See United States v. Karo, 468 U. S. 705 , 726 (1984) (O’Connor, J., concurring in part and concurring in judgment) (finding it a “relatively easy case … when two persons share identical, overlapping privacy interests in a particular place, container, or conversation. Here both share the power to surrender each other’s privacy to a third party”). III    The majority states its rule as follows: “[A] warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Ante , at 15–16.    Just as the source of the majority’s rule is not privacy, so too the interest it protects cannot reasonably be described as such. That interest is not protected if a co-owner happens to be absent when the police arrive, in the backyard gardening, asleep in the next room, or listening to music through earphones so that only his co-occupant hears the knock on the door. That the rule is so random in its application confirms that it bears no real relation to the privacy protected by the Fourth Amendment. What the majority’s rule protects is not so much privacy as the good luck of a co-owner who just happens to be present at the door when the police arrive. Usually when the development of Fourth Amendment jurisprudence leads to such arbitrary lines, we take it as a signal that the rules need to be rethought. See California v. Acevedo, 500 U. S. 565 , 574, 580 (1991). We should not embrace a rule at the outset that its sponsors appreciate will result in drawing fine, formalistic lines. See ante , at 17.    Rather than draw such random and happenstance lines—and pretend that the Constitution decreed them—the more reasonable approach is to adopt a rule acknowledging that shared living space entails a limited yielding of privacy to others, and that the law historically permits those to whom we have yielded our privacy to in turn cooperate with the government. Such a rule flows more naturally from our cases concerning Fourth Amendment reasonableness and is logically grounded in the concept of privacy underlying that Amendment.    The scope of the majority’s rule is not only arbitrary but obscure as well. The majority repeats several times that a present co-occupant’s refusal to permit entry renders the search unreasonable and invalid “as to him.” Ante , at 1, 15–16, 18. This implies entry and search would be reasonable “as to” someone else, presumably the consenting co-occupant and any other absent co-occupants. The normal Fourth Amendment rule is that items discovered in plain view are admissible if the officers were legitimately on the premises; if the entry and search were reasonable “as to” Mrs. Randolph, based on her consent, it is not clear why the cocaine straw should not be admissible “as to” Mr. Randolph, as discovered in plain view during a legitimate search “as to” Mrs. Randolph. The majority’s differentiation between entry focused on discovering whether domestic violence has occurred (and the consequent authority to seize items in plain view), and entry focused on searching for evidence of other crime, is equally puzzling. See ante , at 13–14. This Court has rejected subjective motivations of police officers in assessing Fourth Amendment questions, see Whren v. United States, 517 U. S. 806 , 812–813 (1996), with good reason: The police do not need a particular reason to ask for consent to search, whether for signs of domestic violence or evidence of drug possession.    While the majority’s rule protects something random, its consequences are particularly severe. The question presented often arises when innocent cotenants seek to disassociate or protect themselves from ongoing criminal activity. See, e.g., United States v. Hendrix , 595 F. 2d 883, 884 (CADC 1979) (wife asked police “to get her baby and take [a] sawed-off shotgun out of her house”); People v. Cosme , 48 N. Y. 2d 286, 288–289, 293, 397 N. E. 2d 1319, 1320, 1323 (1979) (woman asked police to remove cocaine and a gun from a shared closet); United States v. Botsch , 364 F. 2d 542, 547 (CA2 1966). Under the majority’s rule, there will be many cases in which a consenting co-occupant’s wish to have the police enter is overridden by an objection from another present co-occupant. What does the majority imagine will happen, in a case in which the consenting co-occupant is concerned about the other’s criminal activity, once the door clicks shut? The objecting co-occupant may pause briefly to decide whether to destroy any evidence of wrongdoing or to inflict retribution on the consenting co-occupant first, but there can be little doubt that he will attend to both in short order. It is no answer to say that the consenting co-occupant can depart with the police; remember that it is her home, too, and the other co-occupant’s very presence, which allowed him to object, may also prevent the consenting co-occupant from doing more than urging the police to enter.    Perhaps the most serious consequence of the majority’s rule is its operation in domestic abuse situations, a context in which the present question often arises. See Rodriguez , 497 U. S., at 179; United States v. Donlin , 982 F. 2d 31 (CA1 1992); Hendrix , supra; People v. Sanders , 904 P. 2d 1311 (Colo. 1995) (en banc); Brandon v. State , 778 P. 2d 221 (Alaska App. 1989). While people living together might typically be accommodating to the wishes of their cotenants, requests for police assistance may well come from coinhabitants who are having a disagreement. The Court concludes that because “no sensible person would go inside” in the face of disputed consent, ante , at 8–9, and the consenting cotenant thus has “no recognized authority” to insist on the guest’s admission, ante , at 10, a “police officer [has] no better claim to reasonableness in entering than the officer would have in the absence of any consent at all,” ibid . But the police officer’s superior claim to enter is obvious: Mrs. Randolph did not invite the police to join her for dessert and coffee; the officer’s precise purpose in knocking on the door was to assist with a dispute between the Randolphs—one in which Mrs. Randolph felt the need for the protective presence of the police. The majority’s rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects.[ Footnote 2 ]    The majority acknowledges these concerns, but dismisses them on the ground that its rule can be expected to give rise to exigent situations, and police can then rely on an exigent circumstances exception to justify entry. Ante , at 12, n. 6. This is a strange way to justify a rule, and the fact that alternative justifications for entry might arise does not show that entry pursuant to consent is unreasonable. In addition, it is far from clear that an exception for emergency entries suffices to protect the safety of occupants in domestic disputes. See, e.g., United States v. Davis , 290 F. 3d 1239, 1240–1241 (CA10 2002) (finding no exigent circumstances justifying entry when police responded to a report of domestic abuse, officers heard no noise upon arrival, defendant told officers that his wife was out of town, and wife then appeared at the door seemingly unharmed but resisted husband’s efforts to close the door).    Rather than give effect to a consenting spouse’s authority to permit entry into her house to avoid such situations, the majority again alters established Fourth Amendment rules to defend giving veto power to the objecting spouse. In response to the concern that police might be turned away under its rule before entry can be justified based on exigency, the majority creates a new rule: A “good reason” to enter, coupled with one occupant’s consent, will ensure that a police officer is “lawfully in the premises.” Ante , at 13, 14. As support for this “consent plus a good reason” rule, the majority cites a treatise, which itself refers only to emergency entries. Ante , at 14 (citing 4 W. LaFave, Search and Seizure §8.3(d), p. 161 (4th ed. 2004)). For the sake of defending what it concedes are fine, formalistic lines, the majority spins out an entirely new framework for analyzing exigent circumstances. Police may now enter with a “good reason” to believe that “violence (or threat of violence) has just occurred or is about to (or soon will) occur.” Ante , at 13–14. And apparently a key factor allowing entry with a “good reason” short of exigency is the very consent of one co-occupant the majority finds so inadequate in the first place.    The majority’s analysis alters a great deal of established Fourth Amendment law. The majority imports the concept of “social expectations,” previously used only to determine when a search has occurred and whether a particular person has standing to object to a search, into questions of consent. Ante , at 6, 8. To determine whether entry and search are reasonable, the majority considers a police officer’s subjective motive in asking for consent, which we have otherwise refrained from doing in assessing Fourth Amendment questions. Ante , at 13–14. And the majority creates a new exception to the warrant requirement to justify warrantless entry short of exigency in potential domestic abuse situations. Ibid. Considering the majority’s rule is solely concerned with protecting a person who happens to be present at the door when a police officer asks his co-occupant for consent to search, but not one who is asleep in the next room or in the backyard gardening, the majority has taken a great deal of pain in altering Fourth Amendment doctrine, for precious little (if any) gain in privacy. Perhaps one day, as the consequences of the majority’s analytic approach become clearer, today’s opinion will be treated the same way the majority treats our opinions in Matlock and Rodriguez —as a “loose end” to be tied up. Ante , at 17.    One of the concurring opinions states that if it had to choose between a rule that a cotenant’s consent was valid or a rule that it was not, it would choose the former. Ante , at 1 (opinion of Breyer, J.). The concurrence advises, however, that “no single set of legal rules can capture the ever changing complexity of human life,” ibid. , and joins what becomes the majority opinion, “[g]iven the case-specific nature of the Court’s holding,” ante , at 3. What the majority establishes, in its own terms, is “ the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Ante , at 18 (emphases added). The concurrence joins with the apparent “understandin[g]” that the majority’s “rule” is not a rule at all, but simply a “case-specific” holding. Ante , at 3 (opinion of Breyer, J.). The end result is a complete lack of practical guidance for the police in the field, let alone for the lower courts. *  *  *    Our third-party consent cases have recognized that a person who shares common areas with others “assume[s] the risk that one of their number might permit the common area to be searched.” Matlock , 415 U. S., at 171, n. 7. The majority reminds us, in high tones, that a man’s home is his castle, ante , at 10, but even under the majority’s rule, it is not his castle if he happens to be absent, asleep in the keep, or otherwise engaged when the constable arrives at the gate. Then it is his co-owner’s castle. And, of course, it is not his castle if he wants to consent to entry, but his co-owner objects. Rather than constitutionalize such an arbitrary rule, we should acknowledge that a decision to share a private place, like a decision to share a secret or a confidential document, necessarily entails the risk that those with whom we share may in turn choose to share—for their own protection or for other reasons—with the police.    I respectfully dissent. Footnote 1 The majority considers this comparison to be a “false equation,” and even discerns “a deliberate intent to devalue the importance of the privacy of a dwelling place.” Ante , at 10–11, n. 4. But the differences between the majority and this dissent reduce to this: Under the majority’s view, police may not enter and search when an objecting co-occupant is present at the door , but they may do so when he is asleep in the next room; under our view, the co-occupant’s consent is effective in both cases. It seems a bit overwrought to characterize the former approach as affording great protection to a man in his castle, the latter as signaling that “the centuries of special protection for the privacy of the home are over.” Ibid. The Court in United States v. Matlock , 415 U. S. 164 (1974), drew the same comparison the majority faults today, see id. , at 171, n. 7, and the “deliberate intent” the majority ascribes to this dissent is apparently shared by all Courts of Appeals and the great majority of State Supreme Courts to have considered the question, see ante , at 4, n. 1.    The majority also mischaracterizes this dissent as assuming that “privacy shared with another individual is privacy waived for all purposes including warrantless searches by the police.” Ante , at 11, n. 4. The point, of course, is not that a person waives his privacy by sharing space with others such that police may enter at will, but that sharing space necessarily entails a limited yielding of privacy to the person with whom the space is shared , such that the other person shares authority to consent to a search of the shared space. See supra , at 2, 5–10. Footnote 2 In response to this concern, the majority asserts that its rule applies “merely [to] evidentiary searches.” Ante , at 14. But the fundamental premise of the majority’s argument is that an inviting co-occupant has “no recognized authority” to “open the door” over a co-occupant’s objection. Ante , at 10; see also ante , at 1 (“[A] physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him” (emphasis added)); ante , at 8 (“[A] caller standing at the door of shared premises would have no confidence … to enter when a fellow tenant stood there saying ‘stay out’ ” (emphasis added)); ante , at 10 (“[A] disputed invitation, without more, gives a police officer no … claim to reasonableness in entering ” (emphasis added)). The point is that the majority’s rule transforms what may have begun as a request for consent to conduct an evidentiary search into something else altogether, by giving veto power over the consenting co-occupant’s wishes to an occupant who would exclude the police from entry . The majority would afford the now quite vulnerable consenting co-occupant sufficient time to gather her belongings and leave, see ante , at 13, apparently putting to one side the fact that it is her castle, too. THOMAS, J., DISSENTING GEORGIA V. RANDOLPH 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1067 GEORGIA, PETITIONER v. SCOTT FITZ RANDOLPH on writ of certiorari to the supreme court of georgia [March 22, 2006]    Justice Thomas, dissenting.    The Court has long recognized that “[i]t is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.” Miranda v. Arizona , 384 U. S. 436 , 477–478 (1966). Consistent with this principle, the Court held in Coolidge v. New Hampshire , 403 U. S. 443 (1971), that no Fourth Amendment search occurs where, as here, the spouse of an accused voluntarily leads the police to potential evidence of wrongdoing by the accused. Id ., at 486–490. Because Coolidge squarely controls this case, the Court need not address whether police could permissibly have conducted a general search of the Randolph home, based on Mrs. Randolph’s consent. I respectfully dissent.    In the instant case, Mrs. Randolph told police responding to a domestic dispute that respondent was using a substantial quantity of cocaine. Upon police request, she consented to a general search of her residence to investigate her statements. However, as the Court’s recitation of the facts demonstrates, ante, at 2, the record is clear that no such general search occurred. Instead, Sergeant Brett Murray asked Mrs. Randolph where the cocaine was located, and she showed him to an upstairs bedroom, where he saw the “piece of cut straw” on a dresser. Corrected Tr. of Motion to Suppression Hearing in Case No. 2001R–699 (Super. Ct. Sumter Cty., Ga., Oct. 3, 2002), pp. 8–9. Upon closer examination, Sergeant Murray observed white residue on the straw, and concluded the straw had been used for ingesting cocaine. Id. , at 8. He then collected the straw and the residue as evidence. Id ., at 9.    Sergeant Murray’s entry into the Randolphs’ home at the invitation of Mrs. Randolph to be shown evidence of respondent’s cocaine use does not constitute a Fourth Amendment search. Under this Court’s precedents, only the action of an agent of the government can constitute a search within the meaning of the Fourth Amendment, because that Amendment “was intended as a restraint upon the activities of sovereign authority , and was not intended to be a limitation upon other than governmental agencies.” Burdeau v. McDowell , 256 U. S. 465 , 475 (1921) (emphasis added). See also Coolidge , 403 U. S., at 487. Applying this principle in Coolidge , the Court held that when a citizen leads police officers into a home shared with her spouse to show them evidence relevant to their investigation into a crime, that citizen is not acting as an agent of the police, and thus no Fourth Amendment search has occurred. Id. , at 488–498. Review of the facts in Coolidge clearly demonstrates that it governs this case. While the police interrogated Coolidge as part of their investigation into a murder, two other officers were sent to his house to speak with his wife. Id., at 485. During the course of questioning Mrs. Coolidge, the police asked whether her husband owned any guns. Id ., at 486. Mrs. Coolidge replied in the affirmative, and offered to retrieve the weapons for the police, apparently operating under the assumption that doing so would help to exonerate her husband. Ibid . The police accompanied Mrs. Coolidge to the bedroom to collect the guns, as well as clothing that Mrs. Coolidge told them her husband had been wearing the night of the murder. Ibid .    Before this Court, Coolidge argued that the evidence of the guns and clothing should be suppressed as the product of an unlawful search because Mrs. Coolidge was acting as an “ ‘instrument,’ ” or agent, of the police by complying with a “ ‘demand’ ” made by them. Id ., at 487. The Court recognized that, had Mrs. Coolidge sought out the guns to give to police wholly on her own initiative, “there can be no doubt under existing law that the articles would later have been admissible in evidence.” Ibid . That she did so in cooperation with police pursuant to their request did not transform her into their agent; after all, “it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” Id., at 488. Because the police were “acting normally and properly” when they asked about any guns, and questioning Mrs. Coolidge about the clothing was “logical and in no way coercive,” the Fourth Amendment did not require police to “avert their eyes” when Mrs. Coolidge produced the guns and clothes for inspection.[ Footnote 1 ] Id ., at 488–489.    This case is indistinguishable from Coolidge , compelling the conclusion that Mrs. Randolph was not acting as an agent of the police when she admitted Sergeant Murray into her home and led him to the incriminating evidence.[ Footnote 2 ] Just as Mrs. Coolidge could, of her own accord, have offered her husband’s weapons and clothing to the police without implicating the Fourth Amendment, so too could Mrs. Randolph have simply retrieved the straw from the house and given it to Sergeant Murray. Indeed, the majority appears to concede as much. Ante, at 11-12 (“The co-tenant acting on his own initiative may be able to deliver evidence to the police, Coolidge , supra , at 487–489 … , and can tell the police what he knows, for use before a magistrate in getting a warrant”). Drawing a constitutionally significant distinction between what occurred here and Mrs. Randolph’s independent production of the relevant evidence is both inconsistent with Coolidge and unduly formalistic.[ Footnote 3 ]    Accordingly, the trial court appropriately denied respondent’s motion to suppress the evidence Mrs. Randolph provided to the police and the evidence obtained as a result of the consequent search warrant. I would therefore reverse the judgment of the Supreme Court of Georgia. Footnote 1 Although the Court has described Coolidge as a “third-party consent” case, United States v. Matlock , 415 U. S. 164 , 171 (1974), the Court’s opinion, by its own terms, does not rest on its conception of Mrs. Coolidge’s authority to consent to a search of her house or the possible relevance of Mr. Coolidge’s absence from the scene. Coolidge , 403 U. S., at 487 (“[W]e need not consider the petitioner’s further argument that Mrs. Coolidge could not or did not ‘waive’ her husband’s constitutional protection against unreasonable searches and seizures”). See also Walter v. United States , 447 U. S. 649 , 660–661, n. 2 (1980) (White, J., concurring in part and concurring in judgment) (“Similarly, in Coolidge v. New Hampshire , the Court held that a wife’s voluntary action in turning over to police her husband’s guns and clothing did not constitute a search and seizure by the government”). Footnote 2 The Courts of Appeals have disagreed over the appropriate inquiry to be performed in determining whether involvement of the police transforms a private individual into an agent or instrument of the police. See United States v. Pervaz , 118 F. 3d 1, 5–6 (CA1 1997) (summarizing approaches of various Circuits). The similarity between this case and Coolidge avoids any need to resolve this broader dispute in the present case. Footnote 3 That Sergeant Murray, unlike the officers in Coolidge , may have intended to perform a general search of the house is inconsequential, as he ultimately did not do so; he viewed only those items shown to him by Mrs. Randolph. Nor is it relevant that, while Mrs. Coolidge intended to aid the police in apprehending a criminal because she believed doing so would exonerate her husband, Mrs. Randolph believed aiding the police would implicate her husband. SCALIA, J., DISSENTING GEORGIA V. RANDOLPH 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1067 GEORGIA, PETITIONER v. SCOTT FITZ RANDOLPH on writ of certiorari to the supreme court of georgia [March 22, 2006]    Justice Scalia, dissenting.    I join the dissent of The Chief Justice, but add these few words in response to Justice Stevens’ concurrence.    It is not as clear to me as it is to Justice Stevens that, at the time the Fourth Amendment was adopted, a police officer could enter a married woman’s home over her objection, and could not enter with only her consent. Nor is it clear to me that the answers to these questions depended solely on who owned the house. It is entirely clear, however, that if the matter did depend solely on property rights, a latter-day alteration of property rights would also produce a latter-day alteration of the Fourth Amendment outcome—without altering the Fourth Amendment itself.    Justice Stevens’ attempted critique of originalism confuses the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred. From the date of its ratification until well into the 20th century, violation of the Amendment was tied to common-law trespass. See Kyllo v. United States, 533 U. S. 27 , 31–32 (2001); see also California v. Acevedo, 500 U. S. 565 , 581, 583 (1991) (Scalia, J., concurring in judgment). On the basis of that connection, someone who had power to license the search of a house by a private party could authorize a police search. See 1 Restatement of Torts §167, and Comment b (1934); see also Williams v. Howard , 110 S. C. 82, 96 S. E. 251 (1918); Fennemore v. Armstrong , 29 Del. 35, 96 A. 204 (Super. Ct. 1915). The issue of who could give such consent generally depended, in turn, on “historical and legal refinements” of property law. United States v. Matlock, 415 U. S. 164 , 171, n. 7 (1974). As property law developed, individuals who previously could not authorize a search might become able to do so, and those who once could grant such consent might no longer have that power. But changes in the law of property to which the Fourth Amendment referred would not alter the Amendment’s meaning: that anyone capable of authorizing a search by a private party could consent to a warrantless search by the police.    There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. The Fifth Amendment provides, for instance, that “private property” shall not “be taken for public use, without just compensation”; but it does not purport to define property rights. We have consistently held that “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ” Phillips v. Washington Legal Foundation, 524 U. S. 156 , 164 (1998) (quoting Board of Regents of State Colleges v. Roth, 408 U. S. 564 , 577 (1972)). The same is true of the Fourteenth Amendment Due Process Clause’s protection of “property.” See Castle Rock v. Gonzales, 545 U. S. ___, ___ (2005). This reference to changeable law presents no problem for the originalist. No one supposes that the meaning of the Constitution changes as States expand and contract property rights. If it is indeed true, therefore, that a wife in 1791 could not authorize the search of her husband’s house, the fact that current property law provides otherwise is no more troublesome for the originalist than the well established fact that a State must compensate its takings of even those property rights that did not exist at the time of the Founding.    In any event, Justice Stevens’ panegyric to the equal rights of women under modern property law does not support his conclusion that “[a]ssuming … both spouses are competent, neither one is a master possessing the power to override the other’s constitutional right to deny entry to their castle.” Ante , at 2–3. The issue at hand is what to do when there is a conflict between two equals. Now that women have authority to consent, as Justice Stevens claims men alone once did, it does not follow that the spouse who refuses consent should be the winner of the contest. Justice Stevens could just as well have followed the same historical developments to the opposite conclusion: Now that “the male and the female are equal partners,” ante , at 2, and women can consent to a search of their property, men can no longer obstruct their wishes. Men and women are no more “equal” in the majority’s regime, where both sexes can veto each other’s consent, than on the dissent’s view, where both sexes cannot.    Finally, I must express grave doubt that today’s decision deserves Justice Stevens’ celebration as part of the forward march of women’s equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out? The most common practical effect of today’s decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes—which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had in 1791.

In Georgia v. Randolph, the Supreme Court ruled that a warrantless search of a home is invalid if one occupant consents but the other occupant is present and expressly refuses consent. In this case, Scott Randolph and his wife, Janet, were separated, and Janet complained to the police about domestic disputes and her husband's drug use. When the police asked Scott for permission to search the house, he refused, but Janet gave consent. The Court held that Scott's refusal to consent prevailed, and the evidence obtained in the search was invalid. This case highlights the importance of consent and the rights of co-occupants in warrantless searches.

Search & Seizure

Brigham City v. Stuart

https://supreme.justia.com/cases/federal/us/547/398/

OPINION OF THE COURT BRIGHAM CITY V. STUART 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-502 BRIGHAM CITY, UTAH, PETITIONER v. CHARLES W. STUART et al. on writ of certiorari to the supreme court of utah [May 22, 2006]    Chief Justice Roberts delivered the opinion of the Court.    In this case we consider whether police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. We conclude that they may. I    This case arises out of a melee that occurred in a Brigham City, Utah, home in the early morning hours of July 23, 2000. At about 3 a.m., four police officers responded to a call regarding a loud party at a residence. Upon arriving at the house, they heard shouting from inside, and proceeded down the driveway to investigate. There, they observed two juveniles drinking beer in the backyard. They entered the backyard, and saw—through a screen door and windows—an altercation taking place in the kitchen of the home. According to the testimony of one of the officers, four adults were attempting, with some difficulty, to restrain a juvenile. The juvenile eventually “broke free, swung a fist and struck one of the adults in the face.” 2005 UT 13, ¶2, 122 P. 3d 506, 508. The officer testified that he observed the victim of the blow spitting blood into a nearby sink. App. 40. The other adults continued to try to restrain the juvenile, pressing him up against a refrigerator with such force that the refrigerator began moving across the floor. At this point, an officer opened the screen door and announced the officers’ presence. Amid the tumult, nobody noticed. The officer entered the kitchen and again cried out, and as the occupants slowly became aware that the police were on the scene, the altercation ceased.    The officers subsequently arrested respondents and charged them with contributing to the delinquency of a minor, disorderly conduct, and intoxication. In the trial court, respondents filed a motion to suppress all evidence obtained after the officers entered the home, arguing that the warrantless entry violated the Fourth Amendment. The court granted the motion, and the Utah Court of Appeals affirmed.    Before the Supreme Court of Utah, Brigham City argued that although the officers lacked a warrant, their entry was nevertheless reasonable on either of two grounds. The court rejected both contentions and, over two dissenters, affirmed. First, the court held that the injury caused by the juvenile’s punch was insufficient to trigger the so-called “emergency aid doctrine” because it did not give rise to an “ objectively reasonable belief that an unconscious, semi-conscious, or missing person feared injured or dead [was] in the home.” 122 P. 3d, at 513 (internal quotation marks omitted). Furthermore, the court suggested that the doctrine was inapplicable because the officers had not sought to assist the injured adult, but instead had acted “exclusively in their law enforcement capacity.” Ibid .    The court also held that the entry did not fall within the exigent circumstances exception to the warrant requirement. This exception applies, the court explained, where police have probable cause and where “a reasonable person [would] believe that the entry was necessary to prevent physical harm to the officers or other persons.” Id., at 514 (internal quotation marks omitted). Under this standard, the court stated, the potential harm need not be as serious as that required to invoke the emergency aid exception. Although it found the case “a close and difficult call,” the court nevertheless concluded that the officers’ entry was not justified by exigent circumstances. Id., at 515.    We granted certiorari, 546 U. S. ___ (2006), in light of differences among state courts and the Courts of Appeals concerning the appropriate Fourth Amendment standard governing warrantless entry by law enforcement in an emergency situation. Compare In re Sealed Case 96–3167, 153 F. 3d 759, 766 (CADC 1998) (“[T]he standard for exigent circumstances is an objective one”) and People v. Hebert, 46 P. 3d 473, 480 (Colo. 2002) (en banc) (considering the circumstances as they “would have been objectively examined by a prudent and trained police officer”), with United States v. Cervantes , 219 F. 3d 882, 890 (CA9 2000) (“[U]nder the emergency doctrine, ‘[a] search must not be primarily motivated by intent to arrest and seize evidence’ ” (quoting People v. Mitchell , 39 N. Y. 2d 173, 177, 347 N. E. 2d 607, 609 (1976)) and State v. Mountford, 171 Vt. 487, 492, 769 A. 2d 639, 645 (2000) ( Mitchell test “requir[es] courts to find that the primary subjective motivation behind such searches was to provide emergency aid”). II    It is a “ ‘ basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.’ ” Groh v. Ramirez, 540 U. S. 551 , 559 (2004) (quoting Payton v. New York, 445 U. S. 573 , 586 (1980) (some internal quotation marks omitted)). Nevertheless, because the ultimate touchstone of the Fourth Amendment is “reasonableness,” the warrant requirement is subject to certain exceptions. Flippo v. West Virginia, 528 U. S. 11 , 13 (1999) (per curiam); Katz v. United States, 389 U. S. 347 , 357 (1967). We have held, for example, that law enforcement officers may make a warrantless entry onto private property to fight a fire and investigate its cause, Michigan v. Tyler, 436 U. S. 499 , 509 (1978), to prevent the imminent destruction of evidence, Ker v. California, 374 U. S. 23 , 40 (1963), or to engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U. S. 38 , 42–43 (1976). “[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U. S. 385 , 393–394 (1978).    One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. “ ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ ” Id., at 392 (quoting Wayne v. United States , 318 F. 2d 205, 212 (CADC 1963) (Burger, J.)); see also Tyler, supra, at 509. Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Mincey, supra, at 392; see also Georgia v. Randolph, 547 U. S. ___, ___ (2006) (slip op., at 13–14) (“[I]t would be silly to suggest that the police would commit a tort by entering … to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur”).    Respondents do not take issue with these principles, but instead advance two reasons why the officers’ entry here was unreasonable. First, they argue that the officers were more interested in making arrests than quelling violence. They urge us to consider, in assessing the reasonableness of the entry, whether the officers were “indeed motivated primarily by a desire to save lives and property.” Brief for Respondents 3; see also Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 6 (entry to render emergency assistance justifies a search “only when the searching officer is acting outside his traditional law-enforcement capacity”). The Utah Supreme Court also considered the officers’ subjective motivations relevant. See 122 P. 3d, at 513 (search under the “emergency aid doctrine” may not be “primarily motivated by intent to arrest and seize evidence” (internal quotation marks omitted)).    Our cases have repeatedly rejected this approach. An action is “reasonable” under the Fourth Amendment, regardless of the individual officer’s state of mind, “as long as the circumstances, viewed objectively , justify [the] action.” Scott v. United States, 436 U. S. 128 , 138 (1978) (emphasis added). The officer’s subjective motivation is irrelevant. See Bond v. United States, 529 U. S. 334 , 338, n. 2 (2000) (“The parties properly agree that the subjective intent of the law enforcement officer is irrelevant in determining whether that officer’s actions violate the Fourth Amendment … ; the issue is not his state of mind, but the objective effect of his actions”); Whren v. United States, 517 U. S. 806 , 813 (1996) (“[W]e have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers”); Graham v. Connor, 490 U. S. 386 , 397 (1989) (“[O]ur prior cases make clear” that “the subjective motivations of the individual officers … ha[ve] no bearing on whether a particular seizure is ‘unreasonable’ under the Fourth Amendment”). It therefore does not matter here—even if their subjective motives could be so neatly unraveled—whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence. As respondents note, we have held in the context of programmatic searches conducted without individualized suspicion—such as checkpoints to combat drunk driving or drug trafficking—that “an inquiry into programmatic purpose” is sometimes appropriate. Indianapolis v. Edmond, 531 U. S. 32 , 46 (2000) (emphasis added); see also Florida v. Wells, 495 U. S. 1 , 4 (1990) (an inventory search must be regulated by “standardized criteria” or “established routine” so as not to “be a ruse for a general rummaging in order to discover incriminating evidence”). But this inquiry is directed at ensuring that the purpose behind the program is not “ultimately indistinguishable from the general interest in crime control.” Edmond, 531 U. S., at 44. It has nothing to do with discerning what is in the mind of the individual officer conducting the search. Id., at 48. Respondents further contend that their conduct was not serious enough to justify the officers’ intrusion into the home. They rely on Welsh v. Wisconsin, 466 U. S. 740 , 753 (1984), in which we held that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” This contention, too, is misplaced. Welsh involved a warrantless entry by officers to arrest a suspect for driving while intoxicated. There, the “only potential emergency” confronting the officers was the need to preserve evidence ( i.e. , the suspect’s blood-alcohol level)—an exigency that we held insufficient under the circumstances to justify entry into the suspect’s home. Ibid . Here, the officers were confronted with ongoing violence occurring within the home. Welsh did not address such a situation. We think the officers’ entry here was plainly reasonable under the circumstances. The officers were responding, at 3 o’clock in the morning, to complaints about a loud party. As they approached the house, they could hear from within “an altercation occurring, some kind of a fight.” App. 29. “It was loud and it was tumultuous.” Id., at 33. The officers heard “thumping and crashing” and people yelling “stop, stop” and “get off me.” Id., at 28, 29. As the trial court found, “it was obvious that … knocking on the front door” would have been futile. Id., at 92. The noise seemed to be coming from the back of the house; after looking in the front window and seeing nothing, the officers proceeded around back to investigate further. They found two juveniles drinking beer in the backyard. From there, they could see that a fracas was taking place inside the kitchen. A juvenile, fists clenched, was being held back by several adults. As the officers watch, he breaks free and strikes one of the adults in the face, sending the adult to the sink spitting blood. In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone “unconscious” or “semi-conscious” or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided. The manner of the officers’ entry was also reasonable. After witnessing the punch, one of the officers opened the screen door and “yelled in police.” Id., at 40. When nobody heard him, he stepped into the kitchen and announced himself again. Only then did the tumult subside. The officer’s announcement of his presence was at least equivalent to a knock on the screen door. Indeed, it was probably the only option that had even a chance of rising above the din. Under these circumstances, there was no violation of the Fourth Amendment’s knock-and-announce rule. Furthermore, once the announcement was made, the officers were free to enter; it would serve no purpose to require them to stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence. Accordingly, we reverse the judgment of the Supreme Court of Utah, and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. STEVENS, J., CONCURRING BRIGHAM CITY V. STUART 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-502 BRIGHAM CITY, UTAH, PETITIONER v. CHARLES W. STUART et al. on writ of certiorari to the supreme court of utah [May 22, 2006]    Justice Stevens, concurring.    This is an odd flyspeck of a case. The charges that have been pending against respondents for the past six years are minor offenses—intoxication, contributing to the delinquency of a minor, and disorderly conduct—two of which could have been proved by evidence that was gathered by the responding officers before they entered the home. The maximum punishment for these crimes ranges between 90 days and 6 months in jail. And the Court’s unanimous opinion restating well-settled rules of federal law is so clearly persuasive that it is hard to imagine the outcome was ever in doubt.    Under these circumstances, the only difficult question is which of the following is the most peculiar: (1) that the Utah trial judge, the intermediate state appellate court, and the Utah Supreme Court all found a Fourth Amendment violation on these facts; (2) that the prosecution chose to pursue this matter all the way to the United States Supreme Court; or (3) that this Court voted to grant the petition for a writ of certiorari.    A possible explanation for the first is that the suppression ruling was correct as a matter of Utah law, and neither trial counsel nor the trial judge bothered to identify the Utah Constitution as an independent basis for the decision because they did not expect the prosecution to appeal.* The most plausible explanation for the latter two decisions is that they were made so police officers in Utah may enter a home without a warrant when they see ongoing violence—we are, of course, reversing the Utah Supreme Court’s conclusion to the contrary. But that purpose, laudable though it may be, cannot be achieved in this case. Our holding today addresses only the limitations placed by the Federal Constitution on the search at issue; we have no authority to decide whether the police in this case violated the Utah Constitution.    The Utah Supreme Court, however, has made clear that the Utah Constitution provides greater protection to the privacy of the home than does the Fourth Amendment. See State v. Debooy , 2000 UT 32, ¶12, 996 P. 2d 546, 549. And it complained in this case of respondents’ failure to raise or adequately brief a state constitutional challenge, thus preventing the state courts from deciding the case on anything other than Fourth Amendment grounds. See 2005 UT 13, ¶12, 122 P. 3d 506, 510. “[S]urpris[ed]” by “[t]he reluctance of litigants to take up and develop a state constitutional analysis,” ibid. , the court expressly invited future litigants to bring challenges under the Utah Constitution to enable it to fulfill its “responsibility as guardians of the individual liberty of our citizens” and “undertak[e] a principled exploration of the interplay between federal and state protections of individual rights,” id ., at 511. The fact that this admonishment and request came from the Utah Supreme Court in this very case not only demonstrates that the prosecution selected the wrong case for establishing the rule it wants, but indicates that the Utah Supreme Court would probably adopt the same rule as a matter of state constitutional law that we reject today under the Federal Constitution.    Whether or not that forecast is accurate, I can see no reason for this Court to cause the Utah courts to redecide the question as a matter of state law. Federal interests are not offended when a single State elects to provide greater protection for its citizens than the Federal Constitution requires. Indeed, I continue to believe “that a policy of judicial restraint—one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene—enables this Court to make its most effective contribution to our federal system of government.” Michigan v. Long , 463 U. S. 1032 , 1067 (1983) (Stevens, J., dissenting). Thus, while I join the Court’s opinion, I remain persuaded that my vote to deny the State’s petition for certiorari was correct. * Indeed, it was the prosecution that prepared the trial court’s order granting respondents’ motion to suppress. See 2002 UT App. 317, ¶4, 57 P. 3d 1111, 1112.

Police officers may enter a home without a warrant if they have a reasonable belief that an occupant is in danger or seriously injured. In this case, the Supreme Court of the United States ruled that the police officers' warrantless entry into a home in Brigham City, Utah, was justified as they had an objectively reasonable basis to believe that an occupant was in imminent danger. The court reversed the decision of the Utah Supreme Court, which had held that the warrantless entry violated the Fourth Amendment.

Search & Seizure

Hiibel v. Sixth Judicial District Court of Nevada

https://supreme.justia.com/cases/federal/us/542/177/

OPINION OF THE COURT HIIBEL V. SIXTH JUDICIAL DIST. COURT OF NEV.,HUMBOLDT CTY. 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-5554 LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al. on writ of certiorari to the supreme court of nevada [June 21, 2004]    Justice Kennedy delivered the opinion of the Court.    The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U. S. 1 (1968). He challenges his conviction under the Fourth and Fifth Amendments to the United States Constitution, applicable to the States through the Fourteenth Amendment. I    The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.    The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had “any identification on [him],” which we understand as a request to produce a driver’s license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.    We now know that the man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with “willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of Nev. Rev. Stat. (NRS) §199.280 (2003). The government reasoned that Hiibel had obstructed the officer in carrying out his duties under §171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123 provides in relevant part: “1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime. . . . . . “3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”    Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal to identify himself as required by §171.123 “obstructed and delayed Dove as a public officer in attempting to discharge his duty” in violation of §199.280. App. 5. Hiibel was convicted and fined $250. The Sixth Judicial District Court affirmed, rejecting Hiibel’s argument that the application of §171.123 to his case violated the Fourth and Fifth Amendments. On review the Supreme Court of Nevada rejected the Fourth Amendment challenge in a divided opinion. 118 Nev. 868, 59 P. 3d 1201 (2002). Hiibel petitioned for rehearing, seeking explicit resolution of his Fifth Amendment challenge. The petition was denied without opinion. We granted certiorari. 540 U. S. 965 (2003). II    NRS §171.123(3) is an enactment sometimes referred to as a “stop and identify” statute. See Ala. Code §15–5–30 (West 2003); Ark. Code Ann. §5–71–213(a)(1) (2004); Colo. Rev. Stat. §16–3–103(1) (2003); Del. Code Ann., Tit. 11, §§1902(a), 1321(6) (2003); Fla. Stat. §856.021(2) (2003); Ga. Code Ann. §16–11–36(b) (2003); Ill. Comp. Stat., ch. 725, §5/107–14 (2004); Kan. Stat. Ann. §22–2402(1) (2003); La. Code Crim. Proc. Ann., Art. 215.1(A) (West 2004); Mo. Rev. Stat. §84.710(2) (2003); Mont. Code Ann. §46–5–401(2)(a) (2003); Neb. Rev. Stat. §29–829 (2003); N. H. Rev. Stat. Ann. §§594:2 and 644:6 (Lexis 2003); N. M. Stat. Ann. §30–22–3 (2004); N. Y. Crim. Proc. Law §140.50(1) (West 2004); N. D. Cent. Code §29–29–21 (2003); R. I. Gen. Laws §12–7–1 (2003); Utah Code Ann. §77–7–15 (2003); Vt. Stat. Ann., Tit. 24, §1983 (Supp. 2003); Wis. Stat. §968.24 (2003). See also Note, Stop and Identify Statutes: A New Form of an Inadequate Solution to an Old Problem, 12 Rutgers L. J. 585 (1981); Note, Stop-and-Identify Statutes After Kolender v. Lawson: Exploring the Fourth and Fifth Amendment Issues, 69 Iowa L. Rev. 1057 (1984).    Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.” Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code. See ALI, Model Penal Code, §250.6, Comment 4, pp. 392–393 (1980). The provision, originally designated §250.12, provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.” §250.12 (Tentative Draft No. 13) (1961). In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.    Stop and identify statutes have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave “a good Account of themselves,” 15 Geo. 2, ch. 5, §2 (1744), a power that itself reflected common-law rights of private persons to “arrest any suspicious night-walker, and detain him till he give a good account of himself … .” 2 W. Hawkins, Pleas of the Crown, ch. 13, §6, p. 130. (6th ed. 1787). In recent decades, the Court has found constitutional infirmity in traditional vagrancy laws. In Papachristou v. Jacksonville, 405 U. S. 156 (1972), the Court held that a traditional vagrancy law was void for vagueness. Its broad scope and imprecise terms denied proper notice to potential offenders and permitted police officers to exercise unfettered discretion in the enforcement of the law. See id ., at 167–171.    The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U. S. 47 , 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. See id ., at 51–52. Absent that factual basis for detaining the defendant, the Court held, the risk of “arbitrary and abusive police practices” was too great and the stop was impermissible. Id ., at 52. Four Terms later, the Court invalidated a modified stop and identify statute on vagueness grounds. See Kolender v. Lawson, 461 U. S. 352 (1983). The California law in Kolender required a suspect to give an officer “ ‘credible and reliable’ ” identification when asked to identify himself. Id., at 360. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in “ ‘virtually unrestrained power to arrest and charge persons with a violation.’ ” Id., at 360 (quoting Lewis v. New Orleans, 415 U. S. 130 , 135 (1974) (Powell, J., concurring in result)).    The present case begins where our prior cases left off. Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown . Further, the petitioner has not alleged that the statute is unconstitutionally vague, as in Kolender . Here the Nevada statute is narrower and more precise. The statute in Kolender had been interpreted to require a suspect to give the officer “credible and reliable” identification. In contrast, the Nevada Supreme Court has interpreted NRS §171.123(3) to require only that a suspect disclose his name. See 118 Nev., at ___, 59 P. 3d, at 1206 (opinion of Young, C. J.) (“The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists”). As we understand it, the statute does not require a suspect to give the officer a driver’s license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means—a choice, we assume, that the suspect may make—the statute is satisfied and no violation occurs . See id., at ___, 59 P. 3d, at 1206–1207. III    Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth Amendment rights. We disagree.    Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U. S. 210 , 216 (1984). Beginning with Terry v. Ohio, 392 U. S. 1 (1968), the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Delgado , supra , at 216; United States v. Brignoni-Ponce, 422 U. S. 873 , 881 (1975). To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer’s action must be “ ‘justified at its inception, and … reasonably related in scope to the circumstances which justified the interference in the first place.’ ” United States v. Sharpe, 470 U. S. 675 , 682 (1985) (quoting Terry , supra, at 20). For example, the seizure cannot continue for an excessive period of time, see United States v. Place, 462 U. S. 696 , 709 (1983), or resemble a traditional arrest, see Dunaway v. New York, 442 U. S. 200 , 212 (1979).    Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. See United States v. Hensley, 469 U. S. 221 , 229 (1985) (“[T]he ability to briefly stop [a suspect], ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice”); Hayes v. Florida, 470 U. S. 811 , 816 (1985) (“[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information”); Adams v. Williams, 407 U. S. 143 , 146 (1972) (“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time”).    Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.    Although it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. See Brown , 443 U. S., at 53, n. 3. Petitioner draws our attention to statements in prior opinions that, according to him, answer the question in his favor. In Terry , Justice White stated in a concurring opinion that a person detained in an investigative stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” 392 U. S., at 34. The Court cited this opinion in dicta in Berkemer v. McCarty , 468 U. S. 420 , 439 (1984), a decision holding that a routine traffic stop is not a custodial stop requiring the protections of Miranda v. Arizona, 384 U. S. 436 (1966). In the course of explaining why Terry stops have not been subject to Miranda , the Court suggested reasons why Terry stops have a “nonthreatening character,” among them the fact that a suspect detained during a Terry stop “is not obliged to respond” to questions. See Berkemer , supra, at 439, 440. According to petitioner, these statements establish a right to refuse to answer questions during a Terry stop.    We do not read these statements as controlling. The passages recognize that the Fourth Amendment does not impose obligations on the citizen but instead provides rights against the government. As a result, the Fourth Amendment itself cannot require a suspect to answer questions. This case concerns a different issue, however. Here, the source of the legal obligation arises from Nevada state law, not the Fourth Amendment. Further, the statutory obligation does not go beyond answering an officer’s request to disclose a name. See NRS §171.123(3) (“Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer”). As a result, we cannot view the dicta in Berkemer or Justice White’s concurrence in Terry as answering the question whether a State can compel a suspect to disclose his name during a Terry stop.    The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. The reasonableness of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.” Delaware v. Prouse, 440 U. S. 648 , 654 (1979). The Nevada statute satisfies that standard. The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity. On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration, Place , supra , at 709, or its location, Dunaway , supra , at 212. A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.    Petitioner argues that the Nevada statute circumvents the probable cause requirement, in effect allowing an officer to arrest a person for being suspicious. According to petitioner, this creates a risk of arbitrary police conduct that the Fourth Amendment does not permit. Brief for Petitioner 28–33. These are familiar concerns; they were central to the opinion in Papachristou, and also to the decisions limiting the operation of stop and identify statutes in Kolender and Brown . Petitioner’s concerns are met by the requirement that a Terry stop must be justified at its inception and “reasonably related in scope to the circumstances which justified” the initial stop. 392 U. S., at 20. Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. The Court noted a similar limitation in Hayes , where it suggested that Terry may permit an officer to determine a suspect’s identity by compelling the suspect to submit to fingerprinting only if there is “a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime.” 470 U. S., at 817. It is clear in this case that the request for identification was “reasonably related in scope to the circumstances which justified” the stop. Terry , supra, at 20. The officer’s request was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the guarantees of the Fourth Amendment. IV    Petitioner further contends that his conviction violates the Fifth Amendment’s prohibition on compelled self-incrimination. The Fifth Amendment states that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U. S. 27 , 34–38 (2000).    Respondents urge us to hold that the statements NRS §171.123(3) requires are nontestimonial, and so outside the Clause’s scope. We decline to resolve the case on that basis. “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U. S. 201 , 210 (1988). See also Hubbell, 530 U. S., at 35. Stating one’s name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in Hubbell , acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].” Id., at 41. Even if these required actions are testimonial, however, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.     The Fifth Amendment prohibits only compelled testimony that is incriminating. See Brown v. Walker, 161 U. S. 591 , 598 (1896) (noting that where “the answer of the witness will not directly show his infamy, but only tend to disgrace him, he is bound to answer”). A claim of Fifth Amendment privilege must establish “ ‘reasonable ground to apprehend danger to the witness from his being compelled to answer … . [T]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things,—not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.’ ” Id., at 599–600 (quoting Queen v. Boyes , 1 Best & S. 311, 321 (1861) (Cockburn, C. J.)). As we stated in Kastigar v. United States, 406 U. S. 441 , 445 (1972), the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Suspects who have been granted immunity from prosecution may, therefore, be compelled to answer; with the threat of prosecution removed, there can be no reasonable belief that the evidence will be used against them. See id., at 453.    In this case petitioner’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. Hoffman v. United States, 341 U. S. 479 , 486 (1951). As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.    The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. See Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549 , 555 (1990) (suggesting that “fact[s] the State could readily establish” may render “any testimony regarding existence or authenticity [of them] insufficiently incriminating”); Cf. California v. Byers, 402 U. S. 424 , 432 (1971) (opinion of Burger, C. J.). In every criminal case, it is known and must be known who has been arrested and who is being tried. Cf. Pennsylvania v. Muniz, 496 U. S. 582 , 601–602 (1990) (opinion of Brennan, J.). Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here.    The judgment of the Nevada Supreme Court is Affirmed. STEVENS, J., DISSENTING HIIBEL V. SIXTH JUDICIAL DIST. COURT OF NEV.,HUMBOLDT CTY. 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-5554 LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al. on writ of certiorari to the supreme court of nevada [June 21, 2004]    Justice Stevens, dissenting.    The Nevada law at issue in this case imposes a narrow duty to speak upon a specific class of individuals. The class includes only those persons detained by a police officer “under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime”[ Footnote 1 ]—persons who are, in other words, targets of a criminal investigation. The statute therefore is directed not “at the public at large,” but rather “at a highly selective group inherently suspect of criminal activities.” Albertson v. Subversive Activities Control Bd., 382 U. S. 70 , 79 (1965).    Under the Nevada law, a member of the targeted class “may not be compelled to answer” any inquiry except a command that he “identify himself.”[ Footnote 2 ] Refusal to identify oneself upon request is punishable as a crime.[ Footnote 3 ] Presumably the statute does not require the detainee to answer any other question because the Nevada Legislature realized that the Fifth Amendment prohibits compelling the target of a criminal investigation to make any other statement. In my judgment, the broad constitutional right to remain silent, which derives from the Fifth Amendment’s guarantee that “[n]o person … shall be compelled in any criminal case to be a witness against himself,” U. S. Const., Amdt. 5,[ Footnote 4 ] is not as circumscribed as the Court suggests, and does not admit even of the narrow exception defined by the Nevada statute.    “[T]here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda v. Arizona, 384 U. S. 436 , 467 (1966). It is a “settled principle” that “the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes,” but “they have no right to compel them to answer.” Davis v. Mississipi, 394 U. S. 721 , 727, n. 6 (1969). The protections of the Fifth Amendment are directed squarely toward those who are the focus of the government’s investigative and prosecutorial powers. In a criminal trial, the indicted defendant has an unqualified right to refuse to testify and may not be punished for invoking that right. See Carter v. Kentucky, 450 U. S. 288 , 299–300 (1981). The unindicted target of a grand jury investigation enjoys the same constitutional protection even if he has been served with a subpoena. See Chavez v. Martinez, 538 U. S. 760 , 767–768 (2003). So does an arrested suspect during custodial interrogation in a police station. Miranda , 384 U. S., at 467.    There is no reason why the subject of police interrogation based on mere suspicion, rather than probable cause, should have any lesser protection. Indeed, we have said that the Fifth Amendment’s protections apply with equal force in the context of Terry stops, see Terry v. Ohio, 392 U. S. 1 (1968), where an officer’s inquiry “must be ‘reasonably related in scope to the justification for [the stop’s] initiation.’ ” Berkemer v. McCarty , 468 U. S. 420 , 439 (1984) (some internal quotation marks omitted). “Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Ibid . See also Terry, 392 U. S., at 34 (White, J., concurring) (“Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest, although it may alert the officer to the need for continued observation”). Given our statements to the effect that citizens are not required to respond to police officers’ questions during a Terry stop, it is no surprise that petitioner assumed, as have we, that he had a right not to disclose his identity.    The Court correctly observes that a communication does not enjoy the Fifth Amendment privilege unless it is testimonial. Although the Court declines to resolve this question, ante , at 10–11, I think it clear that this case concerns a testimonial communication. Recognizing that whether a communication is testimonial is sometimes a “difficult question,” Doe v. United States, 487 U. S. 201 , 214–215 (1988), we have stated generally that “[i]t is the ‘extortion of information from the accused,’ the attempt to force him ‘to disclose the contents of his own mind,’ that implicates the Self-Incrimination Clause,” id ., at 211 (citations omitted). While “[t]he vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the privilege,” id ., at 213–214, certain acts and physical evidence fall outside the privilege.[ Footnote 5 ] In all instances, we have afforded Fifth Amendment protec- tion if the disclosure in question was being admitted because of its content rather than some other aspect of the communication.[ Footnote 6 ]    Considered in light of these precedents, the compelled statement at issue in this case is clearly testimonial. It is significant that the communication must be made in response to a question posed by a police officer. As we recently explained, albeit in the different context of the Sixth Amendment’s Confrontation Clause, “[w]hatever else the term [‘testimonial’] covers, it applies at a minimum … to police interrogations.” Crawford v. Washington, 541 U. S. ___, ___ (2004) (slip op., at 33). Surely police questioning during a Terry stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature.    Rather than determining whether the communication at issue is testimonial, the Court instead concludes that the State can compel the disclosure of one’s identity because it is not “incriminating.” Ante , at 11. But our cases have afforded Fifth Amendment protection to statements that are “incriminating” in a much broader sense than the Court suggests. It has “long been settled that [the Fifth Amendment’s] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.” United States v. Hubbell, 530 U. S. 27 , 37 (2000). By “incriminating” we have meant disclosures that “could be used in a criminal prosecution or could lead to other evidence that might be so used,” Kastigar v. United States, 406 U. S. 441 , 445 (1972)—communications, in other words, that “would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime,” Hoffman v. United States, 341 U. S. 479 , 486 (1951). Thus, “[c]ompelled testimony that communicates information that may ‘lead to incriminating evidence’ is privileged even if the information itself is not inculpatory.” Hubbell , 530 U. S., at 38 (citing Doe , 487 U. S., at 208, n. 6).    Given a proper understanding of the category of “incriminating” communications that fall within the Fifth Amendment privilege, it is clear that the disclosure of petitioner’s identity is protected. The Court reasons that we should not assume that the disclosure of petitioner’s name would be used to incriminate him or that it would furnish a link in a chain of evidence needed to prosecute him. Ante, at 12–13. But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances “reasonably indicate that the person has committed, is committing or is about to commit a crime”?[ Footnote 7 ] If the Court is correct, then petitioner’s refusal to cooperate did not impede the police investigation. Indeed, if we accept the predicate for the Court’s holding, the statute requires nothing more than a useless invasion of privacy. I think that, on the contrary, the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands.    A person’s identity obviously bears informational and incriminating worth, “even if the [name] itself is not inculpatory.” Hubbell , 530 U. S., at 38. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person’s identity provides a link in the chain to incriminating evidence “only in unusual circumstances.” Ante , at 12.    The officer in this case told petitioner, in the Court’s words, that “he was conducting an investigation and needed to see some identification.” Ante , at 2. As the target of that investigation, petitioner, in my view, acted well within his rights when he opted to stand mute. Accordingly, I respectfully dissent. Footnote 1 Nev. Rev. Stat. §171.123(1) (2003). Footnote 2 §171.123(3). Footnote 3 In this case, petitioner was charged with violating §199.280, which makes it a crime to “willfully resis[t], dela[y] or obstruc[t] a public officer in discharging or attempting to discharge any legal duty of his office.” A violation of that provision is a misdemeanor unless a dangerous weapon is involved. Footnote 4 The Fifth Amendment’s protection against compelled self-incrimination applies to the States through the Fourteenth Amendment’s Due Process Clause. See Malloy v. Hogan, 378 U. S. 1 , 6 (1964). Footnote 5 A suspect may be made, for example, to provide a blood sample, Schmerber v. California, 384 U. S. 757 , 765 (1966), a voice exemplar, United States v. Dionisio, 410 U. S. 1 , 7 (1973), or a handwriting sample, Gilbert v. California, 388 U. S. 263 , 266–267 (1967). Footnote 6 See Pennsylvania v. Muniz, 496 U. S. 582 , 598–599 (1990) (respondent’s answer to the “birthday question” was protected because the “content of his truthful answer supported an inference that his mental faculties were impaired”); Doe v. United States, 487 U. S. 201 , 211, n. 10 (1988) (“The content itself must have testimonial significance”); Fisher v. United States, 425 U. S. 391 , 410–411 (1976) (“[H]owever incriminating the contents of the accountant’s workpapers might be, the act of producing them—the only thing which the taxpayer is compelled to do—would not itself involve testimonial self-incrimination”); Gilbert, 388 U. S., at 266–267 (“A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying characteristic outside its protection”); United States v. Wade, 388 U. S. 218 , 223 (1967) (“[I]t deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege”). Footnote 7 Nev. Rev. Stat. §171.123(1) (2003). The Court suggests that furnishing identification also allows the investigating officer to assess the threat to himself and others. See ante , at 8. But to the extent that officer or public safety is immediately at issue, that concern is sufficiently alleviated by the officer’s ability to perform a limited patdown search for weapons. See Terry v. Ohio, 392 U. S. 1 , 25–26 (1968). BREYER, J., DISSENTING HIIBEL V. SIXTH JUDICIAL DIST. COURT OF NEV.,HUMBOLDT CTY. 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-5554 LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al. on writ of certiorari to the supreme court of nevada [June 21, 2004]    Justice Breyer, with whom Justice Souter and Justice Ginsburg join, dissenting.    Notwithstanding the vagrancy statutes to which the majority refers, see ante, at 4–5, this Court’s Fourth Amendment precedents make clear that police may conduct a Terry stop only within circumscribed limits. And one of those limits invalidates laws that compel responses to police questioning.    In Terry v. Ohio, 392 U. S. 1 (1968), the Court considered whether police, in the absence of probable cause, can stop, question, or frisk an individual at all. The Court recognized that the Fourth Amendment protects the “ ‘right of every individual to the possession and control of his own person.’ ” Id., at 9 (quoting Union Pacific R. Co. v. Botsford, 141 U. S. 250 , 251 (1891)). At the same time, it recognized that in certain circumstances, public safety might require a limited “seizure,” or stop, of an individual against his will. The Court consequently set forth conditions circumscribing when and how the police might conduct a Terry stop. They include what has become known as the “reasonable suspicion” standard. 392 U. S. , at 20–22. Justice White, in a separate concurring opinion, set forth further conditions. Justice White wrote: “Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id., at 34.    About 10 years later, the Court, in Brown v. Texas, 443 U. S. 47 (1979), held that police lacked “any reasonable suspicion” to detain the particular petitioner and require him to identify himself. Id., at 53. The Court noted that the trial judge had asked the following: “I’m sure [officers conducting a Terry stop] should ask everything they possibly could find out. What I’m asking is what’s the State’s interest in putting a man in jail because he doesn’t want to answer . . . .” Id., at 54 (Appendix to opinion of the Court) (emphasis in original). The Court referred to Justice White’s Terry concurrence. 443 U. S. , at 53, n. 3. And it said that it “need not decide” the matter. Ibid. Then, five years later, the Court wrote that an “officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. ” Berkemer v. McCarty, 468 U. S. 420 , 439 (1984) (emphasis added). See also Kolender v. Lawson, 461 U. S. 352 , 365 (1983) (Brennan, J., concurring) ( Terry suspect “must be free to . . . decline to answer the questions put to him”); Illinois v. Wardlow, 528 U. S. 119 , 125 (2000) (stating that allow- ing officers to stop and question a fleeing person “is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning”).    This lengthy history—of concurring opinions, of references, and of clear explicit statements—means that the Court’s statement in Berkemer , while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years.    There is no good reason now to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. See ante, at 1–6 (Stevens, J., dissenting). Administrative considerations also militate against change. Can a State, in addition to requiring a stopped individual to answer “What’s your name?” also require an answer to “What’s your license number?” or “Where do you live?” Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances.    Indeed, as the majority points out, a name itself—even if it is not “Killer Bill” or “Rough ’em up Harry”—will sometimes provide the police with “a link in the chain of evidence needed to convict the individual of a separate offense.” Ante, at 12–13. The majority reserves judgment about whether compulsion is permissible in such instances. Ante, at 13. How then is a police officer in the midst of a Terry stop to distinguish between the majority’s ordinary case and this special case where the majority reserves judgment?    The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry- stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. I would not begin to erode a clear rule with special exceptions.    I consequently dissent.

In Hiibel v. Sixth Judicial Dist. Court of Nev., the Supreme Court ruled that individuals can be required to disclose their names during a Terry stop (a brief police detention based on reasonable suspicion of involvement in criminal activity), but not other information such as addresses or dates of birth. The Court's decision centered on the Fourth Amendment, which protects against unreasonable searches and seizures, and the Fifth Amendment, which protects against self-incrimination. This case sets a precedent for police authority and individual rights during investigative stops.

Search & Seizure

Kentucky v. King

https://supreme.justia.com/cases/federal/us/563/452/

OPINION OF THE COURT KENTUCKY V. KING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1272 KENTUCKY, PETITIONER v. HOLLIS DESHAUN KING on writ of certiorari to the supreme court of kentucky [May 16, 2011]    Justice Alito delivered the opinion of the Court.    It is well established that “exigent circumstances,” including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant. In this case, we consider whether this rule applies when police, by knocking on the door of a residence and announcing their presence, cause the occupants to attempt to destroy evidence. The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation of the exigent circumstances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies. I A    This case concerns the search of an apartment in Lexington, Kentucky. Police officers set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer Gibbons watched the deal take place from an unmarked car in a nearby parking lot. After the deal occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the officers that the suspect was moving quickly toward the breezeway of an apartment building, and he urged them to “hurry up and get there” before the suspect entered an apartment. App. 20.    In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they approached the door of that apartment.    Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door “as loud as [they] could” and announced, “ ‘This is the police’ ” or “ ‘Police, police, police.’ ” Id., at 22–23. Cobb said that “[a]s soon as [the officers] started banging on the door,” they “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.” Id., at 24. These noises, Cobb testified, led the officers to believe that drug-related evidence was about to be destroyed.    At that point, the officers announced that they “were going to make entry inside the apartment.” Ibid. Cobb then kicked in the door, the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent’s girlfriend, and a guest who was smoking marijuana.[ Footnote 1 ] The officers performed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.    Police eventually entered the apartment on the right. Inside, they found the suspected drug dealer who was the initial target of their investigation. B    In the Fayette County Circuit Court, a grand jury charged respondent with trafficking in marijuana, first-degree trafficking in a controlled substance, and second-degree persistent felony offender status. Respondent filed a motion to suppress the evidence from the warrantless search, but the Circuit Court denied the motion. The Circuit Court concluded that the officers had probable cause to investigate the marijuana odor and that the officers “properly conducted [the investigation] by initially knocking on the door of the apartment unit and awaiting the response or consensual entry.” App. to Pet. for Cert. 9a. Exigent circumstances justified the warrantless entry, the court held, because “there was no response at all to the knocking,” and because “Officer Cobb heard movement in the apartment which he reasonably concluded were persons in the act of destroying evidence, particularly narcotics because of the smell.” Ibid. Respondent then entered a conditional guilty plea, reserving his right to appeal the denial of his suppression motion. The court sentenced respondent to 11 years’ imprisonment.    The Kentucky Court of Appeals affirmed. It held that exigent circumstances justified the warrantless entry because the police reasonably believed that evidence would be destroyed. The police did not impermissibly create the exigency, the court explained, because they did not deliberately evade the warrant requirement.    The Supreme Court of Kentucky reversed. 302 S. W. 3d 649 (2010). As a preliminary matter, the court observed that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” Id., at 655. But the court did not answer that question. Instead, it “assume[d] for the purpose of argument that exigent circumstances existed.” Ibid. To determine whether police impermissibly created the exigency, the Supreme Court of Kentucky announced a two-part test. First, the court held, police cannot “deliberately creat[e] the exigent circumstances with the bad faith intent to avoid the warrant requirement.” Id. , at 656 (internal quotation marks omitted). Second, even absent bad faith, the court concluded, police may not rely on exigent circumstances if “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” Ibid. (internal quotation marks omitted). Although the court found no evidence of bad faith, it held that exigent circumstances could not justify the search because it was reasonably foreseeable that the occupants would destroy evidence when the police knocked on the door and announced their presence. Ibid. We granted certiorari. 561 U. S. ___ (2010).[ Footnote 2 ] II A    The Fourth Amendment provides:    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”    The text of the Amendment thus expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. See Payton v. New York , 445 U. S. 573 , 584 (1980).    Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured. “It is a ‘basic principle of Fourth Amendment law,’ ” we have often said, “ ‘that searches and seizures inside a home without a warrant are presumptively unreasonable.’ ” Brigham City v. Stuart , 547 U. S. 398 , 403 (2006) (quoting Groh v. Ramirez , 540 U. S. 551 , 559 (2004)). But we have also recognized that this presumption may be overcome in some circumstances because “[t]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Brigham City , supra, at 403; see also Michigan v. Fisher , 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 2). Accordingly, the warrant requirement is subject to certain reasonable exceptions. Brigham City , supra , at 403.    One well-recognized exception applies when “ ‘the exigencies of the situation’ make the needs of law en-forcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona , 437 U. S. 385 , 394 (1978); see also Payton , supra, at 590 (“[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant”).    This Court has identified several exigencies that may justify a warrantless search of a home. See Brigham City , 547 U. S., at 403. Under the “emergency aid” exception, for example, “officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Ibid.; see also, e.g., Fisher , supra, at ___ (slip op., at 5) (upholding warrantless home entry based on emergency aid exception). Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. See United States v. Santana , 427 U. S. 38 , 42–43 (1976). And—what is relevant here—the need “to prevent the imminent destruction of evidence” has long been recognized as a sufficient justification for a warrantless search. Brigham City , supra, at 403; see also Georgia v. Randolph , 547 U. S. 103 , 116, n. 6 (2006); Minnesota v. Olson , 495 U. S. 91 , 100 (1990).[ Footnote 3 ] B    Over the years, lower courts have developed an exception to the exigent circumstances rule, the so-called “police-created exigency” doctrine. Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was “created” or “manufactured” by the conduct of the police. See, e.g., United States v. Chambers , 395 F. 3d 563, 566 (CA6 2005) (“[F]or a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves”); United States v. Gould , 364 F. 3d 578, 590 (CA5 2004) (en banc) (“[A]lthough exigent circumstances may justify a warrantless probable cause entry into the home, they will not do so if the exigent circumstances were manufactured by the agents” (internal quotation marks omitted)).    In applying this exception for the “creation” or “manufacturing” of an exigency by the police, courts require something more than mere proof that fear of detection by the police caused the destruction of evidence. An additional showing is obviously needed because, as the Eighth Circuit has recognized, “in some sense the police always create the exigent circumstances.” United States v. Duchi , 906 F. 2d 1278, 1284 (CA8 1990). That is to say, in the vast majority of cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement. Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain. Persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police. Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.    Presumably for the purpose of avoiding such a result, the lower courts have held that the police-created exigency doctrine requires more than simple causation, but the lower courts have not agreed on the test to be applied. Indeed, the petition in this case maintains that “[t]here are currently five different tests being used by the United States Courts of Appeals,” Pet. for Cert. 11, and that some state courts have crafted additional tests, id. , at 19–20. III A    Despite the welter of tests devised by the lower courts, the answer to the question presented in this case follows directly and clearly from the principle that permits warrantless searches in the first place. As previously noted, warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.[ Footnote 4 ]    We have taken a similar approach in other cases involving warrantless searches. For example, we have held that law enforcement officers may seize evidence in plain view, provided that they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made. See Horton v. California , 496 U. S. 128 , 136–140 (1990). As we put it in Horton , “[i]t is … an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Id., at 136. So long as this prerequisite is satisfied, however, it does not matter that the officer who makes the observation may have gone to the spot from which the evidence was seen with the hope of being able to view and seize the evidence. See id., at 138 (“The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure”). Instead, the Fourth Amendment requires only that the steps preceding the seizure be lawful. See id., at 136–137.    Similarly, officers may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs. See INS v. Delgado , 466 U. S. 210 , 217, n. 5 (1984) (noting that officers who entered into consent-based encounters with employees in a factory building were “lawfully present [in the factory] pursuant to consent or a warrant”). If consent is freely given, it makes no difference that an officer may have approached the person with the hope or expectation of obtaining consent. See id., at 216 (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response”). B    Some lower courts have adopted a rule that is similar to the one that we recognize today. See United States v. MacDonald , 916 F. 2d 766, 772 (CA2 1990) (en banc) (law enforcement officers “do not impermissibly create exigent circumstances” when they “act in an entirely lawful manner”); State v. Robinson , 2010 WI 80, ¶32, 327 Wis. 2d 302, 326–328, 786 N. W. 2d 463, 475–476 (2010). But others, including the Kentucky Supreme Court, have imposed additional requirements that are unsound and that we now reject. Bad faith . Some courts, including the Kentucky Supreme Court, ask whether law enforcement officers “ ‘deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.’ ” 302 S. W. 3d, at 656 (quoting Gould , 364 F. 3d, at 590); see also, e.g., Chambers , 395 F. 3d, at 566; United States v. Socey , 846 F. 2d 1439, 1448 (CADC 1988); United States v. Rengifo , 858 F. 2d 800, 804 (CA1 1988).    This approach is fundamentally inconsistent with our Fourth Amendment jurisprudence. “Our cases have repeatedly rejected” a subjective approach, asking only whether “the circumstances, viewed objectively , justify the action.” ’Brigham City , 547 U. S., at 404 (alteration and internal quotation marks omitted); see also Fisher , 558 U. S., at ___ (slip op., at 3–5). Indeed, we have never held, outside limited contexts such as an “inventory search or administrative inspection … , that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment.” Whren v. United States , 517 U. S. 806 , 812 (1996); see also Brigham City, supra, at 405.    The reasons for looking to objective factors, rather than subjective intent, are clear. Legal tests based on reasonableness are generally objective, and this Court has long taken the view that “evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” Horton , supra, at 138. Reasonable foreseeability . Some courts, again including the Kentucky Supreme Court, hold that police may not rely on an exigency if “ ‘it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.’ ” 302 S. W. 3d, at 656 (quoting Mann v . State , 357 Ark. 159, 172, 161 S. W. 3d 826, 834 (2004)); see also, e.g., United States v. Mowatt , 513 F. 3d 395, 402 (CA4 2008). Courts applying this test have invalidated warrantless home searches on the ground that it was reasonably foreseeable that police officers, by knocking on the door and announcing their presence, would lead a drug suspect to destroy evidence. See, e.g., id. , at 402–403; 302 S. W. 3d, at 656.    Contrary to this reasoning, however, we have rejected the notion that police may seize evidence without a warrant only when they come across the evidence by happenstance. In Horton , as noted, we held that the police may seize evidence in plain view even though the officers may be “interested in an item of evidence and fully expec[t] to find it in the course of a search.” 496 U. S., at 138.    Adoption of a reasonable foreseeability test would also introduce an unacceptable degree of unpredictability. For example, whenever law enforcement officers knock on the door of premises occupied by a person who may be involved in the drug trade, there is some possibility that the occupants may possess drugs and may seek to destroy them. Under a reasonable foreseeability test, it would be necessary to quantify the degree of predictability that must be reached before the police-created exigency doctrine comes into play.    A simple example illustrates the difficulties that such an approach would produce. Suppose that the officers in the present case did not smell marijuana smoke and thus knew only that there was a 50% chance that the fleeing suspect had entered the apartment on the left rather than the apartment on the right. Under those circumstances, would it have been reasonably foreseeable that the occupants of the apartment on the left would seek to destroy evidence upon learning that the police were at the door? Or suppose that the officers knew only that the suspect had disappeared into one of the apartments on a floor with 3, 5, 10, or even 20 units? If the police chose a door at random and knocked for the purpose of asking the occupants if they knew a person who fit the description of the suspect, would it have been reasonably foreseeable that the occupants would seek to destroy evidence?    We have noted that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor , 490 U. S. 386 , 396–397 (1989). The reasonable foreseeability test would create unacceptable and unwarranted difficulties for law enforcement officers who must make quick decisions in the field, as well as for judges who would be required to determine after the fact whether the destruction of evidence in response to a knock on the door was reasonably foreseeable based on what the officers knew at the time. Probable cause and time to secure a warrant . Some courts, in applying the police-created exigency doctrine, fault law enforcement officers if, after acquiring evidence that is sufficient to establish probable cause to search particular premises, the officers do not seek a warrant but instead knock on the door and seek either to speak with an occupant or to obtain consent to search. See, e.g., Chambers , supra, at 569 (citing “[t]he failure to seek a warrant in the face of plentiful probable cause” as a factor indicating that the police deliberately created the exigency).    This approach unjustifiably interferes with legitimate law enforcement strategies. There are many entirely proper reasons why police may not want to seek a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired. Without attempting to provide a comprehensive list of these reasons, we note a few.    First, the police may wish to speak with the occupants of a dwelling before deciding whether it is worthwhile to seek authorization for a search. They may think that a short and simple conversation may obviate the need to apply for and execute a warrant. See Schneckloth v. Bustamonte , 412 U. S. 218 , 228 (1973). Second, the police may want to ask an occupant of the premises for consent to search because doing so is simpler, faster, and less burdensome than applying for a warrant. A consensual search also “may result in considerably less inconvenience” and embarrassment to the occupants than a search conducted pursuant to a warrant. Ibid. Third, law enforcement officers may wish to obtain more evidence before submitting what might otherwise be considered a marginal warrant application. Fourth, prosecutors may wish to wait until they acquire evidence that can justify a search that is broader in scope than the search that a judicial officer is likely to authorize based on the evidence then available. And finally, in many cases, law enforcement may not want to execute a search that will disclose the existence of an investigation because doing so may interfere with the acquisition of additional evidence against those already under suspicion or evidence about additional but as yet unknown participants in a criminal scheme.    We have said that “[l]aw enforcement officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause.” Hoffa v. United States , 385 U. S. 293 , 310 (1966). Faulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution. Standard or good investigative tactics . Finally, some lower court cases suggest that law enforcement officers may be found to have created or manufactured an exigency if the court concludes that the course of their investigation was “contrary to standard or good law enforcement practices (or to the policies or practices of their jurisdictions).” Gould , 364 F. 3d, at 591. This approach fails to provide clear guidance for law enforcement officers and authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies. C    Respondent argues for a rule that differs from those discussed above, but his rule is also flawed. Respondent contends that law enforcement officers impermissibly create an exigency when they “engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.” Brief for Respondent 24. In respondent’s view, relevant factors include the officers’ tone of voice in announcing their presence and the forcefulness of their knocks. But the ability of law enforcement officers to respond to an exigency cannot turn on such subtleties.    Police officers may have a very good reason to announce their presence loudly and to knock on the door with some force. A forceful knock may be necessary to alert the occupants that someone is at the door. Cf. United States v. Banks , 540 U. S. 31 , 33 (2003) (Police “rapped hard enough on the door to be heard by officers at the back door” and announced their presence, but defendant “was in the shower and testified that he heard nothing”). Furthermore, unless police officers identify themselves loudly enough, occupants may not know who is at their doorstep. Officers are permitted—indeed, encouraged—to identify themselves to citizens, and “in many circumstances this is cause for assurance, not discomfort.” United States v. Drayton , 536 U. S. 194 , 204 (2002). Citizens who are startled by an unexpected knock on the door or by the sight of unknown persons in plain clothes on their doorstep may be relieved to learn that these persons are police officers. Others may appreciate the opportunity to make an informed decision about whether to answer the door to the police.    If respondent’s test were adopted, it would be extremely difficult for police officers to know how loudly they may announce their presence or how forcefully they may knock on a door without running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that threshold had been passed. The Fourth Amendment does not require the nebulous and impractical test that respondent proposes.[ Footnote 5 ] D    For these reasons, we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment. This holding provides ample protection for the privacy rights that the Amendment protects.    When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Cf. Florida v. Royer , 460 U. S. 491 , 497–498 (1983). (“[H]e may decline to listen to the questions at all and may go on his way”). When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.” Chambers , 395 F. 3d, at 577 (Sutton, J., dissenting). And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.    Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue. IV    We now apply our interpretation of the police-created exigency doctrine to the facts of this case. A    We need not decide whether exigent circumstances existed in this case. Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency. See Brigham City , 547 U. S., at 406 . The trial court and the Kentucky Court of Appeals found that there was a real exigency in this case, but the Kentucky Supreme Court expressed doubt on this issue, observing that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” 302 S. W. 3d, at 655. The Kentucky Supreme Court “assum[ed] for the purpose of argument that exigent circumstances existed,” ibid., and it held that the police had impermissibly manufactured the exigency.    We, too, assume for purposes of argument that an exigency existed. We decide only the question on which the Kentucky Supreme Court ruled and on which we granted certiorari: Under what circumstances do police impermissibly create an exigency? Any question about whether an exigency actually existed is better addressed by the Kentucky Supreme Court on remand. See Kirk v. Louisiana , 536 U. S. 635 , 638 (2002) (per curiam) (reversing state-court judgment that exigent circumstances were not required for warrantless home entry and remanding for state court to determine whether exigent circumstances were present). B    In this case, we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Officer Cobb testified without contradiction that the officers “banged on the door as loud as [they] could” and announced either “ ‘Police, police, police’ ” or “ ‘This is the police.’ ” App. 22–23. This conduct was entirely consistent with the Fourth Amendment, and we are aware of no other evidence that might show that the officers either violated the Fourth Amendment or threatened to do so (for example, by announcing that they would break down the door if the occupants did not open the door voluntarily).    Respondent argues that the officers “demanded” entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion. He relies on a passing statement made by the trial court in its opinion denying respondent’s motion to suppress. See App. to Pet. for Cert. 3a–4a. In recounting the events that preceded the search, the judge wrote that the officers “banged on the door of the apartment on the back left of the breezeway identifying themselves as police officers and demanding that the door be opened by the persons inside.” Ibid . (emphasis added and deleted). However, at a later point in this opinion, the judge stated that the officers “initially knock[ed] on the door of the apartment unit and await[ed] the response or consensual entry.” Id. , at 9a. This later statement is consistent with the testimony at the suppression hearing and with the findings of the state appellate courts. See 302 S. W. 3d, at 651 (The officers “knocked loudly on the back left apartment door and announced ‘police’ ”); App. to Pet. for Cert. 14a (The officers “knock[ed] on the door and announc[ed] themselves as police”); App. 22–24. There is no evidence of a “demand” of any sort, much less a demand that amounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to our attention, the state court may elect to address that matter on remand.    Finally, respondent claims that the officers “explained to [the occupants that the officers] were going to make entry inside the apartment,” id., at 24, but the record is clear that the officers did not make this statement until after the exigency arose. As Officer Cobb testified, the officers “knew that there was possibly something that was going to be destroyed inside the apartment,” and “ [a]t that point , … [they] explained … [that they] were going to make entry.” Ibid. (emphasis added). Given that this announcement was made after the exigency arose, it could not have created the exigency. *  *  *    Like the court below, we assume for purposes of argument that an exigency existed. Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment.    The judgment of the Kentucky Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Respondent’s girlfriend leased the apartment, but respondent stayed there part of the time, and his child lived there. Based on these facts, Kentucky conceded in state court that respondent has Fourth Amendment standing to challenge the search. See App. to Pet. for Cert. 7a; see also 302 S. W. 3d 649, 652 (Ky. 2010). Footnote 2 After we granted certiorari, respondent filed a motion to dismiss the petition as improvidently granted, which we denied. 562 U. S. ___ (2010). Respondent’s principal argument was that the case was moot because, after the Kentucky Supreme Court reversed his conviction, the Circuit Court dismissed the charges against him. Respondent’s argument is foreclosed by United States v. Villamonte-Marquez , 462 U. S. 579 , 581, n. 2 (1983). As we explained in Villamonte-Marquez , our reversal of the Kentucky Supreme Court’s decision “would reinstate the judgment of conviction and the sentence entered” by the Circuit Court. Ibid. The absence of an indictment does not change matters. See ibid. (“Upon respondents’ conviction and sentence, the indictment that was returned against them was merged into their convictions and sentences”). Footnote 3 Preventing the destruction of evidence may also justify dispensing with Fourth Amendment requirements in other contexts. See, e.g., Richards v. Wisconsin , 520 U. S. 385 , 395–396 (1997) (failure to comply with the knock-and-announce requirement was justified because “the circumstances … show[ed] that the officers had a reasonable suspicion that [a suspect] might destroy evidence if given further opportunity to do so”); Schmerber v. California , 384 U. S. 757 , 770–771 (1966) (warrantless testing for blood-alcohol content was justified based on potential destruction of evidence); cf. United States v. Banks , 540 U. S. 31 , 37–40 (2003) (15 to 20 seconds was a reasonable time for officers to wait after knocking and announcing their presence where there was a risk that suspect would dispose of cocaine). Footnote 4 There is a strong argument to be made that, at least in most circumstances, the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted. In this case, however, no such actual threat was made, and therefore we have no need to reach that question. Footnote 5 Contrary to respondent’s argument, see Brief for Respondent 13–18, Johnson v. United States , 333 U. S. 10 (1948), does not require affirmance in this case. In Johnson , officers noticed the smell of burning opium emanating from a hotel room. They then knocked on the door and demanded entry. Upon seeing that Johnson was the only occupant of the room, they placed her under arrest, searched the room, and discovered opium and drug paraphernalia. Id. , at 11. Defending the legality of the search, the Government attempted to justify the warrantless search of the room as a valid search incident to a lawful arrest. See Brief for United States in Johnson v. United States , O. T. 1947, No. 329, pp. 13, 16, 36. The Government did not contend that the officers entered the room in order to prevent the destruction of evidence. Although the officers said that they heard a “ ‘shuffling’ ” noise inside the room after they knocked on the door, 333 U. S., at 12, the Government did not claim that this particular noise was a noise that would have led a reasonable officer to think that evidence was about to be destroyed. Thus, Johnson is simply not a case about exigent circumstances. See id. , at 14–15 (noting that if “exceptional circumstances” existed—for example, if a “suspect was fleeing or likely to take flight” or if “evidence or contraband was threatened with removal or destruction”—then “it may be contended that a magistrate’s warrant for search may be dispensed with”). GINSBURG, J., DISSENTING KENTUCKY V. KING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1272 KENTUCKY, PETITIONER v. HOLLIS DESHAUN KING on writ of certiorari to the supreme court of kentucky [May 16, 2011]    Justice Ginsburg, dissenting.    The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.     The Fourth Amendment guarantees to the people “[t]he right … to be secure in their … houses … against unreasonable searches and seizures.” Warrants to search, the Amendment further instructs, shall issue only upon a showing of “probable cause” to believe criminal activity is afoot. These complementary provisions are designed to ensure that police will seek the authorization of a neutral magistrate before undertaking a search or seizure. Exceptions to the warrant requirement, this Court has explained, must be “few in number and carefully delineated,” if the main rule is to remain hardy. United States v. United States Dist. Court for Eastern Dist. of Mich. , 407 U. S. 297 , 318 (1972); see Kyllo v. United States , 533 U. S. 27 , 31 (2001).    This case involves a principal exception to the warrant requirement, the exception applicable in “exigent circumstances.” See ante , at 6–7. “[C]arefully delineated,” the exception should govern only in genuine emergency situations. Circumstances qualify as “exigent” when there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape. Brigham City v. Stuart , 547 U. S. 398 , 403 (2006). The question presented: May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct. I    Two pillars of our Fourth Amendment jurisprudence should have controlled the Court’s ruling: First, “whenever practical, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure,” Terry v. Ohio , 392 U. S. 1 , 20 (1968); second, unwarranted “searches and seizures inside a home” bear heightened scrutiny, Payton v. New York , 445 U. S. 573 , 586 (1980). The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are un- der the law, and the police-state where they are the law.” Johnson v. United States , 333 U. S. 10 , 17 (1948). The Court has accordingly declared warrantless searches, in the main, “ per se unreasonable.” Mincey v. Arizona , 437 U. S. 385 , 390 (1978); see also Groh v. Ramirez , 540 U. S. 551 , 559 (2004). “[T]he police bear a heavy burden,” the Court has cautioned, “when attempting to demonstrate an urgent need that might justify warrantless searches.” Welsh v. Wisconsin , 466 U. S. 740 , 749–750 (1984).    That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Ante , at 8. Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.    In no quarter does the Fourth Amendment apply with greater force than in our homes, our most private space which, for centuries, has been regarded as “ ‘entitled to special protection.’ ” Georgia v. Randolph , 547 U. S. 103 , 115, and n. 4 (2006); Minnesota v. Carter , 525 U. S. 83 , 99 (1998) (Kennedy, J., concurring). Home intrusions, the Court has said, are indeed “the chief evil against which … the Fourth Amendment is directed.” Payton , 445 U. S., at 585 (internal quotation marks omitted); see Silverman v. United States , 365 U. S. 505 , 511 (1961) (“At [the Fourth Amendment’s] very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.”). “ ‘[S]earches and seizures inside a home without a warrant are [therefore] presumptively unreasonable.’ ” Brigham City , 547 U. S., at 403 (quoting Groh , 540 U. S., at 559). How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity? II    As above noted, to justify the police activity in this case, Kentucky invoked the once-guarded exception for emergencies “in which the delay necessary to obtain a warrant … threaten[s] ‘the destruction of evidence.’ ” Schmerber v. California , 384 U. S. 757 , 770 (1966) (quoting Preston v. United States , 376 U. S. 364 , 367 (1964)). To fit within this exception, “police action literally must be [taken] ‘now or never’ to preserve the evidence of the crime.” Roaden v. Kentucky , 413 U. S. 496 , 505 (1973).    The existence of a genuine emergency depends not only on the state of necessity at the time of the warrantless search; it depends, first and foremost, on “actions taken by the police preceding the warrantless search.” United States v. Coles , 437 F. 3d 361, 367 (CA3 2006). See also United States v. Chambers , 395 F. 3d 563, 565 (CA6 2005) (“[O]fficers must seek a warrant based on probable cause when they believe in advance they will find contraband or evidence of a crime.”). “[W]asting a clear opportunity to obtain a warrant,” therefore, “disentitles the officer from relying on subsequent exigent circumstances.” S. Saltzburg & D. Capra, American Criminal Procedure 376 (8th ed. 2007).    Under an appropriately reined-in “emergency” or “exigent circumstances” exception, the result in this case should not be in doubt. The target of the investigation’s entry into the building, and the smell of marijuana seeping under the apartment door into the hallway, the Kentucky Supreme Court rightly determined, gave the police “probable cause … sufficient … to obtain a warrant to search the … apartment.” 302 S. W. 3d 649, 653 (2010). As that court observed, nothing made it impracticable for the police to post officers on the premises while proceeding to obtain a warrant authorizing their entry. Id ., at 654. Before this Court, Kentucky does not urge otherwise. See Brief for Petitioner 35, n. 13 (asserting “[i]t should be of no importance whether police could have obtained a warrant”).    In Johnson , the Court confronted this scenario: standing outside a hotel room, the police smelled burning opium and heard “some shuffling or noise” coming from the room. 333 U. S., at 12 (internal quotation marks omitted). Could the police enter the room without a warrant? The Court answered no. Explaining why, the Court said: “The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not a policeman … . .     .     .     .     .    “If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of [any] case in which [a warrant] should be required.” Id. , at 14–15. I agree, and would not allow an expedient knock to override the warrant requirement. Instead, I would accord that core requirement of the Fourth Amendment full respect. When possible, “a warrant must generally be secured,” the Court acknowledges. Ante, at 5. There is every reason to conclude that securing a warrant was entirely feasible in this case, and no reason to contract the Fourth Amendment’s dominion.  The Court in Johnson was informed that “when [the officer] knocked on [Johnson’s] door the ‘first thing that naturally struck [her]’ was to conceal the opium and the equipment for smoking it.” See Brief for United States in Johnson v. United States , O. T. 1947, No. 329, p. 17, n. 6. Had the Government in Johnson urged that the “shuffling or noise” indicated evidence was at risk, would the result have changed? Justice Jackson’s recognition of the primacy of the warrant requirement suggests not. But see ante , at 15, n. 5 (distinguishing Johnson on the ground that the Government did not contend “that the officers entered the room in order to prevent the destruction of evidence”).

In Kentucky v. King, the Supreme Court held that the police's conduct in knocking on the door and announcing their presence did not violate the Fourth Amendment, and therefore, the evidence obtained during the subsequent search was admissible. The Court rejected the argument that the police should have foreseen that their actions would prompt the occupants to attempt to destroy evidence, stating that the police's conduct was lawful and did not threaten to violate the Fourth Amendment. The Court emphasized the importance of the warrant requirement but concluded that exigent circumstances, including the need to prevent the destruction of evidence, permitted the warrantless search in this case.

Search & Seizure

Safford Unified School District #1 v. Redding

https://supreme.justia.com/cases/federal/us/557/364/

OPINION OF THE COURT SAFFORD UNIFIED SCHOOL DIST. #1 V. REDDING 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-479 SAFFORD UNIFIED SCHOOL DISTRICT #1, et al., PETITIONERS v. APRIL REDDING on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2009]    Justice Souter delivered the opinion of the Court.    The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability. I    The events immediately prior to the search in question began in 13-year-old Savana Redding’s math class at Safford Middle School one October day in 2003. The assistant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her.    Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but banned under school rules without advance permission. He asked Savana if she knew anything about the pills. Savana answered that she did not. Wilson then told Savana that he had received a report that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson search her belongings. Helen Romero, an administrative assistant, came into the office, and together with Wilson they searched Savana’s backpack, finding nothing.    At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.    Savana’s mother filed suit against Safford Unified School District #1, Wilson, Romero, and Schwallier for conducting a strip search in violation of Savana’s Fourth Amendment rights. The individuals (hereinafter petitioners) moved for summary judgment, raising a defense of qualified immunity. The District Court for the District of Arizona granted the motion on the ground that there was no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. 504 F. 3d 828 (2007).    A closely divided Circuit sitting en banc, however, reversed. Following the two-step protocol for evaluating claims of qualified immunity, see Saucier v. Katz , 533 U. S. 194 , 200 (2001), the Ninth Circuit held that the strip search was unjustified under the Fourth Amendment test for searches of children by school officials set out in New Jersey v. T. L. O. , 469 U. S. 325 (1985). 531 F. 3d 1071, 1081–1087 (2008). The Circuit then applied the test for qualified immunity, and found that Savana’s right was clearly established at the time of the search: “ ‘[t]hese notions of personal privacy are “clearly established” in that they inhere in all of us, particularly middle school teenagers, and are inherent in the privacy component of the Fourth Amendment’s proscription against unreasonable searches.’ ” Id. , at 1088–1089 (quoting Brannum v. Overton Cty. School Bd. , 516 F. 3d 489, 499 (CA6 2008)). The upshot was reversal of summary judgment as to Wilson, while affirming the judgments in favor of Schwallier, the school nurse, and Romero, the administrative assistant, since they had not acted as independent decisionmakers. 531 F. 3d, at 1089.    We granted certiorari, 555 U. S. ___ (2009), and now affirm in part, reverse in part, and remand. II    The Fourth Amendment “right of the people to be secure in their persons … against unreasonable searches and seizures” generally requires a law enforcement officer to have probable cause for conducting a search. “Probable cause exists where ‘the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed,” Brinegar v. United States , 338 U. S. 160 , 175–176 (1949) (quoting Carroll v. United States , 267 U. S. 132 , 162 (1925)), and that evidence bearing on that offense will be found in the place to be searched.    In T. L. O. , we recognized that the school setting “requires some modification of the level of suspicion of illicit activity needed to justify a search,” 469 U. S., at 340, and held that for searches by school officials “a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause,” id. , at 341. We have thus applied a standard of reasonable suspicion to determine the legality of a school administrator’s search of a student, id. , at 342, 345, and have held that a school search “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction,” id. , at 342.    A number of our cases on probable cause have an implicit bearing on the reliable knowledge element of reasonable suspicion, as we have attempted to flesh out the knowledge component by looking to the degree to which known facts imply prohibited conduct, see, e.g. , Adams v. Williams , 407 U. S. 143 , 148 (1972); id. , at 160, n. 9 (Marshall, J., dissenting), the specificity of the information received, see, e.g. , Spinelli v. United States , 393 U. S. 410 , 416–417 (1969), and the reliability of its source, see, e.g. , Aguilar v. Texas , 378 U. S. 108 , 114 (1964). At the end of the day, however, we have realized that these factors cannot rigidly control, Illinois v. Gates , 462 U. S. 213 , 230 (1983), and we have come back to saying that the standards are “fluid concepts that take their substantive content from the particular contexts” in which they are being assessed. Ornelas v. United States , 517 U. S. 690 , 696 (1996).    Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officer’s evidence search is that it raise a “fair probability,” Gates , 462 U. S., at 238, or a “substantial chance,” id. , at 244, n. 13, of discovering evidence of criminal activity. The lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing. III A    In this case, the school’s policies strictly prohibit the nonmedical use, possession, or sale of any drug on school grounds, including “ ‘[a]ny prescription or over-the-counter drug, except those for which permission to use in school has been granted pursuant to Board policy.’ ” App. to Pet. for Cert. 128a.[ Footnote 1 ] A week before Savana was searched, another student, Jordan Romero (no relation of the school’s administrative assistant), told the principal and Assistant Principal Wilson that “certain students were bringing drugs and weapons on campus,” and that he had been sick after taking some pills that “he got from a classmate.” App. 8a. On the morning of October 8, the same boy handed Wilson a white pill that he said Marissa Glines had given him. He told Wilson that students were planning to take the pills at lunch.    Wilson learned from Peggy Schwallier, the school nurse, that the pill was Ibuprofen 400 mg, available only by prescription. Wilson then called Marissa out of class. Outside the classroom, Marissa’s teacher handed Wilson the day planner, found within Marissa’s reach, containing various contraband items. Wilson escorted Marissa back to his office.    In the presence of Helen Romero, Wilson requested Marissa to turn out her pockets and open her wallet. Marissa produced a blue pill, several white ones, and a razor blade. Wilson asked where the blue pill came from, and Marissa answered, “ ‘I guess it slipped in when she gave me the IBU 400s.’ ” Id. , at 13a. When Wilson asked whom she meant, Marissa replied, “ ‘Savana Redding.’ ” Ibid. Wilson then enquired about the day planner and its contents; Marissa denied knowing anything about them. Wilson did not ask Marissa any followup questions to determine whether there was any likelihood that Savana presently had pills: neither asking when Marissa received the pills from Savana nor where Savana might be hiding them.    Schwallier did not immediately recognize the blue pill, but information provided through a poison control hotline[ Footnote 2 ] indicated that the pill was a 200-mg dose of an antiinflammatory drug, generically called naproxen, available over the counter. At Wilson’s direction, Marissa was then subjected to a search of her bra and underpants by Romero and Schwallier, as Savana was later on. The search revealed no additional pills.    It was at this juncture that Wilson called Savana into his office and showed her the day planner. Their conversation established that Savana and Marissa were on friendly terms: while she denied knowledge of the contraband, Savana admitted that the day planner was hers and that she had lent it to Marissa. Wilson had other reports of their friendship from staff members, who had identified Savana and Marissa as part of an unusually rowdy group at the school’s opening dance in August, during which alcohol and cigarettes were found in the girls’ bathroom. Wilson had reason to connect the girls with this contraband, for Wilson knew that Jordan Romero had told the principal that before the dance, he had been at a party at Savana’s house where alcohol was served. Marissa’s statement that the pills came from Savana was thus sufficiently plausible to warrant suspicion that Savana was involved in pill distribution.    This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing.[ Footnote 3 ] If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today. If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack, it would not justify any search worth making. And the look into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing. B    Here it is that the parties part company, with Savana’s claim that extending the search at Wilson’s behest to the point of making her pull out her underwear was constitutionally unreasonable. The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes down to her underwear, and then “pull out” her bra and the elastic band on her underpants. Id ., at 23a. Although Romero and Schwallier stated that they did not see anything when Savana followed their instructions, App. to Pet. for Cert. 135a, we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen. The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.    Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. See Brief for National Association of Social Workers et al. as Amici Curiae 6–14; Hyman & Perone, The Other Side of School Violence: Educator Policies and Practices that may Contribute to Student Misbehavior, 36 J. School Psychology 7, 13 (1998) (strip search can “result in serious emotional damage”). The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be, see, e.g. , New York City Dept. of Education, Reg. No. A–432, p. 2 (2005), online at http://docs.nycenet.edu/ docushare/dsweb/Get/Document-21/A-432.pdf (“Under no circumstances shall a strip-search of a student be conducted”).    The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O. , that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id. , at 342.    Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.[ Footnote 4 ] He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.    Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that “students … hid[e] contraband in or under their clothing,” Reply Brief for Petitioners 8, and cite a smattering of cases of students with contraband in their underwear, id. , at 8–9. But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.    In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.    In so holding, we mean to cast no ill reflection on the assistant principal, for the record raises no doubt that his motive throughout was to eliminate drugs from his school and protect students from what Jordan Romero had gone through. Parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment.    We do mean, though, to make it clear that the T. L. O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions. IV    A school official searching a student is “entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment.” Pearson v. Callahan , 555 U. S. __, __ (2009) (slip op., at 18). To be established clearly, however, there is no need that “the very action in question [have] previously been held unlawful.” Wilson v. Layne , 526 U. S. 603 , 615 (1999). The unconstitutionality of outrageous conduct obviously will be unconstitutional, this being the reason, as Judge Posner has said, that “[t]he easiest cases don’t even arise.” K. H. v. Morgan , 914 F. 2d 846, 851 (CA7 1990). But even as to action less than an outrage, “officials can still be on notice that their conduct violates established law … in novel factual circumstances.” Hope v. Pelzer , 536 U. S. 730 , 741 (2002). T. L. O. directed school officials to limit the intrusiveness of a search, “in light of the age and sex of the student and the nature of the infraction,” 469 U. S., at 342, and as we have just said at some length, the intrusiveness of the strip search here cannot be seen as justifiably related to the circumstances. But we realize that the lower courts have reached divergent conclusions regarding how the T. L. O. standard applies to such searches.    A number of judges have read T. L. O. as the en banc minority of the Ninth Circuit did here. The Sixth Circuit upheld a strip search of a high school student for a drug, without any suspicion that drugs were hidden next to her body. Williams v. Ellington , 936 F. 2d 881, 882–883, 887 (1991). And other courts considering qualified immunity for strip searches have read T. L. O. as “a series of abstractions, on the one hand, and a declaration of seeming deference to the judgments of school officials, on the other,” Jenkins v. Talladega City Bd. of Ed. , 115 F. 3d 821, 828 (CA11 1997) (en banc), which made it impossible “to establish clearly the contours of a Fourth Amendment right … [in] the wide variety of possible school settings different from those involved in T. L. O. ” itself. Ibid. See also Thomas v. Roberts , 323 F. 3d 950 (CA11 2003) (granting qualified immunity to a teacher and police officer who conducted a group strip search of a fifth grade class when looking for a missing $26).    We think these differences of opinion from our own are substantial enough to require immunity for the school officials in this case. We would not suggest that entitlement to qualified immunity is the guaranteed product of disuniform views of the law in the other federal, or state, courts, and the fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear if we have been clear. That said, however, the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law. We conclude that qualified immunity is warranted. V    The strip search of Savana Redding was unreasonable and a violation of the Fourth Amendment, but petitioners Wilson, Romero, and Schwallier are nevertheless protected from liability through qualified immunity. Our conclusions here do not resolve, however, the question of the liability of petitioner Safford Unified School District #1 under Monell v. New York City Dept. of Social Servs. , 436 U. S. 658 , 694 (1978), a claim the Ninth Circuit did not address. The judgment of the Ninth Circuit is therefore affirmed in part and reversed in part, and this case is remanded for consideration of the Monell claim. It is so ordered. Footnote 1 When the object of a school search is the enforcement of a school rule, a valid search assumes, of course, the rule’s legitimacy. But the legitimacy of the rule usually goes without saying as it does here. The Court said plainly in New Jersey v. T. L. O. , 469 U. S. 325 , 342, n. 9 (1985), that standards of conduct for schools are for school administrators to determine without second-guessing by courts lacking the experience to appreciate what may be needed. Except in patently arbitrary instances, Fourth Amendment analysis takes the rule as a given, as it obviously should do in this case. There is no need here either to explain the imperative of keeping drugs out of schools, or to explain the reasons for the school’s rule banning all drugs, no matter how benign, without advance permission. Teachers are not pharmacologists trained to identify pills and powders, and an effective drug ban has to be enforceable fast. The plenary ban makes sense, and there is no basis to claim that the search was unreasonable owing to some defect or shortcoming of the rule it was aimed at enforcing. Footnote 2 Poison control centers across the country maintain 24-hour help hotlines to provide “immediate access to poison exposure management instructions and information on potential poisons.” American Association of Poison Control Centers, online at http://www.aapcc.org/dnn/ About/tabid/74/Default.aspx (all Internet materials as visited June 19, 2009, and available in Clerk of Court’s case file). Footnote 3 There is no question here that justification for the school officials’ search was required in accordance with the T. L. O. standard of reasonable suspicion, for it is common ground that Savana had a reasonable expectation of privacy covering the personal things she chose to carry in her backpack, cf. 469 U. S., at 339, and that Wilson’s decision to look through it was a “search” within the meaning of the Fourth Amendment. Footnote 4 An Advil tablet, caplet, or gel caplet, contains 200 mg of ibuprofen. See Physicians’ Desk Reference for Nonprescription Drugs, Dietary Supplements, and Herbs 674 (28th ed. 2006). An Aleve caplet contains 200 mg naproxen and 20 mg sodium. See id. , at 675. OPINION OF GINSBURG, J. SAFFORD UNIFIED SCHOOL DIST. #1 V. REDDING 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-479 SAFFORD UNIFIED SCHOOL DISTRICT #1, et al., PETITIONERS v. APRIL REDDING on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2009]    Justice Ginsburg, concurring in part and dissenting in part.    I agree with the Court that Assistant Principal Wilson’s subjection of 13-year-old Savana Redding to a humiliating stripdown search violated the Fourth Amendment. But I also agree with Justice Stevens, ante , at 1–2, that our opinion in New Jersey v. T. L. O. , 469 U. S. 325 (1985), “clearly established” the law governing this case.    Fellow student Marissa Glines, caught with pills in her pocket, accused Redding of supplying them. App. 13a. Asked where the blue pill among several white pills in Glines’s pocket came from, Glines answered: “I guess it slipped in when she gave me the IBU 400s.” Ibid . Asked next “who is she ?”, Glines responded: “Savana Redding.” Ibid. As the Court observes, ante , at 6, 10, no followup questions were asked. Wilson did not test Glines’s accusation for veracity by asking Glines when did Redding give her the pills, where, for what purpose. Any reasonable search for the pills would have ended when inspection of Redding’s backpack and jacket pockets yielded nothing. Wilson had no cause to suspect, based on prior experience at the school or clues in this case, that Redding had hidden pills—containing the equivalent of two Advils or one Aleve—in her underwear or body. To make matters worse, Wilson did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity.    In contrast to T. L. O. , where a teacher discovered a student smoking in the lavatory, and where the search was confined to the student’s purse, the search of Redding involved her body and rested on the bare accusation of another student whose reliability the Assistant Principal had no reason to trust. The Court’s opinion in T. L. O. plainly stated the controlling Fourth Amendment law: A search ordered by a school official, even if “justified at its inception,” crosses the constitutional boundary if it becomes “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” 469 U. S., at 342 (internal quotation marks omitted).    Here, “the nature of the [supposed] infraction,” the slim basis for suspecting Savana Redding, and her “age and sex,” ibid. , establish beyond doubt that Assistant Principal Wilson’s order cannot be reconciled with this Court’s opinion in T. L. O. Wilson’s treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it. I join Justice Stevens in dissenting from the Court’s acceptance of Wilson’s qualified immunity plea, and would affirm the Court of Appeals’ judgment in all respects. OPINION OF STEVENS, J. SAFFORD UNIFIED SCHOOL DIST. #1 V. REDDING 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-479 SAFFORD UNIFIED SCHOOL DISTRICT #1, et al., PETITIONERS v. APRIL REDDING on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2009]    Justice Stevens, with whom Justice Ginsburg joins, concurring in part and dissenting in part.    In New Jersey v. T. L. O. , 469 U. S. 325 (1985), the Court established a two-step inquiry for determining the reasonableness of a school official’s decision to search a student. First, the Court explained, the search must be “ ‘justified at its inception’ ” by the presence of “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” Id. , at 342. Second, the search must be “permissible in its scope,” which is achieved “when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction .” Ibid . (emphasis added).    Nothing the Court decides today alters this basic framework. It simply applies T. L. O. to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might be hiding medicine in her underwear. This is, in essence, a case in which clearly established law meets clearly outrageous conduct. I have long believed that “ ‘[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.’ ” Id. , at 382, n. 25 (Stevens, J., concurring in part and dissenting in part) (quoting Doe v. Renfrow , 631 F. 2d 91, 92–93 (CA7 1980)). The strip search of Savana Redding in this case was both more intrusive and less justified than the search of the student’s purse in T. L. O. Therefore, while I join Parts I–III of the Court’s opinion, I disagree with its decision to extend qualified immunity to the school official who authorized this unconstitutional search.    The Court reaches a contrary conclusion about qualified immunity based on the fact that various Courts of Appeals have adopted seemingly divergent views about T. L. O. ’s application to strip searches. Ante , at 12. But the clarity of a well-established right should not depend on whether jurists have misread our precedents. And while our cases have previously noted the “divergence of views” among courts in deciding whether to extend qualified immunity, e.g. , Pearson v. Callahan , (2009) 555 U. S., ___, ___ (slip op., at 20) (noting the unsettled constitutionality of the so-called “consent-once-removed” doctrine); Wilson v. Layne , 526 U. S. 603 , 618 (1999) (considering conflicting views on the constitutionality of law enforcement’s practice of allowing the media to enter a private home to observe and film attempted arrests), we have relied on that consideration only to spare officials from having “ ‘to predict the future course of constitutional law,’ ” Id., at 617 (quoting Procunier v. Navarette , 434 U. S. 555 , 562 (1978); emphasis added). In this case, by contrast, we chart no new constitutional path. We merely decide whether the decision to strip search Savana Redding, on these facts, was prohibited under T. L. O. Our conclusion leaves the boundaries of the law undisturbed.    The Court of Appeals properly rejected the school official’s qualified immunity defense, and I would affirm that court’s judgment in its entirety.  In fact, in T. L. O. we cited with approval a Ninth Circuit case, Bilbrey v. Brown , 738 F. 2d 1462 (1984), which held that a strip search performed under similar circumstances violated the Constitution. New Jersey v. T. L. O. , 469 U. S. 325 , 332, n. 2 (1985); id. , at 341, and n. 6 (adopting Bilbrey ’s reasonable suspicion standard). OPINION OF THOMAS, J. SAFFORD UNIFIED SCHOOL DIST. #1 V. REDDING 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-479 SAFFORD UNIFIED SCHOOL DISTRICT #1, et al., PETITIONERS v. APRIL REDDING on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2009]    Justice Thomas, concurring in the judgment in part and dissenting in part.    I agree with the Court that the judgment against the school officials with respect to qualified immunity should be reversed. See ante , at 11–13. Unlike the majority, however, I would hold that the search of Savana Redding did not violate the Fourth Amendment. The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge. This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order.” Morse v. Frederick , 551 U. S. 393 , 414 (2007) (Thomas, J., concurring). But even under the prevailing Fourth Amendment test established by New Jersey v. T. L. O. , 469 U. S. 325 (1985), all petitioners, including the school district, are entitled to judgment as a matter of law in their favor. I    “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” Id. , at 337. Thus, although public school students retain Fourth Amendment rights under this Court’s precedent, see id. , at 333–337, those rights “are different … than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children,” Vernonia School Dist. 47J v. Acton , 515 U. S. 646 , 656 (1995); see also T. L. O. , 469 U. S., at 339 (identifying “the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds”). For nearly 25 years this Court has understood that “[m]aintaining order in the classroom has never been easy, but in more recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems.” Ibid. In schools, “[e]vents calling for discipline are frequent occurrences and sometimes require immediate, effective action.” Goss v. Lopez , 419 U. S. 565 , 580 (1975); see also T. L. O., 469 U. S., at 340 (explaining that schools have a “legitimate need to maintain an environment in which learning can take place”).    For this reason, school officials retain broad authority to protect students and preserve “order and a proper educational environment” under the Fourth Amendment. Id., at 339. This authority requires that school officials be able to engage in the “close supervision of schoolchildren, as well as … enforc[e] rules against conduct that would be perfectly permissible if undertaken by an adult.” Ibid. Seeking to reconcile the Fourth Amendment with this unique public school setting, the Court in T. L. O. held that a school search is “reasonable” if it is “ ‘justified at its inception’ ” and “ ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” Id. , at 341–342 (quoting Terry v. Ohio , 392 U. S. 1 , 20 (1968)). The search under review easily meets this standard. A    A “search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” T. L. O ., supra , at 341–342 (footnote omitted). As the majority rightly concedes, this search was justified at its inception because there were reasonable grounds to suspect that Redding possessed medication that violated school rules. See ante , at 7. A finding of reasonable suspicion “does not deal with hard certainties, but with probabilities.” United States v. Cortez , 449 U. S. 411 , 418 (1981); see also T. L. O. , supra , at 346 (“[T]he requirement of reasonable suspicion is not a requirement of absolute certainty”). To satisfy this standard, more than a mere “hunch” of wrongdoing is required, but “considerably” less suspicion is needed than would be required to “satisf[y] a preponderance of the evidence standard.” United States v. Arvizu , 534 U. S. 266 , 274 (2002) (internal quotation marks omitted).    Furthermore, in evaluating whether there is a reasonable “particularized and objective” basis for conducting a search based on suspected wrongdoing, government officials must consider the “totality of the circumstances.” Id. , at 273 (internal quotation marks omitted). School officials have a specialized understanding of the school environment, the habits of the students, and the concerns of the community, which enables them to “ ‘formulat[e] certain common-sense conclusions about human behavior.’ ” United States v. Sokolow , 490 U. S. 1 , 8 (1989) (quoting Cortez , supra , at 418). And like police officers, school officials are “entitled to make an assessment of the situation in light of [this] specialized training and familiarity with the customs of the [school].” See Arvizu , supra, at 276.    Here, petitioners had reasonable grounds to suspect that Redding was in possession of prescription and nonprescription drugs in violation of the school’s prohibition of the “non-medical use, possession, or sale of a drug” on school property or at school events. 531 F. 3d 1071, 1076 (CA9 2008) (en banc); see also id. , at 1107 (Hawkins, J., dissenting) (explaining that the school policy defined “drugs” to include “ ‘[a]ny prescription or over-the-counter drug, except those for which permission to use in school has been granted’ ”). As an initial matter, school officials were aware that a few years earlier, a student had become “seriously ill” and “spent several days in intensive care” after ingesting prescription medication obtained from a classmate. App. 10a. Fourth Amendment searches do not occur in a vacuum; rather, context must inform the judicial inquiry. See Cortez , supra , at 417–418. In this instance, the suspicion of drug possession arose at a middle school that had “a history of problems with students using and distributing prohibited and illegal substances on campus.” App. 7a, 10a.    The school’s substance-abuse problems had not abated by the 2003–2004 school year, which is when the challenged search of Redding took place. School officials had found alcohol and cigarettes in the girls’ bathroom during the first school dance of the year and noticed that a group of students including Redding and Marissa Glines smelled of alcohol. Ibid. Several weeks later, another student, Jordan Romero, reported that Redding had hosted a party before the dance where she served whiskey, vodka, and tequila. Id., at 8a, 11a. Romero had provided this report to school officials as a result of a meeting his mother scheduled with the officials after Romero “bec[a]me violent” and “sick to his stomach” one night and admitted that “he had taken some pills that he had got[ten] from a classmate.” Id., at 7a–8a, 10a–11a. At that meeting, Romero admitted that “certain students were bringing drugs and weapons on campus.” Id., at 8a, 11a. One week later, Romero handed the assistant principal a white pill that he said he had received from Glines. Id., at 11a. He reported “that a group of students [were] planning on taking the pills at lunch.” Ibid. School officials justifiably took quick action in light of the lunchtime deadline. The assistant principal took the pill to the school nurse who identified it as prescription-strength 400-mg Ibuprofen. Id., at 12a. A subsequent search of Glines and her belongings produced a razor blade, a Naproxen 200-mg pill, and several Ibuprofen 400-mg pills. Id., at 13a. When asked, Glines claimed that she had received the pills from Redding. Ibid. A search of Redding’s planner, which Glines had borrowed, then uncovered “several knives, several lighters, a cigarette, and a permanent marker.” Id., at 12a, 14a, 22a. Thus, as the majority acknowledges, ante , at 7, the totality of relevant circumstances justified a search of Redding for pills.[ Footnote 1 ] B    The remaining question is whether the search was reasonable in scope. Under T. L. O. , “a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” 469 U. S., at 342. The majority concludes that the school officials’ search of Redding’s underwear was not “ ‘reasonably related in scope to the circumstances which justified the interference in the first place,’ ” see ante , at 8–11, notwithstanding the officials’ reasonable suspicion that Redding “was involved in pill distribution,” ante, at 7. According to the majority, to be reasonable, this school search required a showing of “danger to the students from the power of the drugs or their quantity” or a “reason to suppose that [Redding] was carrying pills in her underwear.” Ante , at 10. Each of these additional requirements is an unjustifiable departure from bedrock Fourth Amendment law in the school setting, where this Court has heretofore read the Fourth Amendment to grant considerable leeway to school officials. Because the school officials searched in a location where the pills could have been hidden, the search was reasonable in scope under T. L. O. 1 The majority finds that “subjective and reasonable societal expectations of personal privacy support … treat[ing]” this type of search, which it labels a “strip search,” as “categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of clothing and belongings.” Ante , at 8.[ Footnote 2 ] Thus, in the majority’s view, although the school officials had reasonable suspicion to believe that Redding had the pills on her person, see ante , at 7, they needed some greater level of particularized suspicion to conduct this “strip search.” There is no support for this contortion of the Fourth Amendment.    The Court has generally held that the reasonableness of a search’s scope depends only on whether it is limited to the area that is capable of concealing the object of the search. See, e.g., Wyoming v. Houghton , 526 U. S. 295 , 307 (1999) (Police officers “may inspect passengers’ belongings found in the car that are capable of concealing the object of the search”); Florida v. Jimeno , 500 U. S. 248 , 251 (1991) (“The scope of a search is generally defined by its expressed object”); United States v. Johns , 469 U. S. 478 , 487 (1985) (search reasonable because “there is no plausible argument that the object of the search could not have been concealed in the packages”); United States v. Ross , 456 U. S. 798 , 820 (1982) (“A lawful search … generally extends to the entire area in which the object of the search may be found”).[ Footnote 3 ]    In keeping with this longstanding rule, the “nature of the infraction” referenced in T. L. O. delineates the proper scope of a search of students in a way that is identical to that permitted for searches outside the school— i.e. , the search must be limited to the areas where the object of that infraction could be concealed. See Horton v. California , 496 U. S. 128 , 141 (1990) (“Police with a warrant for a rifle may search only places where rifles might be” (internal quotation marks omitted)); Ross , supra , at 824 (“[P]robable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase”). A search of a student therefore is permissible in scope under T. L. O. so long as it is objectively reasonable to believe that the area searched could conceal the contraband. The dissenting opinion below correctly captured this Fourth Amendment standard, noting that “if a student brought a baseball bat on campus in violation of school policy, a search of that student’s shirt pocket would be patently unjustified.” 531 F. 3d, at 1104 (opinion of Hawkins, J.).    The analysis of whether the scope of the search here was permissible under that standard is straightforward. Indeed, the majority does not dispute that “general background possibilities” establish that students conceal “contraband in their underwear.” Ante, at 10. It acknowledges that school officials had reasonable suspicion to look in Redding’s backpack and outer clothing because if “Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack, it would not justify any search worth making.” Ante , at 7. The majority nevertheless concludes that proceeding any further with the search was unreasonable. See ante , at 8–10; see also ante , at 1 (Ginsburg, J., concurring in part and dissenting in part) (“Any reasonable search for the pills would have ended when inspection of Redding’s backpack and jacket pockets yielded nothing”). But there is no support for this conclusion. The reasonable suspicion that Redding possessed the pills for distribution purposes did not dissipate simply because the search of her backpack turned up nothing. It was eminently reasonable to conclude that the backpack was empty because Redding was secreting the pills in a place she thought no one would look. See Ross , supra , at 820 (“Contraband goods rarely are strewn” about in plain view; “by their very nature such goods must be withheld from public view”).    Redding would not have been the first person to conceal pills in her undergarments. See Hicks, Man Gets 17-Year Drug Sentence, [Corbin, KY] Times-Tribune, Oct. 7, 2008, p. 1 (Drug courier “told officials she had the [Oxycontin] pills concealed in her crotch”); Conley, Whitehaven: Traffic Stop Yields Hydrocodone Pills, [Memphis] Commercial Appeal, Aug. 3, 2007, p. B3 (“An additional 40 hydrocodone pills were found in her pants”); Caywood, Police Vehicle Chase Leads to Drug Arrests, [Worcester] Telegram & Gazette, June 7, 2008, p. A7 (25-year-old “allegedly had a cigar tube stuffed with pills tucked into the waistband of his pants”); Hubartt, 23-Year-Old Charged With Dealing Ecstasy, The [Fort Wayne] Journal Gazette, Aug. 8, 2007, p. C2 (“[W]hile he was being put into a squad car, his pants fell down and a plastic bag containing pink and orange pills fell on the ground”); Sebastian Residents Arrested in Drug Sting, Vero Beach Press Journal, Sept. 16, 2006, p. B2 (Arrestee “told them he had more pills ‘down my pants’ ”). Nor will she be the last after today’s decision, which announces the safest place to secrete contraband in school. 2    The majority compounds its error by reading the “nature of the infraction” aspect of the T. L. O. test as a license to limit searches based on a judge’s assessment of a particular school policy. According to the majority, the scope of the search was impermissible because the school official “must have been aware of the nature and limited threat of the specific drugs he was searching for” and because he “had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.” Ante , at 9–10. Thus, in order to locate a rationale for finding a Fourth Amendment violation in this case, the majority retreats from its observation that the school’s firm no-drug policy “makes sense, and there is no basis to claim that the search was unreasonable owing to some defect or shortcoming of the rule it was aimed at enforcing.” Ante , at 5, n. 1.    Even accepting the majority’s assurances that it is not attacking the rule’s reasonableness, it certainly is attacking the rule’s importance. This approach directly conflicts with T. L. O. in which the Court was “unwilling to adopt a standard under which the legality of a search is dependent upon a judge’s evaluation of the relative importance of school rules.” 469 U. S., at 342, n. 9. Indeed, the Court in T. L. O. expressly rejected the proposition that the majority seemingly endorses—that “some rules regarding student conduct are by nature too ‘trivial’ to justify a search based upon reasonable suspicion.” Ibid.; see also id., at 343, n. 9 (“The promulgation of a rule forbidding specified conduct presumably reflects a judgment on the part of school officials that such conduct is destructive of school order or of a proper educational environment. Absent any suggestion that the rule violates some substantive constitutional guarantee, the courts should as a general matter, defer to that judgment”).    The majority’s decision in this regard also departs from another basic principle of the Fourth Amendment: that law enforcement officials can enforce with the same vigor all rules and regulations irrespective of the perceived importance of any of those rules. “In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.” Virginia v. Moore , 553 U. S. ___, ___ (2008) (slip op., at 6). The Fourth Amendment rule for searches is the same: Police officers are entitled to search regardless of the perceived triviality of the underlying law. As we have explained, requiring police to make “sensitive, case-by-case determinations of government need,” Atwater v. Lago Vista , 532 U. S. 318 , 347 (2001), for a particular prohibition before conducting a search would “place police in an almost impossible spot,” id. , at 350.    The majority has placed school officials in this “impossible spot” by questioning whether possession of Ibuprofen and Naproxen causes a severe enough threat to warrant investigation. Had the suspected infraction involved a street drug, the majority implies that it would have approved the scope of the search. See ante , at 9 (relying on the “limited threat of the specific drugs he was searching for”); ante, at 10 (relying on the limited “power of the drugs” involved). In effect, then, the majority has replaced a school rule that draws no distinction among drugs with a new one that does. As a result, a full search of a student’s person for prohibited drugs will be permitted only if the Court agrees that the drug in question was sufficiently dangerous. Such a test is unworkable and unsound. School officials cannot be expected to halt searches based on the possibility that a court might later find that the particular infraction at issue is not severe enough to warrant an intrusive investigation.[ Footnote 4 ]    A rule promulgated by a school board represents the judgment of school officials that the rule is needed to maintain “school order” and “a proper educational environment.” T. L. O. , 469 U. S., at 343, n. 9. Teachers, administrators, and the local school board are called upon both to “protect the … safety of students and school personnel” and “maintain an environment conducive to learning.” Id. , at 353 (Blackmun, J., concurring in judgment). They are tasked with “watch[ing] over a large number of students” who “are inclined to test the outer boundaries of acceptable conduct and to imitate the misbehavior of a peer if that misbehavior is not dealt with quickly.” Id. , at 352. In such an environment, something as simple as a “water pistol or peashooter can wreak [havoc] until it is taken away.” Ibid . The danger posed by unchecked distribution and consumption of prescription pills by students certainly needs no elaboration.    Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment. Such institutional judgments, like those concerning the selection of the best methods for “restrain[ing students] from assaulting one another, abusing drugs and alcohol, and committing other crimes,” id., at 342, n. 9, “involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.” Collins v. Harker Heights , 503 U. S. 115 , 129 (1992); cf. Regents of Univ. of Mich. v. Ewing , 474 U. S. 214 , 226 (1985) (observing that federal courts are not “suited to evaluat[ing] the substance of the multitude of academic decisions” or disciplinary decisions “that are made daily by faculty members of public educational institutions”). It is a mistake for judges to assume the responsibility for deciding which school rules are important enough to allow for invasive searches and which rules are not. 3    Even if this Court were authorized to second-guess the importance of school rules, the Court’s assessment of the importance of this district’s policy is flawed. It is a crime to possess or use prescription-strength Ibuprofen without a prescription. See Ariz. Rev. Stat. Ann. §13–3406(A)(1) (West Supp. 2008) (“A person shall not knowingly … [p]ossess or use a prescription-only drug unless the person obtains the prescription-only drug pursuant to a valid prescription of a prescriber who is licensed pursuant to [state law]”).[ Footnote 5 ] By prohibiting unauthorized prescription drugs on school grounds—and conducting a search to ensure students abide by that prohibition—the school rule here was consistent with a routine provision of the state criminal code. It hardly seems unreasonable for school officials to enforce a rule that, in effect, proscribes conduct that amounts to a crime.    Moreover, school districts have valid reasons for punishing the unauthorized possession of prescription drugs on school property as severely as the possession of street drugs; “[t]eenage abuse of over-the-counter and prescription drugs poses an increasingly alarming national crisis.” Get Teens Off Drugs, The Education Digest 75 (Dec. 2006). As one study noted, “more young people ages 12–17 abuse prescription drugs than any illicit drug except marijuana—more than cocaine, heroin, and methamphetamine combined.” Executive Office of the President, Office of National Drug Control Policy (ONDCP), Prescription for Danger 1 (Jan. 2008) (hereinafter Prescription for Danger). And according to a 2005 survey of teens, “nearly one in five (19 percent or 4.5 million) admit abusing prescription drugs in their lifetime.” Columbia University, The National Center on Addiction and Substance Abuse (CASA), “You’ve Got Drugs!” V: Prescription Drug Pushers on the Internet 2 (July 2008); see also Dept. of Health and Human Services, National Institute on Drug Abuse, High School and Youth Trends 2 (Dec. 2008) (“In 2008, 15.4 percent of 12th-graders reported using a prescription drug nonmedically within the past year”).    School administrators can reasonably conclude that this high rate of drug abuse is being fueled, at least in part, by the increasing presence of prescription drugs on school campuses. See, e.g., Gibson, Grand Forks Schools See Rise In Prescription Drug Abuse, Grand Forks Herald, Nov. 16, 2008, p. 1 (explaining that “prescription drug abuse is growing into a larger problem” as students “bring them to school and sell them or just give them to their friends”). In a 2008 survey, “44 percent of teens sa[id] drugs are used, kept or sold on the grounds of their schools.” CASA, National Survey of American Attitudes on Substance Abuse XIII: Teens and Parents 19 (Aug. 2008) (hereinafter National Survey). The risks posed by the abuse of these drugs are every bit as serious as the dangers of using a typical street drug.    Teenagers are nevertheless apt to “believe the myth that these drugs provide a medically safe high.” ONDCP, Teens and Prescription Drugs: An Analysis of Recent Trends on the Emerging Drug Threat 3 (Feb. 2007) (hereinafter Teens and Prescription Drugs). But since 1999, there has “been a dramatic increase in the number of poisonings and even deaths associated with the abuse of prescription drugs.” Prescription for Danger 4; see also Dept. of Health and Human Services, The NSDUH Report: Trends in Nonmedical Use of Prescription Pain Relievers: 2002 to 2007, p. 1 (Feb. 5, 2009) (“[A]pproximately 324,000 emergency department visits in 2006 involved the nonmedical use of pain relievers”); CASA, Under the Counter: The Diversion and Abuse of Controlled Prescription Drugs in the U. S., p. 25 (July 2005) (“In 2002, abuse of controlled prescription drugs was implicated in at least 23 percent of drug-related emergency department admissions and 20.4 percent of all single drug-related emergency department deaths”). At least some of these injuries and deaths are likely due to the fact that “[m]ost controlled prescription drug abusers are poly-substance abusers,” id. , at 3, a habit that is especially likely to result in deadly drug combinations. Furthermore, even if a child is not immediately harmed by the abuse of prescription drugs, research suggests that prescription drugs have become “gateway drugs to other substances of abuse.” Id. , at 4; Healy, Skipping the Street, Los Angeles Times, Sept. 15, 2008, p. F1 (“Boomers made marijuana their ‘gateway’ … but a younger generation finds prescription drugs an easier score”); see also National Survey 17 (noting that teens report “that prescription drugs are easier to buy than beer”).    Admittedly, the Ibuprofen and Naproxen at issue in this case are not the prescription painkillers at the forefront of the prescription-drug-abuse problem. See Prescription for Danger 3 (“Pain relievers like Vicodin and OxyContin are the prescription drugs most commonly abused by teens”). But they are not without their own dangers. As nonsteroidal anti-inflammatory drugs (NSAIDs), they pose a risk of death from overdose. The Pill Book 821, 827 (H. Silverman, ed., 13th ed. 2008) (observing that Ibuprofen and Naproxen are NSAIDs and “[p]eople have died from NSAID overdoses”). Moreover, the side-effects caused by the use of NSAIDs can be magnified if they are taken in combination with other drugs. See, e.g., Reactions Weekly, p. 18 (Issue no. 1235, Jan. 17, 2009) (“A 17-year-old girl developed allergic interstitial nephritis and renal failure while receiving escitalopram and ibuprofen”); id. , at 26 (Issue no. 1232, Dec. 13, 2008) (“A 16-month-old boy developed iron deficiency anaemia and hypoalbuminaemia during treatment with naproxen”); id. , at 15 (Issue no. 1220, Sept. 20, 2008) (18-year-old “was diagnosed with pill-induced oesophageal perforation” after taking ibuprofen “and was admitted to the [intensive care unit]”); id. , at 20 (Issue no. 1170, Sept. 22, 2007) (“A 12-year-old boy developed anaphylaxis following ingestion of ibuprofen”).    If a student with a previously unknown intolerance to Ibuprofen or Naproxen were to take either drug and become ill, the public outrage would likely be directed toward the school for failing to take steps to prevent the unmonitored use of the drug. In light of the risks involved, a school’s decision to establish and enforce a school prohibition on the possession of any unauthorized drug is thus a reasonable judgment.[ Footnote 6 ] *  *  *    In determining whether the search’s scope was reasonable under the Fourth Amendment, it is therefore irrelevant whether officials suspected Redding of possessing prescription-strength Ibuprofen, nonprescription-strength Naproxen, or some harder street drug. Safford prohibited its possession on school property. Reasonable suspicion that Redding was in possession of drugs in violation of these policies, therefore, justified a search extending to any area where small pills could be concealed. The search did not violate the Fourth Amendment. II    By declaring the search unreasonable in this case, the majority has “ ‘surrender[ed] control of the American public school system to public school students’ ” by invalidating school policies that treat all drugs equally and by second-guessing swift disciplinary decisions made by school officials. See Morse , 551 U. S., at 421 (Thomas, J., concurring) (quoting Tinker v. Des Moines Independent Community School Dist. , 393 U. S. 503 , 526 (1969) (Black, J., dissenting)). The Court’s interference in these matters of great concern to teachers, parents, and students illustrates why the most constitutionally sound approach to the question of applying the Fourth Amendment in local public schools would in fact be the complete restoration of the common-law doctrine of in loco parentis .    “[I]n the early years of public schooling,” courts applied the doctrine of in loco parentis to transfer to teachers the authority of a parent to “ ‘command obedience, to control stubbornness, to quicken diligence, and to reform bad habits.’ ” Morse , supra, at 413–414 (Thomas, J., concurring) (quoting State v. Pendergrass , 19 N. C. 365, 365–366 (1837)). So empowered, schoolteachers and administrators had almost complete discretion to establish and enforce the rules they believed were necessary to maintain control over their classrooms. See 2 J. Kent, Commentaries on American Law 205 (1873) (“So the power allowed by law to the parent over the person of the child may be delegated to a tutor or instructor, the better to accomplish the purpose of education”); 1 W. Blackstone, Commentaries on the Laws of England 441 (1765) (“He may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis , and has such a portion of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed”).[ Footnote 7 ] The perils of judicial policymaking inherent in applying Fourth Amendment protections to public schools counsel in favor of a return to the understanding that existed in this Nation’s first public schools, which gave teachers discretion to craft the rules needed to carry out the disciplinary responsibilities delegated to them by parents.    If the common-law view that parents delegate to teachers their authority to discipline and maintain order were to be applied in this case, the search of Redding would stand. There can be no doubt that a parent would have had the authority to conduct the search at issue in this case. Parents have “immunity from the strictures of the Fourth Amendment” when it comes to searches of a child or that child’s belongings. T. L. O. , 469 U. S., at 337; see also id. , at 336 (A parent’s authority is “not subject to the limits of the Fourth Amendment”); Griffin v. Wisconsin , 483 U. S. 868 , 876 (1987) (“[P]arental custodial authority” does not require “judicial approval for [a] search of a minor child’s room”).    As acknowledged by this Court, this principle is based on the “societal understanding of superior and inferior” with respect to the “parent and child” relationship. Georgia v. Randolph , 547 U. S. 103 , 114 (2006). In light of this relationship, the Court has indicated that a parent can authorize a third-party search of a child by consenting to such a search, even if the child denies his consent. See ibid.; see also 4 W. LaFave, Search and Seizure §8.3(d), p. 160 (4th ed. 2004) (“[A] father, as the head of the household with the responsibility and the authority for the discipline, training and control of his children, has a superior interest in the family residence to that of his minor son, so that the father’s consent to search would be effective notwithstanding the son’s contemporaneous on-the-scene objection” (internal quotation marks omitted)). Certainly, a search by the parent himself is no different, regardless of whether or not a child would prefer to be left alone. See id., §8.4(b), at 202 (“[E]ven [if] a minor child … may think of a room as ‘his,’ the overall dominance will be in his parents” (internal quotation marks omitted)).    Restoring the common-law doctrine of in loco parentis would not, however, leave public schools entirely free to impose any rule they choose. “If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move.” See Morse , 551 U. S., at 419 (Thomas, J., concurring). Indeed, parents and local government officials have proved themselves quite capable of challenging overly harsh school rules or the enforcement of sensible rules in insensible ways.    For example, one community questioned a school policy that resulted in “an 11-year-old [being] arrested, handcuffed, and taken to jail for bringing a plastic butter knife to school.” Downey, Zero Tolerance Doesn’t Always Add Up, The Atlanta Journal-Constitution, Apr. 6, 2009, p. A11. In another, “[a]t least one school board member was outraged” when 14 elementary-school students were suspended for “imitating drug activity” after they combined Kool-Aid and sugar in plastic bags. Grant, Pupils Trading Sweet Mix Get Sour Shot of Discipline, Pittsburgh Post-Gazette, May 18, 2006, p. B1. Individuals within yet another school district protested a “ ‘zero-tolerance’ policy toward weapons” that had become “so rigid that it force[d] schools to expel any student who belongs to a military organization, a drum-and-bugle corps or any other legitimate extracurricular group and is simply transporting what amounts to harmless props.” Richardson, School Gun Case Sparks Cries For “Common Sense,” Washington Times, Feb. 13, 2009, p. A1.[ Footnote 8 ]    These local efforts to change controversial school policies through democratic processes have proven successful in many cases. See, e.g., Postal, Schools’ Zero Tolerance Could Lose Some Punch, Orlando Sentinel, Apr. 24, 2009, p. B3 (“State lawmakers want schools to dial back strict zero-tolerance policies so students do not end up in juvenile detention for some ‘goofy thing’ ”); Richardson, Tolerance Waning for Zero-tolerance Rules, Washington Times, Apr. 21, 2009, p. A3 (“[A] few states have moved to relax their laws. Utah now allows students to bring asthma inhalers to school without violating the zero-tolerance policy on drugs”); see also Nussbaum, Becoming Fed Up With Zero Tolerance, New York Times, Sept. 3, 2000, Section 14, p. 1 (discussing a report that found that “widespread use of zero-tolerance discipline policies was creating as many problems as it was solving and that there were many cases around the country in which students were harshly disciplined for infractions where there was no harm intended or done”).    In the end, the task of implementing and amending public school policies is beyond this Court’s function. Parents, teachers, school administrators, local politicians, and state officials are all better suited than judges to determine the appropriate limits on searches conducted by school officials. Preservation of order, discipline, and safety in public schools is simply not the domain of the Constitution. And, common sense is not a judicial monopoly or a Constitutional imperative. III    “[T]he nationwide drug epidemic makes the war against drugs a pressing concern in every school.” Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls , 536 U. S. 822 , 834 (2002). And yet the Court has limited the authority of school officials to conduct searches for the drugs that the officials believe pose a serious safety risk to their students. By doing so, the majority has confirmed that a return to the doctrine of in loco parentis is required to keep the judiciary from essentially seizing control of public schools. Only then will teachers again be able to “ ‘govern the[ir] pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn’ ” by making “ ‘rules, giv[ing] commands, and punish[ing] disobedience’ ” without interference from judges. See Morse , supra , at 414. By deciding that it is better equipped to decide what behavior should be permitted in schools, the Court has undercut student safety and undermined the authority of school administrators and local officials. Even more troubling, it has done so in a case in which the underlying response by school administrators was reasonable and justified. I cannot join this regrettable decision. I, therefore, respectfully dissent from the Court’s determination that this search violated the Fourth Amendment. Footnote 1 To be sure, Redding denied knowledge of the pills and the materials in her planner. App. 14a. But her denial alone does not negate the reasonable suspicion held by school officials. See New Jersey v. T. L. O. , 469 U. S. 325 , 345 (1985) (finding search reasonable even though “T. L. O. had been accused of smoking, and had denied the accusation in the strongest possible terms when she stated that she did not smoke at all”). Footnote 2 Like the dissent below, “I would reserve the term ‘strip search’ for a search that required its subject to fully disrobe in view of officials.” 531 F. 3d 1071, 1091, n. 1 (CA9 2008) (opinion of Hawkins, J.). The distinction between a strip search and the search at issue in this case may be slight, but it is a distinction that the law has drawn. See, e.g., Sandin v. Conner , 515 U. S. 472 , 475 (1995) (“The officer subjected Conner to a strip search, complete with inspection of the rectal area”); Bell v. Wolfish , 441 U. S. 520 , 558, and n. 39 (1979) (describing visual inspection of body cavities as “part of a strip search”). Footnote 3 The Court has adopted a different standard for searches involving an “intrusio[n] into the human body.” Schmerber v. California , 384 U. S. 757 , 770 (1966). The search here does not implicate the Court’s cases governing bodily intrusions, however, because it did not involve a “physical intrusion, penetrating beneath the skin,” Skinner v. Railway Labor Executives’ Assn ., 489 U. S. 602 , 616 (1989). Footnote 4 Justice Ginsburg suggests that requiring Redding to “sit on a chair outside [the assistant principal’s] office for over two hours” and failing to call her parents before conducting the search constitutes an “[a]buse of authority” that “should not be shielded by official immunity.” See ante , at 1–2. But the school was under no constitutional obligation to call Redding’s parents before conducting the search: “[R]easonableness under the Fourth Amendment does not require employing the least intrusive means, because the logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers.” Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls , 536 U. S. 822 , 837 (2002) (internal quotation marks and brackets omitted). For the same reason, the Constitution did not require school officials to ask “followup questions” after they had already developed reasonable suspicion that Redding possessed drugs. See ante , at 6, 10 (majority opinion); ante , at 1 (opinion of Ginsburg, J.). In any event, the suggestion that requiring Redding to sit in a chair for two hours amounted to a deprivation of her constitutional rights, or that school officials are required to engage in detailed interrogations before conducting searches for drugs, only reinforces the conclusion that the Judiciary is ill-equipped to second-guess the daily decisions made by public administrators. Cf. Beard v. Banks , 548 U. S. 521 , 536–537 (2006) (Thomas, J., concurring in judgment). Footnote 5 Arizona’s law is not idiosyncratic; many States have separately criminalized the unauthorized possession of prescription drugs. See, e.g. , Mo. Rev. Stat. §577.628(1) (Supp. 2008) (“No person less than twenty-one years of age shall possess upon the real property comprising a public or private elementary or secondary school or school bus prescription medication without a valid prescription for such medication”); Okla. Stat., Tit. 59, §353.24(2) (Supp. 2008) (“It shall be unlawful for any person, firm or corporation to … [s]ell, offer for sale, barter or give away any unused quantity of drugs obtained by prescription, except … as provided by the State Board of Pharmacy”); Utah Code Ann. §58–17b–501(12) (Lexis 2007) (“ ‘Unlawful conduct’ includes: using a prescription drug … for himself that was not lawfully prescribed for him by a practitioner”); see also Ala. Code §34–23–7 (2002); Del. Code Ann., Tit. 16, §4754A(a)(4) (Supp. 2008); Fla. Stat. §499.005(14) (2007); N. H. Rev. Stat. Ann. §318:42(I) (Supp. 2008). Footnote 6 Schools have a significant interest in protecting all students from prescription drug abuse; young female students are no exception. See Teens and Prescription Drugs 2 (“Prescription drugs are the most commonly abused drug among 12–13-year-olds”). In fact, among 12- to 17-year-olds, females are “more likely than boys to have abused prescription drugs” and have “higher rates of dependence or abuse involving prescription drugs.” Id. , at 5. Thus, rather than undermining the relevant governmental interest here, Redding’s age and sex, if anything, increased the need for a search to prevent the reasonably suspected use of prescription drugs. Footnote 7 The one aspect of school discipline with respect to which the judiciary at times became involved was the “imposition of excessive physical punishment.” Morse , 551 U. S., at 416 (Thomas, J., concurring). Some early courts found corporal punishment proper “as long as the teacher did not act with legal malice or cause permanent injury;” while other courts intervened only if the punishment was “clearly excessive.” Ibid. (emphasis deleted and internal quotation marks omitted) (collecting decisions). Footnote 8 See also, e.g. , Smydo, Allderdice Parents Decry Suspensions, Pittsburgh Post-Gazette, Apr. 16, 2009, p. B1 (Parents “believe a one-day suspension for a first-time hallway infraction is an overreaction”); O’Brien & Buckham, Girl’s Smooch on School Bus Leads to Suspension, Buffalo News, Jan. 6, 2008, p. B1 (Parents of 6-year-old say the “school officials overreacted” when they punished their daughter for “kissing a second-grade boy”); Stewart, Camera Phone Controversy: Dad Says School Overreacted, Houston Chronicle, Dec. 12, 2007, p. B5 (“The father of a 13-year-old … said the school district overstepped its bounds when it suspended his daughter for taking a cell phone photo of another cheerleader getting out of the shower during a sleepover in his home”); Dumenigo & Mueller, “Cops and Robbers” Suspension Criticized at Sayreville School, The [New Jersey] Star-Ledger, Apr. 6, 2000, p. 15 (“ ‘I think it’s ridiculous,’ said the mother of one of the [kindergarten] boys. ‘They’re little boys playing with each other… . when did a finger become a weapon?”).

In the case of Safford Unified School Dist. #1 v. Redding, the Supreme Court ruled that a 13-year-old student's Fourth Amendment rights were violated when school officials searched her underwear based on reasonable suspicion of drug possession. However, the official who ordered the search was granted qualified immunity due to the unclear establishment of the right at the time. The Court acknowledged the importance of protecting students from prescription drug abuse but stated that the search was unconstitutional as there was no reason to suspect the drugs presented a danger or were concealed in the student's underwear.

Search & Seizure

Brendlin v. California

https://supreme.justia.com/cases/federal/us/551/249/

OPINION OF THE COURT BRENDLIN V. CALIFORNIA 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 06-8120 BRUCE EDWARD BRENDLIN, PETITIONER v. CALIFORNIA on writ of certiorari to the supreme court of california [June 18, 2007]    Justice Souter delivered the opinion of the Court.    When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop. I    Early in the morning of November 27, 2001, Deputy Sheriff Robert Brokenbrough and his partner saw a parked Buick with expired registration tags. In his ensuing conversation with the police dispatcher, Brokenbrough learned that an application for renewal of registration was being processed. The officers saw the car again on the road, and this time Brokenbrough noticed its display of a temporary operating permit with the number “11,” indicating it was legal to drive the car through November. App. 115. The officers decided to pull the Buick over to verify that the permit matched the vehicle, even though, as Brokenbrough admitted later, there was nothing unusual about the permit or the way it was affixed. Brokenbrough asked the driver, Karen Simeroth, for her license and saw a passenger in the front seat, petitioner Bruce Brendlin, whom he recognized as “one of the Brendlin brothers.” Id., at 65. He recalled that either Scott or Bruce Brendlin had dropped out of parole supervision and asked Brendlin to identify himself.[ Footnote 1 ] Brokenbrough returned to his cruiser, called for backup, and verified that Brendlin was a parole violator with an outstanding no-bail warrant for his arrest. While he was in the patrol car, Brokenbrough saw Brendlin briefly open and then close the passenger door of the Buick. Once reinforcements arrived, Brokenbrough went to the passenger side of the Buick, ordered him out of the car at gunpoint, and declared him under arrest. When the police searched Brendlin incident to arrest, they found an orange syringe cap on his person. A patdown search of Simeroth revealed syringes and a plastic bag of a green leafy substance, and she was also formally arrested. Officers then searched the car and found tubing, a scale, and other things used to produce methamphetamine.    Brendlin was charged with possession and manufacture of methamphetamine, and he moved to suppress the evidence obtained in the searches of his person and the car as fruits of an unconstitutional seizure, arguing that the officers lacked probable cause or reasonable suspicion to make the traffic stop. He did not assert that his Fourth Amendment rights were violated by the search of Simeroth’s vehicle, cf. Rakas v. Illinois , 439 U. S. 128 (1978), but claimed only that the traffic stop was an unlawful seizure of his person. The trial court denied the suppression motion after finding that the stop was lawful and Brendlin was not seized until Brokenbrough ordered him out of the car and formally arrested him. Brendlin pleaded guilty, subject to appeal on the suppression issue, and was sentenced to four years in prison.    The California Court of Appeal reversed the denial of the suppression motion, holding that Brendlin was seized by the traffic stop, which they held unlawful. 8 Cal. Rptr. 3d 882 (2004) (officially depublished). By a narrow majority, the Supreme Court of California reversed. The State Supreme Court noted California’s concession that the officers had no reasonable basis to suspect unlawful operation of the car, 38 Cal. 4th 1107, 1114, 136 P. 3d 845, 848 (2006),[ Footnote 2 ] but still held suppression unwarranted because a passenger “is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer’s investigation or show of authority,” id ., at 1111, 136 P. 3d, at 846. The court reasoned that Brendlin was not seized by the traffic stop because Simeroth was its exclusive target, id ., at 1118, 136 P. 3d, at 851, that a passenger cannot submit to an officer’s show of authority while the driver controls the car, id ., at 1118–1119, 135 P. 3d, at 851–852, and that once a car has been pulled off the road, a passenger “would feel free to depart or otherwise to conduct his or her affairs as though the police were not present,” id ., at 1119, 136 P. 3d, at 852. In dissent, Justice Corrigan said that a traffic stop entails the seizure of a passenger even when the driver is the sole target of police investigation because a passenger is detained for the purpose of ensuring an officer’s safety and would not feel free to leave the car without the officer’s permission. Id ., at 1125, 136 P. 3d, at 856.    We granted certiorari to decide whether a traffic stop subjects a passenger, as well as the driver, to Fourth Amendment seizure, 549 U. S. __ (2007). We now vacate. II A    A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, “ ‘by means of physical force or show of authority,’ ” terminates or restrains his freedom of movement, Florida v. Bostick , 501 U. S. 429 , 434 (1991) (quoting Terry v. Ohio , 392 U. S. 1 , 19, n. 16 (1968)), “ through means intentionally applied ,” Brower v. County of Inyo , 489 U. S. 593 , 597 (1989) (emphasis in original). Thus, an “unintended person … [may be] the object of the detention,” so long as the detention is “willful” and not merely the consequence of “an unknowing act.” Id ., at 596; cf. County of Sacramento v. Lewis , 523 U. S. 833 , 844 (1998) (no seizure where a police officer accidentally struck and killed a motorcycle passenger during a high-speed pursuit). A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. See California v. Hodari D. , 499 U. S. 621 , 626, n. 2 (1991); Lewis , supra , at 844, 845, n. 7.    When the actions of the police do not show an unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not. The test was devised by Justice Stewart in United States v. Mendenhall , 446 U. S. 544 (1980), who wrote that a seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” id ., at 554 (principal opinion). Later on, the Court adopted Justice Stewart’s touchstone, see, e.g ., Hodari D ., supra , at 627; Michigan v. Chesternut , 486 U. S. 567 , 573 (1988); INS v. Delgado , 466 U. S. 210 , 215 (1984), but added that when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter,” Bostick , supra , at 435–436; see also United States v. Drayton , 536 U. S. 194 , 202 (2002).    The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver “even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse , 440 U. S. 648 , 653 (1979); see also Whren v. United States , 517 U. S. 806 , 809–810 (1996). And although we have not, until today, squarely answered the question whether a passenger is also seized, we have said over and over in dicta that during a traffic stop an officer seizes everyone in the vehicle, not just the driver. See, e.g. , Prouse , supra , at 653 (“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth and Fourteenth] Amendments”); Colorado v. Bannister , 449 U. S. 1 , 4, n. 3 (1980) (per curiam) (“There can be no question that the stopping of a vehicle and the detention of its occupants constitute a ‘seizure’ within the meaning of the Fourth Amendment”); Berkemer v. McCarty , 468 U. S. 420 , 436–437 (1984) (“[W]e have long acknowledged that stopping an automobile and detaining its occupants constitute a seizure” (internal quotation marks omitted)); United States v. Hensley , 469 U. S. 221 , 226 (1985) (“[S]topping a car and detaining its occupants constitute a seizure”); Whren , supra , at 809–810 (“Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment]”).    We have come closest to the question here in two cases dealing with unlawful seizure of a passenger, and neither time did we indicate any distinction between driver and passenger that would affect the Fourth Amendment analysis. Delaware v. Prouse considered grounds for stopping a car on the road and held that Prouse’s suppression motion was properly granted. We spoke of the arresting officer’s testimony that Prouse was in the back seat when the car was pulled over, see 440 U. S., at 650, n. 1, described Prouse as an occupant, not as the driver, and referred to the car’s “occupants” as being seized, id ., at 653. Justification for stopping a car was the issue again in Whren v. United States , where we passed upon a Fourth Amendment challenge by two petitioners who moved to suppress drug evidence found during the course of a traffic stop. See 517 U. S., at 809. Both driver and passenger claimed to have been seized illegally when the police stopped the car; we agreed and held suppression unwarranted only because the stop rested on probable cause. Id ., at 809–810, 819. B    The State concedes that the police had no adequate justification to pull the car over, see n. 2, supra , but argues that the passenger was not seized and thus cannot claim that the evidence was tainted by an unconstitutional stop. We resolve this question by asking whether a reasonable person in Brendlin’s position when the car stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick , supra , at 436. We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.    A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on “privacy and personal security” does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte , 428 U. S. 543 , 554 (1976). An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. Cf. Drayton , supra , at 197–199, 203–204 (finding no seizure when police officers boarded a stationary bus and asked passengers for permission to search for drugs).[ Footnote 3 ]    It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson , 519 U. S. 408 (1997), we held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. Id ., at 414–415; cf. Pennsylvania v. Mimms , 434 U. S. 106 (1977) (per curiam) (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that “ ‘[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.’ ” Wilson , supra , at 414 (quoting Michigan v. Summers , 452 U. S. 692 , 702–703 (1981)). What we have said in these opinions probably reflects a societal expectation of “ ‘unquestioned [police] command’ ” at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. Wilson , supra , at 414.[ Footnote 4 ]    Our conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question. See United States v. Kimball , 25 F. 3d 1, 5 (CA1 1994); United States v. Mosley , 454 F. 3d 249, 253 (CA3 2006); United States v. Rusher , 966 F. 2d 868, 874, n. 4 (CA4 1992); United States v. Grant , 349 F. 3d 192, 196 (CA5 2003); United States v. Perez , 440 F. 3d 363, 369 (CA6 2006); United States v. Powell , 929 F. 2d 1190, 1195 (CA7 1991); United States v. Ameling , 328 F. 3d 443, 446–447, n. 3 (CA8 2003); United States v. Twilley , 222 F. 3d 1092, 1095 (CA9 2000); United States v. Eylicio-Montoya , 70 F. 3d 1158, 1163–1164 (CA10 1995); State v. Bowers , 334 Ark. 447, 451–452, 976 S. W. 2d 379, 381–382 (1998); State v. Haworth , 106 Idaho 405, 405–406, 679 P. 2d 1123, 1123–1124 (1984); People v. Bunch , 207 Ill. 2d 7, 13, 796 N. E. 2d 1024, 1029 (2003); State v. Eis , 348 N. W. 2d 224, 226 (Iowa 1984); State v. Hodges , 252 Kan. 989, 1002–1005, 851 P. 2d 352, 361–362 (1993); State v. Carter , 69 Ohio St. 3d 57, 63, 630 N. E. 2d 355, 360 (1994) (per curiam); State v. Harris , 206 Wis. 2d 243, 253–258, 557 N. W. 2d 245, 249–251 (1996). And the treatise writers share this prevailing judicial view that a passenger may bring a Fourth Amendment challenge to the legality of a traffic stop. See, e.g. , 6 W. LaFave, Search and Seizure §11.3(e), pp. 194, 195, and n. 277 (4th ed. 2004 and Supp. 2007) (“If either the stopping of the car, the length of the passenger’s detention thereafter, or the passenger’s removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit” (footnote omitted)); 1 W. Ringel, Searches & Seizures, Arrests and Confessions §11:20, p. 11–98 (2d ed. 2007) (“[A] law enforcement officer’s stop of an automobile results in a seizure of both the driver and the passenger”).[ Footnote 5 ] C    The contrary conclusion drawn by the Supreme Court of California, that seizure came only with formal arrest, reflects three premises as to which we respectfully disagree. First, the State Supreme Court reasoned that Brendlin was not seized by the stop because Deputy Sheriff Brokenbrough only intended to investigate Simeroth and did not direct a show of authority toward Brendlin. The court saw Brokenbrough’s “flashing lights [as] directed at the driver,” and pointed to the lack of record evidence that Brokenbrough “was even aware [Brendlin] was in the car prior to the vehicle stop.” 38 Cal. 4th, at 1118, 136 P. 3d, at 851. But that view of the facts ignores the objective Mendenhall test of what a reasonable passenger would understand. To the extent that there is anything ambiguous in the show of force (was it fairly seen as directed only at the driver or at the car and its occupants?), the test resolves the ambiguity, and here it leads to the intuitive conclusion that all the occupants were subject to like control by the successful display of authority. The State Supreme Court’s approach, on the contrary, shifts the issue from the intent of the police as objectively manifested to the motive of the police for taking the intentional action to stop the car, and we have repeatedly rejected attempts to introduce this kind of subjectivity into Fourth Amendment analysis. See, e.g. , Whren , 517 U. S., at 813 (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”); Chesternut , 486 U. S., at 575, n. 7 (“[T]he subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted”); Mendenhall , 446 U. S., at 554, n. 6 (principal opinion) (disregarding a Government agent’s subjective intent to detain Mendenhall); cf. Rakas , 439 U. S., at 132–135 (rejecting the “target theory” of Fourth Amendment standing, which would have allowed “any criminal defendant at whom a search was directed” to challenge the legality of the search (internal quotation marks omitted)).    California defends the State Supreme Court’s ruling on this point by citing our cases holding that seizure requires a purposeful, deliberate act of detention. See Brief for Respondent 9–14. But Chesternut , supra , answers that argument. The intent that counts under the Fourth Amendment is the “intent [that] has been conveyed to the person confronted,” id ., at 575, n. 7, and the criterion of willful restriction on freedom of movement is no invitation to look to subjective intent when determining who is seized. Our most recent cases are in accord on this point. In Lewis , 523 U. S. 833 , we considered whether a seizure occurred when an officer accidentally ran over a passenger who had fallen off a motorcycle during a high-speed chase, and in holding that no seizure took place, we stressed that the officer stopped Lewis’s movement by accidentally crashing into him, not “through means intentionally applied.” Id ., at 844 (emphasis deleted). We did not even consider, let alone emphasize, the possibility that the officer had meant to detain the driver only and not the passenger. Nor is Brower , 489 U. S. 593 , to the contrary, where it was dispositive that “Brower was meant to be stopped by the physical obstacle of the roadblock—and that he was so stopped.” Id ., at 599. California reads this language to suggest that for a specific occupant of the car to be seized he must be the motivating target of an officer’s show of authority, see Brief for Respondent 12, as if the thrust of our observation were that Brower, and not someone else, was “meant to be stopped.” But our point was not that Brower alone was the target but that officers detained him “through means intentionally applied”; if the car had had another occupant, it would have made sense to hold that he too had been seized when the car collided with the roadblock. Neither case, then, is at odds with our holding that the issue is whether a reasonable passenger would have perceived that the show of authority was at least partly directed at him, and that he was thus not free to ignore the police presence and go about his business.    Second, the Supreme Court of California assumed that Brendlin, “as the passenger, had no ability to submit to the deputy’s show of authority” because only the driver was in control of the moving vehicle. 38 Cal. 4th, at 1118, 1119, 136 P. 3d, at 852. But what may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away. Here, Brendlin had no effective way to signal submission while the car was still moving on the roadway, but once it came to a stop he could, and apparently did, submit by staying inside.    Third, the State Supreme Court shied away from the rule we apply today for fear that it “would encompass even those motorists following the vehicle subject to the traffic stop who, by virtue of the original detention, are forced to slow down and perhaps even come to a halt in order to accommodate that vehicle’s submission to police authority.” Id., at 1120, 136 P. 3d, at 853. But an occupant of a car who knows that he is stuck in traffic because another car has been pulled over (like the motorist who can’t even make out why the road is suddenly clogged) would not perceive a show of authority as directed at him or his car. Such incidental restrictions on freedom of movement would not tend to affect an individual’s “sense of security and privacy in traveling in an automobile.” Prouse , 440 U. S., at 662. Nor would the consequential blockage call for a precautionary rule to avoid the kind of “arbitrary and oppressive interference by [law] enforcement officials with the privacy and personal security of individuals” that the Fourth Amendment was intended to limit. Martinez-Fuerte , 428 U. S., at 554.[ Footnote 6 ]    Indeed, the consequence to worry about would not flow from our conclusion, but from the rule that almost all courts have rejected. Holding that the passenger in a private car is not (without more) seized in a traffic stop would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal.[ Footnote 7 ] The fact that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers would be a powerful incentive to run the kind of “roving patrols” that would still violate the driver’s Fourth Amendment right. See, e.g. , Almeida-Sanchez v. United States , 413 U. S. 266 , 273 (1973) (stop and search by Border Patrol agents without a warrant or probable cause violated the Fourth Amendment); Prouse , supra , at 663 (police spot check of driver’s license and registration without reasonable suspicion violated the Fourth Amendment). *  *  *    Brendlin was seized from the moment Simeroth’s car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest. It will be for the state courts to consider in the first instance whether suppression turns on any other issue. The judgment of the Supreme Court of California is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The parties dispute the accuracy of the transcript of the suppression hearing and disagree as to whether Brendlin gave his name or the false name “Bruce Brown.” App. 115. Footnote 2 California conceded that the police officers lacked reasonable suspicion to justify the traffic stop because a “ ‘vehicle with an application for renewal of expired registration would be expected to have a temporary operating permit.’ ” 38 Cal. 4th, at 1114, 136 P. 3d, at 848 (quoting Brief for Respondent California in No. S123133 (Sup. Ct. Cal.), p. 24). Footnote 3 Of course, police may also stop a car solely to investigate a passenger’s conduct. See, e.g ., United States v. Rodriguez-Diaz , 161 F. Supp. 2d 627, 629, n. 1 (Md. 2001) (passenger’s violation of local seatbelt law); People v. Roth , 85 P. 3d 571, 573 (Colo. App. 2003) (passenger’s violation of littering ordinance). Accordingly, a passenger cannot assume, merely from the fact of a traffic stop, that the driver’s conduct is the cause of the stop. Footnote 4 Although the State Supreme Court inferred from Brendlin’s decision to open and close the passenger door during the traffic stop that he was “awar[e] of the available options,” 38 Cal. 4th 1107, 1120, 136 P. 3d 845, 852 (2006), this conduct could equally be taken to indicate that Brendlin felt compelled to remain inside the car. In any event, the test is not what Brendlin felt but what a reasonable passenger would have understood. Footnote 5 Only two State Supreme Courts, other than California’s, have stood against this tide of authority. See People v. Jackson , 39 P. 3d 1174, 1184–1186 (Colo. 2002) (en banc); State v. Mendez , 137 Wash. 2d 208, 222–223, 970 P. 2d 722, 729 (1999) (en banc). Footnote 6 California claims that, under today’s rule, “all taxi cab and bus passengers would be ‘seized’ under the Fourth Amendment when the cab or bus driver is pulled over by the police for running a red light.” Brief for Respondent 23. But the relationship between driver and passenger is not the same in a common carrier as it is in a private vehicle, and the expectations of police officers and passengers differ accordingly. In those cases, as here, the crucial question would be whether a reasonable person in the passenger’s position would feel free to take steps to terminate the encounter. Footnote 7 Compare Delaware v. Prouse , 440 U. S. 648 , 663 (1979) (requiring “at least articulable and reasonable suspicion” to support random, investigative traffic stops), and United States v. Brignoni-Ponce , 422 U. S. 873 , 880–884 (1975) (same), with Whren v. United States, 517 U. S. 806 , 810 (1996) (“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred”), and Atwater v. Lago Vista , 532 U. S. 318 , 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender”).

Here is a summary of the Supreme Court case Brendlin v. California: The Supreme Court held that a passenger in a car that has been pulled over by police is considered "seized" under the Fourth Amendment, and therefore has the right to challenge the constitutionality of the traffic stop. In this case, the Court ruled that the passenger, Bruce Brendlin, was seized when the police officer ordered him out of the car at gunpoint, and thus had the right to contest the evidence obtained during the search of his person and the car as potential violations of his Fourth Amendment rights. Is there anything else you would like me to summarize?

Search & Seizure

Scott v. Harris

https://supreme.justia.com/cases/federal/us/550/372/

OPINION OF THE COURT SCOTT V. HARRIS 550 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 05-1631 TIMOTHY SCOTT, PETITIONER v. VICTOR HARRIS on writ of certiorari to the united states court of appeals for the eleventh circuit [April 30, 2007]    Justice Scalia delivered the opinion of the Court.    We consider whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind. Put another way: Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders? I    In March 2001, a Georgia county deputy clocked respondent’s vehicle traveling at 73 miles per hour on a road with a 55-mile-per-hour speed limit. The deputy activated his blue flashing lights indicating that respondent should pull over. Instead, respondent sped away, initiating a chase down what is in most portions a two-lane road, at speeds exceeding 85 miles per hour. The deputy radioed his dispatch to report that he was pursuing a fleeing vehicle, and broadcast its license plate number. Petitioner, Deputy Timothy Scott, heard the radio communication and joined the pursuit along with other officers. In the midst of the chase, respondent pulled into the parking lot of a shopping center and was nearly boxed in by the various police vehicles. Respondent evaded the trap by making a sharp turn, colliding with Scott’s police car, exiting the parking lot, and speeding off once again down a two-lane highway.    Following respondent’s shopping center maneuvering, which resulted in slight damage to Scott’s police car, Scott took over as the lead pursuit vehicle. Six minutes and nearly 10 miles after the chase had begun, Scott decided to attempt to terminate the episode by employing a “Precision Intervention Technique (‘PIT’) maneuver, which causes the fleeing vehicle to spin to a stop.” Brief for Petitioner 4. Having radioed his supervisor for permission, Scott was told to “ ‘[g]o ahead and take him out.’ ” Harris v. Coweta County , 433 F. 3d 807, 811 (CA11 2005). Instead, Scott applied his push bumper to the rear of respondent’s vehicle.[ Footnote 1 ] As a result, respondent lost control of his vehicle, which left the roadway, ran down an embankment, overturned, and crashed. Respondent was badly injured and was rendered a quadriplegic.    Respondent filed suit against Deputy Scott and others under Rev. Stat. §1979, 42 U. S. C. §1983, alleging, inter alia , a violation of his federal constitutional rights, viz. use of excessive force resulting in an unreasonable seizure under the Fourth Amendment. In response, Scott filed a motion for summary judgment based on an assertion of qualified immunity. The District Court denied the motion, finding that “there are material issues of fact on which the issue of qualified immunity turns which present sufficient disagreement to require submission to a jury.” Harris v. Coweta County , No. 3:01–CV–148–WBH (ND Ga., Sept. 23, 2003), App. to Pet. for Cert. 41a–42a. On interlocutory appeal,[ Footnote 2 ] the United States Court of Appeals for the Eleventh Circuit affirmed the District Court’s decision to allow respondent’s Fourth Amendment claim against Scott to proceed to trial.[ Footnote 3 ] Taking respondent’s view of the facts as given, the Court of Appeals concluded that Scott’s actions could constitute “deadly force” under Tennessee v. Garner , 471 U. S. 1 (1985), and that the use of such force in this context “would violate [respondent’s] constitutional right to be free from excessive force during a seizure. Accordingly, a reasonable jury could find that Scott violated [respondent’s] Fourth Amendment rights.” 433 F. 3d, at 816. The Court of Appeals further concluded that “the law as it existed [at the time of the incident], was sufficiently clear to give reasonable law enforcement officers ‘fair notice’ that ramming a vehicle under these circumstances was unlawful.” Id. , at 817. The Court of Appeals thus concluded that Scott was not entitled to qualified immunity. We granted certiorari, 549 U. S. __ (2006), and now reverse. II    In resolving questions of qualified immunity, courts are required to resolve a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry.” Saucier v. Katz , 533 U. S. 194 , 201 (2001). If, and only if, the court finds a violation of a constitutional right, “the next, sequential step is to ask whether the right was clearly established … in light of the specific context of the case.” Ibid. Although this ordering contradicts “[o]ur policy of avoiding unnecessary adjudication of constitutional issues,” United States v. Treasury Employees , 513 U. S. 454 , 478 (1995) (citing Ashwander v. TVA , 297 U. S. 288 , 346–347 (1936) (Brandeis, J., concurring)), we have said that such a departure from practice is “necessary to set forth principles which will become the basis for a [future] holding that a right is clearly established.” Saucier , supra , at 201.[ Footnote 4 ] We therefore turn to the threshold inquiry: whether Deputy Scott’s actions violated the Fourth Amendment. III A    The first step in assessing the constitutionality of Scott’s actions is to determine the relevant facts. As this case was decided on summary judgment, there have not yet been factual findings by a judge or jury, and respondent’s version of events (unsurprisingly) differs substantially from Scott’s version. When things are in such a posture, courts are required to view the facts and draw reasonable inferences “in the light most favorable to the party opposing the [summary judgment] motion.” United States v. Diebold, Inc. , 369 U. S. 654 , 655 (1962) (per curiam); Saucier , supra , at 201. In qualified immunity cases, this usually means adopting (as the Court of Appeals did here) the plaintiff’s version of the facts.    There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. There are no allegations or indications that this videotape was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened. The videotape quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.[ Footnote 5 ] For example, the Court of Appeals adopted respondent’s assertions that, during the chase, “there was little, if any, actual threat to pedestrians or other motorists, as the roads were mostly empty and [respondent] remained in control of his vehicle.” 433 F. 3d, at 815. Indeed, reading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test: “[T]aking the facts from the non-movant’s viewpoint, [respondent] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.” Id. , at 815–816 (citations omitted).    The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.[ Footnote 6 ] We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.[ Footnote 7 ]    At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts… . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Industrial Co. v. Zenith Radio Corp. , 475 U. S. 574 , 586–587 (1986) (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc. , 477 U. S. 242 , 247–248 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.    That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape. B    Judging the matter on that basis, we think it is quite clear that Deputy Scott did not violate the Fourth Amendment. Scott does not contest that his decision to terminate the car chase by ramming his bumper into respondent’s vehicle constituted a “seizure.” “[A] Fourth Amendment seizure [occurs] … when there is a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo , 489 U. S. 593 , 596–597 (1989) (emphasis deleted). See also id. , at 597 (“If … the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure”). It is also conceded, by both sides, that a claim of “excessive force in the course of making [a] …‘seizure’ of [the] person … [is] properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham v. Connor , 490 U. S. 386 , 388 (1989). The question we need to answer is whether Scott’s actions were objectively reasonable.[ Footnote 8 ] 1    Respondent urges us to analyze this case as we analyzed Garner , 471 U. S. 1 . See Brief for Respondent 16–29. We must first decide, he says, whether the actions Scott took constituted “deadly force.” (He defines “deadly force” as “any use of force which creates a substantial likelihood of causing death or serious bodily injury,” id. , at 19.) If so, respondent claims that Garner prescribes certain preconditions that must be met before Scott’s actions can survive Fourth Amendment scrutiny: (1) The suspect must have posed an immediate threat of serious physical harm to the officer or others; (2) deadly force must have been necessary to prevent escape;[ Footnote 9 ] and (3) where feasible, the officer must have given the suspect some warning. See Brief for Respondent 17–18 (citing Garner , supra , at 9–12). Since these Garner preconditions for using deadly force were not met in this case, Scott’s actions were per se unreasonable.    Respondent’s argument falters at its first step; Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly force.” Garner was simply an application of the Fourth Amendment’s “reasonableness” test, Graham , supra , at 388, to the use of a particular type of force in a particular situation. Garner held that it was unreasonable to kill a “young, slight, and unarmed” burglary suspect, 471 U. S., at 21, by shooting him “in the back of the head” while he was running away on foot, id. , at 4, and when the officer “could not reasonably have believed that [the suspect] … posed any threat,” and “never attempted to justify his actions on any basis other than the need to prevent an escape,” id ., at 21. Whatever Garner said about the factors that might have justified shooting the suspect in that case, such “preconditions” have scant applicability to this case, which has vastly different facts. “ Garner had nothing to do with one car striking another or even with car chases in general … . A police car’s bumping a fleeing car is, in fact, not much like a policeman’s shooting a gun so as to hit a person.” Adams v. St. Lucie County Sheriff’s Dept. , 962 F. 2d 1563, 1577 (CA11 1992) (Edmondson, J., dissenting), adopted by 998 F. 2d 923 (CA11 1993) (en banc) (per curiam) . Nor is the threat posed by the flight on foot of an unarmed suspect even remotely comparable to the extreme danger to human life posed by respondent in this case. Although respondent’s attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of “reasonableness.” Whether or not Scott’s actions constituted application of “deadly force,” all that matters is whether Scott’s actions were reasonable. 2    In determining the reasonableness of the manner in which a seizure is effected, “[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place , 462 U. S. 696 , 703 (1983). Scott defends his actions by pointing to the paramount governmental interest in ensuring public safety, and respondent nowhere suggests this was not the purpose motivating Scott’s behavior. Thus, in judging whether Scott’s actions were reasonable, we must consider the risk of bodily harm that Scott’s actions posed to respondent in light of the threat to the public that Scott was trying to eliminate. Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase. See Part III–A, supra . It is equally clear that Scott’s actions posed a high likelihood of serious injury or death to respondent—though not the near certainty of death posed by, say, shooting a fleeing felon in the back of the head, see Garner , supra , at 4, or pulling alongside a fleeing motorist’s car and shooting the motorist, cf. Vaughan v. Cox , 343 F. 3d 1323, 1326–1327 (CA11 2003). So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability. It was respondent, after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing respondent for nearly 10 miles, but he ignored their warning to stop. By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action that he did.[ Footnote 10 ]    But wait, says respondent: Couldn’t the innocent public equally have been protected, and the tragic accident entirely avoided, if the police had simply ceased their pursuit? We think the police need not have taken that chance and hoped for the best. Whereas Scott’s action—ramming respondent off the road—was certain to eliminate the risk that respondent posed to the public, ceasing pursuit was not. First of all, there would have been no way to convey convincingly to respondent that the chase was off, and that he was free to go. Had respondent looked in his rear-view mirror and seen the police cars deactivate their flashing lights and turn around, he would have had no idea whether they were truly letting him get away, or simply devising a new strategy for capture. Perhaps the police knew a shortcut he didn’t know, and would reappear down the road to intercept him; or perhaps they were setting up a roadblock in his path. Cf. Brower , 489 U. S., at 594. Given such uncertainty, respondent might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.[ Footnote 11 ]    Second, we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. It is obvious the perverse incentives such a rule would create: Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights. The Constitution assuredly does not impose this invitation to impunity-earned-by-recklessness. Instead, we lay down a more sensible rule: A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. *  *  *    The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. The Court of Appeals’ decision to the contrary is reversed. It is so ordered. Footnote 1 Scott says he decided not to employ the PIT maneuver because he was “concerned that the vehicles were moving too quickly to safely execute the maneuver.” Brief for Petitioner 4. Respondent agrees that the PIT maneuver could not have been safely employed. See Brief for Respondent 9. It is irrelevant to our analysis whether Scott had permission to take the precise actions he took. Footnote 2 Qualified immunity is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth , 472 U. S. 511 , 526 (1985). Thus, we have held that an order denying qualified immunity is immediately appealable even though it is interlocutory; otherwise, it would be “effectively unreviewable.” Id. , at 527. Further, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant , 502 U. S. 224 , 227 (1991) (per curiam) . Footnote 3 None of the other claims respondent brought against Scott or any other party are before this Court. Footnote 4 Prior to this Court’s announcement of Saucier ’s “rigid ‘order of battle,’ ” Brosseau v. Haugen , 543 U. S. 194 , 201–202 (2004) (Breyer, J., concurring), we had described this order of inquiry as the “better approach,” County of Sacramento v. Lewis , 523 U. S. 833 , 841, n. 5 (1998), though not one that was required in all cases. See id. , at 858–859 (Breyer, J., concurring); id. , at 859 (Stevens, J., concurring in judgment). There has been doubt expressed regarding the wisdom of Saucier ’s decision to make the threshold inquiry mandatory, especially in cases where the constitutional question is relatively difficult and the qualified immunity question relatively straightforward. See, e.g. , Brosseau , supra , at 201 (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring); Bunting v. Mellen , 541 U. S. 1019 (2004) (Stevens, J., joined by Ginsburg and Breyer, JJ., respecting denial of certiorari); id. , at 1025 (Scalia, J., joined by Rehnquist, C.J., dissenting). See also Lyons v. Xenia , 417 F. 3d 565, 580–584 (CA6 2005) (Sutton, J., concurring). We need not address the wisdom of Saucier in this case, however, because the constitutional question with which we are presented is, as discussed in Part III–B, infra , easily decided. Deciding that question first is thus the “better approach,” Lewis , supra , at 841, n. 5, regardless of whether it is required. Footnote 5 Justice Stevens suggests that our reaction to the videotape is somehow idiosyncratic, and seems to believe we are misrepresenting its contents. See post , at 4 (dissenting opinion) (“In sum, the factual statements by the Court of Appeals quoted by the Court … were entirely accurate”). We are happy to allow the videotape to speak for itself. See Record 36, Exh. A, available at http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb and in Clerk of Court’s case file. Footnote 6 Justice Stevens hypothesizes that these cars “had already pulled to the side of the road or were driving along the shoulder because they heard the police sirens or saw the flashing lights,” so that “[a] jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance.” Post , at 3. It is not our experience that ambulances and fire engines careen down two-lane roads at 85-plus miles per hour, with an unmarked scout car out in front of them. The risk they pose to the public is vastly less than what respondent created here. But even if that were not so, it would in no way lead to the conclusion that it was unreasonable to eliminate the threat to life that respondent posed. Society accepts the risk of speeding ambulances and fire engines in order to save life and property; it need not (and assuredly does not) accept a similar risk posed by a reckless motorist fleeing the police. Footnote 7 This is not to say that each and every factual statement made by the Court of Appeals is inaccurate. For example, the videotape validates the court’s statement that when Scott rammed respondent’s vehicle it was not threatening any other vehicles or pedestrians. (Undoubtedly Scott waited for the road to be clear before executing his maneuver.) Footnote 8 Justice Stevens incorrectly declares this to be “a question of fact best reserved for a jury,” and complains we are “usurp[ing] the jury’s factfinding function.” Post , at 7. At the summary judgment stage, however, once we have determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record , see Part III–A, supra , the reasonableness of Scott’s actions—or, in Justice Stevens’ parlance, “[w]hether [respondent’s] actions have risen to a level warranting deadly force,” post , at 7—is a pure question of law. Footnote 9 Respondent, like the Court of Appeals, defines this second precondition as “ ‘necessary to prevent escape,’ ” Brief for Respondent 17; Harris v. Coweta County , 433 F. 3d 807, 813 (CA11 2005), quoting Garner , 471 U. S., at 11. But that quote from Garner is taken out of context. The necessity described in Garner was, in fact, the need to prevent “serious physical harm, either to the officer or to others.” Ibid. By way of example only, Garner hypothesized that deadly force may be used “if necessary to prevent escape” when the suspect is known to have “committed a crime involving the infliction or threatened infliction of serious physical harm,” ibid. , so that his mere being at large poses an inherent danger to society. Respondent did not pose that type of inherent threat to society, since (prior to the car chase) he had committed only a minor traffic offense and, as far as the police were aware, had no prior criminal record. But in this case, unlike in Garner , it was respondent’s flight itself (by means of a speeding automobile) that posed the threat of “serious physical harm … to others.” Ibid . Footnote 10 The Court of Appeals cites Brower v. County of Inyo , 489 U. S. 593 , 595 (1989), for its refusal to “countenance the argument that by continuing to flee, a suspect absolves a pursuing police officer of any possible liability for all ensuing actions during the chase,” 433 F. 3d, at 816. The only question in Brower was whether a police roadblock constituted a seizure under the Fourth Amendment. In deciding that question, the relative culpability of the parties is, of course, irrelevant; a seizure occurs whenever the police are “responsib[le] for the termination of [a person’s] movement,” 433 F. 3d, at 816, regardless of the reason for the termination. Culpability is relevant, however, to the reasonableness of the seizure—to whether preventing possible harm to the innocent justifies exposing to possible harm the person threatening them. Footnote 11 Contrary to Justice Stevens’ assertions, we do not “assum[e] that dangers caused by flight from a police pursuit will continue after the pursuit ends,” post , at 6, nor do we make any “factual assumptions,” post, at 5, with respect to what would have happened if the police had gone home. We simply point out the uncertainties regarding what would have happened, in response to respondent’s factual assumption that the high-speed flight would have ended. 550 U. S. ____ (2007) SCOTT V. HARRIS 550 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 05-1631 TIMOTHY SCOTT, PETITIONER v. VICTOR HARRIS on writ of certiorari to the united states court of appeals for the eleventh circuit [April 30, 2007]    Justice Ginsburg, concurring.    I join the Court’s opinion and would underscore two points. First, I do not read today’s decision as articulating a mechanical, per se rule. Cf. post , at 3 (Breyer, J., concurring). The inquiry described by the Court, ante , at 10–13, is situation specific. Among relevant considerations: Were the lives and well-being of others (motorists, pedestrians, police officers) at risk? Was there a safer way, given the time, place, and circumstances, to stop the fleeing vehicle? “[A]dmirable” as “[an] attempt to craft an easy-to-apply legal test in the Fourth Amendment context [may be],” the Court explains, “in the end we must still slosh our way through the factbound morass of ‘reasonableness.’ ” Ante , at 10.    Second, were this case suitable for resolution on qualified immunity grounds, without reaching the constitutional question, Justice Breyer’s discussion would be engaging. See post , at 1–3 (urging the Court to overrule Saucier v. Katz , 533 U. S. 194 (2001)). In joining the Court’s opinion, however, Justice Breyer apparently shares the view that, in the appeal before us, the constitutional question warrants an answer. The video footage of the car chase, he agrees, demonstrates that the officer’s conduct did not transgress Fourth Amendment limitations. See post , at 1. Confronting Saucier , therefore, is properly reserved for another day and case. See ante , at 4, n. 4. BREYER, J., CONCURRING SCOTT V. HARRIS 550 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 05-1631 TIMOTHY SCOTT, PETITIONER v. VICTOR HARRIS on writ of certiorari to the united states court of appeals for the eleventh circuit [April 30, 2007]    Justice Breyer, concurring.    I join the Court’s opinion with one suggestion and two qualifications. Because watching the video footage of the car chase made a difference to my own view of the case, I suggest that the interested reader take advantage of the link in the Court’s opinion, ante , at 5, n. 5, and watch it. Having done so, I do not believe a reasonable jury could, in this instance, find that Officer Timothy Scott (who joined the chase late in the day and did not know the specific reason why the respondent was being pursued) acted in violation of the Constitution.    Second, the video makes clear the highly fact-dependent nature of this constitutional determination. And that fact-dependency supports the argument that we should overrule the requirement, announced in Saucier v. Katz , 533 U. S. 194 (2001), that lower courts must first decide the “constitutional question” before they turn to the “qualified immunity question.” See id. , at 200 (“[T]he first inquiry must be whether a constitutional right would have been violated on the facts alleged”). Instead, lower courts should be free to decide the two questions in whatever order makes sense in the context of a particular case. Although I do not object to our deciding the constitutional question in this particular case, I believe that in order to lift the burden from lower courts we can and should reconsider Saucier ’s requirement as well.    Sometimes ( e.g. , where a defendant is clearly entitled to qualified immunity) Saucier ’s fixed order-of-battle rule wastes judicial resources in that it may require courts to answer a difficult constitutional question unnecessarily. Sometimes ( e.g. , where the defendant loses the constitutional question but wins on qualified immunity) that order-of-battle rule may immunize an incorrect constitutional ruling from review. Sometimes, as here, the order-of-battle rule will spawn constitutional rulings in areas of law so fact dependent that the result will be confusion rather than clarity. And frequently the order-of-battle rule violates that older, wiser judicial counsel “not to pass on questions of constitutionality … unless such adjudication is unavoidable.” Spector Motor Service, Inc. v. McLaughlin , 323 U. S. 101 , 105 (1944); see Ashwander v. TVA , 297 U. S. 288 , 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of ”). In a sharp departure from this counsel, Saucier requires courts to embrace unnecessary constitutional questions not to avoid them.    It is not surprising that commentators, judges, and, in this case, 28 States in an amicus brief, have invited us to reconsider Saucier ’s requirement . See Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249, 1275 (2006) (calling the requirement “a puzzling misadventure in constitutional dictum”); Dirrane v. Brookline Police Dept. , 315 F. 3d 65, 69–70 (CA1 2002) (referring to the requirement as “an uncomfortable exercise” when “the answer whether there was a violation may depend on a kaleidoscope of facts not yet fully developed”); Lyons v. Xenia , 417 F. 3d 565, 580–584 (CA6 2005) (Sutton, J., concurring); Brief for State of Illinois et al. as Amici Curiae . I would accept that invitation.    While this Court should generally be reluctant to overturn precedents, stare decisis concerns are at their weakest here. See, e.g. , Payne v. Tennessee , 501 U. S. 808 , 828 (1991) (“Considerations in favor of stare decisis ” are at their weakest in cases “involving procedural and evidentiary rules”). The order-of-battle rule is relatively novel, it primarily affects judges, and there has been little reliance upon it.    Third, I disagree with the Court insofar as it articulates a per se rule. The majority states: “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Ante , at 13. This statement is too absolute. As Justice Ginsburg points out, ante , at 1, whether a high-speed chase violates the Fourth Amendment may well depend upon more circumstances than the majority’s rule reflects. With these qualifications, I join the Court’s opinion. STEVENS, J., DISSENTING SCOTT V. HARRIS 550 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 05-1631 TIMOTHY SCOTT, PETITIONER v. VICTOR HARRIS on writ of certiorari to the united states court of appeals for the eleventh circuit [April 30, 2007]    Justice Stevens, dissenting.    Today, the Court asks whether an officer may “take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders.” Ante , at 1. Depending on the circumstances, the answer may be an obvious “yes,” an obvious “no,” or sufficiently doubtful that the question of the reasonableness of the officer’s actions should be decided by a jury, after a review of the degree of danger and the alternatives available to the officer. A high speed chase in a desert in Nevada is, after all, quite different from one that travels through the heart of Las Vegas.       Relying on a de novo review of a videotape of a portion of a nighttime chase on a lightly traveled road in Georgia where no pedestrians or other “bystanders” were present, buttressed by uninformed speculation about the possible consequences of discontinuing the chase, eight of the jurors on this Court reach a verdict that differs from the views of the judges on both the District Court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are. The Court’s justification for this unprecedented departure from our well-settled standard of review of factual determinations made by a district court and affirmed by a court of appeals is based on its mistaken view that the Court of Appeals’ description of the facts was “blatantly contradicted by the record” and that respondent’s version of the events was “so utterly discredited by the record that no reasonable jury could have believed him.” Ante , at 7–8.    Rather than supporting the conclusion that what we see on the video “resembles a Hollywood-style car chase of the most frightening sort,” ante , at 7,[ Footnote 1 ] the tape actually confirms, rather than contradicts, the lower courts’ appraisal of the factual questions at issue. More important, it surely does not provide a principled basis for depriving the respondent of his right to have a jury evaluate the question whether the police officers’ decision to use deadly force to bring the chase to an end was reasonable.    Omitted from the Court’s description of the initial speeding violation is the fact that respondent was on a four-lane portion of Highway 34 when the officer clocked his speed at 73 miles per hour and initiated the chase.[ Footnote 2 ] More significant—and contrary to the Court’s assumption that respondent’s vehicle “force[d] cars traveling in both directions to their respective shoulders to avoid being hit” ante, at 6—a fact unmentioned in the text of the opinion explains why those cars pulled over prior to being passed by respondent. The sirens and flashing lights on the police cars following respondent gave the same warning that a speeding ambulance or fire engine would have provided.[ Footnote 3 ] The 13 cars that respondent passed on his side of the road before entering the shopping center, and both of the cars that he passed on the right after leaving the center, no doubt had already pulled to the side of the road or were driving along the shoulder because they heard the police sirens or saw the flashing lights before respondent or the police cruisers approached.[ Footnote 4 ] A jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance, and that their reactions were fully consistent with the evidence that respondent, though speeding, retained full control of his vehicle.    The police sirens also minimized any risk that may have arisen from running “multiple red lights,” ibid . In fact, respondent and his pursuers went through only two intersections with stop lights and in both cases all other vehicles in sight were stationary, presumably because they had been warned of the approaching speeders. Incidentally, the videos do show that the lights were red when the police cars passed through them but, because the cameras were farther away when respondent did so and it is difficult to discern the color of the signal at that point, it is not entirely clear that he ran either or both of the red lights. In any event, the risk of harm to the stationary vehicles was minimized by the sirens, and there is no reason to believe that respondent would have disobeyed the signals if he were not being pursued.    My colleagues on the jury saw respondent “swerve around more than a dozen other cars,” and “force cars traveling in both directions to their respective shoulders,” ante , at 6, but they apparently discounted the possibility that those cars were already out of the pursuit’s path as a result of hearing the sirens. Even if that were not so, passing a slower vehicle on a two-lane road always involves some degree of swerving and is not especially dangerous if there are no cars coming from the opposite direction. At no point during the chase did respondent pull into the opposite lane other than to pass a car in front of him; he did the latter no more than five times and, on most of those occasions, used his turn signal. On none of these occasions was there a car traveling in the opposite direction. In fact, at one point, when respondent found himself behind a car in his own lane and there were cars traveling in the other direction, he slowed and waited for the cars traveling in the other direction to pass before overtaking the car in front of him while using his turn signal to do so. This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as “close calls.”    In sum, the factual statements by the Court of Appeals quoted by the Court, ante , at 5–6, were entirely accurate. That court did not describe respondent as a “cautious” driver as my colleagues imply, ante , at 7, but it did correctly conclude that there is no evidence that he ever lost control of his vehicle. That court also correctly pointed out that the incident in the shopping center parking lot did not create any risk to pedestrians or other vehicles because the chase occurred just before 11 p.m. on a weekday night and the center was closed. It is apparent from the record (including the videotape) that local police had blocked off intersections to keep respondent from entering residential neighborhoods and possibly endangering other motorists. I would add that the videos also show that no pedestrians, parked cars, sidewalks, or residences were visible at any time during the chase. The only “innocent bystanders” who were placed “at great risk of serious injury,” ante , at 7, were the drivers who either pulled off the road in response to the sirens or passed respondent in the opposite direction when he was driving on his side of the road.    I recognize, of course, that even though respondent’s original speeding violation on a four-lane highway was rather ordinary, his refusal to stop and subsequent flight was a serious offense that merited severe punishment. It was not, however, a capital offense, or even an offense that justified the use of deadly force rather than an abandonment of the chase. The Court’s concern about the “imminent threat to the lives of any pedestrians who might have been present,” ante, at 11, while surely valid in an appropriate case, should be discounted in a case involving a nighttime chase in an area where no pedestrians were present.    What would have happened if the police had decided to abandon the chase? We now know that they could have apprehended respondent later because they had his license plate number. Even if that were not true, and even if he would have escaped any punishment at all, the use of deadly force in this case was no more appropriate than the use of a deadly weapon against a fleeing felon in Tennessee v. Garner , 471 U. S. 1 (1985). In any event, any uncertainty about the result of abandoning the pursuit has not prevented the Court from basing its conclusions on its own factual assumptions.[ Footnote 5 ] The Court attempts to avoid the conclusion that deadly force was unnecessary by speculating that if the officers had let him go, respondent might have been “just as likely” to continue to drive recklessly as to slow down and wipe his brow. Ante , at 12. That speculation is unconvincing as a matter of common sense and improper as a matter of law. Our duty to view the evidence in the light most favorable to the nonmoving party would foreclose such speculation if the Court had not used its observation of the video as an excuse for replacing the rule of law with its ad hoc judgment. There is no evidentiary basis for an assumption that dangers caused by flight from a police pursuit will continue after the pursuit ends. Indeed, rules adopted by countless police departments throughout the country are based on a judgment that differs from the Court’s. See, e.g. , App. to Brief for Georgia Association of Chiefs of Police, Inc., as Amicus Curiae A–52 (“During a pursuit, the need to apprehend the suspect should always outweigh the level of danger created by the pursuit. When the immediate danger to the public created by the pursuit is greater than the immediate or potential danger to the public should the suspect remain at large, then the pursuit should be discontinued or terminated… . [P]ursuits should usually be discontinued when the violator’s identity has been established to the point that later apprehension can be accomplished without danger to the public”).    Although Garner may not, as the Court suggests, “establish a magical on/off switch that triggers rigid preconditions” for the use of deadly force, ante , at 9, it did set a threshold under which the use of deadly force would be considered constitutionally unreasonable: “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” 471 U. S., at 11–12. Whether a person’s actions have risen to a level warranting deadly force is a question of fact best reserved for a jury.[ Footnote 6 ] Here, the Court has usurped the jury’s factfinding function and, in doing so, implicitly labeled the four other judges to review the case unreasonable. It chastises the Court of Appeals for failing to “vie[w] the facts in the light depicted by the videotape” and implies that no reasonable person could view the videotape and come to the conclusion that deadly force was unjustified. Ant e, at 8. However, the three judges on the Court of Appeals panel apparently did view the videotapes entered into evidence[ Footnote 7 ] and described a very different version of events: “At the time of the ramming, apart from speeding and running two red lights, Harris was driving in a non-aggressive fashion (i.e., without trying to ram or run into the officers). Moreover, … Scott’s path on the open highway was largely clear. The videos introduced into evidence show little to no vehicular (or pedestrian) traffic, allegedly because of the late hour and the police blockade of the nearby intersections. Finally, Scott issued absolutely no warning (e.g., over the loudspeaker or otherwise) prior to using deadly force.” Harris v. Coweta County , 433 F. 3d 807, 819, n. 14 (CA11 2005). If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events. Moreover, under the standard set forth in Garner , it is certainly possible that “a jury could conclude that Scott unreasonably used deadly force to seize Harris by ramming him off the road under the instant circumstances.” 433 F. 3d, at 821.    The Court today sets forth a per se rule that presumes its own version of the facts: “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Ante , at 13 (emphasis added). Not only does that rule fly in the face of the flexible and case-by-case “reasonableness” approach applied in Garner and Graham v. Connor , 490 U. S. 386 (1989), but it is also arguably inapplicable to the case at hand, given that it is not clear that this chase threatened the life of any “innocent bystande[r].”[ Footnote 8 ] In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures—in this case, the use of stop sticks[ Footnote 9 ] or a simple warning issued from a loudspeaker—could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent’s speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.    I respectfully dissent. Footnote 1 I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways—when split-second judgments about the risk of passing a slow-poke in the face of oncoming traffic were routine—they might well have reacted to the videotape more dispassionately. Footnote 2 According to the District Court record, when respondent was clocked at 73 miles per hour, the deputy who recorded his speed was sitting in his patrol car on Highway 34 between Lora Smith Road and Sullivan Road in Coweta County, Georgia. At that point, as well as at the point at which Highway 34 intersects with Highway 154—where the deputy caught up with respondent and the videotape begins—Highway 34 is a four-lane road, consisting of two lanes in each direction with a wide grass divider separating the flow of traffic. Footnote 3 While still on the four-lane portion of Highway 34, the deputy who had clocked respondent’s speed turned on his blue light and siren in an attempt to get respondent to pull over. It was when the deputy turned on his blue light that the dash-mounted video camera was activated and began to record the pursuit. Footnote 4 Although perhaps understandable, because their volume on the sound recording is low (possibly due to sound proofing in the officer’s vehicle), the Court appears to minimize the significance of the sirens audible throughout the tape recording of the pursuit. Footnote 5 In noting that Scott’s action “was certain to eliminate the risk that respondent posed to the public” while “ceasing pursuit was not,” the Court prioritizes total elimination of the risk of harm to the public over the risk that respondent may be seriously injured or even killed. Ante , at 12 (emphasis in original). The Court is only able to make such a statement by assuming, based on its interpretation of events on the videotape, that the risk of harm posed in this case, and the type of harm involved, rose to a level warranting deadly force. These are the same types of questions that, when disputed, are typically resolved by a jury; this is why both the District Court and the Court of Appeals saw fit to have them be so decided. Although the Court claims only to have drawn factual inferences in respondent’s favor “ to the extent supportable by the record ,” ante , at 8, n. 8 (emphasis in original), its own view of the record has clearly precluded it from doing so to the same extent as the two courts through which this case has already traveled, see ante , at 2–3, 5–6. Footnote 6 In its opinion, the Court of Appeals correctly noted: “We reject the defendants’ argument that Harris’ driving must, as a matter of law, be considered sufficiently reckless to give Scott probable cause to believe that he posed a substantial threat of imminent physical harm to motorists and pedestrians. This is a disputed issue to be resolved by a jury.” Harris v. Coweta County , 433 F. 3d 807, 815 (CA11 2005). Footnote 7 In total, there are four police tapes which captured portions of the pursuit, all recorded from different officers’ vehicles. Footnote 8 It is unclear whether, in referring to “innocent bystanders,” the Court is referring to the motorists driving unfazed in the opposite direction or to the drivers who pulled over to the side of the road, safely out of respondent’s and petitioner’s path. Footnote 9 “Stop sticks” are a device which can be placed across the roadway and used to flatten a vehicle’s tires slowly to safely terminate a pursuit.

The Supreme Court ruled that a law enforcement official's attempt to stop a fleeing motorist by ramming their car from behind does not violate the Fourth Amendment, if the fleeing motorist endangers the lives of innocent bystanders. In this case, the deputy's use of a PIT maneuver to stop the respondent's dangerous high-speed chase was deemed reasonable and did not constitute excessive force, given the risk posed to public safety.

Search & Seizure

Arizona v. Gant

https://supreme.justia.com/cases/federal/us/556/332/

OPINION OF THE COURT ARIZONA V. GANT 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-542 ARIZONA, PETITIONER v. RODNEY JOSEPH GANT on writ of certiorari to the supreme court of arizona [April 21, 2009]    Justice Stevens delivered the opinion of the Court.    After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. Because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search, the Arizona Supreme Court held that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California , 395 U. S. 752 (1969), and applied to vehicle searches in New York v. Belton , 453 U. S. 454 (1981), did not justify the search in this case. We agree with that conclusion.    Under Chimel , police may search incident to arrest only the space within an arrestee’s “ ‘immediate control,’ ” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U. S., at 763. The safety and evidentiary justifications underlying Chimel ’s reaching-distance rule determine Belton ’s scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States , 541 U. S. 615 (2004), and following the suggestion in Justice Scalia’s opinion concurring in the judgment in that case, id. , at 632, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. I    On August 25, 1999, acting on an anonymous tip that the residence at 2524 North Walnut Avenue was being used to sell drugs, Tucson police officers Griffith and Reed knocked on the front door and asked to speak to the owner. Gant answered the door and, after identifying himself, stated that he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license.    When the officers returned to the house that evening, they found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. Both arrestees were handcuffed and secured in separate patrol cars when Gant arrived. The officers recognized his car as it entered the driveway, and Officer Griffith confirmed that Gant was the driver by shining a flashlight into the car as it drove by him. Gant parked at the end of the driveway, got out of his car, and shut the door. Griffith, who was about 30 feet away, called to Gant, and they approached each other, meeting 10-to-12 feet from Gant’s car. Griffith immediately arrested Gant and handcuffed him.    Because the other arrestees were secured in the only patrol cars at the scene, Griffith called for backup. When two more officers arrived, they locked Gant in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of a patrol car, two officers searched his car: One of them found a gun, and the other discovered a bag of cocaine in the pocket of a jacket on the backseat.    Gant was charged with two offenses—possession of a narcotic drug for sale and possession of drug paraphernalia ( i.e. , the plastic bag in which the cocaine was found). He moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. When asked at the suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.” App. 75.    The trial court rejected the State’s contention that the officers had probable cause to search Gant’s car for contraband when the search began, id. , at 18, 30, but it denied the motion to suppress. Relying on the fact that the police saw Gant commit the crime of driving without a license and apprehended him only shortly after he exited his car, the court held that the search was permissible as a search incident to arrest. Id. , at 37. A jury found Gant guilty on both drug counts, and he was sentenced to a 3-year term of imprisonment.    After protracted state-court proceedings, the Arizona Supreme Court concluded that the search of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s opinion discussed at length our decision in Belton , which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant. 216 Ariz. 1, 3–4, 162 P. 3d 640, 642–643 (2007) (citing 453 U. S., at 460). The court distinguished Belton as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer “the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” 216 Ariz., at 4, 162 P. 3d, at 643. Relying on our earlier decision in Chimel , the court observed that the search-incident-to-arrest exception to the warrant requirement is justified by interests in officer safety and evidence preservation. 216 Ariz., at 4, 162 P. 3d, at 643 . When “the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.” Id., at 5, 162 P. 3d, at 644. Accordingly, the court held that the search of Gant’s car was unreasonable.    The dissenting justices would have upheld the search of Gant’s car based on their view that “the validity of a Belton search … clearly does not depend on the presence of the Chimel rationales in a particular case.” Id. , at 8, 162 P. 3d, at 647. Although they disagreed with the majority’s view of Belton, the dissenting justices acknowledged that “[t]he bright-line rule embraced in Belton has long been criticized and probably merits reconsideration.” 216 Ariz., at 10, 162 P. 3d, at 649. They thus “add[ed their] voice[s] to the others that have urged the Supreme Court to revisit Belton .” Id. , at 11, 163 P. 3d, at 650.    The chorus that has called for us to revisit Belton includes courts, scholars, and Members of this Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment principles. We therefore granted the State’s petition for certiorari. 552 U. S. ___ (2008). II    Consistent with our precedent, our analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States , 389 U. S. 347 , 357 (1967) (footnote omitted). Among the exceptions to the warrant requirement is a search incident to a lawful arrest. See Weeks v. United States , 232 U. S. 383 , 392 (1914). The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. See United States v. Robinson , 414 U. S. 218 , 230–234 (1973); Chimel , 395 U. S., at 763.    In Chimel , we held that a search incident to arrest may only include “the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Ibid. That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. See ibid. (noting that searches incident to arrest are reasonable “ in order to remove any weapons [the arrestee] might seek to use” and “ in order to prevent [the] concealment or destruction” of evidence (emphasis added)). If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply. E.g. , Preston v. United States , 376 U. S. 364 , 367–368 (1964).        In Belton , we considered Chimel ’s application to the automobile context. A lone police officer in that case stopped a speeding car in which Belton was one of four occupants. While asking for the driver’s license and registration, the officer smelled burnt marijuana and observed an envelope on the car floor marked “Supergold”—a name he associated with marijuana. Thus having probable cause to believe the occupants had committed a drug offense, the officer ordered them out of the vehicle, placed them under arrest, and patted them down. Without handcuffing the arrestees,[ Footnote 1 ] the officer “ ‘split them up into four separate areas of the Thruway … so they would not be in physical touching area of each other’ ” and searched the vehicle, including the pocket of a jacket on the backseat, in which he found cocaine. 453 U. S., at 456.    The New York Court of Appeals found the search unconstitutional, concluding that after the occupants were arrested the vehicle and its contents were “safely within the exclusive custody and control of the police.” State v. Belton , 50 N. Y. 2d 447, 452, 407 N. E. 2d 420, 423 (1980). The State asked this Court to consider whether the exception recognized in Chimel permits an officer to search “a jacket found inside an automobile while the automobile’s four occupants, all under arrest, are standing unsecured around the vehicle.” Brief in No. 80–328, p. i . We granted certiorari because “courts ha[d] found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile.” 453 U. S., at 460.    In its brief, the State argued that the Court of Appeals erred in concluding that the jacket was under the officer’s exclusive control. Focusing on the number of arrestees and their proximity to the vehicle, the State asserted that it was reasonable for the officer to believe the arrestees could have accessed the vehicle and its contents, making the search permissible under Chimel . Brief in No. 80–328, at 7–8. The United States, as amicus curiae in support of the State, argued for a more permissive standard, but it maintained that any search incident to arrest must be “ ‘substantially contemporaneous’ ” with the arrest—a requirement it deemed “satisfied if the search occurs during the period in which the arrest is being consummated and before the situation has so stabilized that it could be said that the arrest was completed.” Brief for United States as Amicus Curiae in New York v. Belton , O. T. 1980, No. 80–328, p. 14. There was no suggestion by the parties or amici that Chimel authorizes a vehicle search incident to arrest when there is no realistic possibility that an arrestee could access his vehicle.    After considering these arguments, we held that when an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and any containers therein. Belton , 453 U. S., at 460 (footnote omitted) . That holding was based in large part on our assumption “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach.’ ” Ibid. The Arizona Supreme Court read our decision in Belton as merely delineating “the proper scope of a search of the interior of an automobile” incident to an arrest, id. , at 459. That is, when the passenger compartment is within an arrestee’s reaching distance, Belton supplies the generalization that the entire compartment and any containers therein may be reached. On that view of Belton , the state court concluded that the search of Gant’s car was unreasonable because Gant clearly could not have accessed his car at the time of the search. It also found that no other exception to the warrant requirement applied in this case.    Gant now urges us to adopt the reading of Belton followed by the Arizona Supreme Court. III Despite the textual and evidentiary support for the Arizona Supreme Court’s reading of Belton , our opinion has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan’s dissent in Belton , in which he characterized the Court’s holding as resting on the “fiction … that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” 453 U. S., at 466. Under the majority’s approach, he argued, “the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car” before conducting the search. Id. , at 468.    Since we decided Belton , Courts of Appeals have given different answers to the question whether a vehicle must be within an arrestee’s reach to justify a vehicle search incident to arrest,[ Footnote 2 ] but Justice Brennan’s reading of the Court’s opinion has predominated. As Justice O’Connor observed, “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel .” Thornton , 541 U. S., at 624 (opinion concurring in part). Justice Scalia has similarly noted that, although it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol car, cases allowing a search in “this precise factual scenario … are legion.” Id. , at 628 (opinion concurring in judgment) (collecting cases).[ Footnote 3 ] Indeed, some courts have upheld searches under Belton “even when … the handcuffed arrestee has already left the scene.” 541 U. S., at 628 (same).    Under this broad reading of Belton , a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time of the search. To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether the rule from the justifications underlying the Chimel exception—a result clearly incompatible with our statement in Belton that it “in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U. S., at 460, n. 3. Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.[ Footnote 4 ]    Although it does not follow from Chimel , we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton , 541 U. S., at 632 (Scalia, J., concurring in judgment). In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. See, e.g. , Atwater v. Lago Vista , 532 U. S. 318 , 324 (2001); Knowles v. Iowa , 525 U. S. 113 , 118 (1998). But in others, including Belton and Thornton , the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.    Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case. Unlike in Belton , which involved a single officer confronted with four unsecured arrestees, the five officers in this case outnumbered the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched Gant’s car. Under those circumstances, Gant clearly was not within reaching distance of his car at the time of the search. An evidentiary basis for the search was also lacking in this case. Whereas Belton and Thornton were arrested for drug offenses, Gant was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of Gant’s car. Cf. Knowles , 525 U. S., at 118. Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable. IV    The State does not seriously disagree with the Arizona Supreme Court’s conclusion that Gant could not have accessed his vehicle at the time of the search, but it nevertheless asks us to uphold the search of his vehicle under the broad reading of Belton discussed above. The State argues that Belton searches are reasonable regardless of the possibility of access in a given case because that expansive rule correctly balances law enforcement interests, including the interest in a bright-line rule, with an arrestee’s limited privacy interest in his vehicle.    For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, see New York v. Class , 475 U. S. 106 , 112–113 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles , 525 U. S., at 117. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.[ Footnote 5 ]    At the same time as it undervalues these privacy concerns, the State exaggerates the clarity that its reading of Belton provides. Courts that have read Belton expansively are at odds regarding how close in time to the arrest and how proximate to the arrestee’s vehicle an officer’s first contact with the arrestee must be to bring the encounter within Belton ’s purview[ Footnote 6 ] and whether a search is reasonable when it commences or continues after the arrestee has been removed from the scene.[ Footnote 7 ] The rule has thus generated a great deal of uncertainty, particularly for a rule touted as providing a “bright line.” See 3 LaFave, §7.1(c), at 514–524.    Contrary to the State’s suggestion, a broad reading of Belton is also unnecessary to protect law enforcement safety and evidentiary interests. Under our view, Belton and Thornton permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, Michigan v. Long , 463 U. S. 1032 (1983), permits an officer to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is “dangerous” and might access the vehicle to “gain immediate control of weapons.” Id. , at 1049 (citing Terry v. Ohio , 392 U. S. 1 , 21 (1968)). If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross , 456 U. S. 798 , 820–821 (1982), authorizes a search of any area of the vehicle in which the evidence might be found. Unlike the searches permitted by Justice Scalia’s opinion concurring in the judgment in Thornton , which we conclude today are reasonable for purposes of the Fourth Amendment, Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader. Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. Cf. Maryland v. Buie , 494 U. S. 325 , 334 (1990) (holding that, incident to arrest, an officer may conduct a limited protective sweep of those areas of a house in which he reasonably suspects a dangerous person may be hiding).    These exceptions together ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle’s recent occupant justify a search. Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State’s arguments that a broad reading of Belton would meaningfully further law enforcement interests and justify a substantial intrusion on individuals’ privacy.[ Footnote 8 ] V    Our dissenting colleagues argue that the doctrine of stare decisis requires adherence to a broad reading of Belton even though the justifications for searching a vehicle incident to arrest are in most cases absent.[ Footnote 9 ] The doctrine of stare decisis is of course “essential to the respect accorded to the judgments of the Court and to the stability of the law,” but it does not compel us to follow a past decision when its rationale no longer withstands “careful analysis.” Lawrence v. Texas , 539 U. S. 558 , 577 (2003).    We have never relied on stare decisis to justify the continuance of an unconstitutional police practice. And we would be particularly loath to uphold an unconstitutional result in a case that is so easily distinguished from the decisions that arguably compel it. The safety and evidentiary interests that supported the search in Belton simply are not present in this case. Indeed, it is hard to imagine two cases that are factually more distinct, as Belton involved one officer confronted by four unsecured arrestees suspected of committing a drug offense and this case involves several officers confronted with a securely detained arrestee apprehended for driving with a suspended license. This case is also distinguishable from Thornton , in which the petitioner was arrested for a drug offense. It is thus unsurprising that Members of this Court who concurred in the judgments in Belton and Thornton also concur in the decision in this case.[ Footnote 10 ]    We do not agree with the contention in Justice Alito’s dissent (hereinafter dissent) that consideration of police reliance interests requires a different result. Although it appears that the State’s reading of Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years,[ Footnote 11 ] many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. The fact that the law enforcement community may view the State’s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence. Cf. Mincey v. Arizona , 437 U. S. 385 , 393 (1978) (“[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment”). The dissent’s reference in this regard to the reliance interests cited in Dickerson v. United States , 530 U. S. 428 (2000), is misplaced. See post , at 5. In observing that “ Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture,” 530 U. S., at 443, the Court was referring not to police reliance on a rule requiring them to provide warnings but to the broader societal reliance on that individual right.    The dissent also ignores the checkered history of the search-incident-to-arrest exception. Police authority to search the place in which a lawful arrest is made was broadly asserted in Marron v. United States , 275 U. S. 192 (1927), and limited a few years later in Go-Bart Importing Co. v. United States , 282 U. S. 344 (1931), and United States v. Lefkowitz , 285 U. S. 452 (1932). The limiting views expressed in Go-Bart and Lefokwitz were in turn abandoned in Harris v. United States , 331 U. S. 145 (1947), which upheld a search of a four-room apartment incident to the occupant’s arrest. Only a year later the Court in Trupiano v. United States , 334 U. S. 699 , 708 (1948), retreated from that holding, noting that the search-incident-to-arrest exception is “a strictly limited” one that must be justified by “something more in the way of necessity than merely a lawful arrest.” And just two years after that, in United States v. Rabinowitz , 339 U. S. 56 (1950), the Court again reversed course and upheld the search of an entire apartment. Finally, our opinion in Chimel overruled Rabinowitz and what remained of Harris and established the present boundaries of the search-incident-to-arrest exception. Notably, none of the dissenters in Chimel or the cases that preceded it argued that law enforcement reliance interests outweighed the interest in protecting individual constitutional rights so as to warrant fidelity to an unjustifiable rule.    The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely “within ‘the area into which an arrestee might reach,’ ” 453 U. S., at 460, and blind adherence to Belton ’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis does not require us to approve routine constitutional violations. VI    Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed. It is so ordered. Footnote 1 The officer was unable to handcuff the occupants because he had only one set of handcuffs. See Brief for Petitioner in New York v. Belton , O. T. 1980, No. 80–328, p. 3 (hereinafter Brief in No. 80–328). Footnote 2 Compare United States v. Green , 324 F. 3d 375, 379 (CA5 2003) (holding that Belton did not authorize a search of an arrestee’s vehicle when he was handcuffed and lying facedown on the ground surrounded by four police officers 6-to-10 feet from the vehicle), United States v. Edwards , 242 F. 3d 928, 938 (CA10 2001) (finding unauthorized a vehicle search conducted while the arrestee was handcuffed in the back of a patrol car), United States v. Vasey , 834 F. 2d 782, 787 (CA9 1987) (finding unauthorized a vehicle search conducted 30-to-45 minutes after an arrest and after the arrestee had been handcuffed and secured in the back of a police car), with United States v. Hrasky , 453 F. 3d 1099, 1102 (CA8 2006) (upholding a search conducted an hour after the arrestee was apprehended and after he had been handcuffed and placed in the back of a patrol car); United States v. Weaver , 433 F. 3d 1104, 1106 (CA9 2006) (upholding a search conducted 10-to-15 minutes after an arrest and after the arrestee had been handcuffed and secured in the back of a patrol car), and United States v. White , 871 F. 2d 41, 44 (CA6 1989) (upholding a search conducted after the arrestee had been handcuffed and secured in the back of a police cruiser). Footnote 3 The practice of searching vehicles incident to arrest after the arrestee has been handcuffed and secured in a patrol car has not abated since we decided Thornton . See, e.g. , United States v. Murphy , 221 Fed. Appx. 715, 717 (CA10 2007); Hrasky , 453 F. 3d, at 1100; Weaver , 433 F. 3d, at 1105; United States v. Williams , 170 Fed. Appx. 399, 401 (CA6 2006); United States v. Dorsey , 418 F. 3d 1038, 1041 (CA9 2005); United States v. Osife , 398 F. 3d 1143, 1144 (CA9 2005); United States v. Sumrall , 115 Fed. Appx. 22, 24 (CA10 2004). Footnote 4 Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains. Cf. 3 W. LaFave, Search and Seizure §7.1(c), p. 525 (4th ed. 2004) (hereinafter LaFave) (noting that the availability of protective measures “ensur[es] the nonexistence of circumstances in which the arrestee’s ‘control’ of the car is in doubt”). But in such a case a search incident to arrest is reasonable under the Fourth Amendment. Footnote 5 See Maryland v. Garrison , 480 U. S. 79 , 84 (1987); Chimel , 395 U. S., at 760–761; Stanford v. Texas , 379 U. S. 476 , 480–484 (1965); Weeks v. United States , 232 U. S. 383 , 389–392 (1914); Boyd v. United States , 116 U. S. 616 , 624–625 (1886); see also 10 C. Adams, The Works of John Adams 247–248 (1856). Many have observed that a broad reading of Belton gives police limitless discretion to conduct exploratory searches. See 3 LaFave §7.1(c), at 527 (observing that Belton creates the risk “that police will make custodial arrests which they otherwise would not make as a cover for a search which the Fourth Amendment otherwise prohibits”); see also United States v. McLaughlin , 170 F. 3d 889, 894 (CA9 1999) (Trott, J., concurring) (observing that Belton has been applied to condone “purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find”); State v. Pallone , 2001 WI 77, ¶¶87–90, 236 Wis. 2d 162, 203–204, and n. 9, 613 N. W. 2d 568, 588, and n. 9 (2000) (Abrahamson, C. J., dissenting) (same); State v. Pierce , 136 N. J. 184, 211, 642 A. 2d 947, 961 (1994) (same). Footnote 6 Compare United States v. Caseres , 533 F. 3d 1064, 1072 (CA9 2008) (declining to apply Belton when the arrestee was approached by police after he had exited his vehicle and reached his residence), with Rainey v. Commonwealth , 197 S. W. 3d 89, 94–95 (Ky. 2006) (applying Belton when the arrestee was apprehended 50 feet from the vehicle), and Black v. State , 810 N. E. 2d 713, 716 (Ind. 2004) (applying Belton when the arrestee was apprehended inside an auto repair shop and the vehicle was parked outside). Footnote 7 Compare McLaughlin , 170 F. 3d, at 890–891 (upholding a search that commenced five minutes after the arrestee was removed from the scene), United States v. Snook , 88 F. 3d 605, 608 (CA8 1996) (same), and United States v. Doward , 41 F. 3d 789, 793 (CA1 1994) (upholding a search that continued after the arrestee was removed from the scene), with United States v. Lugo , 978 F. 2d 631, 634 (CA10 1992) (holding invalid a search that commenced after the arrestee was removed from the scene), and State v. Badgett , 200 Conn. 412, 427–428, 512 A. 2d 160, 169 (1986) (holding invalid a search that continued after the arrestee was removed from the scene). Footnote 8 At least eight States have reached the same conclusion. Vermont, New Jersey, New Mexico, Nevada, Pennsylvania, New York, Oregon, and Wyoming have declined to follow a broad reading of Belton under their state constitutions. See State v. Bauder , 181 Vt. 392, 401, 924 A. 2d 38, 46–47 (2007); State v. Eckel, 185 N. J. 523, 540, 888 A. 2d 1266, 1277 (2006); Camacho v. State , 119 Nev. 395, 399–400, 75 P. 3d 370, 373–374 (2003); Vasquez v. State , 990 P. 2d 476, 488–489 (Wyo. 1999); State v. Arredondo , 1997–NMCA–081, 123 N. M. 628, 636 (Ct. App.), overruled on other grounds by State v. Steinzig , 1999–NMCA–107, 127 N. M. 752 (Ct. App.); Commonwealth v. White , 543 Pa. 45, 57, 669 A. 2d 896, 902 (1995); People v. Blasich , 73 N. Y. 2d 673, 678, 541 N. E. 2d 40, 43 (1989); State v. Fesler , 68 Ore. App. 609, 612, 685 P. 2d 1014, 1016–1017 (1984). And a Massachusetts statute provides that a search incident to arrest may be made only for the purposes of seizing weapons or evidence of the offense of arrest. See Commonwealth v. Toole , 389 Mass. 159, 161–162, 448 N. E. 2d 1264, 1266–1267 (1983) (citing Mass. Gen. Laws, ch. 276, §1 (West 2007)). Footnote 9 Justice Alito’s dissenting opinion also accuses us of “overrul[ing]” Belton and Thornton v. United States , 541 U. S. 615 (2004), “even though respondent Gant has not asked us to do so.” Post , at 1. Contrary to that claim, the narrow reading of Belton we adopt today is precisely the result Gant has urged. That Justice Alito has chosen to describe this decision as overruling our earlier cases does not change the fact that the resulting rule of law is the one advocated by respondent. Footnote 10 Justice Stevens concurred in the judgment in Belton , 453 U. S., at 463, for the reasons stated in his dissenting opinion in Robbins v. California , 453 U. S. 420 , 444 (1981), Justice Thomas joined the Court’s opinion in Thornton , 541 U. S. 615 , and Justice Scalia and Justice Ginsburg concurred in the judgment in that case, id. , at 625. Footnote 11 Because a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding. 556 U. S. ____ (2009) 556 U. S. ____ (2009) 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-542 ARIZONA, PETITIONER v. RODNEY JOSEPH GANT on writ of certiorari to the supreme court of arizona [April 21, 2009]    Justice Scalia, concurring.    To determine what is an “unreasonable” search within the meaning of the Fourth Amendment, we look first to the historical practices the Framers sought to preserve; if those provide inadequate guidance, we apply traditional standards of reasonableness. See Virginia v. Moore , 553 U. S. ___, ___ (2008) (slip op., at 3–6). Since the historical scope of officers’ authority to search vehicles incident to arrest is uncertain, see Thornton v. United States , 541 U. S. 615 , 629–631 (2004) (Scalia, J., concurring in judgment), traditional standards of reasonableness govern. It is abundantly clear that those standards do not justify what I take to be the rule set forth in New York v. Belton , 453 U. S. 454 (1981), and Thornton: that arresting officers may always search an arrestee’s vehicle in order to protect themselves from hidden weapons. When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car.    Law enforcement officers face a risk of being shot whenever they pull a car over. But that risk is at its height at the time of the initial confrontation; and it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested and placed in the squad car. I observed in Thornton that the government had failed to provide a single instance in which a formerly restrained arrestee escaped to retrieve a weapon from his own vehicle, 541 U. S., at 626; Arizona and its amici have not remedied that significant deficiency in the present case.    It must be borne in mind that we are speaking here only of a rule automatically permitting a search when the driver or an occupant is arrested. Where no arrest is made, we have held that officers may search the car if they reasonably believe “the suspect is dangerous and … may gain immediate control of weapons.” Michigan v. Long , 463 U. S. 1032 , 1049 (1983). In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed. The rule of Michigan v. Long is not at issue here.    Justice Stevens acknowledges that an officer-safety rationale cannot justify all vehicle searches incident to arrest, but asserts that that is not the rule Belton and Thornton adopted. (As described above, I read those cases differently). Justice Stevens would therefore retain the application of Chimel v. California , 395 U. S. 752 (1969), in the car-search context but would apply in the future what he believes our cases held in the past: that officers making a roadside stop may search the vehicle so long as the “arrestee is within reaching distance of the passenger compartment at the time of the search.” Ante , at 18. I believe that this standard fails to provide the needed guidance to arresting officers and also leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search. In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred. Because respondent was arrested for driving without a license (a crime for which no evidence could be expected to be found in the vehicle), I would hold in the present case that the search was unlawful.    Justice Alito insists that the Court must demand a good reason for abandoning prior precedent. That is true enough, but it seems to me ample reason that the precedent was badly reasoned and produces erroneous (in this case unconstitutional) results. See Payne v. Tennessee , 501 U. S. 808 , 827 (1991). We should recognize Belton ’s fanciful reliance upon officer safety for what it was: “a return to the broader sort of [evidence-gathering] search incident to arrest that we allowed before Chimel .” Thornton, supra, at 631 (Scalia, J., concurring in judgment; citations omitted).    Justice Alito argues that there is no reason to adopt a rule limiting automobile-arrest searches to those cases where the search’s object is evidence of the crime of arrest. Post, at 10 (dissenting opinion). I disagree. This formulation of officers’ authority both preserves the outcomes of our prior cases and tethers the scope and rationale of the doctrine to the triggering event. Belton , by contrast, allowed searches precisely when its exigency-based rationale was least applicable: The fact of the arrest in the automobile context makes searches on exigency grounds less reasonable, not more. I also disagree with Justice Alito’s conclusory assertion that this standard will be difficult to administer in practice, post , at 7; the ease of its application in this case would suggest otherwise.    No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned. It seems to me unacceptable for the Court to come forth with a 4-to-1-to-4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by Justice Stevens. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore join the opinion of the Court. 556 U. S. ____ (2009) ARIZONA V. GANT 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-542 ARIZONA, PETITIONER v. RODNEY JOSEPH GANT on writ of certiorari to the supreme court of arizona [April 21, 2009]    Justice Breyer, dissenting.    I agree with Justice Alito that New York v. Belton , 453 U. S. 454 (1981), is best read as setting forth a bright-line rule that permits a warrantless search of the passenger compartment of an automobile incident to the lawful arrest of an occupant—regardless of the danger the arrested individual in fact poses. I also agree with Justice Stevens, however, that the rule can produce results divorced from its underlying Fourth Amendment rationale. Compare Belton , supra , with Chimel v. California , 395 U. S. 752 , 764 (1969) (explaining that the rule allowing contemporaneous searches is justified by the need to prevent harm to a police officer or destruction of evidence of the crime). For that reason I would look for a better rule—were the question before us one of first impression.    The matter, however, is not one of first impression, and that fact makes a substantial difference. The Belton rule has been followed not only by this Court in Thornton v. United States , 541 U. S. 615 (2004), but also by numerous other courts. Principles of stare decisis must apply, and those who wish this Court to change a well-established legal precedent—where, as here, there has been considerable reliance on the legal rule in question—bear a heavy burden. Cf. Leegin Creative Leather Products, Inc. v. PSKS, Inc. , 551 U. S. 877 , ___ (2007) (slip op., at 17–19) (Breyer, J., dissenting). I have not found that burden met. Nor do I believe that the other considerations ordinarily relevant when determining whether to overrule a case are satisfied. I consequently join Justice Alito’s dissenting opinion with the exception of Part II-E. ALITO, J., DISSENTING ARIZONA V. GANT 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-542 ARIZONA, PETITIONER v. RODNEY JOSEPH GANT on writ of certiorari to the supreme court of arizona [April 21, 2009]    Justice Alito, with whom The Chief Justice and Justice Kennedy join, and with whom Justice Breyer joins except as to Part II – E, dissenting.    Twenty-eight years ago, in New York v. Belton , 453 U. S. 454 , 460 (1981), this Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Footnote omitted.) Five years ago, in Thornton v. United States , 541 U. S. 615 (2004)—a case involving a situation not materially distinguishable from the situation here—the Court not only reaffirmed but extended the holding of Belton, making it applicable to recent occupants. Today’s decision effectively overrules those important decisions, even though respondent Gant has not asked us to do so.    To take the place of the overruled precedents, the Court adopts a new two-part rule under which a police officer who arrests a vehicle occupant or recent occupant may search the passenger compartment if (1) the arrestee is within reaching distance of the vehicle at the time of the search or (2) the officer has reason to believe that the vehicle contains evidence of the offense of arrest. Ante , at 18. The first part of this new rule may endanger arresting officers and is truly endorsed by only four Justices; Justice Scalia joins solely for the purpose of avoiding a “4-to-1-to 4 opinion.” Ante, at 4 (concurring opinion). The second part of the new rule is taken from Justice Scalia’s separate opinion in Thornton without any independent explanation of its origin or justification and is virtually certain to confuse law enforcement officers and judges for some time to come. The Court’s decision will cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law, and although the Court purports to base its analysis on the landmark decision in Chimel v. California , 395 U. S. 752 (1969), the Court’s reasoning undermines Chimel . I would follow Belton , and I therefore respectfully dissent. I    Although the Court refuses to acknowledge that it is overruling Belton and Thornton , there can be no doubt that it does so.    In Belton , an officer on the New York Thruway removed the occupants from a car and placed them under arrest but did not handcuff them. See 453 U. S., at 456; Brief for Petitioner in New York v. Belton , O. T. 1980, No. 80–328, p. 3. The officer then searched a jacket on the car’s back seat and found drugs. 453 U. S., at 455. By a divided vote, the New York Court of Appeals held that the search of the jacket violated Chimel , in which this Court held that an arresting officer may search the area within an arrestee’s immediate control. See State v. Belton , 50 N. Y. 2d 447, 407 N. E. 2d 420 (1980). The justices of the New York Court of Appeals disagreed on the factual question whether the Belton arrestees could have gained access to the car. The majority thought that they could not have done so, id. , at 452, n. 2, 407 N. E. 2d, at 423, n. 2, but the dissent thought that this was a real possibility. Id. , at 453, 407 N. E. 2d, at 424 (opinion of Gabrielli, J.).    Viewing this disagreement about the application of the Chimel rule as illustrative of a persistent and important problem, the Belton Court concluded that “ ‘[a] single familiar standard’ ” was “ ‘essential to guide police officers’ ” who make roadside arrests. 453 U. S., at 458 (quoting Dunaway v. New York , 442 U. S. 200 , 213–214 (1979)). The Court acknowledged that articles in the passenger compartment of a car are not always within an arrestee’s reach, but “[i]n order to establish the workable rule this category of cases requires,” the Court adopted a rule that categorically permits the search of a car’s passenger compartment incident to the lawful arrest of an occupant. 453 U. S., at 460.    The precise holding in Belton could not be clearer. The Court stated unequivocally: “[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Ibid. (footnote omitted).    Despite this explicit statement, the opinion of the Court in the present case curiously suggests that Belton may reasonably be read as adopting a holding that is narrower than the one explicitly set out in the Belton opinion, namely, that an officer arresting a vehicle occupant may search the passenger compartment “when the passenger compartment is within an arrestee’s reaching distance.” Ante , at 7–8 (emphasis in original). According to the Court, the broader reading of Belton that has gained wide acceptance “may be attributable to Justice Brennan’s dissent.” Ante , at 8.    Contrary to the Court’s suggestion, however, Justice Brennan’s Belton dissent did not mischaracterize the Court’s holding in that case or cause that holding to be misinterpreted. As noted, the Belton Court explicitly stated precisely what it held. In Thornton , the Court recognized the scope of Belton ’s holding. See 541 U. S., at 620. So did Justice Scalia’s separate opinion. See id. , at 625 (opinion concurring in judgment) (“In [Belton] we set forth a bright-line rule for arrests of automobile occupants, holding that … a search of the whole [passenger] compartment is justified in every case”). So does Justice Scalia’s opinion in the present case. See ante , at 1 ( Belton and Thornton held that “arresting officers may always search an arrestee’s vehicle in order to protect themselves from hidden weapons”). This “bright-line rule” has now been interred. II    Because the Court has substantially overruled Belton and Thornton, the Court must explain why its departure from the usual rule of stare decisis is justified. I recognize that stare decisis is not an “inexorable command,” Payne v. Tennessee , 501 U. S. 808 , 828 (1991), and applies less rigidly in constitutional cases, Glidden Co. v. Zdanok , 370 U. S. 530 , 543 (1962) (plurality opinion). But the Court has said that a constitutional precedent should be followed unless there is a “ ‘special justification’ ” for its abandonment. Dickerson v. United States , 530 U. S. 428 , 443 (2000). Relevant factors identified in prior cases include whether the precedent has engendered reliance, id ., at 442, whether there has been an important change in circumstances in the outside world, Randall v. Sorrell , 548 U. S. 230 , 244 (2006) (plurality opinion); Burnet v. Coronado Oil & Gas Co. , 285 U. S. 393 , 412 (1932) (Brandeis, J., dissenting), whether the precedent has proved to be unworkable, Vieth v. Jubelirer , 541 U. S. 267 , 306 (2004) (plurality opinion) (citing Payne , supra , at 827), whether the precedent has been undermined by later decisions, see, e.g. , Patterson v. McLean Credit Union , 491 U. S. 164 , 173–174 (1989), and whether the decision was badly reasoned. Vieth , supra , at 306 (plurality opinion). These factors weigh in favor of retaining the rule established in Belton . A Reliance . While reliance is most important in “cases involving property and contract rights,” Payne , supra , at 828, the Court has recognized that reliance by law enforcement officers is also entitled to weight. In Dickerson , the Court held that principles of stare decisis “weigh[ed]” heavily against overruling Miranda v . Arizona , 384 U. S. 436 (1966), because the Miranda rule had become “embedded in routine police practice.” 530 U. S., at 443.    If there was reliance in Dickerson , there certainly is substantial reliance here. The Belton rule has been taught to police officers for more than a quarter century. Many searches—almost certainly including more than a few that figure in cases now on appeal—were conducted in scrupulous reliance on that precedent. It is likely that, on the very day when this opinion is announced, numerous vehicle searches will be conducted in good faith by police officers who were taught the Belton rule.    The opinion of the Court recognizes that “ Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years.” Ante , at 16. But for the Court, this seemingly counts for nothing. The Court states that “[w]e have never relied on stare decisis to justify the continuance of an unconstitutional police practice,” ante, at 15, but of course the Court routinely relies on decisions sustaining the constitutionality of police practices without doing what the Court has done here— sua sponte considering whether those decisions should be overruled. And the Court cites no authority for the proposition that stare decisis may be disregarded or provides only lesser protection when the precedent that is challenged is one that sustained the constitutionality of a law enforcement practice.    The Court also errs in arguing that the reliance interest that was given heavy weight in Dickerson was not “police reliance on a rule requiring them to provide warnings but to the broader societal reliance on that individual right.” Ante , at 17. The Dickerson opinion makes no reference to “societal reliance,” and petitioner in that case contended that there had been reliance on Miranda because, among other things, “[f]or nearly thirty-five years, Miranda ’s requirements ha[d] shaped law enforcement training [and] police conduct.” See Brief for Petitioner in Dickerson v. United States , O. T. 1999, No. 99–5525, p. 33. B Changed circumstances. A bandonment of the Belton rule cannot be justified on the ground that the dangers surrounding the arrest of a vehicle occupant are different today than they were 28 years ago. The Court claims that “[w]e now know that articles inside the passenger compartment are rarely ‘within “the area into which an arrestee might reach,” ’ ” ante , at 17–18, but surely it was well known in 1981 that a person who is taken from a vehicle, handcuffed, and placed in the back of a patrol car is unlikely to make it back into his own car to retrieve a weapon or destroy evidence. C Workability . The Belton rule has not proved to be unworkable. On the contrary, the rule was adopted for the express purpose of providing a test that would be relatively easy for police officers and judges to apply. The Court correctly notes that even the Belton rule is not perfectly clear in all situations. Specifically, it is sometimes debatable whether a search is or is not contemporaneous with an arrest, ante , at 6–7, but that problem is small in comparison with the problems that the Court’s new two-part rule will produce.    The first part of the Court’s new rule—which permits the search of a vehicle’s passenger compartment if it is within an arrestee’s reach at the time of the search—reintroduces the same sort of case-by-case, fact-specific decisionmaking that the Belton rule was adopted to avoid. As the situation in Belton illustrated, there are cases in which it is unclear whether an arrestee could retrieve a weapon or evidence in the passenger compartment of a car.    Even more serious problems will also result from the second part of the Court’s new rule, which requires officers making roadside arrests to determine whether there is reason to believe that the vehicle contains evidence of the crime of arrest. What this rule permits in a variety of situations is entirely unclear. D Consistency with later cases . The Belton bright-line rule has not been undermined by subsequent cases. On the contrary, that rule was reaffirmed and extended just five years ago in Thornton. E Bad reasoning . The Court is harshly critical of Belton ’s reasoning, but the problem that the Court perceives cannot be remedied simply by overruling Belton. Belton represented only a modest—and quite defensible—extension of Chimel , as I understand that decision.    Prior to Chimel , the Court’s precedents permitted an arresting officer to search the area within an arrestee’s “possession” and “control” for the purpose of gathering evidence. See 395 U. S., at 759–760. Based on this “abstract doctrine,” id ., at 760, n. 4 , the Court had sustained searches that extended far beyond an arrestee’s grabbing area. See United States v. Rabinowitz , 339 U. S. 56 (1950) (search of entire office); Harris v. United States , 331 U. S. 145 (1947) (search of entire apartment).    The Chimel Court, in an opinion written by Justice Stewart, overruled these cases. Concluding that there are only two justifications for a warrantless search incident to arrest—officer safety and the preservation of evidence—the Court stated that such a search must be confined to “the arrestee’s person” and “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U. S., at 762–763.    Unfortunately, Chimel did not say whether “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence” is to be measured at the time of the arrest or at the time of the search, but unless the Chimel rule was meant to be a specialty rule, applicable to only a few unusual cases, the Court must have intended for this area to be measured at the time of arrest.    This is so because the Court can hardly have failed to appreciate the following two facts. First, in the great majority of cases, an officer making an arrest is able to handcuff the arrestee and remove him to a secure place before conducting a search incident to the arrest. See ante, at 10, n. 4 (stating that it is “the rare case” in which an arresting officer cannot secure an arrestee before conducting a search). Second, because it is safer for an arresting officer to secure an arrestee before searching, it is likely that this is what arresting officers do in the great majority of cases. (And it appears, not surprisingly, that this is in fact the prevailing practice.[ Footnote 1 ]) Thus, if the area within an arrestee’s reach were assessed, not at the time of arrest, but at the time of the search, the Chimel rule would rarely come into play.    Moreover, if the applicability of the Chimel rule turned on whether an arresting officer chooses to secure an arrestee prior to conducting a search, rather than searching first and securing the arrestee later, the rule would “create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer.” United States v . Abdul-Saboor, 85 F. 3d 664, 669 (CADC 1996). If this is the law, the D. C. Circuit observed, “the law would truly be, as Mr. Bumble said, ‘a ass.’ ” Ibid . See also United States v. Tejada , 524 F. 3d 809, 812 (CA7 2008) (“[I]f the police could lawfully have searched the defendant’s grabbing radius at the moment of arrest, he has no legitimate complaint if, the better to protect themselves from him, they first put him outside that radius”).    I do not think that this is what the Chimel Court intended. Handcuffs were in use in 1969. The ability of arresting officers to secure arrestees before conducting a search—and their incentive to do so—are facts that can hardly have escaped the Court’s attention. I therefore believe that the Chimel Court intended that its new rule apply in cases in which the arrestee is handcuffed before the search is conducted.    The Belton Court, in my view, proceeded on the basis of this interpretation of Chimel . Again speaking through Justice Stewart, the Belton Court reasoned that articles in the passenger compartment of a car are “generally, even if not inevitably” within an arrestee’s reach. 453 U. S., at 460. This is undoubtedly true at the time of the arrest of a person who is seated in a car but plainly not true when the person has been removed from the car and placed in handcuffs. Accordingly, the Belton Court must have proceeded on the assumption that the Chimel rule was to be applied at the time of arrest. And that is why the Belton Court was able to say that its decision “in no way alter[ed] the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U. S., at 460, n. 3. Viewing Chimel as having focused on the time of arrest, Belton ’s only new step was to eliminate the need to decide on a case-by-case basis whether a particular person seated in a car actually could have reached the part of the passenger compartment where a weapon or evidence was hidden. For this reason, if we are going to reexamine Belton , we should also reexamine the reasoning in Chimel on which Belton rests. F    The Court, however, does not reexamine Chimel and thus leaves the law relating to searches incident to arrest in a confused and unstable state. The first part of the Court’s new two-part rule—which permits an arresting officer to search the area within an arrestee’s reach at the time of the search—applies, at least for now, only to vehicle occupants and recent occupants, but there is no logical reason why the same rule should not apply to all arrestees.    The second part of the Court’s new rule, which the Court takes uncritically from Justice Scalia’s separate opinion in Thornton, raises doctrinal and practical problems that the Court makes no effort to address. Why, for example, is the standard for this type of evidence-gathering search “reason to believe” rather than probable cause? And why is this type of search restricted to evidence of the offense of arrest? It is true that an arrestee’s vehicle is probably more likely to contain evidence of the crime of arrest than of some other crime, but if reason-to-believe is the governing standard for an evidence-gathering search incident to arrest, it is not easy to see why an officer should not be able to search when the officer has reason to believe that the vehicle in question possesses evidence of a crime other than the crime of arrest.    Nor is it easy to see why an evidence-gathering search incident to arrest should be restricted to the passenger compartment. The Belton rule was limited in this way because the passenger compartment was considered to be the area that vehicle occupants can generally reach, 453 U. S., at 460, but since the second part of the new rule is not based on officer safety or the preservation of evidence, the ground for this limitation is obscure.[ Footnote 2 ] III    Respondent in this case has not asked us to overrule Belton , much less Chimel . Respondent’s argument rests entirely on an interpretation of Belton that is plainly incorrect, an interpretation that disregards Belton ’s explicit delineation of its holding. I would therefore leave any reexamination of our prior precedents for another day, if such a reexamination is to be undertaken at all. In this case, I would simply apply Belton and reverse the judgment below. Footnote 1 See Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton , 2002 Wis. L. Rev. 657, 665. Footnote 2 I do not understand the Court’s decision to reach the following situations. First, it is not uncommon for an officer to arrest some but not all of the occupants of a vehicle. The Court’s decision in this case does not address the question whether in such a situation a search of the passenger compartment may be justified on the ground that the occupants who are not arrested could gain access to the car and retrieve a weapon or destroy evidence. Second, there may be situations in which an arresting officer has cause to fear that persons who were not passengers in the car might attempt to retrieve a weapon or evidence from the car while the officer is still on the scene. The decision in this case, as I understand it, does not address that situation either.

Here is a summary of the case: The Supreme Court ruled that police may not search a vehicle incident to the arrest of a recent occupant unless the arrestee is unsecured and within reaching distance of the vehicle's passenger compartment, or it is reasonable to believe the vehicle contains evidence relevant to the crime of arrest. In this case, Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car before police searched his car and found cocaine. The Court held that the search was unconstitutional because Gant could not have accessed his car at the time of the search, and there was no reasonable belief that evidence related to his arrest would be found in the vehicle. The Court's decision clarified the scope of the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement, as defined in previous cases (Chimel v. California and New York v. Belton).

Search & Seizure

U.S. v. Jones

https://supreme.justia.com/cases/federal/us/565/400/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 10–1259 _________________ UNITED STATES, PETITIONER v. ANTOINE JONES on writ of certiorari to the united states court of appeals for the district of columbia circuit [January 23, 2012]      Justice Scalia delivered the opinion of the Court.      We decide whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment. I      In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone.      Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. A warrant issued, authorizing installation of the de- vice in the District of Columbia and within 10 days.      On the 11th day, and not in the District of Columbia but in Maryland, [ 1 ] agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.      The Government ultimately obtained a multiple-count indictment charging Jones and several alleged co-conspirators with, as relevant here, conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U. S. C. §§841 and 846. Before trial, Jones filed a motion to suppress evidence obtained through the GPS device. The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s residence. 451 F. Supp. 2d 71, 88 (2006). It held the remaining data admissible, because “ ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ” Ibid. (quoting United States v. Knotts, 460 U. S. 276, 281 (1983) ). Jones’s trial in October 2006 produced a hung jury on the conspiracy count.      In March 2007, a grand jury returned another indictment, charging Jones and others with the same conspir- acy. The Government introduced at trial the same GPS-derived locational data admitted in the first trial, which connected Jones to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.      The United States Court of Appeals for the District of Columbia Circuit reversed the conviction because of admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amend- ment. United States v. Maynard, 615 F. 3d 544 (2010). The D. C. Circuit denied the Government’s petition for rehearing en banc, with four judges dissenting. 625 F. 3d 766 (2010). We granted certiorari, 564 U. S. ___ (2011). II A      The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977) . We hold that the Government’s installation of a GPS device on a target’s vehicle, [ 2 ] and its use of that device to monitor the vehicle’s movements, constitutes a “search.”      It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886) ). In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis: “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817. The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.      Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001) ; Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 816 (2004). Thus, in Olmstead v. United States, 277 U. S. 438 (1928) , we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants,” id., at 464.      Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967) , we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy,” id., at 360. See, e.g., Bond v. United States, 529 U. S. 334 (2000) ; California v. Ciraolo, 476 U. S. 207 (1986) ; Smith v. Maryland, 442 U. S. 735 (1979) .      The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. [ 3 ] Katz did not repudiate that understanding. Less than two years later the Court upheld defendants’ contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.” [ 4 ] Alderman v. United States, 394 U. S. 165, 176 (1969) . “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home . . . .” Id., at 180.      More recently, in Soldal v. Cook County, 506 U. S. 56 (1992) , the Court unanimously rejected the argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was forcibly removed, id., at 62, no Fourth Amendment violation occurred because law enforcement had not “invade[d] the [individuals’] privacy,” id., at 60. Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” 506 U. S., at 64. As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” 460 U. S., at 286 (opinion concurring in judgment). We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U. S. 83, 88 (1998) (internal quotation marks omitted). Katz did not narrow the Fourth Amendment’s scope. [ 5 ]      The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. It relies principally on two cases in which we rejected Fourth Amendment challenges to “beepers,” electronic tracking devices that represent another form of electronic monitoring. The first case, Knotts, upheld against Fourth Amendment challenge the use of a “beeper” that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. 460 U. S., at 278. We said that there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained—the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the public. [ 6 ] Id., at 281–282. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts’ possession, with the consent of the then-owner. 460 U. S., at 278. Knotts did not challenge that installation, and we specifically de- clined to consider its effect on the Fourth Amendment analysis. Id., at 279, n. Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it.      The second “beeper” case, United States v. Karo, 468 U. S. 705 (1984) , does not suggest a different conclusion. There we addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure. 468 U. S., at 713. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later. 468 U. S., at 708. Thus, the specific question we considered was whether the installation “with the consent of the original owner constitute[d] a search or seizure . . . when the container is delivered to a buyer having no knowledge of the presence of the beeper.” Id., at 707 (emphasis added). We held not. The Government, we said, came into physical contact with the container only before it belonged to the defendant Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy. See id., at 712. That conclusion is perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location. Cf. On Lee v. United States, 343 U. S. 747 –752 (1952) (no search or seizure where an informant, who was wearing a concealed microphone, was invited into the defendant’s business). Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.      The Government also points to our exposition in New York v. Class, 475 U. S. 106 (1986) , that “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ ” Id., at 114. That statement is of marginal relevance here since, as the Government acknowledges, “the officers in this case did more than conduct a visual inspection of respondent’s vehicle,” Brief for United States 41 (emphasis added). By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer’s momentary reaching into the interior of a vehicle did constitute a search. [ 7 ] 475 U. S., at 114–115.      Finally, the Government’s position gains little support from our conclusion in Oliver v. United States, 466 U. S. 170 (1984) , that officers’ information-gathering intrusion on an “open field” did not constitute a Fourth Amendment search even though it was a trespass at common law, id., at 183. Quite simply, an open field, unlike the curtilage of a home, see United States v. Dunn, 480 U. S. 294, 300 (1987) , is not one of those protected areas enumerated in the Fourth Amendment. Oliver, supra, at 176–177. See also Hester v. United States, 265 U. S. 57, 59 (1924) . The Government’s physical intrusion on such an area—unlike its intrusion on the “effect” at issue here—is of no Fourth Amendment significance. [ 8 ] B      The concurrence begins by accusing us of applying “18th-century tort law.” Post, at 1. That is a distortion. What we apply is an 18th-century guarantee against un- reasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed.      The concurrence faults our approach for “present[ing] particularly vexing problems” in cases that do not involve physical contact, such as those that involve the transmission of electronic signals. Post, at 9. We entirely fail to understand that point. For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.      In fact, it is the concurrence’s insistence on the exclusivity of the Katz test that needlessly leads us into “particularly vexing problems” in the present case. This Court has to date not deviated from the understanding that mere visual observation does not constitute a search. See Kyllo, 533 U. S., at 31–32. We accordingly held in Knotts that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U. S., at 281. Thus, even assuming that the concurrence is correct to say that “[t]raditional surveillance” of Jones for a 4-week period “would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,” post, at 12, our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompany- ing trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.      And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. Post, at 13 (emphasis added). That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving sub- stantial amounts of cash and narcotics is not an “extra- ordinary offens[e]” which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here. III      The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in- deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51 , n. 4 (2002). *  *  *      The judgment of the Court of Appeals for the D. C. Circuit is affirmed. It is so ordered. Notes 1 In this litigation, the Government has conceded noncompliance with the warrant and has argued only that a warrant was not required. United States v. Maynard, 615 F. 3d 544, 566, n. (CADC 2010). 2 As we have noted, the Jeep was registered to Jones’s wife. The Government acknowledged, however, that Jones was “the exclusive driver.” Id., at 555, n. (internal quotation marks omitted). If Jones was not the owner he had at least the property rights of a bailee. The Court of Appeals concluded that the vehicle’s registration did not affect his ability to make a objection, ibid., and the Government has not challenged that determination here. We therefore do not consider the significance of Jones’s status. 3 Justice Alito’s concurrence (hereinafter concurrence) doubts the wisdom of our approach because “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.” Post, at 3 (opinion concurring in judgment). But in fact it posits a situation that is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements. Ibid. There is no doubt that the information gained by that trespassory activity would be the product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled. In any case, it is quite irrelevant whether there was an 18th-century analog. Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a “search” within the original meaning of the . Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred. 4 Thus, the concurrence’s attempt to recast Alderman as meaning that individuals have a “legitimate expectation of privacy in all conversations that [take] place under their roof,” post, at 6–7, is foreclosed by the Court’s opinion. The Court took as a given that the homeowner’s “conversational privacy” had not been violated. 5 The concurrence notes that post-Katz we have explained that “ ‘an actual trespass is neither necessary nor sufficient to establish a constitutional violation.’ ” Post, at 6 (quoting United States v. Karo, ). That is undoubtedly true, and undoubtedly irrelevant. Karo was considering whether a seizure occurred, and as the concurrence explains, a seizure of property occurs, not when there is a trespass, but “when there is some meaningful interference with an individual’s possessory interests in that property.” Post, at 2 (internal quotation marks omitted). Likewise with a search. Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information. Related to this, and similarly irrelevant, is the concurrence’s point that, if analyzed separately, neither the installation of the device nor its use would constitute a search. See ibid. Of course not. A trespass on “houses” or “effects,” or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy. 6 Knotts noted the “limited use which the government made of the signals from this particular beeper,” 460 U. S., at 284; and reserved the question whether “different constitutional principles may be applicable” to “dragnet-type law enforcement practices” of the type that GPS tracking made possible here, ibid. 7 The Government also points to Cardwell v. Lewis, , in which the Court rejected the claim that the inspection of an impounded vehicle’s tire tread and the collection of paint scrapings from its exterior violated the . Whether the plural-ity said so because no search occurred or because the search was rea-sonable is unclear. Compare id., at 591 (opinion of Blackmun, J.) (“[W]e fail to comprehend what expectation of privacy was infringed”), with id., at 592 (“Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable . . . ”). 8 Thus, our theory is not that the is concerned with “any technical trespass that led to the gathering of evidence.” Post, at 3 (Alito, J., concurring in judgment) (emphasis added). The protects against trespassory searches only with regard to those items (“persons, houses, papers, and effects”) that it enumerates. The trespass that occurred in Oliver may properly be understood as a “search,” but not one “in the constitutional sense.” 466 U. S., at 170, 183. SUPREME COURT OF THE UNITED STATES _________________ No. 10–1259 _________________ UNITED STATES, PETITIONER v. ANTOINE JONES on writ of certiorari to the united states court of appeals for the district of columbia circuit [January 23, 2012]      Justice Alito, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, concurring in the judgment.      This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Po-sitioning System (GPS) device to monitor a vehicle’s move-ments for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device [ 1 ] to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. [ 2 ] And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. Ante, at 3–4.      This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.      I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove. I A      The Fourth Amendment prohibits “unreasonable searches and seizures,” and the Court makes very little effort to explain how the attachment or use of the GPS device fits within these terms. The Court does not contend that there was a seizure. A seizure of property occurs when there is “some meaningful interference with an in-dividual’s possessory interests in that property,” United States v. Jacobsen, 466 U. S. 109, 113 (1984) , and here there was none. Indeed, the success of the surveillance technique that the officers employed was dependent on the fact that the GPS did not interfere in any way with the operation of the vehicle, for if any such interference had been detected, the device might have been discovered.      The Court does claim that the installation and use of the GPS constituted a search, see ante, at 3–4, but this con-clusion is dependent on the questionable proposition that these two procedures cannot be separated for purposes of Fourth Amendment analysis. If these two procedures are analyzed separately, it is not at all clear from the Court’s opinion why either should be regarded as a search. It is clear that the attachment of the GPS device was not itself a search; if the device had not functioned or if the officers had not used it, no information would have been obtained. And the Court does not contend that the use of the device constituted a search either. On the contrary, the Court accepts the holding in United States v. Knotts, 460 U. S. 276 (1983) , that the use of a surreptitiously planted electronic device to monitor a vehicle’s movements on public roads did not amount to a search. See ante, at 7.      The Court argues—and I agree—that “we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” Ante, at 5 (quoting Kyllo v. United States, 533 U. S. 27 , 34 (2001)). But it is almost impossible to think of late- 18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner? [ 3 ] ) The Court’s theory seems to be that the concept of a search, as originally un-derstood, comprehended any technical trespass that led to the gathering of evidence, but we know that this is in-correct. At common law, any unauthorized intrusion on private property was actionable, see Prosser & Keeton 75, but a trespass on open fields, as opposed to the “curtilage” of a home, does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a “hous[e]” within the meaning of the Fourth Amendment. See Oliver v. United States, 466 U. S. 170 (1984) ; Hester v. United States, 265 U. S. 57 (1924) . B      The Court’s reasoning in this case is very similar to that in the Court’s early decisions involving wiretapping and electronic eavesdropping, namely, that a technical trespass followed by the gathering of evidence constitutes a search. In the early electronic surveillance cases, the Court concluded that a Fourth Amendment search occurred when private conversations were monitored as a result of an “unauthorized physical penetration into the premises occupied” by the defendant. Silverman v. United States, 365 U. S. 505, 509 (1961) . In Silverman, police officers listened to conversations in an attached home by inserting a “spike mike” through the wall that this house shared with the vacant house next door. Id., at 506. This procedure was held to be a search because the mike made contact with a heating duct on the other side of the wall and thus “usurp[ed] . . . an integral part of the premises.” Id., at 511.      By contrast, in cases in which there was no trespass, it was held that there was no search. Thus, in Olmstead v. United States, 277 U. S. 438 (1928) , the Court found that the Fourth Amendment did not apply because “[t]he taps from house lines were made in the streets near the houses.” Id., at 457. Similarly, the Court concluded that no search occurred in Goldman v. United States, 316 U. S. 129, 135 (1942) , where a “detectaphone” was placed on the outer wall of defendant’s office for the purpose of overhearing conversations held within the room.      This trespass-based rule was repeatedly criticized. In Olmstead, Justice Brandeis wrote that it was “immaterial where the physical connection with the telephone wires was made.” 277 U. S., at 479 (dissenting opinion). Al-though a private conversation transmitted by wire did not fall within the literal words of the Fourth Amendment, he argued, the Amendment should be understood as prohibiting “every unjustifiable intrusion by the government upon the privacy of the individual.” Id., at 478. See also, e.g., Silverman, supra, at 513 (Douglas, J., concurring) (“The concept of ‘an unauthorized physical penetration into the premises,’ on which the present decision rests seems to me beside the point. Was not the wrong . . . done when the intimacies of the home were tapped, recorded, or revealed? The depth of the penetration of the electronic device—even the degree of its remoteness from the inside of the house—is not the measure of the injury”); Goldman, supra, at 139 (Murphy, J., dissenting) (“[T]he search of one’s home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person’s privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment”).      Katz v. United States, 389 U. S. 347 (1967) , finally did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation. Katz in-volved the use of a listening device that was attached to the outside of a public telephone booth and that allowed police officers to eavesdrop on one end of the target’s phone conversation. This procedure did not physically intrude on the area occupied by the target, but the Katz Court, “repudiate[ed]” the old doctrine, Rakas v. Illinois, 439 U. S. 128, 143 (1978) , and held that “[t]he fact that the electronic device employed . . . did not happen to penetrate the wall of the booth can have no constitutional significance,” 389 U. S., at 353 (“[T]he reach of th[e] [Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure”); see Rakas, supra, at 143 (describing Katz as holding that the “ca-pacity to claim the protection for the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place”); Kyllo, supra, at 32 (“We have since decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property”). What mattered, the Court now held, was whether the conduct at issue “violated the privacy upon which [the defendant] justifiably relied while using the telephone booth.” Katz, supra, at 353.      Under this approach, as the Court later put it when addressing the relevance of a technical trespass, “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” United States v. Karo, 468 U. S. 705, 713 (1984) (emphasis added). Ibid. (“Compar[ing] Katz v. United States, 389 U. S. 347 (1967) (no trespass, but Fourth Amendment violation), with Oliver v. United States, 466 U. S. 170 (1984) (trespass, but no Fourth Amendment violation)”). In Oliver, the Court wrote: “The existence of a property right is but one element in determining whether expectations of privacy are legitimate. ‘The premise that property interests control the right of the Government to search and seize has been discredited.’ Katz, 389 U. S., at 353, (quoting Warden v. Hayden, 387 U. S. 294, 304 (1967) ; some internal quotation marks omitted).” 466 U. S., at 183. II      The majority suggests that two post-Katz decisions—Soldal v. Cook County, 506 U. S. 56 (1992) , and Alderman v. United States, 394 U. S. 165 (1969) —show that a technical trespass is sufficient to establish the existence of a search, but they provide little support.      In Soldal, the Court held that towing away a trailer home without the owner’s consent constituted a seizure even if this did not invade the occupants’ personal privacy. But in the present case, the Court does not find that there was a seizure, and it is clear that none occurred.      In Alderman, the Court held that the Fourth Amendment rights of homeowners were implicated by the use of a surreptitiously planted listening device to monitor third-party conversations that occurred within their home. See 394 U. S., at 176–180. Alderman is best understood to mean that the homeowners had a legitimate expectation of privacy in all conversations that took place under their roof. See Rakas, 439 U. S., at 144, n. 12 (citing Alderman for the proposition that “the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment”); 439 U. S., at 153 (Powell, J., concurring) (citing Alderman for the proposition that “property rights reflect society’s explicit recognition of a person’s au-thority to act as he wishes in certain areas, and there- fore should be considered in determining whether an individual’s expectations of privacy are reasonable); Karo, supra, at 732 (Stevens, J., concurring in part and dissenting in part) (citing Alderman in support of the proposition that “a homeowner has a reasonable expectation of privacy in the contents of his home, including items owned by others”).      In sum, the majority is hard pressed to find support in post-Katz cases for its trespass-based theory. III      Disharmony with a substantial body of existing case law is only one of the problems with the Court’s approach in this case.      I will briefly note four others. First, the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation). Attaching such an object is generally regarded as so trivial that it does not provide a basis for recovery under modern tort law. See Prosser & Keeton §14, at 87 (harmless or trivial contact with personal property not actionable); D. Dobbs, Law of Torts 124 (2000) (same). But under the Court’s reasoning, this conduct may violate the Fourth Amendment. By contrast, if long-term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection.      Second, the Court’s approach leads to incongruous results. If the police attach a GPS device to a car and use the device to follow the car for even a brief time, under the Court’s theory, the Fourth Amendment applies. But if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints.      In the present case, the Fourth Amendment applies, the Court concludes, because the officers installed the GPS device after respondent’s wife, to whom the car was registered, turned it over to respondent for his exclusive use. See ante, at 8. But if the GPS had been attached prior to that time, the Court’s theory would lead to a different result. The Court proceeds on the assumption that respondent “had at least the property rights of a bailee,” ante, at 3, n. 2, but a bailee may sue for a trespass to chattel only if the injury occurs during the term of the bailment. See 8A Am. Jur. 2d, Bailment §166, pp. 685–686 (2009). So if the GPS device had been installed before respondent’s wife gave him the keys, respondent would have no claim for trespass—and, presumably, no Fourth Amendment claim either.      Third, under the Court’s theory, the coverage of the Fourth Amendment may vary from State to State. If the events at issue here had occurred in a community property State [ 4 ] or a State that has adopted the Uniform Marital Property Act, [ 5 ] respondent would likely be an owner of the vehicle, and it would not matter whether the GPS was installed before or after his wife turned over the keys. In non-community-property States, on the other hand, the registration of the vehicle in the name of respondent’s wife would generally be regarded as presumptive evidence that she was the sole owner. See 60 C. J. S., Motor Vehicles §231, pp. 398–399 (2002); 8 Am. Jur. 2d, Automobiles §1208, pp. 859–860 (2007).      Fourth, the Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels? Trespass to chattels has traditionally required a physical touching of the property. See Restatement (Second) of Torts §217 and Comment e (1963 and 1964); Dobbs, supra, at 123. In recent years, courts have wrestled with the application of this old tort in cases involving unwanted electronic contact with computer systems, and some have held that even the transmission of electrons that occurs when a communication is sent from one computer to another is enough. See, e.g., CompuServe, Inc. v. Cyber Promotions, Inc. 962 F. Supp. 1015, 1021 (SD Ohio 1997); Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 1566, n. 6 (1996). But may such decisions be followed in applying the Court’s trespass theory? Assuming that what matters under the Court’s theory is the law of trespass as it existed at the time of the adoption of the Fourth Amendment, do these recent decisions represent a change in the law or simply the application of the old tort to new situations? IV A      The Katz expectation-of-privacy test avoids the problems and complications noted above, but it is not without its own difficulties. It involves a degree of circularity, see Kyllo, 533 U. S., at 34, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Katz test looks. See Minnesota v. Carter, 525 U. S. 83, 97 (1998) (Scalia, J., concurring). In addition, the Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable. [ 6 ]      On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions. This is what ultimately happened with respect to wiretapping. After Katz, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute, see 18 U. S. C. §§2510–2522 (2006 ed. and Supp. IV), and since that time, the regulation of wiretapping has been governed primarily by statute and not by case law. [ 7 ] In an ironic sense, although Katz overruled Olmstead, Chief Justice Taft’s suggestion in the latter case that the regulation of wiretapping was a matter better left for Congress, see 277 U. S., at 465–466, has been borne out. B      Recent years have seen the emergence of many new devices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.      Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States. [ 8 ] For older phones, the accuracy of the location information depends on the den-sity of the tower network, but new “smart phones,” which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourcing”) the speed of all such phones on any particular road. [ 9 ] Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements. V      In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. [ 10 ] Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. See, e.g., Kerr, 102 Mich. L. Rev., at 805–806. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.      To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.      Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveil lance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. [ 11 ] We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques. *  *  *      For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the majority that the decision of the Court of Appeals must be affirmed. Notes 1 Although the record does not reveal the size or weight of the device used in this case, there is now a device in use that weighs two ounces and is the size of a credit card. Tr. of Oral Arg. 27. 2 At common law, a suit for trespass to chattels could be maintained if there was a violation of “the dignitary interest in the inviolability of chattels,” but today there must be “some actual damage to the chattel before the action can be maintained.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Law of Torts 87 (5th ed. 1984) (hereinafter Prosser & Keeton). Here, there was no actual damage to the vehicle to which the GPS device was attached. 3 The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience. 4 See, e.g., Cal. Family Code Ann. §760 (West 2004). 5 See Uniform Marital Property Act §4, 9A U. L. A. 116 (1998). 6 See, e.g., NPR, The End of Privacy http://www.npr.org/series/114250076/the-end-of-privacy (all Internet materials as visited Jan. 20, 2012, and available in Clerk of Court’s case file); Time Magazine, Everything About You Is Being Tracked—Get Over It, Joel Stein, Mar. 21, 2011, Vol. 177, No. 11. 7 See Kerr, The and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 850–851 (2004) (hereinafter Kerr). 8 See CTIA Consumer Info, 50 Wireless Quick Facts, http://www.ctia.org/consumer_info/index.cfm/AID/10323. 9 See, e.g., The bright side of sitting in traffic: Crowdsourcing road congestion data, Google Blog, http://googleblog.blogspot.com/2009/08/bright-side-of-sitting-in-traffic.html. 10 Even with a radio transmitter like those used in United States v. Knotts, , or United States v. Karo, , such long-term surveillance would have been exceptionally demanding. The beepers used in those cases merely “emit[ted] periodic signals that [could] be picked up by a radio receiver.” Knotts, 460 U.S., at 277. The signal had a limited range and could be lost if the police did not stay close enough. Indeed, in Knotts itself, officers lost the signal from the beeper, and only “with the assistance of a monitoring device located in a helicopter [was] the approximate location of the signal . . . picked up again about one hour later.” Id., at 278. 11 In this case, the agents obtained a warrant, but they did not comply with two of the warrant’s restrictions: They did not install the GPS device within the 10-day period required by the terms of the warrant and by Fed. Rule Crim. Proc. 41(e)(2)(B)(i), and they did not install the GPS device within the District of Columbia, as required by the terms of the warrant and by and Rule 41(b)(4). In the courts below the Government did not argue, and has not argued here, that the does not impose these precise restrictions and that the violation of these restrictions does not demand the suppression of evidence obtained using the tracking device. See, e.g., United States v. Gerber, 994 F. 2d 1556, 1559–1560 (CA11 1993); United States v. Burke, 517 F. 2d 377, 386–387 (CA2 1975). Because it was not raised, that question is not before us. SUPREME COURT OF THE UNITED STATES _________________ No. 10–1259 _________________ UNITED STATES, PETITIONER v. ANTOINE JONES on writ of certiorari to the united states court of appeals for the district of columbia circuit [January 23, 2012] Justice Sotomayor, concurring. I join the Court’s opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.” Ante, at 6, n. 3. In this case, the Government installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones’ Jeep without a valid warrant and without Jones’ consent, then used that device to monitor the Jeep’s movements over the course of four weeks. The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection. See, e.g., Silverman v. United States , 365 U.S. 505 , 511–512 (1961). Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. See, e.g., Kyllo v. United States , 533 U.S. 27 , 31–33 (2001). Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Id., at 33; see also Smith v. Maryland , 442 U.S. 735 , 740–741 (1979); Katz v. United States , 389 U.S. 347 , 361 (1967) (Harlan, J., concurring). In Katz , this Court enlarged its then-prevailing focus on property rights by announcing that the reach of the Fourth Amendment does not “turn upon the presence or absence of a physical intrusion.” Id., at 353. As the majority’s opinion makes clear, however, Katz ’s reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it. Ante, at 8. Thus, “when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” United States v. Knotts , 460 U.S. 276 , 286 (1983) (Brennan, J., concurring in judgment); see also, e.g., Rakas v. Illinois , 439 U.S. 128 , 144, n. 12 (1978). Justice Alito’s approach, which discounts altogether the constitutional relevance of the Government’s physical intrusion on Jones’ Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. See post, at 5–7 (opinion concurring in judgment). By contrast, the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case. Nonetheless, as Justice Alito notes, physical intrusion is now unnecessary to many forms of surveillance. Post, at 9–12. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. See United States v. Pineda-Moreno , 617 F.3d 1120, 1125 (CA9 2010) (Kozinski, C. J., dissenting from denial of rehearing en banc). In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” Ante, at 11. As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10–11. Under that rubric, I agree with Justice Alito that, at the very least, “longer term GPS monitoring in inves- tigations of most offenses impinges on expectations of privacy.” Post, at 13. In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver , 12 N.Y.3d 433, 441–442, 909 N.E.2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno , 617 F. 3d, at 1124 (opinion of Kozinski, C. J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.” Illinois v. Lidster , 540 U.S. 419 , 426 (2004). Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas-Perez , 640 F.3d 272, 285 (CA7 2011) (Flaum, J., concurring). I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. See Kyllo , 533 U. S., at 35, n. 2; ante, at 11 (leaving open the possibility that duplicating traditional surveillance “through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy”). I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,” United States v. Di Re , 332 U.S. 581 , 595 (1948).[ 1 ]* More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith , 442 U. S., at 742; United States v. Miller , 425 U.S. 435 , 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellu- lar providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi- cations they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff ” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith , 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz , 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”). Resolution of these difficult questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I therefore join the majority’s opinion. Notes 1 * United States v. Knotts , 460 U.S. 276 (1983), does not foreclose the conclusion that GPS monitoring, in the absence of a physical intrusion, is a Fourth Amendment search. As the majority’s opinion notes, Knotts reserved the question whether “ ‘different constitutional principlesmay be applicable’ ” to invasive law enforcement practices such as GPS tracking. See ante, at 8, n. 6 (quoting 460 U. S., at 284). United States v. Karo , 468 U.S. 705 (1984), addressed the Fourth Amendment implications of the installation of a beeper in a container with the consent of the container’s original owner, who was awarethat the beeper would be used for surveillance purposes. Id., at 707. Owners of GPS-equipped cars and smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements. To the contrary, subscribers of one such service greeteda similar suggestion with anger. Quain, Changes to OnStar’s Privacy Terms Rile Some Users, N. Y. Times (Sept. 22, 2011), online at http://wheels.blogs.nytimes.com/2011/09/22/changes-to-onstars-privacy-terms-rile-some-users (as visited Jan. 19, 2012, and available in Clerk of Court’s case file). In addition, the bugged container in Karo lacked the close relationship with the target that a car shares with its owner. The bugged container in Karo was stationary for much of the Government’s surveillance. See 468 U. S., at 708–710. A car’s movements, by contrast, are its owner’s movements.

The Supreme Court ruled that installing a GPS tracking device on a vehicle and monitoring its movements constitutes a search under the Fourth Amendment, requiring a warrant and probable cause. This decision was based on the physical intrusion of attaching the device to the vehicle and the subsequent tracking of its movements over an extended period.

Search & Seizure

Maryland v. King

https://supreme.justia.com/cases/federal/us/569/435/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–207 _________________ MARYLAND, PETITIONER v. ALONZO JAY KING, Jr. on writ of certiorari to the court of appeals of maryland [June 3, 2013] Justice Kennedy delivered the opinion of the Court. In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or apprehend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA. In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape. Additional DNA samples were taken from him and used in the rape trial, but there seems to be no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape and charged with its commission. The Court of Appeals of Maryland, on review of King’s rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court. I When King was arrested on April 10, 2009, for menac-ing a group of people with a shotgun and charged in state court with both first- and second-degree assault, he was processed for detention in custody at the Wicomico County Central Booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to provisions of the Maryland DNA Collection Act (or Act). On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the forensic evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant and took a second sample of DNA from King, which again matched the evidence from the rape. He moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court Judge upheld the statute as constitutional. King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison without the possibility of parole. In a divided opinion, the Maryland Court of Appeals struck down the portions of the Act authorizing collection of DNA from felony arrestees as unconstitutional. The majority concluded that a DNA swab was an unreasonable search in violation of the Fourth Amendment because King’s “expectation of privacy is greater than the State’s purported interest in using King’s DNA to identify him.” 425 Md. 550, 561, 42 A.3d 549, 556 (2012). In reach- ing that conclusion the Maryland Court relied on the deci-sions of various other courts that have concluded that DNA identification of arrestees is impermissible. See, e.g., People v. Buza , 129 Cal. Rptr. 3d 753 (App. 2011) (offi-cially depublished); Mario W. v. Kaipio , 228 Ariz. 207, 265 P.3d 389 (App. 2011). Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges. This Court granted certiorari, 568 U. S. ___ (2012), to address the question. King is the respondent here. II The advent of DNA technology is one of the most significant scientific advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, see J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) (hereinafter Butler), law enforcement, the defense bar, and the courts have acknowledged DNA testing’s “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.” District Attorney’s Office for Third Judicial Dist. v. Osborne , 557 U.S. 52, 55 (2009). A The current standard for forensic DNA testing relies on an analysis of the chromosomes located within the nucleus of all human cells. “The DNA material in chromosomes is composed of ‘coding’ and ‘noncoding’ regions. The coding regions are known as genes and contain the information necessary for a cell to make proteins. . . . Non-protein-coding regions . . . are not related directly to making proteins, [and] have been referred to as ‘junk’ DNA.” Butler 25. The adjective “junk” may mislead the layperson, for in fact this is the DNA region used with near certainty to identify a person. The term apparently is intended to indicate that this particular noncoding region, while useful and even dispositive for purposes like identity, does not show more far-reaching and complex characteristics like genetic traits. Many of the patterns found in DNA are shared among all people, so forensic analysis focuses on “repeated DNA sequences scattered throughout the human genome,” known as “short tandem repeats” (STRs). Id. , at 147–148. The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as “alleles,” id. , at 25; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve pres- ent technology, but even now STR analysis makes it “possible to determine whether a biological tissue matches a suspect with near certainty.” Osborne , supra , at 62. The Act authorizes Maryland law enforcement author-ities to collect DNA samples from “an individual who is charged with . . . a crime of violence or an attempt to commit a crime of violence; or . . . burglary or an attempt to commit burglary.” Md. Pub. Saf. Code Ann. §2–504(a)(3)(i) (Lexis 2011). Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Md. Crim. Law Code Ann. §14–101 (Lexis 2012). Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause . . . the DNA sample shall be immediately destroyed.” §2–504(d)(2)(i). DNA samples are also destroyed if “a criminal action begun against the individual . . . does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.” §2–511(a)(1). The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of indi-viduals as specified in this subtitle.” §2–512(c). Tests for familial matches are also prohibited. See §2–506(d) (“A person may not perform a search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired”). The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects. Respondent’s DNA was collected in this case using a common procedure known as a “buccal swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” Butler 86. The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no “surgical intrusio[n] beneath the skin,” Winston v. Lee , 470 U.S. 753 , 760 (1985), and it poses no “threa[t] to the health or safety” of arrestees, id., at 763. B Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress and supervised by the Federal Bureau of Investigation, the Combined DNA Index System (CODIS) connects DNA laboratories at the local, state, and national level. Since its authorization in 1994, the CODIS system has grown to include all 50 States and a number of federal agencies. CODIS collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes. To participate in CODIS, a local laboratory must sign a memorandum of understanding agreeing to adhere to quality standards and submit to audits to evaluate compliance with the federal standards for scientifically rigorous DNA testing. Butler 270. One of the most significant aspects of CODIS is the standardization of the points of comparison in DNA analysis. The CODIS database is based on 13 loci at which the STR alleles are noted and compared. These loci make possible extreme accuracy in matching individual samples, with a “random match probability of approximately 1 in 100 trillion (assuming unrelated individuals).” Ibid . The CODIS loci are from the non-protein coding junk regions of DNA, and “are not known to have any association with a genetic disease or any other genetic predisposition. Thus, the information in the database is only useful for human identity testing.” Id., at 279. STR information is recorded only as a “string of numbers”; and the DNA identification is accompanied only by information denoting the laboratory and the analyst responsible for the submission. Id., at 270. In short, CODIS sets uniform national standards for DNA matching and then facilitates connections between local law enforcement agencies who can share more specific information about matched STR profiles. All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. See Brief for Respondent 48. Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. See Brief for State of California et al. as Amici Curiae 4, n. 1 (States Brief) (collecting state statutes). Although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation. III A Although the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established. The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body,” Schmerber v. California , 384 U.S. 757 , 770 (1966), will work an invasion of “ ‘cherished personal security’ that is subject to constitutional scrutiny,” Cupp v. Murphy , 412 U.S. 291 , 295 (1973) (quoting Terry v. Ohio , 392 U.S. 1 , 24–25 (1968)). The Court has applied the Fourth Amendment to police efforts to draw blood, see Schmerber , supra ; Missouri v. McNeely , 569 U. S. ___ (2013), scraping an arrestee’s fingernails to obtain trace evidence, see Cupp , supra , and even to “a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis,” Skinner v. Railway Labor Executives’ Assn. , 489 U.S. 602 , 616 (1989). A buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no “surgical intrusions beneath the skin.” Winston , 470 U. S., at 760. The fact than an intrusion is negligible is of central relevance to determining reasonableness, although it is still a search as the law defines that term. B To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber , supra , at 768. “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ ” Vernonia School Dist. 47J v. Acton , 515 U.S. 646 , 652 (1995). In giving content to the inquiry whether an intrusion is reasonable, the Court has preferred “some quantum of individualized suspicion . . . [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.” United States v. Martinez-Fuerte , 428 U.S. 543 , 560–561 (1976) (citation and footnote omitted). In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur , 531 U.S. 32 6, 330 (2001). Those circumstances diminish the need for a warrant, either because “the public interest is such that neither a warrant nor probable cause is required,” Maryland v. Buie , 494 U.S. 325 , 331 (1990), or because an individual is already on notice, for instance because of his employment, see Skinner , supra , or the conditions of his release from government custody, see Samson v. California , 547 U.S. 843 (2006), that some reasonable police intrusion on his pri-vacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Treasury Employees v. Von Raab , 489 U.S. 656 , 667 (1989). The instant case can be addressed with this background. The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’ ” Terry , supra , at 12 (quoting Johnson v. United States , 333 U.S. 10 , 14 (1948)). As noted by this Court in a different but still instructive context involving blood testing, “[b]oth the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined nar- rowly and specifically in the regulations that authorize them . . . . Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate.” Skinner , supra , at 622. Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.” Samson , supra , at 855, n. 4. Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” McArthur , supra , at 331. This application of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmen- tal interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” Wyoming v. Houghton , 526 U.S. 295 , 300 (1999). An assessment of reasonableness to determine the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the instant case. IV A The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody. It is beyond dispute that “probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh , 420 U.S. 103 , 113–114 (1975). Also uncontested is the “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested.” Weeks v. United States , 232 U.S. 383 , 392 (1914), overruled on other grounds, Mapp v. Ohio , 367 U.S. 643 (1961). “The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged.” United States v. Robinson , 414 U.S. 218 , 224 (1973). Even in that context, the Court has been clear that individual suspicion is not necessary, because “[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person ar-rested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.” Michigan v. DeFillippo , 443 U.S. 31 , 35 (1979). The “routine administrative procedure[s] at a police sta-tion house incident to booking and jailing the suspect” derive from different origins and have different constitutional justifications than, say, the search of a place, Illinois v. Lafayette , 462 U.S. 640 , 643 (1983); for the search of a place not incident to an arrest depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates , 462 U.S. 213 , 238 (1983). The interests are further different when an individual is formally processed into police custody. Then “the law is in the act of subjecting the body of the accused to its physical dominion.” People v. Chiagles , 237 N.Y. 193, 197, 142 N.E. 583, 584 (1923) (Cardozo, J.). When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests. First, “[i]n every criminal case, it is known and must be known who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty ., 542 U.S. 177 , 191 (2004). An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody. “It is a well recognized aspect of criminal conduct that the per-petrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while committing a crime may be supplemented or replaced by changed names, and even changed physical features.” Jones v. Murray , 962 F.2d 302, 307 (CA4 1992). An “arrestee may be carrying a false ID or lie about his identity,” and “criminal history records . . . can be inaccurate or incomplete.” Florence v. Board of Chosen Freeholders of County of Burlington , 566 U. S. ___, ___ (2012) (slip op., at 16). A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. It is a common occurrence that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” Id., at ___ (slip op., at 14) (citations omitted). Police already seek this crucial identifying information. They use routine and accepted means as varied as comparing the suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fingerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides. The task of identification necessarily entails searching public and police records based on the identifying information provided by the arrestee to see what is already known about him. The DNA collected from arrestees is an irrefutable identification of the person from whom it was taken. Like a fingerprint, the 13 CODIS loci are not themselves evidence of any particular crime, in the way that a drug test can by itself be evidence of illegal narcotics use. A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. See Tr. of Oral Arg. 19. DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police. Those records may be linked to the arrestee by a variety of relevant forms of identification, including name, alias, date and time of previous convictions and the name then used, photograph, Social Security number, or CODIS profile. These data, found in official records, are checked as a routine matter to produce a more comprehensive record of the suspect’s complete identity. Finding occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this common practice. It uses a different form of identification than a name or fingerprint, but its function is the same. Second, law enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not create inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” Florence , supra , at ___ (slip op., at 10). DNA identification can provide untainted information to those charged with de-taining suspects and detaining the property of any felon. For these purposes officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed. “Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and al- low the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel , supra , at 186. Recognizing that a name alone cannot address this interest in identity, the Court has approved, for example, “a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process,” because “[t]he identification and isolation of gang members before they are admitted protects everyone.” Florence, supra, at ___ (slip op., at 11). Third, looking forward to future stages of criminal prosecution, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Bell v. Wolfish , 441 U.S. 520 , 534 (1979). A person who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined to flee the instant charges, lest continued contact with the criminal justice system expose one or more other serious offenses. For example, a defendant who had committed a prior sexual assault might be inclined to flee on a burglary charge, knowing that in every State a DNA sample would be taken from him after his conviction on the burglary charge that would tie him to the more serious charge of rape. In addition to subverting the administration of justice with respect to the crime of arrest, this ties back to the interest in safety; for a detainee who absconds from custody presents a risk to law enforcement officers, other detainees, victims of previous crimes, witnesses, and society at large. Fourth, an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail. “The government’s interest in preventing crime by arrestees is both legitimate and compelling.” United States v. Salerno , 481 U.S. 739 , 749 (1987). DNA identification of a suspect in a violent crime provides critical information to the police and judicial officials in making a determination of the arrestee’s future dangerousness. This inquiry always has entailed some scrutiny beyond the name on the defendant’s driver’s license. For example, Maryland law requires a judge to take into account not only “the nature and circumstances of the offense charged” but also “the defendant’s family ties, employment status and history, financial resources, reputation, character and mental condition, length of res-idence in the community.” 1 Md. Rules 4–216(f)(1)(A), (C) (2013). Knowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court’s consideration of “the danger of the defendant to the alleged victim, another person, or the community.” Rule 4–216(f)(1)(G); see also 18 U. S. C. §3142 (2006 ed. and Supp. V) (similar requirements). This interest is not speculative. In considering laws to require collecting DNA from arrestees, government agencies around the Nation found evidence of numerous cases in which felony arrestees would have been identified as violent through DNA identification matching them to previous crimes but who later committed additional crimes because such identification was not used to detain them. See Denver’s Study on Preventable Crimes (2009) (three examples), online at http://www.denverda.org/DNA_ Documents/Denver%27s%20Preventable%20Crimes%20 Study.pdf (all Internet materials as visited May 31, 2013, and available in Clerk of Court’s case file); Chi-cago’s Study on Preventable Crimes (2005) (five exam- ples), online at http://www.denverda.org/DNA_Documents/ Arrestee_Database/Chicago%20Preventable%20Crimes- Final.pdf; Maryland Study on Preventable Crimes (2008) (three examples), online at http://www.denverda.org/DNA_ Documents/MarylandDNAarresteestudy.pdf. Present capabilities make it possible to complete a DNA identification that provides information essential to determining whether a detained suspect can be released pending trial. See, e.g., States Brief 18, n. 10 (“DNA identification database samples have been processed in as few as two days in California, although around 30 days has been average”). Regardless of when the initial bail decision is made, release is not appropriate until a further determination is made as to the person’s identity in the sense not only of what his birth certificate states but also what other records and data disclose to give that identity more meaning in the whole context of who the person really is. And even when release is permitted, the background identity of the suspect is necessary for determining what conditions must be met before release is allowed. If release is authorized, it may take time for the conditions to be met, and so the time before actual release can be substantial. For example, in the federal system, defendants released conditionally are detained on average for 112 days; those released on unsecured bond for 37 days; on personal recognizance for 36 days; and on other financial conditions for 27 days. See Dept. of Justice, Bureau of Justice Statistics, Compendium of Federal Justice Statistics 45 (NCJ–213476, Dec. 2006) online at http://bjs.gov/ content/pub/pdf/cfjs04.pdf. During this entire period, ad-ditional and supplemental data establishing more about the person’s identity and background can provide critical information relevant to the conditions of release and whether to revisit an initial release determination. The facts of this case are illustrative. Though the record is not clear, if some thought were being given to releasing the respondent on bail on the gun charge, a release that would take weeks or months in any event, when the DNA report linked him to the prior rape, it would be relevant to the conditions of his release. The same would be true with a supplemental fingerprint report. Even if an arrestee is released on bail, development of DNA identification revealing the defendant’s unknown violent past can and should lead to the revocation of his conditional release. See 18 U. S. C. §3145(a) (providing for revocation of release); see also States Brief 11–12 (discussing examples where bail and diversion determinations were reversed after DNA identified the arrestee’s vio- lent history). Pretrial release of a person charged with a dangerous crime is a most serious responsibility. It is reason-able in all respects for the State to use an accepted database to determine if an arrestee is the object of suspicion in other serious crimes, suspicion that may provide a strong incentive for the arrestee to escape and flee. Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people.” J. Dwyer, P. Neufeld, & B. Scheck, Actual Innocence 245 (2000). Because proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the “governmen- tal interests underlying a station-house search of the ar-restee’s person and possessions may in some circumstances be even greater than those supporting a search imme-diately following arrest.” Lafayette , 462 U. S., at 645. Thus, the Court has been reluctant to circumscribe the authority of the police to conduct reasonable booking searches. For example, “[t]he standards traditionally governing a search incident to lawful arrest are not . . . commuted to the stricter Terry standards.” Robinson , 414 U. S., at 234. Nor are these interests in identifica- tion served only by a search of the arrestee himself. “[I]nspection of an arrestee’s personal property may assist the police in ascertaining or verifying his identity.” Lafayette , supra , at 646. And though the Fifth Amendment’s protection against self-incrimination is not, as a general rule, governed by a reasonableness standard, the Court has held that “questions . . . reasonably related to the police’s administrative concerns . . . fall outside the protections of Miranda [v. Arizona , 384 U.S. 436 (1966)] and the answers thereto need not be suppressed.” Pennsylvania v. Muniz , 496 U.S. 582 , 601–602 (1990). B DNA identification represents an important advance in the techniques used by law enforcement to serve le-gitimate police concerns for as long as there have been arrests, concerns the courts have acknowledged and approved for more than a century. Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees. “Police had been using photography to capture the faces of criminals almost since its invention.” S. Cole, Suspect Identities 20 (2001). Courts did not dispute that practice, concluding that a “sheriff in making an arrest for a felony on a warrant has the right to exercise a discretion . . . , [if] he should deem it necessary to the safe-keeping of a prisoner, and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph.” State ex rel. Bruns v. Clausmier , 154 Ind. 599, 601, 603, 57 N.E. 541, 542 (1900). By the time that it had become “the daily practice of the police officers and detectives of crime to use photographic pictures for the discovery and identification of criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.” Shaffer v. United States , 24 App. D. C. 417, 426 (1904). Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthropologist Alphonse Bertillon. Bertillon identification consisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” Defense of the Bertillon System, N. Y. Times, Jan. 20, 1896, p. 3. “[W]hen a prisoner was brought in, his photograph was taken according to the Bertillon system, and his body measurements were then made. The measurements were made . . . and noted down on the back of a card or a blotter, and the photograph of the prisoner was expected to be placed on the card. This card, therefore, furnished both the likeness and description of the prisoner, and was placed in the rogues’ gallery, and copies were sent to various cities where similar records were kept.” People ex rel. Jones v. Diehl , 53 App. Div. 645, 646, 65 N.Y.S. 801, 802 (1900). As in the present case, the point of taking this information about each arrestee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for . . . fu- ture supervision after discharge.” Hodgeman v. Olsen , 86 Wash. 615, 619, 150 P. 1122, 1124 (1915); see also McGovern v. Van Riper , 137 N. J. Eq. 24, 33–34, 43 A.2d 514, 519 (Ch. 1945) (“[C]riminal identification is said to have two main purposes: (1) The identification of the accused as the person who committed the crime for which he is being held; and, (2) the identification of the accused as the same person who has been previously charged with, or convicted of, other offenses against the criminal law”). Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaughlin , 500 U.S. 44 , 58 (1991). In the seminal case of United States v. Kelly , 55 F.2d 67 (CA2 1932), Judge Augustus Hand wrote that routine fingerprinting did not violate the Fourth Amendment precisely because it fit within the accepted means of processing an arrestee into custody: “Finger printing seems to be no more than an exten-sion of methods of identification long used in dealing with persons under arrest for real or supposed vio-lations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification. .     .     .     .     . “We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely known and frequently practiced.” Id. , at 69–70. By the middle of the 20th century, it was considered “elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.” Smith v. United States , 324 F.2d 879, 882 (CADC 1963) (Burger, J.) (citations omitted). DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, see Part V, infra , and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA. The respondent’s primary objection to this analogy is that DNA identification is not as fast as fingerprinting, and so it should not be considered to be the 21st-century equivalent. See Tr. of Oral Arg. 53. But rapid analysis of fingerprints is itself of recent vintage. The FBI’s vaunted Integrated Automated Fingerprint Identification System (IAFIS) was only “launched on July 28, 1999. Prior to this time, the processing of . . . fingerprint submissions was largely a manual, labor-intensive process, taking weeks or months to process a single submission.” Federal Bureau of Investigation, Integrated Automated Fingerprint Identification System, online at http://www.fbi.gov/about-us/cjis/ fingerprints_biometrics/iafis/iafis. It was not the advent of this technology that rendered fingerprint analysis constitutional in a single moment. The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Cf. Ontario v. Quon , 560 U. S. ___, ___ (2010) (slip op., at 15). Given the importance of DNA in the identification of police records pertaining to arrestees and the need to refine and confirm that identity for its important bearing on the decision to continue release on bail or to impose of new conditions, DNA serves an essential purpose despite the existence of delays such as the one that occurred in this case. Even so, the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances. See, e.g., At-torney General DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013) (DNA processing time reduced from 125 days in 2010 to 20 days in 2012), online at http://ohioattorneygeneral.gov/Media/News-Releases/January- 2013/Attorney-General-DeWine-Announces-Significant- Drop; Gov. Jindal Announces Elimination of DNA Backlog, DNA Unit Now Operating in Real Time (Nov. 17, 2011) (average DNA report time reduced from a year or more in 2009 to 20 days in 2011), online at http:// www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&articleID=3102. And the FBI has already begun testing devices that will enable police to process the DNA of arrestees within 90 minutes. See Brief for National District Attorneys Association as Amicus Curiae 20–21; Tr. of Oral Arg. 17. An assessment and understanding of the reasonableness of this minimally invasive search of a person detained for a serious crime should take account of these technical advances. Just as fingerprinting was constitutional for generations prior to the introduction of IAFIS, DNA identification of arrestees is a permissible tool of law enforcement today. New technology will only further improve its speed and therefore its effectiveness. And, as noted above, actual release of a serious offender as a routine matter takes weeks or months in any event. By identifying not only who the arrestee is but also what other available records disclose about his past to show who he is, the police can ensure that they have the proper person under arrest and that they have made the necessary arrangements for his custody; and, just as important, they can also prevent suspicion against or prosecution of the innocent. In sum, there can be little reason to question “the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 W. LaFave, Search and Seizure §5.3(c), p. 216 (5th ed. 2012). To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine “administrative steps incident to arrest— i.e., . . . book[ing], photograph[ing], and fingerprint[ing].” McLaughlin , 500 U. S. , at 58. DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is “no more than an extension of methods of identification long used in dealing with persons under arrest.” Kelly , 55 F. 2d, at 69. In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest. V A By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one. True, a significant government interest does not alone suffice to justify a search. The government interest must outweigh the degree to which the search in-vades an individual’s legitimate expectations of privacy. In considering those expectations in this case, however, the necessary predicate of a valid arrest for a serious offense is fundamental. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New Jersey v. T. L. O. , 469 U.S. 325 , 337 (1985). “[T]he legitimacy of certain privacy expectations vis-à-vis the State may depend upon the individual’s legal relationship with the State.” Vernonia School Dist. 47J , 515 U. S., at 654. The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. For example, when weighing the invasiveness of urinalysis of high school athletes, the Court noted that “[l]egitimate privacy expectations are even less with regard to student athletes. . . . Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.” Id. , at 657. Likewise, the Court has used a context-specific benchmark inapplicable to the public at large when “the expectations of privacy of covered employees are diminished by reason of their participa-tion in an industry that is regulated pervasively,” Skinner , 489 U. S., at 627, or when “the ‘operational realities of the workplace’ may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts,” Von Raab , 489 U. S., at 671. The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.” Bell, 441 U. S., at 557. “[B]oth the person and the property in his immediate possession may be searched at the station house.” United States v. Edwards , 415 U.S. 800 , 803 (1974). A search of the detainee’s person when he is booked into custody may “ ‘involve a relatively extensive exploration,’ ” Robinson , 414 U. S., at 227, including “requir[ing] at least some detainees to lift their genitals or cough in a squatting position,” Florence , 566 U. S., at ___ (slip op., at 13). In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as “ ‘special needs’ ” searches. Chandler v. Miller , 520 U.S. 305 , 314 (1997). When the police stop a motorist at a checkpoint, see Indianapolis v. Edmond , 531 U.S. 32 (2000), or test a political candidate for illegal narcotics, see Chandler, supra , they intrude upon substantial expectations of privacy. So the Court has insisted on some purpose other than “to detect evidence of ordinary criminal wrongdoing” to justify these searches in the absence of individualized suspicion. Edmond , supra, at 38. Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, however, his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen. The special needs cases, though in full accord with the result reached here, do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy. The reasonableness inquiry here considers two other circumstances in which the Court has held that particularized suspicion is not categorically required: “diminished expectations of privacy [and] minimal intrusions.” McArthur , 531 U. S., at 330. This is not to suggest that any search is acceptable solely because a person is in custody. Some searches, such as invasive surgery, see Winston , 470 U.S. 753 , or a search of the arrestee’s home, see Chimel v. California , 395 U.S. 752 (1969), involve either greater intrusions or higher expectations of privacy than are present in this case. In those situations, when the Court must “balance the privacy-related and law enforcement-related concerns to determine if the intrusion was rea-sonable,” McArthur , supra , at 331, the privacy-related concerns are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee. Here, by contrast to the approved standard procedures incident to any arrest detailed above, a buccal swab involves an even more brief and still minimal intrusion. A gentle rub along the inside of the cheek does not break the skin, and it “involves virtually no risk, trauma, or pain.” Schmerber , 384 U. S., at 771. “A crucial factor in analyzing the magnitude of the intrusion . . . is the extent to which the procedure may threaten the safety or health of the individual,” Winston , supra , at 761, and nothing suggests that a buccal swab poses any physical danger whatsoever. A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest. B In addition the processing of respondent’s DNA sam-ple’s 13 CODIS loci did not intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional. First, as already noted, the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee. While science can always progress further, and those progressions may have Fourth Amendment consequences, alleles at the CODIS loci “are not at present revealing information beyond identification.” Katsanis & Wagner, Characterization of the Standard and Recommended CODIS Markers , 58 J. Forensic Sci. S169, S171 (2013). The argument that the testing at issue in this case reveals any private medical information at all is open to dispute. And even if non-coding alleles could provide some information, they are not in fact tested for that end. It is undisputed that law enforcement officers analyze DNA for the sole purpose of generating a unique identifying number against which future samples may be matched. This parallels a similar safeguard based on actual practice in the school drug-testing context, where the Court deemed it “significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic.” Vernonia School Dist. 47J , 515 U. S., at 658. If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here. Finally, the Act provides statutory protections that guard against further invasion of privacy. As noted above, the Act requires that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” Md. Pub. Saf. Code Ann . §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle.” §2–512(c). This Court has noted often that “a ‘statutory or regulatory duty to avoid unwarranted disclosures’ generally allays . . . privacy concerns.” NASA v. Nelson , 562 U. S. ___, ___ (2011) (slip op., at 20) (quoting Whalen v. Roe , 429 U.S. 589 , 605 (1977)). The Court need not speculate about the risks posed “by a system that did not contain comparable security provisions.” Id., at 606. In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment. *  *  * In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. The judgment of the Court of Appeals of Maryland is reversed. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 12–207 _________________ MARYLAND, PETITIONER v. ALONZO JAY KING, Jr. on writ of certiorari to the court of appeals of maryland [June 3, 2013] Justice Scalia, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting. The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work. I A At the time of the Founding, Americans despised the British use of so-called “general warrants”—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application. The first Virginia Constitution declared that “general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed,” or to search a person “whose offence is not particularly described and supported by evidence,” “are grievous and oppressive, and ought not be granted.” Va. Declaration of Rights §10 (1776), in 1 B. Schwartz, The Bill of Rights: A Documentary History 234, 235 (1971). The Maryland Declaration of Rights similarly provided that general warrants were “illegal.” Md. Declaration of Rights §XXIII (1776), in id., at 280, 282. In the ratification debates, Antifederalists sarcastically predicted that the general, suspicionless warrant would be among the Constitution’s “blessings.” Blessings of the New Government, Independent Gazetteer, Oct. 6, 1787, in 13 Documentary History of the Ratification of the Constitution 345 (J. Kaminski & G. Saladino eds. 1981). “Brutus” of New York asked why the Federal Constitution contained no provision like Maryland’s, Brutus II, N. Y. Journal, Nov. 1, 1787, in id., at 524, and Patrick Henry warned that the new Federal Constitution would expose the citizenry to searches and seizures “in the most arbitrary manner, without any evidence or reason.” 3 Debates on the Federal Constitution 588 (J. Elliot 2d ed. 1854). Madison’s draft of what became the Fourth Amendment answered these charges by providing that the “rights of the people to be secured in their persons . . . from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause . . . or not particularly describing the places to be searched.” 1 Annals of Cong. 434–435 (1789). As ratified, the Fourth Amendment’s Warrant Clause forbids a warrant to “issue” except “upon probable cause,” and requires that it be “particula[r]” (which is to say, individualized ) to “the place to be searched, and the persons or things to be seized.” And we have held that, even when a warrant is not constitution- ally necessary, the Fourth Amendment’s general prohibition of “unreasonable” searches imports the same requirement of individualized suspicion. See Chandler v. Miller , 520 U.S. 305 , 308 (1997). Although there is a “closely guarded category of constitutionally permissible suspicionless searches,” id., at 309, that has never included searches designed to serve “the normal need for law enforcement,” Skinner v. Railway Labor Executives’ Assn. , 489 U.S. 602 , 619 (1989) (internal quotation marks omitted). Even the common name for suspicionless searches—“special needs” searches—itself reflects that they must be justified, always , by concerns “other than crime detection.” Chandler , supra, at 313–314. We have approved random drug tests of railroad employees, yes—but only because the Government’s need to “regulat[e] the conduct of railroad employees to ensure safety” is distinct from “normal law enforcement.” Skinner , supra, at 620. So too we have approved suspicionless searches in public schools—but only because there the government acts in furtherance of its “responsibilities . . . as guardian and tutor of children entrusted to its care.” Vernonia School Dist. 47J v. Acton , 515 U.S. 646 , 665 (1995). So while the Court is correct to note ( ante, at 8–9) that there are instances in which we have permitted searches without individualized suspicion, “[i]n none of these cases . . . did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Indianapolis v. Edmond , 531 U.S. 32 , 38 (2000). That limitation is crucial. It is only when a governmental purpose aside from crime-solving is at stake that we engage in the free-form “reasonableness” inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing. As I detail below, that proposition is wrong. B The Court alludes at several points (see ante, at 11, 25) to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. See Arizona v. Gant , 556 U.S. 332 , 343–344 (2009); Thornton v. United States , 541 U.S. 615 , 632 (2004) (Scalia, J., concurring in judgment). Neither is the object of the search at issue here. The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. Ante, at 25. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster. And the Court’s attempt to distinguish those hypothetical searches from this real one is unconvincing. We are told that the “privacy-related concerns” in the search of a home “are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” Ante, at 26. But why are the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The Fourth Amendment lists “persons” first among the entities protected against unreasonable searches and seizures.) And could the police engage, without any suspicion of wrongdoing, in a “brief and . . . minimal” intrusion into the home of an arrestee—perhaps just peeking around the curtilage a bit? See ante, at 26. Obviously not. At any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest). Sensing (correctly) that it needs more, the Court elaborates at length the ways that the search here served the special purpose of “identifying” King.[ 1 ] But that seems to me quite wrong—unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest.” At points the Court does appear to use “identifying” in that peculiar sense—claiming, for example, that knowing “an arrestee’s past conduct is essential to an assessment of the danger he poses.” Ante, at 15. If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at “identifying” him, and no court would hold such a search lawful. I will therefore assume that the Court means that the DNA search at issue here was useful to “identify” King in the normal sense of that word—in the sense that would identify the author of Introduction to the Principles of Morals and Legislation as Jeremy Bentham. 1 The portion of the Court’s opinion that explains the identification rationale is strangely silent on the actual workings of the DNA search at issue here. To know those facts is to be instantly disabused of the notion that what happened had anything to do with identifying King. King was arrested on April 10, 2009, on charges unrelated to the case before us. That same day, April 10, the police searched him and seized the DNA evidence at issue here. What happened next? Reading the Court’s opinion, particularly its insistence that the search was necessary to know “who [had] been arrested,” ante, at 11, one might guess that King’s DNA was swiftly processed and his identity thereby confirmed—perhaps against some master database of known DNA profiles, as is done for fingerprints. After all, was not the suspicionless search here crucial to avoid “inordinate risks for facility staff” or to “existing detainee population,” ante, at 14? Surely, then— surely —the State of Maryland got cracking on those grave risks immediately, by rushing to identify King with his DNA as soon as possible. Nothing could be further from the truth. Maryland officials did not even begin the process of testing King’s DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A “DNA sample collected from an individual charged with a crime . . . may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.” Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011) (emphasis added). And King’s first appearance in court was not until three days after his arrest. (I suspect, though, that they did not wait three days to ask his name or take his fingerprints.) This places in a rather different light the Court’s solemn declaration that the search here was necessary so that King could be identified at “every stage of the criminal process.” Ante, at 18. I hope that the Maryland officials who read the Court’s opinion do not take it seriously. Acting on the Court’s misperception of Maryland law could lead to jail time. See Md. Pub. Saf. Code Ann. §2–512(c)–(e) (punishing by up to five years’ imprisonment anyone who obtains or tests DNA information except as provided by statute). Does the Court really believe that Maryland did not know whom it was arraigning? The Court’s response is to imagine that release on bail could take so long that the DNA results are returned in time, or perhaps that bail could be revoked if the DNA test turned up incriminating information. Ante, at 16–17. That is no answer at all. If the purpose of this Act is to assess “whether [King] should be released on bail,” ante, at 15, why would it possibly forbid the DNA testing process to begin until King was arraigned? Why would Maryland resign itself to simply hoping that the bail decision will drag out long enough that the “identification” can succeed before the arrestee is released? The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity. It gets worse. King’s DNA sample was not received by the Maryland State Police’s Forensic Sciences Division until April 23, 2009—two weeks after his arrest. It sat in that office, ripening in a storage area, until the custodians got around to mailing it to a lab for testing on June 25, 2009—two months after it was received, and nearly three since King’s arrest. After it was mailed, the data from the lab tests were not available for several more weeks, until July 13, 2009, which is when the test results were entered into Maryland’s DNA database, together with information identifying the person from whom the sample was taken . Meanwhile, bail had been set, King had engaged in discovery, and he had requested a speedy trial—presumably not a trial of John Doe. It was not until August 4, 2009—four months after King’s arrest—that the forwarded sample transmitted ( without identifying information) from the Maryland DNA database to the Federal Bureau of Investigation’s national database was matched with a sample taken from the scene of an unrelated crime years earlier. A more specific description of exactly what happened at this point illustrates why, by definition, King could not have been identified by this match. The FBI’s DNA database (known as CODIS) consists of two distinct collections. FBI, CODIS and NDIS Fact Sheet, http:// www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet (all Internet materials as visited May 31, 2013, and available in Clerk of Court’s case file). One of them, the one to which King’s DNA was submitted, consists of DNA samples taken from known convicts or arrestees. I will refer to this as the “Convict and Arrestee Collection.” The other collection consists of samples taken from crime scenes; I will refer to this as the “Unsolved Crimes Collection.” The Convict and Arrestee Collection stores “no names or other personal identifiers of the offenders, arrestees, or detainees.” Ibid. Rather, it contains only the DNA profile itself, the name of the agency that submitted it, the laboratory personnel who analyzed it, and an identification number for the specimen. Ibid. This is because the submitting state laboratories are expected already to know the identities of the convicts and arrestees from whom samples are taken. (And, of course, they do.) Moreover, the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Arrestee Collection. Ibid. That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection already be known .[ 2 ] If one wanted to identify someone in custody using his DNA, the logical thing to do would be to compare that DNA against the Convict and Arrestee Collection: to search, in other words, the collection that could be used (by checking back with the submitting state agency) to identify people, rather than the collection of evidence from unsolved crimes, whose perpetrators are by definition unknown. But that is not what was done. And that is because this search had nothing to do with identification. In fact, if anything was “identified” at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match “identified” was the previously-taken sample from the earlier crime . That sample was genuinely mysterious to Maryland; the State knew that it had probably been left by the victim’s attacker, but nothing else. King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own “identification” theory when it acknowledges that the object of this search was “to see what [was] already known about [King].” King was who he was, and volumes of his biography could not make him any more or any less King. No minimally competent speaker of English would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” ante, at 13, that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist. 2 That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores). The Maryland Act at issue has a section helpfully entitled “Purpose of collecting and testing DNA samples.” Md. Pub. Saf. Code Ann. §2–505. (One would expect such a section to play a somewhat larger role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader to learn that the Court’s imagined purpose is not among them. Instead, the law provides that DNA samples are collected and tested, as a matter of Maryland law, “as part of an official investigation into a crime.” §2–505(a)(2). (Or, as our suspicionless-search cases would put it: for ordinary law-enforcement purposes.) That is certainly how everyone has always understood the Maryland Act until today. The Governor of Maryland, in commenting on our decision to hear this case, said that he was glad, because “[a]llowing law enforcement to collect DNA samples . . . is absolutely critical to our efforts to continue driving down crime,” and “bolsters our efforts to resolve open investigations and bring them to a resolution.” Marbella, Supreme Court Will Review Md . DNA Law, Baltimore Sun, Nov. 10, 2012, pp. 1, 14. The attorney general of Maryland remarked that he “look[ed] forward to the opportunity to defend this important crime-fighting tool,” and praised the DNA database for helping to “bring to justice violent perpetrators.” Ibid. Even this Court’s order staying the decision below states that the statute “provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population”—with, unsurprisingly, no mention of identity. 567 U. S. ___, ___ (2012) (Roberts, C. J., in chambers) (slip op., at 3). More devastating still for the Court’s “identification” theory, the statute does enumerate two instances in which a DNA sample may be tested for the purpose of identification: “to help identify human remains ,” §2–505(a)(3) (emphasis added), and “to help identify missing individuals ,” §2–505(a)(4) (emphasis added). No mention of identifying arrestees. Inclusio unius est exclusio alterius . And note again that Maryland forbids using DNA records “for any purposes other than those specified”—it is actually a crime to do so. §2–505(b)(2). The Maryland regulations implementing the Act confirm what is now monotonously obvious: These DNA searches have nothing to do with identification. For example, if someone is arrested and law enforcement determines that “a convicted offender Statewide DNA Data Base sample already exists” for that arrestee, “the agency is not required to obtain a new sample.” Code of Md. Regs., tit. 29, §05.01.04(B)(4) (2011). But how could the State know if an arrestee has already had his DNA sample collected, if the point of the sample is to identify who he is? Of course, if the DNA sample is instead taken in order to investigate crimes, this restriction makes perfect sense: Having previously placed an identified someone’s DNA on file to check against available crime-scene evidence, there is no sense in going to the expense of taking a new sample. Maryland’s regulations further require that the “individ- ual collecting a sample . . . verify the identity of the individual from whom a sample is taken by name and, if applicable, State identification (SID) number.” §05.01.04(K). (But how?) And after the sample is taken, it continues to be identified by the individual’s name, fingerprints, etc., see §05.01.07(B)—rather than (as the Court believes) being used to identify individuals. See §05.01.07(B)(2) (“Records and specimen information shall be identified by . . . [the] [n]ame of the donor” (emphasis added)). So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error. II The Court also attempts to bolster its identification theory with a series of inapposite analogies. See ante, at 18–23. Is not taking DNA samples the same, asks the Court, as taking a person’s photograph? No—because that is not a Fourth Amendment search at all. It does not involve a physical intrusion onto the person, see Florida v. Jardines , 569 U.S. 1 , ___ (2013) (slip op., at 3), and we have never held that merely taking a person’s photograph invades any recognized “expectation of privacy,” see Katz v. United States , 389 U.S. 347 (1967). Thus, it is unsurprising that the cases the Court cites as authorizing photo-taking do not even mention the Fourth Amendment. See State ex rel. Bruns v. Clausmier , 154 Ind. 599, 57 N.E. 541 (1900) (libel), Shaffer v. United States , 24 App. D. C. 417 (1904) ( Fifth Amendment privilege against self-incrimination). But is not the practice of DNA searches, the Court asks, the same as taking “Bertillon” measurements—noting an arrestee’s height, shoe size, and so on, on the back of a photograph? No, because that system was not, in the ordinary case, used to solve unsolved crimes. It is possible, I suppose, to imagine situations in which such measurements might be useful to generate leads. (If witnesses described a very tall burglar, all the “tall man” cards could then be pulled.) But the obvious primary purpose of such measurements, as the Court’s description of them makes clear, was to verify that, for example, the person arrested today is the same person that was arrested a year ago. Which is to say, Bertillon measurements were actually used as a system of identification, and drew their primary usefulness from that task.[ 3 ] It is on the fingerprinting of arrestees, however, that the Court relies most heavily. Ante, at 20–23. The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question. Even assuming so, however, law enforcement’s post-arrest use of fingerprints could not be more different from its post-arrest use of DNA. Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else). Contrast CODIS, the FBI’s nationwide DNA database, with IAFIS, the FBI’s Integrated Automated Fingerprint Identification System. See FBI, Integrated Automated Fingerprint Identification System, http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis (hereinafter IAFIS ). The Court asserts that the taking of fingerprints was “constitutional for generations prior to the introduction” of the FBI’s rapid computer-matching system. Ante, at 22. This bold statement is bereft of citation to authority because there is none for it. The “great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence,” and so we were never asked to decide the legitimacy of the practice. United States v. Kincade , 379 F.3d 813 , 874 (CA9 2004) (Kozinski, J., dissenting). As fingerprint databases expanded from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license, Americans simply “became accustomed to having our fingerprints on file in some government database.” Ibid. But it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for “generations” before it was possible to use it effectively for identification. The Court also assures us that “the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances.” Ante, at 22. The idea, presumably, is that the snail’s pace in this case is atypical, so that DNA is now readily usable for identification. The Court’s proof, however, is nothing but a pair of press releases—each of which turns out to undercut this argument. We learn in them that reductions in backlog have enabled Ohio and Louisiana crime labs to analyze a submitted DNA sample in twenty days.[ 5 ] But that is still longer than the eighteen days that Maryland needed to analyze King’s sample, once it worked its way through the State’s labyrinthine bureaucracy. What this illustrates is that these times do not take into account the many other sources of delay. So if the Court means to suggest that Maryland is unusual, that may be right—it may qualify in this context as a paragon of efficiency. (Indeed, the Governor of Maryland was hailing the elimination of that State’s backlog more than five years ago. See Wheeler, O’Malley Wants to Expand DNA Testing, Baltimore Sun, Jan. 11, 2008, p. 5B.) Meanwhile, the Court’s holding will result in the dumping of a large number of arrestee samples—many from minor offenders—onto an already overburdened system: Nearly one-third of Americans will be arrested for some offense by age 23. See Brame, Turner, Paternoster, & Bushway, Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 Pediatrics 21 (2011). The Court also accepts uncritically the Government’s representation at oral argument that it is developing devices that will be able to test DNA in mere minutes. At most, this demonstrates that it may one day be possible to design a program that uses DNA for a purpose other than crime-solving—not that Maryland has in fact designed such a program today. And that is the main point, which the Court’s discussion of the brave new world of instant DNA analysis should not obscure. The issue before us is not whether DNA can some day be used for identification; nor even whether it can today be used for identification; but whether it was used for identification here. Today, it can fairly be said that fingerprints really are used to identify people—so well, in fact, that there would be no need for the expense of a separate, wholly redundant DNA confirmation of the same information. What DNA adds—what makes it a valuable weapon in the law-enforcement arsenal—is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known. That is what was going on when King’s DNA was taken, and we should not disguise the fact. Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. *  *  * The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (repeatedly limiting the analysis to “serious offenses”). I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King .” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations. Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one,[ 6 ] will some day be repudiated. Notes 1 The Court’s insistence ( ante, at 25) that our special-needs cases “do not have a direct bearing on the issues presented in this case” is perplexing. Why spill so much ink on the special need of identification if a special need is not required? Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes? The Court does not say that because most Members of the Court do not believe it. So whatever the Court’s major premise—the opinion does not really contain what you would call a rule of decision—the minor premise is “this search was used to identify King.” The incorrectness of that minor premise will therefore suffice to demonstrate the error in the Court’s result. 2 By the way, this procedure has nothing to do with exonerating the wrongfully convicted, as the Court soothingly promises. See ante, at 17. The FBI CODIS database includes DNA from unsolved crimes. I know of no indication (and the Court cites none) that it also includes DNA from all—or even any—crimes whose perpetrators have already been convicted. 3 Puzzlingly, the Court’s discussion of photography and Bertillon measurements repeatedly cites state cases (such as Clausmier ) that were decided before the Fourth Amendment was held to be applicable to the States. See Wolf v. Colorado , 338 U.S. 25 (1949); Mapp v. Ohio , 367 U.S. 643 (1961). Why the Court believes them relevant to the meaning of that Amendment is therefore something of a mystery. 4 See, e.g., FBI, Privacy Impact Assessment: Integrated Automated Fingerprint Identification System (IAFIS)/Next Generation Identification (NGI) Repository for Individuals of Special Concern (RISC),http://www.fbi.gov/foia/privacy-impact-assessments/iafis-ngi-risc (searches of the “Unsolved Latent File” may “take considerably more time”). 5 See Attorney General DeWine Announces Significant Drop inDNA Turnaround Time (Jan. 4, 2013), http://ohioattorneygeneral.gov/Media/News-Releases/January-2013/Attorney-General-DeWine-Announces-Significant-Drop; Gov. Jindal Announces Elimination of DNA Backlog(Nov. 17, 2011), http://www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&articleID=3102. 6 Compare, New York v. Belton , 453 U.S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant , 556 U.S. 332 (2009) (on second thought, no).

The Supreme Court ruled that DNA collection from individuals arrested for serious offenses is constitutional, as it serves the legitimate government interest of identifying individuals and does not violate the Fourth Amendment's prohibition against unreasonable searches and seizures. This decision upholds the conviction of Alonzo King, Jr., whose DNA, collected during a routine booking procedure for a separate assault charge, linked him to an unsolved rape case from 2003.

Search & Seizure

Florida v. Jardines

https://supreme.justia.com/cases/federal/us/569/1/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11–564 _________________ FLORIDA, PETITIONER v. JOELIS JARDINES on writ of certiorari to the supreme court of florida [March 26, 2013] Justice Scalia delivered the opinion of the Court. We consider whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment. I In 2006, Detective William Pedraja of the Miami-Dade Police Department received an unverified tip that mari- juana was being grown in the home of respondent Joelis Jardines. One month later, the Department and the Drug Enforcement Administration sent a joint surveillance team to Jardines’ home. Detective Pedraja was part of that team. He watched the home for fifteen minutes and saw no vehicles in the driveway or activity around the home, and could not see inside because the blinds were drawn. Detective Pedraja then approached Jardines’ home accompanied by Detective Douglas Bartelt, a trained canine handler who had just arrived at the scene with his drug-sniffing dog. The dog was trained to detect the scent of marijuana, cocaine, heroin, and several other drugs, indicating the presence of any of these substances through particular behavioral changes recognizable by his handler. Detective Bartelt had the dog on a six-foot leash, owing in part to the dog’s “wild” nature, App. to Pet. for Cert. A–35, and tendency to dart around erratically while searching. As the dog approached Jardines’ front porch, he apparently sensed one of the odors he had been trained to detect, and began energetically exploring the area for the strongest point source of that odor. As Detective Bartelt explained, the dog “began tracking that airborne odor by . . . tracking back and forth,” engaging in what is called “bracketing,” “back and forth, back and forth.” Id., at A– 33 to A–34. Detective Bartelt gave the dog “the full six feet of the leash plus whatever safe distance [he could] give him” to do this—he testified that he needed to give the dog “as much distance as I can.” Id., at A–35. And Detective Pedraja stood back while this was occurring, so that he would not “get knocked over” when the dog was “spinning around trying to find” the source. Id., at A–38. After sniffing the base of the front door, the dog sat, which is the trained behavior upon discovering the odor’s strongest point. Detective Bartelt then pulled the dog away from the door and returned to his vehicle. He left the scene after informing Detective Pedraja that there had been a positive alert for narcotics. On the basis of what he had learned at the home, De- tective Pedraja applied for and received a warrant to search the residence. When the warrant was executed later that day, Jardines attempted to flee and was arrested; the search revealed marijuana plants, and he was charged with trafficking in cannabis. At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search. The trial court granted the motion, and the Florida Third District Court of Appeal reversed. On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress, holding (as relevant here) that the use of the trained narcotics dog to investigate Jardines’ home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search. 73 So. 3d 34 (2011). We granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment. 565 U. S. ___ (2012). II The Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “un- doubtedly occurred.” United States v. Jones , 565 U. S. ___, ___, n. 3 (2012) (slip op., at 6, n. 3). By reason of our decision in Katz v. United States , 389 U.S. 347 (1967), property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County , 506 U.S. 56 , 64 (1992)—but though Katz may add to the baseline, it does not subtract anything from the Amendment’s protections “when the Government does engage in [a] physi- cal intrusion of a constitutionally protected area,” United States v. Knotts , 460 U.S. 276 , 286 (1983) (Brennan, J., concurring in the judgment). That principle renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner. A The Fourth Amendment “indicates with some precision the places and things encompassed by its protections”: persons, houses, papers, and effects. Oliver v. United States , 466 U.S. 170 , 176 (1984). The Fourth Amendment does not, therefore, prevent all investigations conducted on private property; for example, an officer may (subject to Katz ) gather information in what we have called “open fields”—even if those fields are privately owned—because such fields are not enumerated in the Amendment’s text. Hester v. United States , 265 U.S. 57 (1924). But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental in- trusion.” Silverman v. United States , 365 U.S. 505 , 511 (1961). This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window. We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amendment purposes.” Oliver , supra, at 180. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” Hester , supra, at 59, so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.” 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769). This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.” California v. Ciraolo , 476 U.S. 207 , 213 (1986). While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.” Oliver , 466 U. S., at 182, n. 12. Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which the activity of home life extends.” Ibid. B Since the officers’ investigation took place in a constitutionally protected area, we turn to the question of whether it was accomplished through an unlicensed physical in- trusion.[ 1 ] While law enforcement officers need not “shield their eyes” when passing by the home “on public thoroughfares,” Ciraolo , 476 U. S., at 213, an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas. In permitting, for example, visual observation of the home from “public navigable airspace,” we were careful to note that it was done “in a physically nonintrusive manner.” Ibid. Entick v. Carrington , 2 Wils. K. B. 275, 95 Eng. Rep. 807 (K. B. 1765), a case “undoubtedly familiar” to “every American statesman” at the time of the Founding, Boyd v. United States , 116 U.S. 616 , 626 (1886), states the general rule clearly: “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.” 2 Wils. K. B., at 291, 95 Eng. Rep., at 817. As it is undisputed that the detectives had all four of their feet and all four of their companion’s firmly planted on the constitutionally protected extension of Jardines’ home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not. “A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.” McKee v. Gratz , 260 U.S. 127 , 136 (1922) (Holmes, J.). We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” Breard v. Alexandria , 341 U.S. 622 , 626 (1951). This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.[ 2 ] Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” Kentucky v. King , 563 U. S. ___, ___ (2011) (slip op., at 16). But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that . An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker.[ 3 ] To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.[ 4 ] The State points to our decisions holding that the subjective intent of the officer is irrelevant. See Ashcroft v. al-Kidd , 563 U. S. ___ (2011); Whren v. United States , 517 U.S. 806 (1996). But those cases merely hold that a stop or search that is objectively reasonable is not vitiated by the fact that the officer’s real reason for making the stop or search has nothing to do with the validating reason. Thus, the defendant will not be heard to complain that although he was speeding the officer’s real reason for the stop was racial harassment. See id., at 810, 813. Here, however, the question before the court is precisely whether the officer’s conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do. III The State argues that investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest. The State cites for authority our decisions in United States v. Place , 462 U.S. 696 (1983), United States v. Jacobsen , 466 U.S. 109 (1984), and Illinois v. Caballes , 543 U.S. 405 (2005), which held, respectively, that canine inspection of luggage in an airport, chemical testing of a substance that had fallen from a parcel in transit, and canine inspection of an automobile during a lawful traffic stop, do not violate the “reasonable expectation of privacy” described in Katz. Just last Term, we considered an argument much like this. Jones held that tracking an automobile’s where- abouts using a physically-mounted GPS receiver is a Fourth Amendment search. The Government argued that the Katz standard “show[ed] that no search occurred,” as the defendant had “no ‘reasonable expectation of privacy’ ” in his whereabouts on the public roads, Jones , 565 U. S., at ___ (slip op., at 5)—a proposition with at least as much support in our case law as the one the State marshals here. See, e.g., United States v. Knotts , 460 U.S. 276 , 278 (1983). But because the GPS receiver had been physically mounted on the defendant’s automobile (thus intruding on his “effects”), we held that tracking the vehicle’s movements was a search: a person’s “ Fourth Amendment rights do not rise or fall with the Katz formulation.” Jones , supra, at ___ (slip op., at 5). The Katz reasonable-expectations test “has been added to , not substituted for ,” the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas. Jones , supra , at ___ (slip op., at 8). Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz . One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred. For a related reason we find irrelevant the State’s argument (echoed by the dissent) that forensic dogs have been commonly used by police for centuries. This argument is apparently directed to our holding in Kyllo v. United States , 533 U.S. 27 (2001), that surveillance of the home is a search where “the Government uses a device that is not in general public use” to “explore details of the home that would previously have been unknowable without physical intrusion .” Id. , at 40 (emphasis added). But the implication of that statement ( inclusio unius est exclusio alterius ) is that when the government uses a physical intrusion to explore details of the home (including its curtilage), the antiquity of the tools that they bring along is irrelevant. *  *  * The government’s use of trained police dogs to inves- tigate the home and its immediate surroundings is a “search” within the meaning of the Fourth Amendment. The judgment of the Supreme Court of Florida is therefore affirmed. It is so ordered. Notes 1 At oral argument, the State and its amicus the Solicitor General argued that Jardines conceded in the lower courts that the officers had a right to be where they were. This misstates the record. Jardines conceded nothing more than the unsurprising proposition that the of-ficers could have lawfully approached his home to knock on the front door in hopes of speaking with him. Of course, that is not what they did. 2 With this much, the dissent seems to agree—it would inquire into “ ‘the appearance of things,’ ” post, at 5 (opinion of Alito, J.), what is “typica[l]” for a visitor, ibid. , what might cause “alarm” to a “resident of the premises,” ibid. , what is “expected” of “ordinary visitors,” ibid. , and what would be expected from a “ ‘reasonably respectful citizen,’ ” post, at 7. These are good questions. But their answers are incompatible with the dissent’s outcome, which is presumably why the dissent does not even try to argue that it would be customary, usual, reasonable, respectful, ordinary, typical, nonalarming, etc . , for a stranger to explore the curtilage of the home with trained drug dogs. 3 The dissent insists that our argument must rest upon “the particular instrument that Detective Bartelt used to detect the odor of mari-juana”—the dog. Post, at 8. It is not the dog that is the problem, but the behavior that here involved use of the dog. We think a typical person would find it “ ‘a cause for great alarm’ ” (the kind of reaction the dis-sent quite rightly relies upon to justify its no-night-visits rule, post, at 5) to find a stranger snooping about his front porch with or without a dog. The dissent would let the police do whatever they want by way of gathering evidence so long as they stay on the base-path, to use a baseball analogy—so long as they “stick to the path that is typically used to approach a front door, such as a paved walkway.” Ibid. From that vantage point they can presumably peer into the house through binoculars with impunity. That is not the law, as even the State con-cedes. See Tr. of Oral Arg. 6. 4 The dissent argues, citing King , that “gathering evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach.” Post, at 7. That is a false generalization. What King establishes is that it is not a Fourth Amendment search to approach the home in order to speak with the occupant, because all are invited to do that . The mere “purpose of discovering information,” post , at 8, in the course of engaging in that permitted conduct does not cause it to violate the Fourth Amendment. But no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search. SUPREME COURT OF THE UNITED STATES _________________ No. 11–564 _________________ FLORIDA, PETITIONER v. JOELIS JARDINES on writ of certiorari to the supreme court of florida [March 26, 2013] Justice Kagan, with whom Justice Ginsburg and Justice Sotomayor join, concurring. For me, a simple analogy clinches this case—and does so on privacy as well as property grounds. A stranger comes to the front door of your home carrying super-high-powered binoculars. See ante , at 7, n. 3. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners. It doesn’t take long (the binoculars are really very fine): In just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one. Has your “visitor” trespassed on your property, exceeding the license you have granted to members of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your “reasonable expectation of privacy,” by nosing into intimacies you sensibly thought protected from disclosure? Katz v. United States , 389 U.S. 347 , 360 (1967) (Harlan, J., concurring). Yes, of course, he has done that too. That case is this case in every way that matters. Here, police officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equip-ment they used was animal, not mineral. But contra the dissent, see post , at 2 (opinion of Alito, J.) (noting the ubiquity of dogs in American households), that is of no significance in determining whether a search occurred. Detective Bartelt’s dog was not your neighbor’s pet, come to your porch on a leisurely stroll. As this Court discussed earlier this Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners. See Florida v. Harris , 568 U. S. ___ (2013) (slip op. at 2–3, 7–8). They are to the poodle down the street as high-powered binoculars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home—the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the Court holds to-day. Was it also an invasion of privacy? Yes, that as well. The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests. A decision along those lines would have looked . . . well, much like this one. It would have talked about “ ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Ante , at 4 (quoting Silverman v. United States , 365 U.S. 505 , 511 (1961)). It would have insisted on maintaining the “practical value” of that right by preventing police officers from standing in an adjacent space and “trawl[ing] for evidence with impunity.” Ante , at 4. It would have explained that “ ‘privacy expectations are most heightened’ ” in the home and the surrounding area. Ante , at 4–5 (quoting California v. Ciraolo , 476 U.S. 207 , 213 (1986)). And it would have determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there. See ante , at 6–7, and nn. 2–3. It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property “naturally enough influence[s]” our “shared social expectations” of what places should be free from governmental incursions. Georgia v. Randolph , 547 U.S. 103 , 111 (2006); see Rakas v. Illinois , 439 U.S. 128 , 143, n. 12 (1978). And so the sentiment “my home is my own,” while originating in property law, now also denotes a common understanding—extending even beyond that law’s formal protections—about an especially private sphere. Jardines’ home was his property; it was also his most intimate and familiar space. The analysis proceeding from each of those facts, as today’s decision reveals, runs mostly along the same path. I can think of only one divergence: If we had decided this case on privacy grounds, we would have realized that Kyllo v. United States , 533 U.S. 27 (2001), already resolved it.[ 1 ] The Kyllo Court held that police officers conducted a search when they used a thermal-imaging device to detect heat emanating from a private home, even though they committed no trespass. Highlighting our intention to draw both a “firm” and a “bright” line at “the entrance to the house,” id. , at 40, we announced the following rule: “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Ibid. That “firm” and “bright” rule governs this case: The police officers here conducted a search because they used a “device . . . not in general public use” (a trained drug-detection dog) to “explore details of the home” (the presence of certain substances) that they would not otherwise have discovered without entering the premises. And again, the dissent’s argument that the device is just a dog cannot change the equation. As Kyllo made clear, the “sense-enhancing” tool at issue may be “crude” or “sophisticated,” may be old or new (drug-detection dogs actually go back not “12,000 years” or “centuries,” post , at 2, 8, 12, but only a few decades), may be either smaller or bigger than a breadbox; still, “at least where (as here)” the device is not “in general public use,” training it on a home violates our “minimal expectation of privacy”—an expectation “that exists , and that is acknowledged to be reasonable .” 533 U. S., at 34, 36.[ 2 ] That does not mean the device is off-limits, as the dissent implies, see post , at 11–12; it just means police officers cannot use it to examine a home without a warrant or exigent circumstance. See Brigham City v. Stuart , 547 U.S. 398 , 403–404 (2006) (describing exigencies allowing the warrantless search of a home). With these further thoughts, suggesting that a focus on Jardines’ privacy interests would make an “easy cas[e] easy” twice over, ante , at 10, I join the Court’s opinion in full. Notes 1 The dissent claims, alternatively, that Illinois v. Caballes , 543 U.S. 405 , 409–410 (2005), controls this case (or nearly does). See post , at 9, 11. But Caballes concerned a drug-detection dog’s sniff of an automobile during a traffic stop. See also Florida v. Harris , 568 U. S. ___ (2013). And we have held, over and over again, that people’s expectations of privacy are much lower in their cars than in their homes. See, e.g., Arizona v. Gant , 556 U.S. 332 , 345 (2009); Wyoming v. Houghton , 526 U.S. 295 , 303 (1999); New York v. Class , 475 U.S. 106 , 115 (1986); Cardwell v. Lewis , 417 U.S. 583 , 590–591 (1974) (plurality opinion). 2 The dissent’s other principal reason for concluding that no violation of privacy occurred in this case—that police officers themselves might detect an aroma wafting from a house—works no better. If officers can smell drugs coming from a house, they can use that information; a human sniff is not a search, we can all agree. But it does not follow that a person loses his expectation of privacy in the many scents within his home that (his own nose capably tells him) are not usually detectible by humans standing outside. And indeed, Kyllo already decided as much. In response to an identical argument from the dissent in that case, see 533 U. S., at 43 (Stevens, J., dissenting) (noting that humans can sometimes detect “heat emanating from a building”), the Kyllo Court stated: “The dissent’s comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home . . . is quite irrelevant. The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. . . . In any event, [at the time in question,] no outside observer could have discerned the relative heat of Kyllo’s home without thermal imaging.” Id., at 35, n. 2. SUPREME COURT OF THE UNITED STATES _________________ No. 11–564 _________________ FLORIDA, PETITIONER v. JOELIS JARDINES on writ of certiorari to the supreme court of florida [March 26, 2013] Justice Alito, with whom The Chief Justice, Jus- tice Kennedy, and Justice Breyer join, dissenting. The Court’s decision in this important Fourth Amendment case is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence. The law of trespass generally gives members of the public a license to use a walkway to approach the front door of a house and to remain there for a brief time. This license is not limited to persons who intend to speak to an occupant or who actually do so. (Mail carriers and persons delivering packages and flyers are examples of individuals who may lawfully approach a front door without intending to converse.) Nor is the license restricted to categories of visitors whom an occupant of the dwelling is likely to welcome; as the Court acknowledges, this license applies even to “solicitors, hawkers and peddlers of all kinds.” Ante , at 6 (internal quotation marks omitted). And the license even extends to police officers who wish to gather evidence against an occupant (by asking potentially incriminating questions). According to the Court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent’s house by his dog, Franky. Where is the authority evidencing such a rule? Dogs have been domesticated for about 12,000 years;[ 1 ] they were ubiquitous in both this country and Britain at the time of the adoption of the Fourth Amendment;[ 2 ] and their acute sense of smell has been used in law enforcement for centuries.[ 3 ] Yet the Court has been unable to find a single case—from the United States or any other common-law nation—that supports the rule on which its decision is based. Thus, trespass law provides no support for the Court’s holding today. The Court’s decision is also inconsistent with the reasonable-expectations-of-privacy test that the Court adopted in Katz v. United States , 389 U.S. 347 (1967). A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human. For these reasons, I would hold that no search within the meaning of the Fourth Amendment took place in this case, and I would reverse the decision below. I The opinion of the Court may leave a reader with the mistaken impression that Detective Bartelt and Franky remained on respondent’s property for a prolonged period of time and conducted a far-flung exploration of the front yard. See ante , at 4 (“trawl for evidence with impunity”), 7 (“marching his bloodhound into the garden”). But that is not what happened. Detective Bartelt and Franky approached the front door via the driveway and a paved path—the route that any visitor would customarily use[ 4 ]—and Franky was on the kind of leash that any dog owner might employ.[ 5 ] As Franky approached the door, he started to track an airborne odor. He held his head high and began “bracketing” the area (pacing back and forth) in order to determine the strongest source of the smell. App. 95–96. Detective Bartelt knew “the minute [he] observed” this behavior that Franky had detected drugs. Id. , at 95. Upon locating the odor’s strongest source, Franky sat at the base of the front door, and at this point, Detective Bartelt and Franky im- mediately returned to their patrol car. Id. , at 98. A critical fact that the Court omits is that, as respondent’s counsel explained at oral argument, this entire process—walking down the driveway and front path to the front door, waiting for Franky to find the strongest source of the odor, and walking back to the car—took approximately a minute or two. Tr. of Oral Arg. 57–58. Thus, the amount of time that Franky and the detective remained at the front porch was even less. The Court also fails to mention that, while Detective Bartelt apparently did not personally smell the odor of marijuana coming from the house, another officer who subsequently stood on the front porch, Detective Pedraja, did notice that smell and was able to identify it. App. 81. II The Court concludes that the conduct in this case was a search because Detective Bartelt exceeded the boundaries of the license to approach the house that is recognized by the law of trespass, but the Court’s interpretation of the scope of that license is unfounded. A It is said that members of the public may lawfully proceed along a walkway leading to the front door of a house because custom grants them a license to do so. Breard v. Alexandria , 341 U.S. 622 , 626 (1951); Lakin v. Ames , 64 Mass. 198, 220 (1852); J. Bishop, Commentaries on the Non-Contract Law §823, p. 378 (1889). This rule encompasses categories of visitors whom most homeowners almost certainly wish to allow to approach their front doors—friends, relatives, mail carriers, persons making deliveries. But it also reaches categories of visitors who are less universally welcome—“solicitors,” “hawkers,” “peddlers,” and the like. The law might attempt to draw fine lines between categories of welcome and unwelcome visitors, distinguishing, for example, between tolerable and intolerable door-to-door peddlers (Girl Scouts selling cookies versus adults selling aluminum siding) or be- tween police officers on agreeable and disagreeable missions (gathering information about a bothersome neighbor versus asking potentially incriminating questions). But the law of trespass has not attempted such a difficult taxonomy. See Desnick v. American Broadcasting Cos., 44 F.3d 1345 , 1351 (CA7 1995) (“[C]onsent to an entry is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause him for perfectly understandable and generally ethical or at least lawful reasons to revoke his consent”); cf. Skinner v. Ogallala Public School Dist. , 262 Neb. 387, 402, 631 N.W.2d 510 , 525 (2001) (“[I]n order to determine if a business invitation is implied, the inquiry is not a subjective assessment of why the visitor chose to visit the premises in a particular instance”); Crown Cork & Seal Co. v. Kane , 213 Md. 152, 159, 131 A.2d 470, 473–474 (1957) (noting that “there are many cases in which an invitation has been implied from circumstances, such as custom,” and that this test is “objective in that it stresses custom and the appearance of things” as opposed to “the undisclosed intention of the visitor”). Of course, this license has certain spatial and temporal limits. A visitor must stick to the path that is typically used to approach a front door, such as a paved walkway. A visitor cannot traipse through the garden, meander into the backyard, or take other circuitous detours that veer from the pathway that a visitor would customarily use. See, e.g., Robinson v. Virginia , 47 Va. App. 533, 549–550, 625 S.E.2d 651, 659 (2006) (en banc); United States v. Wells , 648 F.3d 671, 679–680 (CA8 2011) (police exceeded scope of their implied invitation when they bypassed the front door and proceeded directly to the back yard); State v. Harris , 919 S.W.2d 619 , 624 (Tenn. Crim. App. 1995) (“Any substantial and unreasonable departure from an area where the public is impliedly invited exceeds the scope of the implied invitation . . . ” (internal quotation marks and brackets omitted)); 1 W. LaFave, Search and Seizure §2.3(c), p. 578 (2004) (hereinafter LaFave); id ., §2.3(f), at 600–603 (“[W]hen the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, drive- ways, porches), observations made from such vantage points are not covered by the Fourth Amendment” (footnotes omitted)). Nor, as a general matter, may a visitor come to the front door in the middle of the night without an express invitation. See State v. Cada , 129 Idaho 224, 233, 923 P.2d 469, 478 (App. 1996) (“Furtive intrusion late at night or in the predawn hours is not conduct that is expected from ordinary visitors. Indeed, if observed by a resident of the premises, it could be a cause for great alarm”). Similarly, a visitor may not linger at the front door for an extended period. See 9 So. 3d 1, 11 (Fla. App. 2008) (case below) (Cope, J., concurring in part and dissenting in part) (“[T]here is no such thing as squatter’s rights on a front porch. A stranger may not plop down uninvited to spend the afternoon in the front porch rocking chair, or throw down a sleeping bag to spend the night, or lurk on the front porch, looking in the windows”). The license is limited to the amount of time it would customarily take to approach the door, pause long enough to see if someone is home, and (if not expressly invited to stay longer), leave. As I understand the law of trespass and the scope of the implied license, a visitor who adheres to these limitations is not necessarily required to ring the doorbell, knock on the door, or attempt to speak with an occupant. For example, mail carriers, persons making deliveries, and in- dividuals distributing flyers may leave the items they are carrying and depart without making any attempt to converse. A pedestrian or motorist looking for a particular address may walk up to a front door in order to check a house number that is hard to see from the sidewalk or road. A neighbor who knows that the residents are away may approach the door to retrieve an accumulation of newspapers that might signal to a potential burglar that the house is unoccupied. As the majority acknowledges, this implied license to approach the front door extends to the police. See ante, at 6. As we recognized in Kentucky v. King , 563 U. S. ___ (2011), police officers do not engage in a search when they approach the front door of a residence and seek to engage in what is termed a “knock and talk,” i.e. , knocking on the door and seeking to speak to an occupant for the purpose of gathering evidence. See id. , at ___ (slip op., at 16) (“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do”). See also 1 LaFave §2.3(e), at 592 (“It is not objectionable for an officer to come upon that part of the property which has been opened to public common use” (internal quotation marks omitted)). Even when the objective of a “knock and talk” is to obtain evidence that will lead to the homeowner’s arrest and prosecution, the license to approach still applies. In other words, gathering evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach. And when officers walk up to the front door of a house, they are permitted to see, hear, and smell whatever can be detected from a lawful vantage point. California v. Ciraolo , 476 U.S. 207 , 213 (1986) (“The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares”); Cada , supra, at 232, 923 P. 2d, at 477 (“[P]olice officers restricting their activity to [areas to which the public is impliedly invited] are permitted the same intrusion and the same level of observation as would be expected from a reasonably respectful citizen” (internal quotation marks omitted)); 1 LaFave §§2.2(a), 2.3(c), at 450–452, 572–577. B Detective Bartelt did not exceed the scope of the license to approach respondent’s front door. He adhered to the customary path; he did not approach in the middle of the night; and he remained at the front door for only a very short period (less than a minute or two). The Court concludes that Detective Bartelt went too far because he had the “ objectiv[e] . . . purpose to conduct a search.” Ante , at 8 (emphasis added). What this means, I take it, is that anyone aware of what Detective Bartelt did would infer that his subjective purpose was to gather evidence. But if this is the Court’s point, then a standard “knock and talk” and most other police visits would likewise constitute searches. With the exception of visits to serve warrants or civil process, police almost always approach homes with a purpose of discovering information. That is certainly the objective of a “knock and talk.” The Court offers no meaningful way of distinguishing the “objective purpose” of a “knock and talk” from the “objective purpose” of Detective Bartelt’s conduct here. The Court contends that a “knock and talk” is different because it involves talking, and “all are invited” to do that. Ante , at 7–8, n. 4 (emphasis deleted). But a police officer who approaches the front door of a house in accordance with the limitations already discussed may gather evidence by means other than talking. The officer may observe items in plain view and smell odors coming from the house. Ciraolo , supra, at 213; Cada , 129 Idaho , at 232, 923 P. 2d, at 477; 1 LaFave §§2.2(a), 2.3(c), at 450–452, 572–577. So the Court’s “objective purpose” argument cannot stand. What the Court must fall back on, then, is the particular instrument that Detective Bartelt used to detect the odor of marijuana, namely, his dog. But in the entire body of common-law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass. G. Williams, Liability for Animals 136–146 (1939); J. Ingham, A Treatise on Property in Animals Wild and Domestic and the Rights and Respon- sibilities Arising Therefrom 277–278 (1900). Cf. B. Markesinis & S. Deakin, Tort Law 511 (4th ed. 1999). The Court responds that “[i]t is not the dog that is the problem, but the behavior that here involved use of the dog.” Ante, at 7, n. 3. But where is the support in the law of trespass for this proposition? Dogs’ keen sense of smell has been used in law enforcement for centuries. The antiquity of this practice is evidenced by a Scottish law from 1318 that made it a crime to “disturb a tracking dog or the men coming with it for pursuing thieves or seizing malefactors.” K. Brown et al., The Records of the Parliaments of Scotland to 1707, (St Andrews, 2007–2013), online at http://www.rps.ac.uk/mss/1318/9. If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years. But the Court has found none. For these reasons, the real law of trespass provides no support for the Court’s holding today. While the Court claims that its reasoning has “ancient and durable roots,” ante, at 4, its trespass rule is really a newly struck counterfeit. III The concurring opinion attempts to provide an alternative ground for today’s decision, namely, that Detective Bartelt’s conduct violated respondent’s reasonable expectations of privacy. But we have already rejected a very similar, if not identical argument, see Illinois v. Caballes , 543 U.S. 405 , 409–410 (2005), and in any event I see no basis for concluding that the occupants of a dwelling have a reasonable expectation of privacy in odors that emanate from the dwelling and reach spots where members of the public may lawfully stand. It is clear that the occupant of a house has no reasonable expectation of privacy with respect to odors that can be smelled by human beings who are standing in such places. See United States v. Johns , 469 U.S. 478 , 482 (1985) (“After the officers came closer and detected the distinct odor of marihuana, they had probable cause to believe that the vehicles contained contraband”); United States v. Ventresca , 380 U.S. 102 , 111 (1965) (scent of ferment- ing mash supported probable cause for warrant); United States v. Johnston , 497 F.2d 397, 398 (CA9 1974) (there is no “reasonable expectation of privacy from drug agents with inquisitive nostrils”). And I would not draw a line between odors that can be smelled by humans and those that are detectible only by dogs. Consider the situation from the point of view of the occupant of a building in which marijuana is grown or methamphetamine is manufactured. Would such an oc- cupant reason as follows? “I know that odors may emanate from my building and that atmospheric conditions, such as the force and direction of the wind, may affect the strength of those odors when they reach a spot where members of the public may lawfully stand. I also know that some people have a much more acute sense of smell than others,[ 6 ] and I have no idea who might be standing in one of the spots in question when the odors from my house reach that location. In addition, I know that odors coming from my building, when they reach these locations, may be strong enough to be detected by a dog. But I am confident that they will be so faint that they cannot be smelled by any human being.” Such a finely tuned expectation would be entirely unrealistic, and I see no evidence that society is prepared to recognize it as reasonable. In an attempt to show that respondent had a reasonable expectation of privacy in the odor of marijuana wafting from his house, the concurrence argues that this case is just like Kyllo v. United States , 533 U.S. 27 (2001), which held that police officers conducted a search when they used a thermal imaging device to detect heat emanating from a house. Ante , at 3–4 (opinion of Kagan, J.). This Court, however, has already rejected the argument that the use of a drug-sniffing dog is the same as the use of a thermal imaging device. See Caballes , 543 U. S., at 409–410. The very argument now advanced by the concurrence appears in Justice Souter’s Caballes dissent. See id ., at 413, and n. 3. But the Court was not persuaded. Contrary to the interpretation propounded by the concurrence, Kyllo is best understood as a decision about the use of new technology. The Kyllo Court focused on the fact that the thermal imaging device was a form of “sense-enhancing technology” that was “not in general public use,” and it expressed concern that citizens would be “at the mercy of advancing technology” if its use was not restricted. 533 U. S., at 34–35. A dog, however, is not a new form of “technology or a “device.” And, as noted, the use of dogs’ acute sense of smell in law enforcement dates back many centuries. The concurrence suggests that a Kyllo -based decision would be “much like” the actual decision of the Court, but that is simply not so. The holding of the Court is based on what the Court sees as a “ ‘physical intrusion of a constitutionally protected area.’ ” Ante , at 3 (quoting United States v. Knotts , 460 U.S. 276 , 286 (1983) (Brennan, J., concurring in judgment)). As a result, it does not apply when a dog alerts while on a public sidewalk or street or in the corridor of a building to which the dog and handler have been lawfully admitted. The concurrence’s Kyllo -based approach would have a much wider reach. When the police used the thermal imaging device in Kyllo , they were on a public street, 533 U. S., at 29, and “committed no trespass.” Ante , at 3. Therefore, if a dog’s nose is just like a thermal imaging device for Fourth Amendment purposes, a search would occur if a dog alerted while on a public sidewalk or in the corridor of an apartment building. And the same would be true if the dog was trained to sniff, not for marijuana, but for more dangerous quarry, such as explosives or for a violent fugitive or kidnaped child. I see no ground for hampering legitimate law enforcement in this way. IV The conduct of the police officer in this case did not constitute a trespass and did not violate respondent’s reasonable expectations of privacy. I would hold that this conduct was not a search, and I therefore respectfully dissent. Notes 1 See, e.g., Sloane, Dogs in War, Police Work and on Patrol, 46 J. Crim. L., C. & P. S. 385 (1955–1956) (hereinafter Sloane). 2 M. Derr, A Dog’s History of America 68–92 (2004); K. Olsen, Daily Life in 18th-Century England 32–33 (1999). 3 Sloane 388–389. 4 See App. 94; App. to Brief for Respondent 1A (depiction of respondent’s home). 5 The Court notes that Franky was on a 6-foot leash, but such aleash is standard equipment for ordinary dog owners. See, e.g., J. Stregowski, Four Dog Leash Varieties, http://dogs.about.com/od/toyssupplies/tp/Dog-Leashes.htm (all Internet materials as visited Mar. 21, 2013, and available in Clerk of Court’s case file). 6 Some humans naturally have a much more acute sense of smell than others, and humans can be trained to detect and distinguish odors that could not be detected without such training. See E. Hancock, A Primer on Smell, http://www.jhu.edu/jhumag/996web/smell.html. Some individuals employed in the perfume and wine industries, for example, have an amazingly acute sense of smell. Ibid.

The Supreme Court ruled that using a drug-sniffing dog on a homeowner's porch to investigate the contents of their home without a warrant is a violation of the Fourth Amendment. The Court considered the act a "search," and therefore unconstitutional.

Search & Seizure

Davis v. U.S.

https://supreme.justia.com/cases/federal/us/564/229/

OPINION OF THE COURT DAVIS V. UNITED STATES 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-11328 WILLIE GENE DAVIS, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eleventh circuit [June 16, 2011]    Justice Alito delivered the opinion of the Court.    The Fourth Amendment protects the right to be free from “unreasonable searches and seizures,” but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation. The question here is whether to apply this sanction when the police conduct a search in compliance with binding precedent that is later overruled. Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. I    The question presented arises in this case as a result of a shift in our Fourth Amendment jurisprudence on searches of automobiles incident to arrests of recent occupants. A    Under this Court’s decision in Chimel v. California , 395 U. S. 752 (1969), a police officer who makes a lawful arrest may conduct a warrantless search of the arrestee’s person and the area “within his immediate control.” Id. , at 763 (internal quotation marks omitted). This rule “may be stated clearly enough,” but in the early going after Chimel it proved difficult to apply, particularly in cases that involved searches “inside [of] automobile[s] after the arrestees [we]re no longer in [them].” See New York v. Belton , 453 U. S. 454 , 458–459 (1981). A number of courts up-held the constitutionality of vehicle searches that were “substantially contemporaneous” with occupants’ arrests.[ Footnote 1 ] Other courts disapproved of automobile searches incident to arrests, at least absent some continuing threat that the arrestee might gain access to the vehicle and “destroy evidence or grab a weapon.”[ Footnote 2 ] In New York v. Belton, this Court granted certiorari to resolve the conflict. See id. , at 459–460.    In Belton , a police officer conducting a traffic stop lawfully arrested four occupants of a vehicle and ordered the arrestees to line up, un-handcuffed, along the side of the thruway. Id. , at 456; see Brief for Petitioner in New York v. Belton , O. T. 1980, No. 80–328, p. 3. The officer then searched the vehicle’s passenger compartment and found cocaine inside a jacket that lay on the backseat. Belton , 453 U. S., at 456. This Court upheld the search as reasonable incident to the occupants’ arrests. In an opinion that repeatedly stressed the need for a “straightforward,” “workable rule” to guide police conduct, the Court announced “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. , at 459–460 (footnote omitted).    For years, Belton was widely understood to have set down a simple, bright-line rule. Numerous courts read the decision to authorize automobile searches incident to arrests of recent occupants, regardless of whether the arrestee in any particular case was within reaching distance of the vehicle at the time of the search. See Thornton v. United States , 541 U. S. 615 , 628 (2004) (Scalia, J., concurring in judgment) (collecting cases). Even after the arrestee had stepped out of the vehicle and had been subdued by police, the prevailing understanding was that Belton still authorized a substantially contemporaneous search of the automobile’s passenger compartment.[ Footnote 3 ]    Not every court, however, agreed with this reading of Belton . In State v. Gant , 216 Ariz. 1, 162 P. 3d 640 (2007), the Arizona Supreme Court considered an automobile search conducted after the vehicle’s occupant had been arrested, handcuffed, and locked in a patrol car. The court distinguished Belton as a case in which “four unsecured” arrestees “presented an immediate risk of loss of evidence and an obvious threat to [a] lone officer’s safety.” 216 Ariz., at 4, 162 P. 3d, at 643. The court held that where no such “exigencies exis[t]”—where the arrestee has been subdued and the scene secured—the rule of Belton does not apply. 216 Ariz., at 4, 162 P. 3d, at 643.    This Court granted certiorari in Gant , see 552 U. S. 1230 (2008), and affirmed in a 5-to-4 decision. Arizona v. Gant , 556 U. S. ___ (2009). Four of the Justices in the majority agreed with the Arizona Supreme Court that Belton ’s holding applies only where “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U. S., at ___ (slip op., at 10). The four dissenting Justices, by contrast, understood Belton to have explicitly adopted the simple, bright-line rule stated in the Belton Court’s opinion. 556 U. S., at ___ (opinion of Alito, J.) (slip op., at 3); see Belton , 453 U. S., at 460 (“[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” (footnote omitted)). To limit Belton to cases involving unsecured arrestees, the dissenters thought, was to overrule the decision’s clear holding. Gant , supra , at ___ (slip op., at 2–3). Justice Scalia, who provided the fifth vote to affirm in Gant , agreed with the dissenters’ understanding of Belton ’s holding. 556 U. S., at ___ (slip op., at 1–2) (concurring opinion). Justice Scalia favored a more ex-plicit and complete overruling of Belton , but he joined what became the majority opinion to avoid “a 4-to-1-to-4” disposition. 556 U. S., at ___ (slip op., at 2–4). As a result, the Court adopted a new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.” Id. , at ___ (slip op., at 9–10) (citing Thornton , supra , at 632 (Scalia, J., concurring in judgment); internal quotation marks omitted). B    The search at issue in this case took place a full two years before this Court announced its new rule in Gant . On an April evening in 2007, police officers in Greenville, Alabama, conducted a routine traffic stop that eventually resulted in the arrests of driver Stella Owens (for driving while intoxicated) and passenger Willie Davis (for giving a false name to police). The police handcuffed both Owens and Davis, and they placed the arrestees in the back of separate patrol cars. The police then searched the passenger compartment of Owens’s vehicle and found a revolver inside Davis’s jacket pocket.    Davis was indicted in the Middle District of Alabama on one count of possession of a firearm by a convicted felon. See 18 U. S. C. §922(g)(1). In his motion to suppress the revolver, Davis acknowledged that the officers’ search fully complied with “existing Eleventh Circuit precedent.” App. 13–15. Like most courts, the Eleventh Circuit had long read Belton to establish a bright-line rule authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants. See United States v. Gonzalez , 71 F. 3d 819, 822, 824–827 (CA11 1996) (upholding automobile search conducted after the defendant had been “pulled from the vehicle, handcuffed, laid on the ground, and placed under arrest”). Davis recognized that the Dis-trict Court was obligated to follow this precedent, but he raised a Fourth Amendment challenge to preserve “the issue for review” on appeal. App. 15. The District Court denied the motion, and Davis was convicted on the firearms charge.    While Davis’s appeal was pending, this Court decided Gant . The Eleventh Circuit, in the opinion below, applied Gant ’s new rule and held that the vehicle search incident to Davis’s arrest “violated [his] Fourth Amendment rights.” 598 F. 3d 1259, 1263 (CA11 2010). As for whether this constitutional violation warranted suppression, the Eleventh Circuit viewed that as a separate issue that turned on “the potential of exclusion to deter wrongful police conduct.” Id. , at 1265 (quoting Herring v. United States , 555 U. S. 135 , 137 (2009); internal quotation marks omitted). The court concluded that “penalizing the [arresting] officer” for following binding appellate precedent would do nothing to “dete[r] … Fourth Amendment violations.” 598 F. 3d, at 1265–1266 (bracketing and internal quotation marks omitted). It therefore declined to apply the exclusionary rule and affirmed Davis’s conviction. We granted certiorari. 562 U. S. ___ (2010). II    The Fourth Amendment protects the “right of the peo-ple to be secure in their persons, houses, papers, and ef-fects, against unreasonable searches and seizures.” The Amendment says nothing about suppressing evidence ob-tained in violation of this command. That rule—the exclusionary rule—is a “prudential” doctrine, Pennsylvania Bd. of Probation and Parole v. Scott , 524 U. S. 357 , 363 (1998), created by this Court to “compel respect for the constitutional guaranty.” Elkins v. United States , 364 U. S. 206 , 217 (1960); see Weeks v. United States , 232 U. S. 383 (1914); Mapp v. Ohio , 367 U. S. 643 (1961). Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury” occasioned by an unconstitutional search. Stone v. Powell , 428 U. S. 465 , 486 (1976); see United States v. Janis , 428 U. S. 433 , 454, n. 29 (1976) (exclusionary rule “unsupportable as reparation or compensatory dispensation to the injured criminal” (internal quotation marks omitted)). The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations. E.g. , Herring , supra, at 141, and n. 2; United States v. Leon , 468 U. S. 897 , 909, 921, n. 22 (1984); Elkins , supra , at 217 (“calculated to prevent, not to repair”). Our cases have thus limited the rule’s operation to situations in which this purpose is “thought most efficaciously served.” United States v. Calandra , 414 U. S. 338 , 348 (1974). Where suppression fails to yield “appreciable deterrence,” exclusion is “clearly . . . unwarranted.” Janis , supra , at 454.    Real deterrent value is a “necessary condition for exclusion,” but it is not “a sufficient” one. Hudson v. Michigan , 547 U. S. 586 , 596 (2006). The analysis must also account for the “substantial social costs” generated by the rule. Leon , supra, at 907. Exclusion exacts a heavy toll on both the judicial system and society at large. Stone , 428 U. S., at 490–491. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. Ibid . And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. See Herring , supra , at 141. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” Hudson , supra, at 591. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. See Herring, supra , at 141; Leon , supra , at 910.    Admittedly, there was a time when our exclusionary-rule cases were not nearly so discriminating in their approach to the doctrine. “Expansive dicta” in several deci-sions, see Hudson , supra , at 591, suggested that the rule was a self-executing mandate implicit in the Fourth Amendment itself. See Olmstead v. United States , 277 U. S. 438 , 462 (1928) (remarking on the “striking outcome of the Weeks case” that “the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction”); Mapp , supra, at 655 (“[A]ll evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court”). As late as our 1971 decision in Whiteley v. Warden , Wyo. State Penitentiary, 401 U. S. 560 , 568–569, the Court “treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule.” Arizona v. Evans , 514 U. S. 1 , 13 (1995). In time, however, we came to acknowledge the exclusionary rule for what it undoubtedly is—a “judicially created remedy” of this Court’s own making. Calandra , supra, at 348. We abandoned the old, “reflexive” application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits. Evans , supra , at 13; see, e.g. , Calandra , supra; Janis , supra; Stone , supra; INS v. Lopez-Mendoza , 468 U. S. 1032 (1984); United States v. Havens , 446 U. S. 620 (1980). In a line of cases beginning with United States v. Leon, 468 U. S. 897 , we also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the “flagrancy of the police misconduct” at issue. Id. , at 909, 911.    The basic insight of the Leon line of cases is that the deterrence benefits of exclusion “var[y] with the culpability of the law enforcement conduct” at issue. Herring , 555 U. S., at 143. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Id., at 144 . But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, Leon , supra , at 909 (internal quotation marks omitted), or when their conduct involves only simple, “isolated” negligence, Herring , supra , at 137, the “ ‘deterrence rationale loses much of its force,’ ” and exclusion cannot “pay its way.” See Leon , supra , at 919, 908, n. 6 (quoting United States v. Peltier , 422 U. S. 531 , 539 (1975)).    The Court has over time applied this “good-faith” exception across a range of cases. Leon itself, for example, held that the exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on a warrant later held invalid. 468 U. S., at 922. The error in such a case rests with the issuing magistrate, not the police officer, and “punish[ing] the errors of judges” is not the office of the exclusionary rule. Id. , at 916; see also Massachusetts v. Sheppard , 468 U. S. 981 , 990 (1984) (companion case declining to apply exclusionary rule where warrant held invalid as a result of judge’s clerical error).    Other good-faith cases have sounded a similar theme. Illinois v. Krull , 480 U. S. 340 (1987), extended the good-faith exception to searches conducted in reasonable reliance on subsequently invalidated statutes. Id. , at 349–350 (“legislators, like judicial officers, are not the focus of the rule”). In Arizona v. Evans , supra , the Court applied the good-faith exception in a case where the police reasonably relied on erroneous information concerning an arrest warrant in a database maintained by judicial employees. Id. , at 14. Most recently, in Herring v. United States , 555 U. S. 135 , we extended Evans in a case where police employees erred in maintaining records in a warrant database. “[I]solated,” “nonrecurring” police negligence, we determined, lacks the culpability required to justify the harsh sanction of exclusion. 555 U. S., at 137, 144. III    The question in this case is whether to apply the exclusionary rule when the police conduct a search in objectively reasonable reliance on binding judicial precedent. At the time of the search at issue here, we had not yet decided Arizona v. Gant , 556 U. S. ___, and the Eleventh Circuit had interpreted our decision in New York v. Belton , 453 U. S. 454 , to establish a bright-line rule authorizing the search of a vehicle’s passenger compartment incident to a recent occupant’s arrest. Gonzalez , 71 F. 3d, at 825. The search incident to Davis’s arrest in this case followed the Eleventh Circuit’s Gonzalez precedent to the letter. Although the search turned out to be unconstitutional under Gant , all agree that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. See Brief for Petitioner 49 (“suppression” in this case would “impl[y] no assignment of blame”).    Under our exclusionary-rule precedents, this acknowledged absence of police culpability dooms Davis’s claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield “meaningfu[l]” deterrence, and culpable enough to be “worth the price paid by the justice system.” Herring , 555 U. S., at 144. The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis’s Fourth Amendment rights deliberately, recklessly, or with gross negligence. See ibid. Nor does this case involve any “recurring or systemic negligence” on the part of law enforcement. Ibid . The police acted in strict compliance with binding precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case.    Indeed, in 27 years of practice under Leon ’s good-faith exception, we have “never applied” the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct. Herring , supra , at 144. If the police in this case had reasonably relied on a warrant in conducting their search, see Leon , supra , or on an erroneous warrant record in a government database, Herring , supra , the exclusionary rule would not apply. And if Congress or the Alabama Legislature had enacted a statute codifying the precise holding of the Eleventh Circuit’s decision in Gonzalez ,[ Footnote 4 ] we would swiftly conclude that “ ‘[p]enalizing the officer for the legislature’s error … cannot logically contribute to the deterrence of Fourth Amendment violations.’ ” See Krull , 480 U. S., at 350. The same should be true of Davis’s attempt here to “ ‘[p]enaliz[e] the officer for the [appellate judges’] error.’ ” See ibid .    About all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn “what is required of them” under Fourth Amendment precedent and will conform their conduct to these rules. Hudson , 547 U. S., at 599. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An of-ficer who conducts a search in reliance on binding appellate precedent does no more than “ ‘ac[t] as a reasonable officer would and should act’ ” under the circumstances. Leon , 468 U. S., at 920 (quoting Stone , 428 U. S., at 539–540 (White, J., dissenting)). The deterrent effect of exclusion in such a case can only be to discourage the officer from “ ‘do[ing] his duty.’ ” 468 U. S., at 920.    That is not the kind of deterrence the exclusionary rule seeks to foster. We have stated before, and we reaffirm today, that the harsh sanction of exclusion “should not be applied to deter objectively reasonable law enforcement activity.” Id., at 919. Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule. IV    Justice Breyer’s dissent and Davis argue that, although the police conduct in this case was in no way culpable, other considerations should prevent the good-faith exception from applying. We are not persuaded. A 1    The principal argument of both the dissent and Davis is that the exclusionary rule’s availability to enforce new Fourth Amendment precedent is a retroactivity issue, see Griffith v. Kentucky , 479 U. S. 314 (1987), not a good-faith issue. They contend that applying the good-faith exception where police have relied on overruled precedent effectively revives the discarded retroactivity regime of Linkletter v. Walker , 381 U. S. 618 (1965). See post , at 2–5.    In Linkletter , we held that the retroactive effect of a new constitutional rule of criminal procedure should be determined on a case-by-case weighing of interests. For each new rule, Linkletter required courts to consider a three-factor balancing test that looked to the “purpose” of the new rule, “reliance” on the old rule by law enforcement and others, and the effect retroactivity would have “on the administration of justice.” 381 U. S., at 636. After “weigh[ing] the merits and demerits in each case,” courts decided whether and to what extent a new rule should be given retroactive effect. Id. , at 629. In Linkletter itself, the balance of interests prompted this Court to conclude that Mapp v. Ohio , 367 U. S. 643 —which incorporated the exclusionary rule against the States—should not apply retroactively to cases already final on direct review. 381 U. S., at 639–640. The next year, we extended Linkletter to retroactivity determinations in cases on direct review. See Johnson v. New Jersey , 384 U. S. 719 , 733 (1966) (holding that Miranda v. Arizona , 384 U. S. 436 (1966), and Escobedo v. Illinois , 378 U. S. 478 (1964), applied retroactively only to trials commenced after the decisions were released).    Over time, Linkletter proved difficult to apply in a consistent, coherent way. Individual applications of the standard “produced strikingly divergent results,” see Dan-forth v. Minnesota , 552 U. S. 264 , 273 (2008), that many saw as “incompatible” and “inconsistent.” Desist v. United States , 394 U. S. 244 , 258 (1969) (Harlan, J., dissenting). Justice Harlan in particular, who had endorsed the Linkletter standard early on, offered a strong critique in which he argued that “basic judicial” norms required full retroactive application of new rules to all cases still subject to direct review. 394 U. S., at 258–259; see also Mackey v. United States , 401 U. S. 667 , 675–702 (1971) (Harlan, J., concurring in part and dissenting in part). Eventually, and after more than 20 years of toil under Linkletter , the Court adopted Justice Harlan’s view and held that newly announced rules of constitutional criminal procedure must apply “retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.” Griffith , supra , at 328. 2    The dissent and Davis argue that applying the good-faith exception in this case is “incompatible” with our retroactivity precedent under Griffith . See post , at 2; Reply Brief for Petitioner 3–7. We think this argument conflates what are two distinct doctrines.    Our retroactivity jurisprudence is concerned with whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief. Retroactive application under Griffith lifts what would otherwise be a categorical bar to obtaining redress for the government’s violation of a newly announced constitutional rule. See Danforth , supra, at 271, n. 5 (noting that it may “make more sense to speak in terms of the ‘redressability’ of violations of new rules, rather than the ‘retroactivity’ of such new rules”). Retroactive application does not, however, determine what “appropriate remedy” (if any) the defendant should obtain. See Powell v. Nevada , 511 U. S. 79 , 84 (1994) (noting that it “does not necessarily follow” from retroactive application of a new rule that the defendant will “gain … relief”). Remedy is a separate, analytically distinct issue. Cf. American Trucking Assns., Inc. v. Smith , 496 U. S. 167 , 189 (1990) (plurality opinion) (“[T]he Court has never equated its retroactivity principles with remedial principles”). As a result, the retroactive application of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question. See Leon , 468 U. S., at 906 (“Whether the exclusionary sanction is appropriately imposed in a particular case … is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct’ ”).    When this Court announced its decision in Gant , Davis’s conviction had not yet become final on direct review. Gant therefore applies retroactively to this case. Davis may invoke its newly announced rule of substantive Fourth Amendment law as a basis for seeking relief. See Griffith , supra , at 326, 328. The question, then, becomes one of remedy, and on that issue Davis seeks application of the exclusionary rule. But exclusion of evidence does not automatically follow from the fact that a Fourth Amendment violation occurred. See Evans , 514 U. S., at 13–14. The remedy is subject to exceptions and applies only where its “purpose is effectively advanced.” Krull , 480 U. S., at 347.    The dissent and Davis recognize that at least some of the established exceptions to the exclusionary rule limit its availability in cases involving new Fourth Amendment rules. Suppression would thus be inappropriate, the dissent and Davis acknowledge, if the inevitable-discovery exception were applicable in this case. See post , at 3; Reply Brief for Petitioner 22 (“Doctrines such as inevitable discovery, independent source, attenuated basis, [and] standing … sharply limit the impact of newly-announced rules”). The good-faith exception, however, is no less an established limit on the remedy of exclusion than is inevitable discovery. Its application here neither contravenes Griffith nor denies retroactive effect to Gant .[ Footnote 5 ]    It is true that, under the old retroactivity regime of Linkletter , the Court’s decisions on the “retroactivity prob-lem in the context of the exclusionary rule” did take into account whether “law enforcement officers reasonably believed in good faith” that their conduct was in compliance with governing law. Peltier , 422 U. S., at 535–537. As a matter of retroactivity analysis, that approach is no longer applicable. See Griffith , 479 U. S. 314 . It does not follow, however, that reliance on binding precedent is irrelevant in applying the good-faith exception to the exclusionary rule. When this Court adopted the good-faith exception in Leon , the Court’s opinion explicitly relied on Peltier and imported its reasoning into the good-faith inquiry. See 468 U. S., at 918–919. That reasonable reliance by police was once a factor in our retroactivity cases does not make it any less relevant under our Leon line of cases.[ Footnote 6 ] B    Davis also contends that applying the good-faith ex-ception to searches conducted in reliance on binding pre-cedent will stunt the development of Fourth Amendment law. With no possibility of suppression, criminal defendants will have no incentive, Davis maintains, to request that courts overrule precedent.[ Footnote 7 ] 1    This argument is difficult to reconcile with our modern understanding of the role of the exclusionary rule. We have never held that facilitating the overruling of precedent is a relevant consideration in an exclusionary-rule case. Rather, we have said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement. See, e.g. , Sheppard , 468 U. S., at 990 (“ ‘adopted to deter unlawful searches by police’ ”); Evans , supra, at 14 (“historically designed as a means of deterring police misconduct”).    We have also repeatedly rejected efforts to expand the focus of the exclusionary rule beyond deterrence of culpable police conduct. In Leon, for example, we made clear that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges.” 468 U. S., at 916; see id ., at 918 (“If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect … it must alter the behavior of individual law enforcement officers or the policies of their departments”). Krull too noted that “legislators, like judicial officers, are not the focus” of the exclusionary rule. 480 U. S., at 350. And in Evans , we said that the exclusionary rule was aimed at deterring “police misconduct, not mistakes by court employees.” 514 U. S., at 14. These cases do not suggest that the exclusionary rule should be modified to serve a purpose other than deterrence of culpable law-enforcement conduct. 2    And in any event, applying the good-faith exception in this context will not prevent judicial reconsideration of prior Fourth Amendment precedents. In most instances, as in this case, the precedent sought to be challenged will be a decision of a Federal Court of Appeals or State Supreme Court. But a good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and correction of such decisions. This Court reviews criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defendants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue. This Court can then grant certiorari, and the de-velopment of Fourth Amendment law will in no way be stunted.[ Footnote 8 ]    Davis argues that Fourth Amendment precedents of this Court will be effectively insulated from challenge under a good-faith exception for reliance on appellate precedent. But this argument is overblown. For one thing, it is important to keep in mind that this argument applies to an exceedingly small set of cases. Decisions overruling this Court’s Fourth Amendment precedents are rare. Indeed, it has been more than 40 years since the Court last handed down a decision of the type to which Davis refers. Chimel v. California , 395 U. S. 752 (overruling United States v. Rabinowitz , 339 U. S. 56 (1950), and Harris v. United States , 331 U. S. 145 (1947)). And even in those cases, Davis points out that no fewer than eight separate doctrines may preclude a defendant who successfully challenges an existing precedent from getting any relief. Brief for Petitioner 50. Moreover, as a practical matter, defense counsel in many cases will test this Court’s Fourth Amendment precedents in the same way that Belton was tested in Gant —by arguing that the precedent is distinguishable. See Brief for Respondent in Arizona v. Gant , O. T. 2008, No. 07–542, pp. 22–29.[ Footnote 9 ]    At most, Davis’s argument might suggest that—to prevent Fourth Amendment law from becoming ossified—the petitioner in a case that results in the overruling of one of this Court’s Fourth Amendment precedents should be given the benefit of the victory by permitting the suppression of evidence in that one case. Such a result would undoubtedly be a windfall to this one random litigant. But the exclusionary rule is “not a personal constitutional right.” Stone , 428 U. S., at 486. It is a “judicially created” sanction, Calandra , 414 U. S., at 348, specifically designed as a “windfall” remedy to deter future Fourth Amendment violations. See Stone , supra , at 490. The good-faith exception is a judicially created exception to this judicially created rule. Therefore, in a future case, we could, if necessary, recognize a limited exception to the good-faith exception for a defendant who obtains a judgment over-ruling one of our Fourth Amendment prece- dents. Cf. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929, 952–953 (1965) (“[T]he same authority that empowered the Court to supplement the amendment by the exclusionary rule a hundred and twenty-five years after its adoption, likewise allows it to modify that rule as the lessons of experience may teach” (internal quotation marks and footnotes omitted)).[ Footnote 10 ]    But this is not such a case. Davis did not secure a decision overturning a Supreme Court precedent; the police in his case reasonably relied on binding Circuit precedent. See United States v. Gonzalez , 71 F. 3d 819. That sort of blameless police conduct, we hold, comes within the good-faith exception and is not properly subject to the exclusionary rule. *  *  *    It is one thing for the criminal “to go free because the constable has blundered.” People v. Defore , 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (Cardozo, J.). It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. The judgment of the Court of Appeals for the Eleventh Circuit is Affirmed. Footnote 1 See e.g. , United States v. Sanders , 631 F. 2d 1309, 1313–1314 (CA8 1980); United States v. Dixon , 558 F. 2d 919, 922 (CA9 1977); United States v. Frick , 490 F. 2d 666, 668–669 (CA5 1973); Hinkel v. Anchorage , 618 P. 2d 1069, 1069–1071 (Alaska 1980). Footnote 2 See e.g. , United States v. Benson , 631 F. 2d 1336, 1340 (CA8 1980); see also United States v. Rigales , 630 F. 2d 364, 366–367 (CA5 1980); Ulesky v. State , 379 So. 2d 121, 125–126 (Fla. App. 1979). Footnote 3 See, e.g. , United States v. Dorsey , 418 F. 3d 1038, 1041, 1043–1044 (CA9 2005) (upholding automobile search conducted after the officer had “handcuffed [the arrestee] and put him in the back of [the] patrol car”); United States v. Barnes , 374 F. 3d 601, 604 (CA8 2004) (same). Footnote 4 Cf. Kan. Stat. Ann. §22–2501(c) (2007) (“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of … [d]iscovering the fruits, instrumentalities, or evidence of a crime”). The Kansas Supreme Court recently struck this provision down in light of Arizona v. Gant , 556 U. S. ___ (2009). State v. Henning , 289 Kan. 136, 137, 209 P. 3d 711, 714 (2009). But it has applied Illinois v. Krull , 480 U. S. 340 (1987), and the good-faith exception to searches conducted in reasonable reliance on the statute. See State v. Daniel , 291 Kan. 490, 497–504, 242 P. 3d 1186, 1191–1195 (2010). Footnote 5 The dissent argues that the good-faith exception is “unlike … inevitable discovery” because the former applies in all cases where the police reasonably rely on binding precedent, while the latter “applies only upon occasion.” Post , at 3. We fail to see how this distinction makes any difference. The same could be said—indeed, the same was said—of searches conducted in reasonable reliance on statutes. See Krull , 480 U. S., at 368–369 (O’Connor, J., dissenting) (arguing that result in Krull was inconsistent with Griffith ). When this Court strikes down a statute on Fourth Amendment grounds, the good-faith exception may prevent the exclusionary rule from applying “in every case pending when [the statute] is overturned.” Post , at 3. This result does not make the Court’s newly announced rule of Fourth Amendment law any less retroactive. It simply limits the applicability of a suppression remedy. See Krull , supra , at 354–355, n. 11. Footnote 6 Nor does United States v. Johnson , 457 U. S. 537 (1982), foreclose application of the good-faith exception in cases involving changing law. Johnson distinguished Peltier and held that all Fourth Amendment cases should be retroactive on direct review so long as the new decision is not a “clear break” from prior precedent. 457 U. S., at 562. Johnson had no occasion to opine on the good-faith exception to the exclusionary rule, which we adopted two years later in Leon . Footnote 7 Davis also asserts that a good-faith rule would permit “new Fourth Amendment decisions to be applied only prospectively,” thus amounting to “a regime of rule-creation by advisory opinion.” Brief for Petitioner 23, 25. For reasons discussed in connection with Davis’s argument that application of the good-faith exception here would revive the Linkletter regime, this argument conflates the question of retroactivity with the question of remedy. Footnote 8 The dissent does not dispute this point, but it claims that the good-faith exception will prevent us from “rely[ing] upon lower courts to work out Fourth Amendment differences among themselves.” Post , at 5. If that is correct, then today’s holding may well lead to more circuit splits in Fourth Amendment cases and a fuller docket of Fourth Amendment cases in this Court. See this Court’s Rule 10. Such a state of affairs is unlikely to result in ossification of Fourth Amendment doctrine. Footnote 9 Where the search at issue is conducted in accordance with a municipal “policy” or “custom,” Fourth Amendment precedents may also be challenged, without the obstacle of the good-faith exception or qualified immunity, in civil suits against municipalities. See 42 U. S. C. §1983; Los Angeles County v. Humphries , 562 U. S. ___, ___ (2010) (slip op., at 7) (citing Monell v. New York City Dept. of Social Servs ., 436 U. S. 658 , 690–691 (1978)). Footnote 10 Davis contends that a criminal defendant will lack Article III standing to challenge an existing Fourth Amendment precedent if the good-faith exception to the exclusionary rule precludes the defendant from obtaining relief based on police conduct that conformed to that precedent. This argument confuses weakness on the merits with absence of Article III standing. See ASARCO Inc. v. Kadish , 490 U. S. 605 , 624 (1989) (standing does not “ ‘depen[d] on the merits of [a claim]’ ”). And as a practical matter, the argument is also overstated. In many instances, as in Gant , see 556 U. S., at __ (slip op., at 8), defendants will not simply concede that the police conduct conformed to the precedent; they will argue instead that the police conduct did not fall within the scope of the precedent.    In any event, even if some criminal defendants will be unable to challenge some precedents for the reason that Davis suggests, that provides no good reason for refusing to apply the good-faith exception. As noted, the exclusionary rule is not a personal right, see Stone , 428 U. S., at 486, 490, and therefore the rights of these defendants will not be impaired. And because (at least in almost all instances) the precedent can be challenged by others, Fourth Amendment case law will not be insulated from reconsideration. SOTOMAYOR, J., CONCURRING IN JUDGMENT DAVIS V. UNITED STATES 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-11328 WILLIE GENE DAVIS, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eleventh circuit [June 16, 2011]    Justice Sotomayor, concurring in the judgment.    Under our precedents, the primary purpose of the exclusionary rule is “to deter future Fourth Amendment violations.” Ante , at 6; see, e.g. , Herring v. United States , 555 U. S. 135 , 141 (2009); Illinois v. Krull , 480 U. S. 340 , 347–348 (1987). Accordingly, we have held, application of the exclusionary rule is unwarranted when it “ ‘does not result in appreciable deterrence.’ ” Arizona v. Evans , 514 U. S. 1 , 11 (1995) (quoting United States v. Janis , 428 U. S. 433 , 454 (1976)). In the circumstances of this case, where “binding appellate precedent specifically authorize[d] a particular police practice,” ante , at 11—in accord with the holdings of nearly every other court in the country—application of the exclusionary rule cannot reasonably be expected to yield appreciable deterrence. I am thus compelled to conclude that the exclusionary rule does not apply in this case and to agree with the Court’s disposition.    This case does not present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled. As we previously recognized in deciding whether to apply a Fourth Amendment holding retroactively, when police decide to conduct a search or seizure in the absence of case law (or other authority) specifically sanctioning such action, exclusion of the evidence obtained may deter Fourth Amendment violations:    “If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained un-settled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question.” United States v. Johnson , 457 U. S. 537 , 561 (1982) (footnote omitted). The Court of Appeals recognized as much in limiting its application of the good-faith exception it articulated in this case to situations where its “precedent on a given point [is] unequivocal.” 598 F. 3d 1259, 1266 (CA11 2010); see id. , at 1266–1267 (“[W]e do not mean to encourage police to adopt a ‘ “let’s-wait-until-it’s-decided approach” ’ to ‘unsettled’ questions of Fourth Amendment law” (quoting Johnson , 457 U. S., at 561)). Whether exclusion would deter Fourth Amendment violations where appellate precedent does not specifically authorize a certain practice and, if so, whether the benefits of exclusion would outweigh its costs are questions unanswered by our previous decisions.    The dissent suggests that today’s decision essentially answers those questions, noting that an officer who conducts a search in the face of unsettled precedent “is no more culpable than an officer who follows erroneous ‘binding precedent.’ ” Post , at 7 (opinion of Breyer, J.). The Court does not address this issue. In my view, whether an officer’s conduct can be characterized as “culpable” is not itself dispositive. We have never refused to apply the exclusionary rule where its application would appreciably deter Fourth Amendment violations on the mere ground that the officer’s conduct could be characterized as nonculpable. Rather, an officer’s culpability is relevant because it may inform the overarching inquiry whether exclusion would result in appreciable deterrence. See ante , at 8 (“The basic insight of the Leon line of cases is that the deterrence benefits of exclusion var[y] with the culpability of the law enforcement conduct at issue” (internal quotation marks omitted; alteration in original)); see also, e.g. , Herring , 555 U. S., at 143 (“The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct”); United States v. Leon , 468 U. S. 897 , 919 (1984) (“ ‘Where the official action was pursued in complete good faith, . . . the deterrence rationale loses much of its force’ ” (quoting Michigan v. Tucker , 417 U. S. 433 , 447 (1974))). Whatever we have said about culpability, the ultimate questions have always been, one, whether exclusion would result in appreciable deterrence and, two, whether the benefits of exclusion outweigh its costs. See, e.g. , ante , at 6–7; Herring , 555 U. S., at 141; Krull , 480 U. S., at 347.    As stated, whether exclusion would result in appreciable deterrence in the circumstances of this case is a different question from whether exclusion would appreciably deter Fourth Amendment violations when the governing law is unsettled. The Court’s answer to the former question in this case thus does not resolve the latter one. BREYER, J., DISSENTING DAVIS V. UNITED STATES 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-11328 WILLIE GENE DAVIS, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eleventh circuit [June 16, 2011]    Justice Breyer, with whom Justice Ginsburg joins, dissenting.    In 2009, in Arizona v. Gant , 556 U. S. ___, this Court held that a police search of an automobile without a warrant violates the Fourth Amendment if the police have pre-viously removed the automobile’s occupants and placed them securely in a squad car. The present case involves these same circumstances, and it was pending on appeal when this Court decided Gant . Because Gant represents a “shift” in the Court’s Fourth Amendment jurisprudence, ante , at 1, we must decide whether and how Gant’ s new rule applies here. I    I agree with the Court about whether Gant ’s new rule applies. It does apply. Between 1965, when the Court decided Linkletter v. Walker , 381 U. S. 618 , and 1987, when it decided Griffith v. Kentucky , 479 U. S. 314 , that conclusion would have been more difficult to reach. Under Linkletter , the Court determined a new rule’s retroactivity by looking to several different factors, including whether the new rule represented a “clear break” with the past and the degree of “reliance by law enforcement authorities on the old standards.” Desist v. United States , 394 U. S. 244 , 248–249 (1969) (internal quotation marks omitted) (also citing “the purpose to be served by the new standards” and “the effect on the administration of justice” as factors (internal quotation marks omitted)). And the Court would often not apply the new rule to identical cases still pending on appeal. See ibid. After 22 years of struggling with its Linkletter approach, however, the Court decided in Griffith that Linkletter had proved unfair and unworkable. It then substituted a clearer approach, stating that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” 479 U. S., at 328. The Court today, following Griffith , concludes that Gant’ s new rule applies here. And to that extent I agree with its decision. II    The Court goes on, however, to decide how Gant’ s new rule will apply. And here it adds a fatal twist. While conceding that, like the search in Gant, this search violated the Fourth Amendment, it holds that, unlike Gant , this defendant is not entitled to a remedy. That is be-cause the Court finds a new “good faith” exception which prevents application of the normal remedy for a Fourth Amendment violation, namely, suppression of the illegally seized evidence. Weeks v. United States , 232 U. S. 383 (1914); Mapp v. Ohio , 367 U. S. 643 (1961) . Leaving Davis with a right but not a remedy, the Court “keep[s] the word of promise to our ear” but “break[s] it to our hope.” A    At this point I can no longer agree with the Court. A new “good faith” exception and this Court’s retroactivity decisions are incompatible. For one thing, the Court’s distinction between (1) retroactive application of a new rule and (2) availability of a remedy is highly artificial and runs counter to precedent. To determine that a new rule is retroactive is to determine that, at least in the normal case, there is a remedy. As we have previously said, the “source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law”; hence, “[w]hat we are actually determining when we assess the ‘retroactivity’ of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.” Danforth v. Minnesota , 552 U. S. 264 , 271 (2008). The Court’s “good faith” exception (unlike, say, inevitable discovery, a remedial doctrine that applies only upon occasion) creates “a categorical bar to obtaining redress” in every case pending when a precedent is overturned. Ante , at 13–14.    For another thing, the Court’s holding re-creates the very problems that led the Court to abandon Linkletter ’s approach to retroactivity in favor of Griffith ’s . One such problem concerns workability. The Court says that its exception applies where there is “objectively reasonable” police “reliance on binding appellate precedent.” Ante , at 1, 19. But to apply the term “binding appellate precedent” often requires resolution of complex questions of degree. Davis conceded that he faced binding anti- Gant precedent in the Eleventh Circuit. But future litigants will be less forthcoming. Ante , at 18. Indeed, those litigants will now have to create distinctions to show that previous Circuit precedent was not “binding” lest they find relief foreclosed even if they win their constitutional claim.    At the same time, Fourth Amendment precedents frequently require courts to “slosh” their “way through the factbound morass of ‘reasonableness.’ ” Scott v. Harris , 550 U. S. 372 , 383 (2007). Suppose an officer’s conduct is consistent with the language of a Fourth Amendment rule that a court of appeals announced in a case with clearly distinguishable facts? Suppose the case creating the rele-vant precedent did not directly announce any general rule but involved highly analogous facts? What about a rule that all other jurisdictions, but not the defendant’s jurisdiction, had previously accepted? What rules can be developed for determining when, where, and how these different kinds of precedents do, or do not, count as relevant “binding precedent”? The Linkletter- like result is likely complex legal argument and police force confusion. See Williams v. United States , 401 U. S. 646 , 676 (1971) (opinion of Harlan, J.) (describing trying to follow Linkletter decisions as “almost as difficult” as trying to follow “the tracks made by a beast of prey in search of its intended victim”).    Another such problem concerns fairness. Today’s holding, like that in Linkletter , “violates basic norms of con-stitutional adjudication.” Griffith , supra, at 322. It treats the defendant in a case announcing a new rule one way while treating similarly situated defendants whose cases are pending on appeal in a different way. See ante , at 18–19. Justice Harlan explained why this approach is wrong when he said: “We cannot release criminals from jail merely because we think one case is a particularly appropriate one [to announce a constitutional doctrine] … . Simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from [our ordinary] model of judicial review.” Williams , supra, at 679 . And in Griffith , the Court “embraced to a significant extent the comprehensive analysis presented by Justice Harlan.” 479 U. S., at 322.    Of course, the Court may, as it suggests, avoid this un-fairness by refusing to apply the exclusionary rule even to the defendant in the very case in which it announces a “new rule.” But that approach would make matters worse. What would then happen in the lower courts? How would courts of appeals, for example, come to reconsider their prior decisions when other circuits’ cases lead them to believe those decisions may be wrong? Why would a defendant seek to overturn any such decision? After all, if the (incorrect) circuit precedent is clear, then even if the defendant wins (on the constitutional question), he loses (on relief). See Stovall v. Denno , 388 U. S. 293 , 301 (1967). To what extent then could this Court rely upon lower courts to work out Fourth Amendment differences among themselves—through circuit reconsideration of a precedent that other circuits have criticized? See Ari- zona v. Evans , 514 U. S. 1 , 23, n. 1 (1995) (Ginsburg, J., dissenting). B    Perhaps more important, the Court’s rationale for creating its new “good faith” exception threatens to undermine well-settled Fourth Amendment law. The Court correctly says that pre- Gant Eleventh Circuit precedent had held that a Gant- type search was constitutional; hence the police conduct in this case, consistent with that precedent, was “innocent.” Ante , at 10. But the Court then finds this fact sufficient to create a new “good faith” exception to the exclusionary rule. It reasons that the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations,” ante , at 6. The “deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue,” ante , at 8 (internal quotation marks and brackets omitted). Those benefits are sufficient to jus- tify exclusion where “police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights,” ibid. (internal quotation marks omitted). But those benefits do not justify exclusion where, as here, the police act with “simple, isolated negligence” or an “objectively reasonable good-faith belief that their conduct is lawful,” ibid. (internal quotation marks omitted).    If the Court means what it says, what will happen to the exclusionary rule, a rule that the Court adopted nearly a century ago for federal courts, Weeks v. United States , 232 U. S. 383 , and made applicable to state courts a half century ago through the Fourteenth Amendment, Mapp v. Ohio , 367 U. S. 643 ? The Court has thought of that rule not as punishment for the individual officer or as reparation for the individual defendant but more generally as an effective way to secure enforcement of the Fourth Amendment’s commands. Weeks , supra, at 393 (without the exclusionary rule, the Fourth Amendment would be “of no value,” and “might as well be stricken from the Constitution”). This Court has deviated from the “suppression” norm in the name of “good faith” only a handful of times and in limited, atypical circumstances: where a magistrate has erroneously issued a warrant, United States v. Leon , 468 U. S. 897 (1984); where a database has erroneously informed police that they have a warrant, Arizona v. Evans , 514 U. S. 1 (1995), Herring v. United States , 555 U. S. 135 (2009); and where an unconstitutional statute purported to authorize the search, Illinois v. Krull , 480 U. S. 340 (1987). See Herring , supra, at 142 (“good faith” exception inaptly named).    The fact that such exceptions are few and far between is understandable. Defendants frequently move to suppress evidence on Fourth Amendment grounds. In many, perhaps most, of these instances the police, uncertain of how the Fourth Amendment applied to the particular factual circumstances they faced, will have acted in objective good faith. Yet, in a significant percentage of these instances, courts will find that the police were wrong. And, unless the police conduct falls into one of the exceptions previously noted, courts have required the suppression of the evidence seized. 1 W. LaFave, Search and Seizure §1.3, pp. 103–104 (4th ed. 2004) (“good faith” exception has not yet been applied to warrantless searches and seizures beyond the “rather special situations” of Evans , Herring , and Krull ). See Valdes, Frequency and Success: An Empirical Study of Criminal Law Defenses, Federal Constitutional Evidentiary Claims, and Plea Negotiations, 153 U. Pa. L. Rev. 1709, 1728 (2005) (suppression motions are filed in approximately 7% of criminal cases; approximately 12% of suppression motions are successful); LaFave, supra, at 64 (“Surely many more Fourth Amendment violations result from carelessness than from intentional constitutional violations”); Stewart, The Road to Mapp v . Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1389 (1983) (“[T]he vast majority of fourth amendment violations … [are] motivated by commendable zeal, not condemnable malice”).    But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring —dicta the Court repeats and expands upon today—may already be leading lower courts in this direction. See United States v. Julius , 610 F. 3d 60, 66–67 (CA2 2010) (assuming warrantless search was unconstitutional and remanding for District Court to “perform the cost/benefit analysis required by Herring ” and to consider “whether the degree of police culpability in this case rose beyond mere … negligence” before ordering suppression); United States v. Master , 614 F. 3d 236, 243 (CA6 2010) (“[T]he Herring Court’s emphasis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized … unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct’ ” (quoting Herring , supra, at 144)). Today’s decision will doubtless accelerate this trend.    Any such change (which may already be underway) would affect not “an exceedingly small set of cases,” ante , at 18, but a very large number of cases, potentially many thousands each year. See Valdes, supra, at 1728. And since the exclusionary rule is often the only sanction available for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures.” See Wolf v. Colorado , 338 U. S. 25 , 41 (1949) (Murphy, J., dissenting) (overruled by Mapp v. Ohio , 367 U. S. 643 (1961)) (In many circumstances, “there is but one alternative to the rule of exclusion. That is no sanction at all”); Herring , supra, at 152 (Ginsburg, J., dissenting) (the exclusionary rule is “an essential auxiliary” to the Fourth Amendment). It would become a watered-down Fourth Amendment, offering its protection against only those searches and sei-zures that are egregiously unreasonable. III    In sum, I fear that the Court’s opinion will undermine the exclusionary rule. And I believe that the Court wrongly departs from Griffith regardless. Instead I would follow Griffith, apply Gant’ s rule retroactively to this case, and require suppression of the evidence. Such an ap-proach is consistent with our precedent, and it would indeed affect no more than “an exceedingly small set of cases.” Ante , at 18.    For these reasons, with respect, I dissent.

The Supreme Court ruled that evidence obtained during a search conducted in reasonable reliance on binding appellate precedent is not subject to the exclusionary rule, even if the precedent is later overturned. This means that if police officers conduct a search based on existing court rulings at the time, and those rulings are later changed, the evidence found during the search can still be used in court.

Search & Seizure

Fernandez v. California

https://supreme.justia.com/cases/federal/us/571/292/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–7822 _________________ WALTER FERNANDEZ, PETITIONER v. CALIFORNIA on writ of certiorari to the court of appeal of california for the second appellate district [February 25, 2014]      Justice Alito delivered the opinion of the Court.      Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants[ 1 ] consents. See United States v. Matlock, 415 U. S. 164 (1974) . In Georgia v. Randolph, 547 U. S. 103 (2006) , we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared. I A      The events involved in this case occurred in Los Angeles in October 2009. After observing Abel Lopez cash a check, petitioner Walter Fernandez approached Lopez and asked about the neighborhood in which he lived. When Lopez responded that he was from Mexico, Fernandez laughed and told Lopez that he was in territory ruled by the “D.F.S.,” i.e., the “Drifters” gang. App. 4–5. Petitioner then pulled out a knife and pointed it at Lopez’ chest. Lopez raised his hand in self-defense, and petitioner cut him on the wrist.      Lopez ran from the scene and called 911 for help, but petitioner whistled, and four men emerged from a nearby apartment building and attacked Lopez. After knocking him to the ground, they hit and kicked him and took his cell phone and his wallet, which contained $400 in cash.      A police dispatch reported the incident and mentioned the possibility of gang involvement, and two Los Angeles police officers, Detective Clark and Officer Cirrito, droveto an alley frequented by members of the Drifters. A man who appeared scared walked by the officers and said: “ ‘[T]he guy is in the apartment.’ ” Id., at 5. The officers then observed a man run through the alley and into the building to which the man was pointing. A minute or two later, the officers heard sounds of screaming and fighting coming from that building.      After backup arrived, the officers knocked on the door of the apartment unit from which the screams had been heard. Roxanne Rojas answered the door. She was holding a baby and appeared to be crying. Her face was red, and she had a large bump on her nose. The officers also saw blood on her shirt and hand from what appeared to be a fresh injury. Rojas told the police that she had been in a fight. Officer Cirrito asked if anyone else was in the apartment, and Rojas said that her 4-year-old son was the only other person present.      After Officer Cirrito asked Rojas to step out of the apartment so that he could conduct a protective sweep, petitioner appeared at the door wearing only boxer shorts. Apparently agitated, petitioner stepped forward and said, “ ‘You don’t have any right to come in here. I know my rights.’ ” Id., at 6. Suspecting that petitioner had assaulted Rojas, the officers removed him from the apartmentand then placed him under arrest. Lopez identified petitioner as his initial attacker, and petitioner was taken to the police station for booking.      Approximately one hour after petitioner’s arrest, Detective Clark returned to the apartment and informed Rojas that petitioner had been arrested. Detective Clark requested and received both oral and written consent from Rojas to search the premises.[ 2 ] In the apartment, the police found Drifters gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and ammunition. Rojas’ young son also showed the officers where petitioner had hidden a sawed-off shotgun. B      Petitioner was charged with robbery, Cal. Penal Code Ann. §211 (West 2008), infliction of corporal injury on a spouse, cohabitant, or child’s parent, §273.5(a), possession of a firearm by a felon, §12021(a)(1)(West 2009), possession of a short-barreled shotgun, §12020(a)(1), and felony possession of ammunition, §12316(b)(1).      Before trial, petitioner moved to suppress the evidence found in the apartment, but after a hearing, the court denied the motion. Petitioner then pleaded nolo conten-dere to the firearms and ammunition charges. On the re-maining counts—for robbery and infliction of corporal injury—he went to trial and was found guilty by a jury. The court sentenced him to 14 years of imprisonment.      The California Court of Appeal affirmed. 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51 (2012). Because Randolph did not overturn our prior decisions recognizing that an occupant may give effective consent to search a shared residence, the court agreed with the majority of the federal circuits that an objecting occupant’s physical presence is “indispensible to the decision in Randolph.” Id., at 122, 145 Cal. Rptr. 3d, at 66.[ 3 ] And because petitioner was not present when Rojas consented, the court held that petitioner’s suppression motion had been properly denied. Id., at 121, 145 Cal. Rptr. 3d, at 65.      The California Supreme Court denied the petition for review, and we granted certiorari. 569 U. S. ___ (2013). II A      The Fourth Amendment prohibits unreasonable searches and seizures and provides that a warrant may not be issued without probable cause, but “the text of the Fourth Amendment does not specify when a search warrant must be obtained.” Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5). Our cases establish that a warrant is generally required for a search of a home, Brigham City v. Stuart, 547 U. S. 398, 403 (2006) , but “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ ” ibid.; see also Michigan v. Fisher, 558 U. S. 45, 47 (2009) ( per curiam). And certain categories of permissible warrantless searches have long been recognized.      Consent searches occupy one of these categories. “Consent searches are part of the standard investigatorytechniques of law enforcement agencies” and are “a con-stitutionally permissible and wholly legitimate aspect of effective police activity.” Schneckloth v. Bustamonte, 412 U. S. 218 –232 (1973). It would be unreasonable—indeed, absurd—to require police officers to obtain a warrant when the sole owner or occupant of a house or apartment voluntarily consents to a search. The owner of a home has a right to allow others to enter and examine the premises, and there is no reason why the owner should not be permitted to extend this same privilege to police officers if that is the owner’s choice. Where the owner believes that he or she is under suspicion, the owner may want the police to search the premises so that their suspicions are dispelled. This may be particularly important where the owner has a strong interest in the apprehension of the perpetrator of a crime and believes that the suspicions of the police are deflecting the course of their investigation. An owner may want the police to search even where they lack probable cause, and if a warrant were always required, this could not be done. And even where the police could establish probable cause, requiring a warrant despite the owner’s consent would needlessly inconvenience everyone involved—not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed. Michigan v. Summers, 452 U. S. 692, 701 (1981) .[ 4 ]      While it is clear that a warrantless search is reasonable when the sole occupant of a house or apartment consents, what happens when there are two or more occupants? Must they all consent? Must they all be asked? Is consent by one occupant enough? The Court faced that problem 40 years ago in United States v. Matlock, 415 U. S. 164 (1974) .      In that case, Matlock and a woman named Graff were living together in a house that was also occupied by several of Graff’s siblings and by her mother, who had rentedthe house. While in the front yard of the house, Matlock was arrested for bank robbery and was placed in a squad car. Although the police could have easily asked him for consent to search the room that he and Graff shared, they did not do so. Instead, they knocked on the door and obtained Graff’s permission to search. The search yielded incriminating evidence, which the defendant sought to suppress, but this Court held that Graff’s consent justified the warrantless search. As the Court put it, “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Id., at 170.      In Illinois v. Rodriguez, 497 U. S. 177 (1990) , the Court reaffirmed and extended the Matlock holding. In Rodriguez, a woman named Fischer told police officers that she had been assaulted by Rodriguez in what she termed “ ‘our’ apartment.” 497 U. S., at 179. She also informed the officers that Rodriguez was asleep in the apartment, and she then accompanied the officers to that unit. When they arrived, the officers could have knocked on the door and awakened Rodriguez, and had they done so, Rodriguez might well have surrendered at the door and objected to the officers’ entry. Instead, Fischer unlocked the door, the officers entered without a warrant, and they saw drug paraphernalia and containers filled with white powder in plain view.      After the search, the police learned that Fischer no longer resided at the apartment, and this Court held that she did not have common authority over the premises at the time in question. The Court nevertheless held that the warrantless entry was lawful because the police reasonably believed that Fischer was a resident. Id., at 188–189. B      While consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search, we recognized a narrow exception to this rule in Georgia v. Randolph, 547 U. S. 103 (2006) . In that case, police offi-cers responded to the Randolphs’ home after receiving a report of a domestic dispute. When the officers arrived, Janet Randolph informed the officers that her estranged husband, Scott Randolph, was a cocaine user and that there were “items of drug evidence” in the house. Id., at 107 (internal quotation marks omitted). The officers first asked Scott for consent to search, but he “unequivocally refused.” Ibid. The officers then turned to Janet, and she consented to the search, which produced evidence that was later used to convict Scott for possession of cocaine.      Without questioning the prior holdings in Matlock and Rodriguez, this Court held that Janet Randolph’s consent was insufficient under the circumstances to justify the warrantless search. The Court reiterated the proposition that a person who shares a residence with others assumes the risk that “any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another.” 547 U. S., at 111. But the Court held that “a physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.” Id., at 122–123 (emphasis added).      The Court’s opinion went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present. Again and again, the opinion of the Court stressed this controlling factor. See id., at 106 (“present at the scene”); ibid. (“physically present”); id., at 108 (“a co-tenant who is present”); id., at 109 (“physically present”); id., at 114 (“a present and objecting co-tenant”); id., at 119 (a co-tenant “standing at the door and expressly refusing consent”); id., at 120 (“a physically present resident”), id., at 121 (“a physically present fellow tenant objects”); ibid. (“[A] potential defendant with self-interest in objecting is at the door and objects”); id., at 122 (“[A] physically present inhabitant’s express refusal of consent to a police search is dispositive as to him”). The Court’s opinion could hardly have been clearer on this point, and the separate opinion filed by Justice Breyer, whose vote was decisive, was equally unambiguous. See id., at 126 (concurring) (“The Court’s opinion does not apply where the objector is not present ‘and object[ing]’ ”). III      In this case, petitioner was not present when Rojas consented, but petitioner still contends that Randolph is controlling. He advances two main arguments. First, he claims that his absence should not matter since he was absent only because the police had taken him away. Second, he maintains that it was sufficient that he objected to the search while he was still present. Such an objection, he says, should remain in effect until the objecting party “no longer wishes to keep the police out of his home.” Brief for Petitioner 8. Neither of these arguments is sound. A      We first consider the argument that the presence of the objecting occupant is not necessary when the police are responsible for his absence. In Randolph, the Court suggested in dictum that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” 547 U. S., at 121. We do not believe the statement should be read to suggest that improper motive may invalidate objectively justified removal. Hence, it does not govern here.      The Randolph dictum is best understood not to require an inquiry into the subjective intent of officers who detain or arrest a potential objector but instead to refer to situations in which the removal of the potential objector is not objectively reasonable. As petitioner acknowledges, see Brief for Petitioner 25, our Fourth Amendment cases “have repeatedly rejected” a subjective approach. Brigham City, 547 U. S., at 404 (alteration and internal quotation marks omitted). “Indeed, we have never held, outside limited contexts such as an ‘inventory search or administrative inspection . . . , that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment.’ ” King, 563 U. S., at ___ (slip op.,at 10).      Petitioner does not claim that the Randolph Court meant to break from this consistent practice, and we do not think that it did. And once it is recognized that the test is one of objective reasonableness, petitioner’s argument collapses. He does not contest the fact that the police had reasonable grounds for removing him from the apartment so that they could speak with Rojas, an apparent victim of domestic violence, outside of petitioner’s potentially intimidating presence. In fact, he does not even contest the existence of probable cause to place him under arrest. We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.      This conclusion does not “make a mockery of Randolph,” as petitioner protests. Brief for Petitioner 9. It simply accepts Randolph on its own terms. The Randolph holding unequivocally requires the presence of the objecting occupant in every situation other than the one mentioned in the dictum discussed above. B      This brings us to petitioner’s second argument, viz., that his objection, made at the threshold of the premises that the police wanted to search, remained effective until he changed his mind and withdrew his objection. This argument is inconsistent with Randolph’s reasoning in at least two important ways. First, the argument cannot be squared with the “widely shared social expectations” or “customary social usage” upon which the Randolph holding was based. See 547 U. S., at 111, 121. Explaining why consent by one occupant could not override an objection by a physically present occupant, the Randolph Court stated: “[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, ‘stay out.’ Without some very good reason, no sensible person would go inside under those conditions.” Id., at 113.      It seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door. When the objecting occupant is standing at the threshold saying “stay out,” a friend or visitor invited to enter by another occupant can expect at best an uncomfortable scene and at worst violence if he or she tries to brush past the objector. But when the objector is not on the scene (and especially when it is known that the objector will not return during the course of the visit), the friend or visitor is much more likely to accept the invitation to enter.[ 5 ] Thus, petitioner’s argument is inconsistent with Randolph’s reasoning.      Second, petitioner’s argument would create the very sort of practical complications that Randolph sought to avoid. The Randolph Court recognized that it was adopting a “formalis[tic]” rule, but it did so in the interests of “simple clarity” and administrability. Id., at 121, 122.      The rule that petitioner would have us adopt would produce a plethora of practical problems. For one thing, there is the question of duration. Petitioner argues that an objection, once made, should last until it is withdrawn by the objector, but such a rule would be unreasonable. Suppose that a husband and wife owned a house as joint tenants and that the husband, after objecting to a search of the house, was convicted and sentenced to a 15-year prison term. Under petitioner’s proposed rule, the wife would be unable to consent to a search of the house 10 years after the date on which her husband objected. We refuse to stretch Randolph to such strange lengths.      Nor are we persuaded to hold that an objection lasts for a “reasonable” time. “[I]t is certainly unusual for this Court to set forth precise time limits governing police action,” Maryland v. Shatzer, 559 U. S. 98, 110 (2010) , and what interval of time would be reasonable in this context? A week? A month? A year? Ten years?      Petitioner’s rule would also require the police and ultimately the courts to determine whether, after the passage of time, an objector still had “common authority” over the premises, and this would often be a tricky question. Suppose that an incarcerated objector and a consenting co-occupant were joint tenants on a lease. If the objector, after incarceration, stopped paying rent, would he still have “common authority,” and would his objection retain its force? Would it be enough that his name remainedon the lease? Would the result be different if the object-ing and consenting lessees had an oral month-to-month tenancy?      Another problem concerns the procedure needed to register a continuing objection. Would it be necessary for an occupant to object while police officers are at the door? If presence at the time of consent is not needed, would an occupant have to be present at the premises when the objection was made? Could an objection be made pre-emptively? Could a person like Scott Randolph, suspecting that his estranged wife might invite the police to view his drug stash and paraphernalia, register an objection in advance? Could this be done by posting a sign in front of the house? Could a standing objection be registered by serving notice on the chief of police?      Finally, there is the question of the particular law enforcement officers who would be bound by an objection. Would this set include just the officers who were present when the objection was made? Would it also apply to other officers working on the same investigation? Would it extend to officers who were unaware of the objection? How about officers assigned to different but arguably related cases? Would it be limited by law enforcement agency?      If Randolph is taken at its word—that it applies only when the objector is standing in the door saying “stay out” when officers propose to make a consent search—all of these problems disappear.      In response to these arguments, petitioner argues that Randolph’s requirement of physical presence is not without its own ambiguity. And we acknowledge that if, as we conclude, Randolph requires presence on the premises to be searched, there may be cases in which the outer boundary of the premises is disputed. The Court confronted a similar problem last Term in Bailey v. United States, 568 U. S. ___ (2013), but despite arguments similar to those now offered by petitioner, the Court adopted a rule that applies only when the affected individual is near the premises being searched. Having held that a premises rule is workable in that context, we see no ground for reaching a different conclusion here. C      Petitioner argues strenuously that his expansive interpretation of Randolph would not hamper law enforcement because in most cases where officers have probable cause to arrest a physically present objector they also have probable cause to search the premises that the objector does not want them to enter, see Brief for Petitioner 20–23, but this argument misunderstands the constitutional status of consent searches. A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant. Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent. Whena warrantless search is justified, requiring the police to obtain a warrant may “unjustifiably interfer[e] with legitimate law enforcement strategies.” King, 563 U. S., at ___ (slip op., at 13). Such a requirement may also impose an unmerited burden on the person who consents to an immediate search, since the warrant application procedure entails delay. Putting the exception the Court adopted in Randolph to one side, the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel “suspicion raised by sharing quarters with a criminal.” 547 U. S., at 116; see also Schneckloth, 412 U. S., at 243 (evidence obtained pursuant to a consent search “may insure that a wholly innocent person is not wrongly charged with a criminal offense”). And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed. In this case, for example, the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas’ 4-year-old son had access.      Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power. *  *  *      The judgment of the California Court of Appeal isaffirmed. It is so ordered. Notes 1 We use the terms “occupant,” “resident,” and “tenant” interchangeably to refer to persons having “common authority” over premises within the meaning of . See v. , . 2 Both petitioner and the dissent suggest that Rojas’ consent was coerced. , at 9, n. 5 (opinion of .). But the trial court found otherwise, App. 152, and the correctness of that finding is not before us. In suggesting that Rojas’ consent was coerced, the dissent recites portions of Rojas’ testimony from the suppression hearing that the trial judge appears to have rejected. Similarly, the jury plainly did not find Rojas to be credible. At trial, she testified for the defense and told the jury, among other things, that the wounds observed by the officers who came to her door were not inflicted by petitioner but by a woman looking for petitioner during a fight. 208 Cal. App. 4th 100, 109–110, 145 Cal. Rptr. 3d 51, 56 (2012). The jury obviously did not believe this testimony because it found petitioner guilty of inflicting corporal injury on her. 3 See v. , 674 F. 3d 491, 498 (CA5 2012) (“ was a narrow exception to the general rule permitting cotenant consent, relevant only as to physically present objectors”); v. , 518 F. 3d 954, 960 (CA8 2008) (concluding that “the narrow holding of , which repeatedly referenced the defendant’s physical presence immediate objection is inapplicable”); v. , 536 F. 3d 776, 777 (CA7 2008) (recognizing that “ left the bulk of third-party consent law in place; its holding applies only when the defendant is both present and objects to the search of his home”); v. , 491 F. 3d 1221, 1227 (CA10 2007) (“carefully delineated the narrow circumstances in which its holding applied, and . . . consciously employed a rule requiring an express objection by a present co-tenant”); but see v. , 516 F. 3d 1117, 1124–1125 (CA9 2008) (holding that “when a co-tenant objects to a search and another party with common authority subsequently gives consent to that search in the absence of the first co-tenant the search is invalid as to the objecting co-tenant” because “[o]nce a co-tenant has registered his objection, his refusal to grant consent remains effective barring some objective manifestation that he has changed his position and no longer objects”). 4 A main theme of the dissent is that the police in this case had probable cause to search the apartment and therefore could have obtained a warrant. Of course, this will not always be so in cases in which one occupant consents to a search and the other objects, and the dissent does not suggest that a warrant should be required only when probable cause is present. As a result, the dissent’s repeated references to the availability of a warrant in this case are beside the point. 5 Although the dissent intimates that “customary social usage” goes further than this, see , at 4, the dissent provides no support for this doubtful proposition. In the present case, for example, suppose that Rojas had called a relative, a friend, a supportive neighbor, or a person who works for a group that aids battered women and had invited that individual to enter and examine the premises while petitioner was in jail. Would any of those invitees have felt that it was beyond Rojas’ authority to extend that invitation over petitioner’s objection? SUPREME COURT OF THE UNITED STATES _________________ No. 12–7822 _________________ WALTER FERNANDEZ, PETITIONER v. CALIFORNIA on writ of certiorari to the court of appeal of california for the second appellate district [February 25, 2014]      Justice Thomas, concurring.      I join the opinion of the Court, which faithfully applies Georgia v. Randolph, 547 U. S. 103 (2006) . I write separately to make clear the extent of my disagreement with Randolph.      I dissented in Randolph because the facts of that case did not implicate a Fourth Amendment search and never should have been analyzed as such. Id., at 145 (Thomas, J., dissenting) (“[N]o Fourth Amendment search occurs where . . . the spouse of an accused voluntarily leads the police to potential evidence of wrongdoing by the accused”). Instead of deciding the case on that narrow ground, the majority in Randolph looked to “widely shared social expectations” to resolve whether the wife’s consent to a search should control over her husband’s objection. Id., at 111. I find no support for that novel analytical approach in the Fourth Amendment’s text or history, or in this Court’s jurisprudence. See id., at 128–131 (Roberts, C. J., dissenting). Accordingly, given a blank slate, I would analyze this case consistent with The Chief Justice’s dissent in Randolph: “A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it.” Id., at 128. That is because “[c]o-occupants have ‘assumed the risk that one of their number might permit [a] common area to be searched.’ ” Ibid. (quoting United States v. Matlock, 415 U. S. 164 , n. 7 (1974)). In this case, the trial court found that Rojas’ consent was voluntary, see ante, at n. 2, and petitioner does not contest that Rojas had common authority over the premises. That should be the end of the matter. SUPREME COURT OF THE UNITED STATES _________________ No. 12–7822 _________________ WALTER FERNANDEZ, PETITIONER v. CALIFORNIA on writ of certiorari to the court of appeal of california for the second appellate district [February 25, 2014]      Justice Scalia, concurring.      Like Justice Thomas, I believe Georgia v. Randolph, 547 U. S. 103 (2006) , was wrongly decided. I nonetheless join the Court’s opinion because it is a faithful application of Randolph. I write separately to address the argument that the search of petitioner’s shared apartment violated the Fourth Amendment because he had a right under property law to exclude the police. See Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 17–23. The United States dismisses that argument,pointing to our statement in United States v. Matlock, 415 U. S. 164 , n. 7 (1974), that a cotenant’s ability to con-sent to a search “does not rest upon the law of property, with its attendant historical and legal refinements.”See Brief for United States as Amicus Curiae 23.      I do not think the argument can be so easily dismissed. To be sure, under Katz v. United States, 389 U. S. 347 (1967) , “property rights ‘are not the sole measure of Fourth Amendment violations.’ ” Florida v. Jardines, 569 U. S. 1 , ___ (2013) (slip op., at 3). But as we have recently made clear, “[t]he Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment.” Id.,at ___ (slip op., at 9) (quoting United States v. Jones, 565 U. S. ___, ___ (2012) (slip op., at 8)). I would therefore find this a more difficult case if it were established that prop-erty law did not give petitioner’s cotenant the right to admit visitors over petitioner’s objection. That difficulty does not arise, however, because the authorities cited by the amicus association fail to establish that a guest would commit a trespass if one of two joint tenants invited the guest to enter and the other tenant forbade the guest to do so. Indeed, what limited authority there is on the subject points to the opposite conclusion. See, e.g., 86 C. J. S., Tenancy in Common §144, p. 354 (2006) (a licensee of one tenant “is not liable in trespass to nonconsenting cotenants”); Dinsmore v. Renfroe, 66 Cal. App. 207, 212–214, 225 P. 886, 888–889 (1924); Buchanan v. Jencks, 38 R. I. 443, 446–451, 96 A. 307, 309–311 (1916) (and cases cited therein); cf. 2 H. Tiffany, Real Property §457, p. 274 (3d ed. 1939) (endorsing the opposite view but acknowledging that “there is little authority” on the question). There accordingly is no basis for us to conclude that the police infringed on any property right of petitioner’s when they entered the premises with his cotenant’s consent. SUPREME COURT OF THE UNITED STATES _________________ No. 12–7822 _________________ WALTER FERNANDEZ, PETITIONER v. CALIFORNIA on writ of certiorari to the court of appeal of california for the second appellate district [February 25, 2014]      Justice Ginsburg, with whom Justice Sotomayor and Justice Kagan join, dissenting.      The Fourth Amendment guarantees to the people “[t]he right . . . to be secure in their . . . houses . . . against unreasonable searches and seizures.” Warrants to search premises, the Amendment further instructs, shall issue only when authorized by a neutral magistrate upon a showing of “probable cause” to believe criminal activity has occurred or is afoot. This Court has read these complementary provisions to convey that, “whenever practicable, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U. S. 1, 20 (1968) . The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” Johnson v. United States, 333 U. S. 10, 17 (1948) . The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” Mincey v. Arizona, 437 U. S. 385, 390 (1978) (internal quotation marks omitted); see Groh v. Ramirez, 540 U. S. 551, 559 (2004) . If this main rule is to remain hardy, the Court has explained, exceptions to the warrant requirement must be “few in number and carefully delineated.” United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297, 318 (1972) ; see Kyllo v. United States, 533 U. S. 27, 31 (2001) .      Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate. Suppressing the warrant requirement, the Court shrinks to petite size our holding in Georgia v. Randolph, 547 U. S. 103 (2006) , that “a physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant,” id., at 122–123. I      This case calls for a straightforward application of Randolph. The police officers in Randolph were confronted with a scenario closely resembling the situation presented here. Once the police arrived at Janet and Scott Randolph’s shared residence, Scott Randolph “unequivocally refused” an officer’s request for permission to search their home. Georgia v. Randolph, 547 U. S. 103, 107 (2006) . The officer then asked Janet Randolph for her consent to the search, which she “readily gave.” Ibid. The sequence here was similar. After Walter Fernandez, while physi-cally present at his home, rebuffed the officers’ request to come in, the police removed him from the premises and then arrested him, albeit with cause to believe he had assaulted his cohabitant, Roxanne Rojas. At the time of the arrest, Rojas said nothing to contradict Fernandez’ refusal. About an hour later, however, and with no attempt to obtain a search warrant, the police returned to the apartment and prevailed upon Rojas to sign a consent form authorizing search of the premises. See infra, at 9, n. 5.      The circumstances triggering “the Fourth Amendment’s traditional hostility to police entry into a home without a warrant,” 547 U. S., at 126 (Breyer, J., concurring), are at least as salient here as they were in Randolph. In both cases, “[t]he search at issue was a search solely for evidence”; “[t]he objecting party,” while on the premises, “made his objection [to police entry] known clearly and directly to the officers seeking to enter the [residence]”; and “the officers might easily have secured the premises and sought a warrant permitting them to enter.” Id., at 125–126. Here, moreover, with the objector in custody, there was scant danger to persons on the premises, or risk that evidence might be destroyed or concealed, pending request for, and receipt of, a warrant. See id., at 126.      Despite these marked similarities, the Court removes this case from Randolph’s ambit. The Court does so principally by seizing on the fact that Fernandez, unlike Scott Randolph, was no longer present and objecting when the police obtained the co-occupant’s consent. Ante, at 8–9. But Fernandez was present when he stated his objection to the would-be searchers in no uncertain terms. See App. 6 (“You don’t have any right to come in here. I know my rights.” (internal quotation marks omitted)). The officers could scarcely have forgotten, one hour later, that Fernandez refused consent while physically present. That express, on-premises objection should have been “dispositive as to him.” Randolph, 547 U. S., at 122.[ 1 ]      The Court tells us that the “widely shared social expectations” and “customary social usage” undergirding Randolph’s holding apply only when the objector remains physically present. Ante, at 11 (internal quotation marks omitted). Randolph’s discussion of social expectations, however, does not hinge on the objector’s physical presence vel non at the time of the search. “[W]hen people living together disagree over the use of their common quarters,” Randolph observes, “a resolution must come through voluntary accommodation, not by appeals to authority.” 547 U. S., at 113–114. See also id., at 114 (“[T]here is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders.”); id., at 115 (“[T]he cooperative occupant’s invitation adds nothing to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place.”). Randolph thus trained on whether a joint occupant had conveyed an objection to a visitor’s entry, and did not suggest that the objection could be ignored if the police reappeared post the objector’s arrest.      A visitor might be less reluctant to enter over a joint occupant’s objection, the Court speculates, if that visitor knows the objector will not be there. See ante, at 11–12. “Only in a Hobbesian world,” however, “would one person’s social obligations to another be limited to what the other[, because of his presence,] is . . . able to enforce.” United States v. Henderson, 536 F. 3d 776, 787 (CA7 2008) (Rovner, J., dissenting). Such conjectures about social behavior, at any rate, shed little light on the constitutionality of this warrantless home search, given the marked distinctions between private interactions and police investigations. Police, after all, have power no private person enjoys. They can, as this case illustrates, put a tenant in handcuffs and remove him from the premises.      Moreover, as the Court comprehended just last Term, “the background social norms that invite a visitor to the front door do not invite him there to conduct a search.” Florida v. Jardines, 569 U. S. 1 , ___ (2013) (slip op., at 7). Similarly here, even if shared tenancy were understoodto entail the prospect of visits by unwanted socialcallers while the objecting resident was gone, that un-welcome visitor’s license would hardly include free rein to rummage through the dwelling in search of evidence and contraband.[ 2 ]      Next, the Court cautions, applying Randolph to these facts would pose “a plethora of practical problems.” Ante, at 12. For instance, the Court asks, must a cotenant’s objection, once registered, be respected indefinitely? Yet it blinks reality to suppose that Fernandez, by withholding consent, could stop police in their tracks eternally. Cf. ante, at 12–13 (imagining an objector behind bars serving his sentence, still refusing permission to search hisresidence). To mount the prosecution eventuating in a conviction, of course, the State would first need to obtain incriminating evidence, and could get it easily simply by applying for a warrant. Warrant in police hands, the Court’s practical problems disappear.      Indeed, as the Court acknowledges, see ante, at 13–14, reading Randolph to require continuous physical presence poses administrative difficulties of its own. Does an occupant’s refusal to consent lose force as soon as she absents herself from the doorstep, even if only for a moment? Are the police free to enter the instant after the objector leaves the door to retire for a nap, answer the phone, use the bathroom, or speak to another officer outside? See Brief for Petitioner 28. Hypothesized practical considerations, in short, provide no cause for today’s drastic reduction of Randolph’s holding and attendant disregard for the warrant requirement. II      In its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” Franks v. Delaware, 438 U. S. 154, 164 (1978) . Reducing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search.” Ante, at 7. That declaration has it backwards, for consent searches themselves are a “ ‘jealously and care-fully drawn’ exception” to “the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se.” Randolph, 547 U. S., at 109 (quoting Jones v. United States, 357 U. S. 493, 499 (1958) ). See also Jardines, 569 U. S., at ___ (slip op., at 4) (“[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ”); Payton v. New York, 445 U. S. 573, 585 (1980) (“[T]he physical entry of the home is the chief evil against which . . . the Fourth Amendment is directed.” (internal quotation marks omitted)).[ 3 ]      In this case, the police could readily have obtained a warrant to search the shared residence.[ 4 ] The Court does not dispute this, but instead disparages the warrant requirement as inconvenient, burdensome, entailing delay “[e]ven with modern technological advances.” Ante, at 14. Shut from the Court’s sight is the ease and speed with which search warrants nowadays can be obtained. See Missouri v. McNeely, 569 U. S. ___, ___ (2013) (slip op., at 11) (observing that technology now “allow[s] for the more expeditious processing of warrant applications,” and citing state statutes permitting warrants to be obtained “remotely through various means, including telephonic or radio communication, electronic communication . . . , and video conferencing”). See also Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 29 (describing California’s procedures for electronic warrant applications). With these developments in view, dilution of the warrant requirement should be vigilantly resisted.      Although the police have probable cause and could obtain a warrant with dispatch, if they can gain the consent of someone other than the suspect, why should the law insist on the formality of a warrant? Because the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity. See, e.g., Johnson v. United States, 333 U. S. 10 –14 (1948) (“The point of the Fourth Amendment . . . is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”). “The investigation of crime,” of course, “would always be simplified if warrants were unnecessary.” Mincey v. Arizona, 437 U. S. 385 (1978). “But the Fourth Amendment,” the Court has long recognized, “reflects the view of those who wrote the Bill of Rights that the privacy of a person’s home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law.” Ibid. See also Randolph, 547 U. S., at 115, n. 5 (“A generalized interest in expedient law enforcement cannot, without more, justify a warrantless search.”).      A final word is in order about the Court’s reference to Rojas’ autonomy, which, in its view, is best served by allowing her consent to trump an abusive cohabitant’s objection. See ante, at 15 (“Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.”).[ 5 ] Rojas’ situation is not distinguishable from Janet Randolph’s in this regard. If a person’s health and safety are threatened by a domestic abuser, exigent circumstances would justify immediate removal of the abuser from the premises, as happened here. Cf. Randolph, 547 U. S., at 118 (“[T]his case has no bearing on the capacity of the police to protect domestic victims. . . . No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence . . . .”). See also Brigham City v. Stuart, 547 U. S. 398, 403 (2006) (“[L]aw enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”). Domestic abuse is indeed “a serious problem in the United States,” Randolph, 547 U. S., at 117 (citing statistics); appropriate policy responses to this scourge may include fostering effective counseling, providing public information about, and ready access to, protective orders, and enforcing such orders diligently.[ 6 ] As the Court understood in Randolph, however, the specter of domestic abuse hardly necessitates the diminution of the Fourth Amendment rights at stake here. *  *  *      For the reasons stated, I would honor the Fourth Amendment’s warrant requirement and hold that Fernandez’ objection to the search did not become null upon his arrest and removal from the scene. “There is every reason to conclude that securing a warrant was entirely feasible in this case, and no reason to contract the Fourth Amendment’s dominion.” Kentucky v. King, 563 U. S. ___, ___ (2011) (Ginsburg, J., dissenting) (slip op., at 5). I would therefore reverse the judgment of the California Court of Appeal. Notes 1 The Court is correct that this case does not involve a situation, alluded to in , where “the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” v. , . Here, as in , no one disputes that the police had probable cause to place the objecting tenant under arrest. But had the objector’s arrest been illegal, suggested, the remaining occupant’s consent to the search would not suffice. The suggestion in , as the Court recognizes, see at 9–10, is at odds with today’s decision. For “[i]f the police cannot prevent a co-tenant from objecting to a search through arrest, surely they cannot arrest a co-tenant and then seek to ignore an objection he has already made.” v. , 516 F. 3d 1117, 1124–1125 (CA9 2008). 2 Remarkably, the Court thinks my disagreement with its account of the applicable social norms distances me from ’s understanding of social expectations. See at 11–12, n. 5. Quite the opposite. considered whether “customary social understanding accords the consenting tenant authority powerful enough to prevail over the co-tenant’s objection”; social practice in such circumstances, the Court held, provided no cause to depart from the “ ‘centuries-old principle of respect for privacy of the home.’ ” 547 U. S., at 115, 121 (quoting v. , ). See also 547 U. S., at 115 (“Disputed permission is . . . no match for this central value of the . . . .”). I would so hold here. Today’s decision, by contrast, provides police with ready means to nullify a cotenant’s objection, and therefore “fails to come to grips with the reasoning of [].” at 12, n. 5. 3 I agree with the Court that when a sole owner or occupant consents to a search, the police can enter without obtaining a warrant. See at 5–6. Where multiple persons occupy the premises, it is true, this Court has upheld warrantless home searches based on one tenant’s consent; those cases, however, did not involve, as this case does, an occupant who told the police they could not enter. See v. , (police relied on cotenant’s consent to search when other tenant had already been detained in a nearby squad car); v. , (same, when the other tenant was asleep in the bedroom). The Court’s rationale for allowing a search to proceed in those instances—that co-occupants “assum[e] the risk that one of their number might permit the common area to be searched,” ,415 U. S., at 171, n. 7—does not apply where, as here, an occupant on the premises explicitly tells the police they cannot search his home warrant. See v. , 536 F. 3d 776, 788 (CA7 2008) (Rovner, J., dissenting) (in such circumstances, the objector “has not assumed the risk that his co-tenant may subsequently admit the visitor, because all choice has been taken from him in his involuntary removal from the premises”). 4 The Court dismisses as “beside the point” the undeniable fact that the police easily could have obtained a warrant. at 6, n. 4. There may be circumstances, the Court observes, in which the police, faced with a cotenant’s objection, will lack probable cause to obtain a warrant. That same argument was considered and rejected by the Court in , which recognized that “alternatives to disputed consent will not always open the door to search for evidence that the police suspect is inside.” 547 U. S., at 120. Moreover, it is unlikely that police, possessing an objective basis to arrest an objecting tenant, will nevertheless lack probable cause to obtain a search warrant. Probable cause to arrest, I recognize, calls for a showing discrete from the showing needed to establish probable cause to search a home. But “where, as here, a suspect is arrested at or near his residence, it will often ‘be permissible to infer that the instrumentalities and fruits of th[e] crime are presently in that person’s residence.’ ” Brief for National Association of Criminal Defense Lawyers as 25 (quoting 2 W. LaFave, Search and Seizure§3.1(b) (5th ed. 2011)). And as the Court observed in , if a warrant may be impeded by a tenant’s refusal to consent, “[a] co-tenant acting on [her] own initiative may be able to deliver evidence to the police, and . . . tell the police what [s]he knows, for use before a magistrate in getting a warrant.” 547 U. S., at 116 (citation omitted). 5 Although the validity of Rojas’ consent is not before us, the record offers cause to doubt that her agreement to the search was, in fact, an unpressured exercise of self-determination. At the evidentiary hearing on Fernandez’ motion to suppress, Rojas testified that the police, upon returning to the residence about an hour after Fernandez’ arrest, began questioning her four-year-old son without her permission. App. 81, 93. Rojas asked to remain present during that questioning, but the police officer told her that their investigation was “going to determine whether or not we take your kids from you right now or not.” at 93 See also (“I felt like [the police] were going to take my kids away from me.”). Rojas thus maintained that she felt “pressured” into giving consent. at 93–94. See also at 93(“I felt like I had no rights.”). After about 20 or 30 minutes, Rojas acceded to the officer’s request that she sign a consent form. Rojas testified that she “didn’t want to sign [the form],” but did so because she “just wanted it to just end.” at 100. 6 See generally National Council of Juvenile and Family CourtJudges, Civil Protection Orders: A Guide for Improving Practice(2010), online at http://www.ncjfcj.org/sites/default/files/cpo_guide.pdf (all Internet materials as visited Feb. 21, 2014, and available in Clerk of Court’s case file); Epidemiology and Prevention for Injury Control Branch, California Statewide Policy Recommendations for the Prevention of Violence Against Women (2006), online at http://www.cdph.ca.gov/ programs/Documents/VAWSPP-EPIC.pdf.

The Supreme Court ruled that police officers may search jointly occupied premises if one of the occupants consents, even if another occupant is absent and objects to the search. In this case, the Court refused to extend the narrow exception established in Georgia v. Randolph, which states that the consent of one occupant is insufficient when another occupant is present and objects, to situations where the objecting occupant is absent.

Search & Seizure

Heien v. North Carolina

https://supreme.justia.com/cases/federal/us/574/54/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 13–604 _________________ NICHOLAS BRADY HEIEN, PETITIONER v. NORTH CAROLINA on writ of certiorari to the supreme court of north carolina [December 15, 2014] Chief Justice Roberts delivered the opinion of the Court. The Fourth Amendment prohibits “unreasonable searches and seizures.” Under this standard, a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake. An officer might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat. The driver has not violated the law, but neither has the officer violated the Fourth Amendment. But what if the police officer’s reasonable mistake is not one of fact but of law? In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can. Because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment. I On the morning of April 29, 2009, Sergeant Matt Da-risse of the Surry County Sheriff’s Department sat in his patrol car near Dobson, North Carolina, observing northbound traffic on Interstate 77. Shortly before 8 a.m., a Ford Escort passed by. Darisse thought the driver looked “very stiff and nervous,” so he pulled onto the interstate and began following the Escort. A few miles down the road, the Escort braked as it approached a slower vehicle, but only the left brake light came on. Noting the faulty right brake light, Darisse activated his vehicle’s lights and pulled the Escort over. App. 4–7, 15–16. Two men were in the car: Maynor Javier Vasquez sat behind the wheel, and petitioner Nicholas Brady Heien lay across the rear seat. Sergeant Darisse explained to Vasquez that as long as his license and registration checked out, he would receive only a warning ticket for the broken brake light. A records check revealed no problems with the documents, and Darisse gave Vasquez the warning ticket. But Darisse had become suspicious during the course of the stop—Vasquez appeared nervous, Heien remained lying down the entire time, and the two gave inconsistent answers about their destination. Darisse asked Vasquez if he would be willing to answer some questions. Vasquez assented, and Darisse asked whether the men were transporting various types of contraband. Told no, Darisse asked whether he could search the Escort. Vasquez said he had no objection, but told Darisse he should ask Heien, because Heien owned the car. Heien gave his consent, and Darisse, aided by a fellow officer who had since arrived, began a thorough search of the vehicle. In the side compartment of a duffle bag, Darisse found a sandwich bag containing cocaine. The officers arrested both men. 366 N. C. 271, 272–273, 737 S. E. 2d 351, 352–353 (2012); App. 5–6, 25, 37. The State charged Heien with attempted trafficking in cocaine. Heien moved to suppress the evidence seized from the car, contending that the stop and search had violated the Fourth Amendment of the United States Constitution. After a hearing at which both officers testified and the State played a video recording of the stop, the trial court denied the suppression motion, concluding that the faulty brake light had given Sergeant Darisse reasonable suspicion to initiate the stop, and that Heien’s subsequent consent to the search was valid. Heien pleaded guilty but reserved his right to appeal the suppression decision. App. 1, 7–10, 12, 29, 43–44. The North Carolina Court of Appeals reversed. 214 N. C. App. 515, 714 S. E. 2d 827 (2011). The initial stop was not valid, the court held, because driving with only one working brake light was not actually a violation of North Carolina law. The relevant provision of the vehicle code provides that a car must be “equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or moreother rear lamps.” N. C. Gen. Stat. Ann. §20–129(g) (2007). Focusing on the statute’s references to “a stop lamp” and “[t]he stop lamp” in the singular, the court concluded that a vehicle is required to have only one working brake light—which Heien’s vehicle indisputably did. The justification for the stop was therefore “objectively unreason-able,” and the stop violated the Fourth Amendment. 214 N. C. App., at 518–522, 714 S. E. 2d, at 829–831. The State appealed, and the North Carolina Supreme Court reversed. 366 N. C. 271, 737 S. E. 2d 351. Noting that the State had chosen not to seek review of the Court of Appeals’ interpretation of the vehicle code, the North Carolina Supreme Court assumed for purposes of its decision that the faulty brake light was not a violation. Id., at 275, 737 S. E. 2d, at 354. But the court concluded that, for several reasons, Sergeant Darisse could have reasonably, even if mistakenly, read the vehicle code to require that both brake lights be in good working order. Most notably, a nearby code provision requires that “all originally equipped rear lamps” be functional. Id., at 282–283, 737 S. E. 2d, at 358–359 (quoting N. C. Gen. Stat. Ann. §20–129(d)). Because Sergeant Darisse’s mistaken understanding of the vehicle code was reasonable, the stop was valid. “An officer may make a mistake, including a mistake of law, yet still act reasonably under the circumstances. . . . [W]hen an officer acts reasonably under the circumstances, he is not violating the Fourth Amendment.” Id., at 279, 737 S. E. 2d, at 356. The North Carolina Supreme Court remanded to the Court of Appeals to address Heien’s other arguments for suppression (which are not at issue here). Id., at 283, 737 S. E. 2d, at 359. The Court of Appeals rejected those arguments and affirmed the trial court’s denial of his motion to suppress. ___ N. C. App. ___, 741 S. E. 2d 1 (2013). The North Carolina Supreme Court affirmed in turn. 367 N. C. 163, 749 S. E. 2d 278 (2013). We granted certiorari. 572 U. S. ___ (2014). II The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreason-able searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A traffic stop for a suspected violation of law is a “seizure” of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment. Brendlin v. California , 551 U. S. 249 –259 (2007). All parties agree that to justify this type of seizure, officers need only “reasonable suspicion”—that is, “a particularized and objective basis for suspecting the particular person stopped” of breaking the law. Prado Navarette v. California , 572 U. S. ___, ___ (2014) (slip op., at 3) (internal quotation marks omitted). The question here is whether reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition. We hold that it can. As the text indicates and we have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Riley v. California , 573 U. S. ___, ___ (2014) (slip op., at 5) (some internal quotation marks omitted). To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them “fair leeway for enforcing the law in the community’s protection.” Brinegar v. United States , 338 U. S. 160, 176 (1949) . We have recognized that searches and seizures based on mistakes of fact can be reasonable. The warrantless search of a home, for instance, is reasonable if undertaken with the consent of a resident, and remains lawful when officers obtain the consent of someone who reasonably appears to be but is not in fact a resident. See Illinois v. Rodriguez , 497 U. S. 177 –186 (1990). By the same token, if officers with probable cause to arrest a suspect mistakenly arrest an individual matching the suspect’s description, neither the seizure nor an accompanying search of the arrestee would be unlawful. See Hill v. California , 401 U. S. 797 –805 (1971). The limit is that “the mistakes must be those of reasonable men.” Brinegar , supra, at 176. But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law. The dissent counters that our cases discussing probable cause and reasonable suspicion, most notably Ornelas v. United States , 517 U. S. 690 –697 (1996), have contained “scarcely a peep” about mistakes of law. Post , at 2–3 (opinion of Sotomayor, J.). It would have been surprising, of course, if they had, since none of those cases involved a mistake of law. Although such recent cases did not address mistakes of law, older precedents did. In fact, cases dating back two centuries support treating legal and factual errors alike in this context. Customs statutes enacted by Congress not long after the founding authorized courts to issue certificates indemnifying customs officers against damages suits premised on unlawful seizures. See, e.g., Act of Mar. 2, 1799, ch. 22, §89, 1Stat. 695–696. Courts were to issue such certificates on a showing that the officer had “reasonable cause”—a synonym for “probable cause”—for the challenged seizure. Ibid. ; see Stacey v. Emery , 97 U. S. 642, 646 (1878); United States v. Riddle , 5 Cranch 311 (1809). In United States v. Riddle , a customs officer seized goods on the ground that the English shipper had violated the customs laws by preparing an invoice that undervalued the merchandise, even though the American consignee declared the true value to the customs collector. Chief Justice Marshall held that there had been no violation of the customs law because, whatever the shipper’s intention, the consignee had not actually attempted to defraud the Government. Nevertheless, because “the construction of the law was liable to some question,” he affirmed the issuance of a certificate of probable cause: “A doubt as to the true construction of the law is as reasonable a cause for seizure as a doubt respecting the fact.” Id. , at 313. This holding—that reasonable mistakes of law, like those of fact, would justify certificates of probable cause—was reiterated in a number of 19th-century decisions. See, e.g., The Friendship , 9 F. Cas. 825, 826 (No. 5,125) (CC Mass. 1812) (Story, J.); United States v. The Reindeer , 27 F. Cas. 758, 768 (No. 16,145) (CC RI 1848); United States v. The Recorder , 27 F. Cas. 723 (No. 16,130) (CC SDNY 1849). By the Civil War, there had been “numerous cases in which [a] captured vessel was in no fault, and had not, under a true construction of the law, presented even ground of suspicion, and yet the captor was exonerated because he acted under an honest mistake of the law.” The La Manche , 14 F. Cas. 965, 972 (No. 8,004) (D Mass. 1863). Riddle and its progeny are not directly on point. Chief Justice Marshall was not construing the Fourth Amendment, and a certificate of probable cause functioned much like a modern-day finding of qualified immunity, which depends on an inquiry distinct from whether an officer has committed a constitutional violation. See, e.g., Carroll v. Carman , ante, at 7 ( per curiam ). But Chief Justice Marshall was nevertheless explaining the concept of probable cause, which, he noted elsewhere, “in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion.” Locke v. United States , 7 Cranch 339, 348 (1813). We have said the phrase “probable cause” bore this “fixed and well known meaning” in the Fourth Amendment, see Brinegar , supra, at 175, and n. 14, and Riddle illustrates that it encompassed suspicion based on reasonable mistakes of both fact and law. No decision of this Court in the two centuries since has undermined that understanding.[ 1 ] The contrary conclusion would be hard to reconcile with a much more recent precedent. In Michigan v. DeFillippo , 443 U. S. 31 (1979) , we addressed the validity of an arrest made under a criminal law later declared unconstitu-tional. A Detroit ordinance that authorized police officers to stop and question individuals suspected of criminal activ-ity also made it an offense for such an individual “to refuse to identify himself and produce evidence of his identity.” Id., at 33. Detroit police officers sent to investigate a report of public intoxication arrested Gary DeFillippo after he failed to identify himself. A search incident to arrest uncovered drugs, and DeFillippo was charged with possession of a controlled substance. The Michigan Court of Appeals ordered the suppression of the drugs, concluding that the identification ordinance was unconstitutionally vague and that DeFillippo’s arrest was therefore invalid. Id., at 34–35. Accepting the unconstitutionality of the ordinance as a given, we nonetheless reversed. At the time the officers arrested DeFillippo, we explained, “there was no controlling precedent that this ordinance was or was not constitutional, and hence the conduct observed violated a presumptively valid ordinance.” Id., at 37. Acknowledging that the outcome might have been different had the ordinance been “grossly and flagrantly unconstitutional,” we concluded that under the circumstances “there was abundant probable cause to satisfy the constitutional prerequisite for an arrest.” Id., at 37–38. The officers were wrong in concluding that DeFillippo was guilty of a criminal offense when he declined to iden-tify himself. That a court only later declared the ordinance unconstitutional does not change the fact that DeFillippo’s conduct was lawful when the officers observed it. See Danforth v. Minnesota , 552 U. S. 264, 271 (2008) . But the officers’ assumption that the law was valid was reason-able, and their observations gave them “abundant probable cause” to arrest DeFillippo. 443 U. S., at 37. Although DeFillippo could not be prosecuted under the identifica-tion ordinance, the search that turned up the drugs was constitutional. Heien struggles to recast DeFillippo as a case solely about the exclusionary rule, not the Fourth Amendment itself. In his view, the officers’ mistake of law resulted in a violation the Fourth Amendment, but suppression of the drugs was not the proper remedy. We did say in a footnote that suppression of the evidence found on DeFillippo would serve none of the purposes of the exclusionary rule. See id., at 38, n. 3. But that literally marginal discussion does not displace our express holding that the arrest was constitutionally valid because the officers had probable cause. See id., at 40. Nor, contrary to Heien’s suggestion, did either United States v. Leon , 468 U. S. 897 (1984) , or Illinois v. Gates , 462 U. S. 213 (1983) , somehow erase that holding and transform DeFillippo into an exclusionary rule decision. See Brief for Petitioner 28–29. In Leon , we said DeFillippo paid “attention to the purposes underlying the exclusionary rule,” but we also clarified that it did “not involv[e] the scope of the rule itself.” 468 U. S., at 911–912. As for Gates , only Justice White’s separate opinion (joined by no other Justice) discussed DeFillippo , and it acknowledged that “ DeFillippo did not modify the exclusionary rule itself” but instead “upheld the validity of an arrest.” 462 U. S., at 256, n. 12 (opinion concurring in judgment). Heien is correct that in a number of decisions we have looked to the reasonableness of an officer’s legal error in the course of considering the appropriate remedy for a constitutional violation, instead of whether there was a violation at all. See, e.g., Davis v. United States , 564 U. S. ___, ___ (2011) (slip op., at 11) (exclusionary rule); Illinois v. Krull , 480 U. S. 340 –360 (1987) (exclusionary rule); Wilson v. Layne , 526 U. S. 603, 615 (1999) (qualified immunity); Anderson v. Creighton , 483 U. S. 635, 641 (1987) (qualified immunity). In those cases, however, we had already found or assumed a Fourth Amendment violation. An officer’s mistaken view that the conduct at issue did not give rise to such a violation—no matter how reason-able—could not change that ultimate conclusion. See Brief for Respondent 29–31; Brief for United States as Amicus Curiae 30, n. 3. Any consideration of the reasonableness of an officer’s mistake was therefore limited to the separate matter of remedy. Here, by contrast, the mistake of law relates to the antecedent question of whether it was reasonable for an officer to suspect that the defendant’s conduct was illegal. If so, there was no violation of the Fourth Amendment in the first place. None of the cases Heien or the dissent cites precludes a court from considering a reasonable mistake of law in addressing that question. Cf. Herring v. United States , 555 U. S. 135, 139 (2009) (assuming a Fourth Amendment violation while rejecting application of the exclusionary rule, but noting that “[w]hen a probable-cause determination was based on reasonable but mis-taken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation”). Heien also contends that the reasons the Fourth Amendment allows some errors of fact do not extend to errors of law. Officers in the field must make factual assessments on the fly, Heien notes, and so deserve a margin of error. In Heien’s view, no such margin is appropriate for questions of law: The statute here either requires one working brake light or two, and the answer does not turn on anything “an officer might suddenly confront in the field.” Brief for Petitioner 21. But Heien’s point does not consider the reality that an officer may “suddenly confront” a situation in the field as to which the application of a statute is unclear—however clear it may later become. A law prohibiting “vehicles” in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36–38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by. Contrary to the suggestion of Heien and amici , our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States , 517 U. S. 806, 813 (1996) . And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce. Finally, Heien and amici point to the well-known maxim, “Ignorance of the law is no excuse,” and contend that itis fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law. III Here we have little difficulty concluding that the officer’s error of law was reasonable. Although the North Carolina statute at issue refers to “ a stop lamp,” suggesting the need for only a single working brake light, it also provides that “[t]he stop lamp may be incorporated into a unit with one or more other rear lamps.” N. C. Gen. Stat. Ann. §20–129(g) (emphasis added). The use of “other” suggests to the everyday reader of English that a “stop lamp” is a type of “rear lamp.” And another subsection of the same provision requires that vehicles “have all originally equipped rear lamps or the equivalent in good working order,” §20–129(d), arguably indicating that if a vehicle has multiple “stop lamp[s],” all must be functional. The North Carolina Court of Appeals concluded that the “rear lamps” discussed in subsection (d) do not include brake lights, but, given the “other,” it would at least have been reasonable to think they did. Both the majority and the dissent in the North Carolina Supreme Court so concluded, and we agree. See 366 N. C., at 282–283, 737 S. E. 2d, at 358–359; id., at 283, 737 S. E. 2d, at 359 (Hudson, J., dissenting) (calling the Court of Appeals’ decision “surprising”). This “stop lamp” provision, moreover, had never been previously construed by North Carolina’s appellate courts. See id., at 283, 737 S. E. 2d, at 359 (majority opinion). It was thus objectively reasonable for an officer in Sergeant Darisse’s position to think that Heien’s faulty right brake light was a violation of North Carolina law. And because the mistake of law was reasonable, there was reasonable suspicion justifying the stop. The judgment of the Supreme Court of North Carolina is Affirmed. Notes 1 The dissent contends that “the tolerance of mistakes of law in cases like Riddle was a result of the specific customs statute that Congress had enacted.” Post , at 8, n. 3 (citing The Apollon , 9 Wheat. 362, 373 (1824) (Story, J.)). The relevant portion of The Apollon , however, addressed “the effect of probable cause,” not what gave rise to it. Id. , at 372 (emphasis added); see id., at 376 (finding it “unnecessary” to decide whether probable cause existed because it “would not, under the circumstances of this case, constitute a valid defence”). Justice Story understandably did not cite Riddle or discuss its tolerance of mistakes of law anywhere in The Apollon . SUPREME COURT OF THE UNITED STATES _________________ No. 13–604 _________________ NICHOLAS BRADY HEIEN, PETITIONER v. NORTH CAROLINA on writ of certiorari to the supreme court of north carolina [December 15, 2014] Justice Kagan, with whom Justice Ginsburg joins, concurring. I concur in full in the Court’s opinion, which explains why certain mistakes of law can support the reasonable suspicion needed to stop a vehicle under the Fourth Amendment. In doing so, the Court correctly emphasizes that the “ Fourth Amendment tolerates only . . . objectively reasonable” mistakes of law. Ante , at 11. And the Court makes clear that the inquiry into whether an officer’s mistake of law counts as objectively reasonable “is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity.” Ibid . I write separately to elaborate briefly on those important limitations.[ 1 ] First, an officer’s “subjective understanding” is irrelevant: As the Court notes, “[w]e do not examine” it at all. Ibid. That means the government cannot defend an officer’s mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law. And it means that, contrary to the dissenting opinion in the court below, an officer’s reliance on “an incorrect memo or training program from the police department” makes no difference to the analysis. 366 N. C. 271, 284, 737 S. E. 2d 351, 360 (2012) (Hudson, J., dissenting). Those considerations pertain to the officer’s subjective understanding of the law and thus cannot help to justify a seizure. Second, the inquiry the Court permits today is more demanding than the one courts undertake before awarding qualified immunity. See Tr. of Oral Arg. 51 (Solicitor General stating that the two tests “require essentially the opposite” showings); Brief for Respondent 31–32 (making a similar point). Our modern qualified immunity doctrine protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd , 563 U. S. ___, ___ (2011) (slip op., at 12) (quoting Malley v. Briggs ,475 U. S. 335,341 (1986)). By contrast, Justice Story’s opinion in The Friendship , 9 F. Cas. 825, 826 (No. 5,125) (CC Mass. 1812) (cited ante, at 7), suggests the appropriate standard for deciding when a legal error can support a seizure: when an officer takes a reasonable view of a “vexata questio” on which different judges “h[o]ld opposite opinions.” See Brief for United States as Amicus Curiae 26 (invoking that language). Or to make the same point without the Latin, the test is satisfied when the law at issue is “so doubtful in construction” that a reasonable judge could agree with the officer’s view. The Friendship , 9 F. Cas., at 826. A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a “really difficult” or “very hard question of statutory interpretation.” Tr. of Oral Arg. 50. And indeed, both North Carolina and the Solicitor General agreed that such cases will be “exceedingly rare.” Brief for Respondent 17; Tr. of Oral Arg. 48. The Court’s analysis of Sergeant Darisse’s interpretation of the North Carolina law at issue here appropriately reflects these principles. As the Court explains, see ante , at 12–13 , the statute requires every car on the highway to have “a stop lamp,” in the singular. N. C. Gen. Stat. Ann. §20–129(g) (2007). But the statute goes on to state that a stop lamp (or, in more modern terminology, brake light) “may be incorporated into a unit with one or more other rear lamps,” suggesting that a stop lamp itself qualifies as a rear lamp. Ibid. (emphasis added). And the statute further mandates that every car have “ all originally equipped rear lamps . . . in good working order.” §20–129(d) (emphasis added). The North Carolina Court of Appeals dealt with the statute’s conflicting signals in one way (deciding that a brake light is not a rear lamp, and so only one needs to work); but a court could easily take the officer’s view (deciding that a brake light is a rear lamp, and if a car comes equipped with more than one, as modern cars do, all must be in working order). The critical point is that the statute poses a quite difficult question of interpretation, and Sergeant Darisse’s judgment, although overturned, had much to recommend it. I therefore agree with the Court that the traffic stop he conducted did not violate the Fourth Amendment. Notes 1 I note in addition, as does the Court, that one kind of mistaken legal judgment—an error about the contours of the Fourth Amendment itself—can never support a search or seizure. See ante, at 10 (“An officer’s mistaken view that” conduct does “ not give rise to” a Fourth Amendment violation, “no matter how reasonable,” cannot change a court’s “ultimate conclusion” that such a violation has occurred). As the Solicitor General has explained, mistakes about the requirements of the Fourth Amendment “violate the Fourth Amendment even when they are reasonable.” Brief for United States as Amicus Curiae 30, n. 3; see Brief for Respondent 29 (stating the same view). SUPREME COURT OF THE UNITED STATES _________________ No. 13–604 _________________ NICHOLAS BRADY HEIEN, PETITIONER v. NORTH CAROLINA on writ of certiorari to the supreme court of north carolina [December 15, 2014] Justice Sotomayor, dissenting. The Court is, of course, correct that “ ‘the ultimate touchstone of the Fourth Amendment is “reasonableness.” ’ ” Riley v. California , 573 U. S. ___, ___ (2014) (slip op., at 5). But this broad statement simply sets the standard a court is to apply when it conducts its inquiry into whether the Fourth Amendment has been violated. It does not define the categories of inputs that courts are to consider when assessing the reasonableness of a search or seizure, each of which must be independently justified. What this case requires us to decide is whether a police officer’s understanding of the law is an input into the reasonableness inquiry, or whether this inquiry instead takes the law as a given and assesses an officer’s understanding of the facts against a fixed legal yardstick. I would hold that determining whether a search or seizure is reasonable requires evaluating an officer’s understanding of the facts against the actual state of the law. I would accordingly reverse the judgment of the North Carolina Supreme Court, and I respectfully dissent from the Court’s contrary holding. I It is common ground that Heien was seized within the meaning of the Fourth Amendment. Such a seizure comports with the Constitution only if the officers had articulable and reasonable suspicion that Heien was breaking the law. In Ornelas v. United States ,517 U. S. 690,696 (1996), we explained that the “principal components” of that determination “will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.” We described this kind of determination as “a mixed question of law and fact”: “ ‘[T]he issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.’ ” Id., at 696–697 (quoting Pullman-Standard v. Swint , 456 U. S 273, 289, n. 19 (1982)). What matters, we said, are the facts as viewed by an objectively reasonable officer, and the rule of law—not an officer’s conception of the rule of law, and not even an officer’s reasonable misunderstanding about the law, but the law. As a result, when we have talked about the leeway that officers have in making probable-cause determinations, we have focused on their assessments of facts. See, e.g., Terry v. Ohio ,392 U. S. 1–22 (1968) (framing the question as whether the “facts” give rise to reasonable suspicion). We have conceded that an arresting officer’s state of mind does not factor into the probable-cause inquiry, “except for the facts that he knows.” Devenpeck v. Alford ,543 U. S. 146,153 (2004) (emphasis added). And we have said that, to satisfy the reasonableness requirement, “what is generally demanded of the many factual determinations that must regularly be made by agents of the government . . . is not that they always be correct, but that they always be reasonable.” Illinois v. Rodriguez ,497 U. S. 177,185 (1990) (emphasis added). There is scarcely a peep in these cases to suggest that an officer’s understanding or conception of anything other than the facts is relevant. This framing of the reasonableness inquiry has not only been focused on officers’ understanding of the facts, it has been justified in large part based on the recognition that officers are generally in a superior position, relative to courts, to evaluate those facts and their significance as they unfold. In other words, the leeway we afford officers’ factual assessments is rooted not only in our recognition that police officers operating in the field have to make quick decisions, see id., at 186, but also in our understanding that police officers have the expertise to “dra[w] inferences and mak[e] deductions . . . that might well elude an untrained person.” United States v. Cortez ,449 U. S. 411,418 (1981). When officers evaluate unfolding circumstances, they deploy that expertise to draw “conclusions about human behavior” much in the way that “jurors [do] as factfinders .” Ibid. (emphasis added). The same cannot be said about legal exegesis. After all, the meaning of the law is not probabilistic in the same way that factual determinations are. Rather, “the notion that the law is definite and knowable” sits at the foundation of our legal system. Cheek v. United States ,498 U. S. 192,199 (1991). And it is courts, not officers, that are in the best position to interpret the laws. Both our enunciation of the reasonableness inquiry and our justification for it thus have always turned on an officer’s factual conclusions and an officer’s expertise with respect to those factual conclusions. Neither has hinted at taking into account an officer’s understanding of the law, reasonable or otherwise. II Departing from this tradition means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down. Traffic stops like those at issue here can be “annoying, frightening, and perhaps humiliating.” Terry , 392 U. S., at 25; see Delaware v. Prouse ,440 U. S. 648,657 (1979). We have nevertheless held that an officer’s subjective motivations do not render a traffic stop unlawful. Whren v. United States ,517 U. S. 806 (1996). But we assumed in Whren that when an officer acts on pretext, at least that pretext would be the violation of an actual law. See id., at 810 (discussing the three provisions of the District of Columbia traffic code that the parties accepted the officer had probable cause to believe had been vio-lated). Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands this authority. Cf. Barlow v. United States , 7 Pet. 404, 411 (1833) (Story, J.) (“There is scarcely any law which does not admit of some ingenious doubt”). One wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so. In addition to these human consequences—including those for communities and for their relationships with the police—permitting mistakes of law to justify seizures has the perverse effect of preventing or delaying the clarification of the law. Under such an approach, courts need not interpret statutory language but can instead simply decide whether an officer’s interpretation was reasonable. Indeed, had this very case arisen after the North Carolina Supreme Court announced its rule, the North Carolina Court of Appeals would not have had the occasion to interpret the statute at issue. Similarly, courts in the Eighth Circuit, which has been the only Circuit to include police mistakes of law in the reasonableness inquiry, have observed that they need not decide interpretive questions under their approach. See, e.g., United States v. Rodriguez-Lopez , 444 F. 3d 1020, 1022–1023 (CA8 2006).[ 1 ] This result is bad for citizens, who need to know their rights and responsibilities, and it is bad for police, who would benefit from clearer direction. Cf. Camreta v. Greene , 563 U. S. ___, ___–___ (2011) (slip op., at 10–11) (recognizing the importance of clarifying the law). Of course, if the law enforcement system could not function without permitting mistakes of law to justify seizures, one could at least argue that permitting as much is a necessary evil. But I have not seen any persuasive argument that law enforcement will be unduly hampered by a rule that precludes consideration of mistakes of law in the reasonableness inquiry. After all, there is no indication that excluding an officer’s mistake of law from the reasonableness inquiry has created a problem for law enforcement in the overwhelming number of Circuits which have adopted that approach. If an officer makes a stop in good faith but it turns out that, as in this case, the officer was wrong about what the law proscribed or required, I know of no penalty that the officer would suffer. See 366 N. C. 271, 286–288, 737 S. E. 2d 351, 361–362 (2012) (Hudson, J., dissenting) (observing that “officers (rightfully) face no punishment for a stop based on a mistake of law”). Moreover, such an officer would likely have a defense to any civil suit on the basis of qualified immunity. See Ashcroft v. al-Kidd , 563 U. S. ___, ___ (2011) (slip op., at 12) (“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions”). Nor will it often be the case that any evidence that may be seized during the stop will be suppressed, thanks to the exception to the exclusionary rule for good-faith police errors. See, e.g., Davis v. United States , 564 U. S. ___, ___–___ (2011) (slip op., at 8–9). It is true that, unlike most States, North Carolina does not provide a good-faith exception as a matter of state law, see State v. Carter , 322 N. C. 709, 721–724, 370 S. E. 2d 553, 560–562 (1988), but North Carolina recognizes that it may solve any remedial problems it may perceive on its own, see id., at 724, 370 S. E. 2d, at 562; N. C. Gen. Stat. Ann. §15A–974 (2013) (statutory good-faith exception).[ 2 ] More fundamentally, that is a remedial concern, and the protections offered by the Fourth Amendment are not meant to yield to accommodate remedial concerns. Our jurisprudence draws a sharp “analytica[l] distinct[ion]” between the existence of a Fourth Amendment violation and the remedy for that violation. Davis , 564 U. S., at ___ (slip op., at 14). In short, there is nothing in our case law requiring us to hold that a reasonable mistake of law can justify a seizure under the Fourth Amendment, and quite a bit suggesting just the opposite. I also see nothing to be gained from such a holding, and much to be lost. III In reaching the contrary conclusion, the Court makes both serious legal and practical errors. On the legal side, the Court barely addresses Ornelas and the other cases that frame the reasonableness inquiry around factual determinations. Instead, in support of its conclusion that reasonable suspicion “arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law,” ante, at 6 (emphasis added), the Court first reaches to founding-era customs statutes and cases applying those statutes. It concedes, however, that these cases are “not directly on point” because they say nothing about the scope of the Fourth Amendment and are instead equivalents of our modern-day qualified immunity jurisprudence for civil damages. Ante, at 7. The only link in the tenuous chain the Court constructs between those cases and this one that has anything to say about the Fourth Amendment is Brinegar v. United States ,338 U. S. 160 (1949). See ante , at 8. But all that our opinion in Brinegar actually says is that probable cause exists where “ ‘the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” 338 U. S., at 175–176 (quoting Carroll v. United States ,267 U. S. 132,162 (1925)). It thus states the uncontroversial proposition that the probable-cause inquiry looks to the reasonableness of an officer’s understanding of the facts. Indeed, Brinegar is an odd case for the Court to rely on given that, like the cases I discussed above, it subsequently emphasizes that “the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” 338 U. S., at 176 (emphasis added). Again, reasonable understandings of the facts, not reasonable understandings of what the law says.[ 3 ] Further, the Court looks to our decision in Michigan v. DeFillippo ,443 U. S. 31 (1979). This is a Fourth Amendment case, but the Court’s reading of it imagines a holding that is not rooted in the logic of the opinion. We held in DeFillippo that an officer had probable cause to support an arrest even though the ordinance that had allegedly been violated was later held by the Michigan Court of Appeals to be unconstitutional. This was so, we explained, because the officer conducted an arrest after having observed conduct that was criminalized by a presumptively valid law at the time of that conduct. See id ., at 37 (“At th[e] time [of the arrest], of course, there was no controlling precedent that this ordinance was or was not constitutional, and hence the conduct observed violated a presumptively valid ordinance”). We noted that it would have been wrong for that officer not to enforce the law in that sit-uation. See id., at 38 (“Police are charged to enforce laws until and unless they are declared unconstitutional. . . . Society would be ill-served if its police officers tookit upon themselves to determine which laws are and which are not constitutionally entitled to enforcement”). DeFillippo thus did not involve any police “mistake” at all. Rather, DeFillippo involved a police officer correctly applying the law that was then in existence and that carried with it a presumption of validity. Here, by contrast, police stopped Heien on suspicion of committing an offense that never actually existed. Given that our holding in DeFillippo relied so squarely on the existence of a law criminalizing the defendant’s conduct, and on the presumption of validity that attends actual laws, it can hardly be said to control where, as here, no law ever actually criminalized Heien’s conduct. On the practical side, the Court primarily contends that an officer may confront “a situation in the field as to which the application of a statute is unclear.” Ante , at 11. One is left to wonder, however, why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question. Moreover, the Court fails to reconcile its belief that the Fourth Amendment gives officers leeway to address situations where the application of a criminal statute may be unclear with our prior assumption that the Fourth Amendment does not give officers such leeway where they rely on a statute that authorizes police conduct that may violate the Fourth Amendment. See Illinois v. Krull ,480 U. S. 340, n. 12, 359 (1987). Nor does it engage with the analytic consequences of North Carolina’s similar concession that it does not mean to claim “that an officer’s mistaken understanding of the Fourth Amendment itself can support a seizure if that understanding was reason-able.” Brief for Respondent 29. It is not clear why an officer’s mistaken understanding of other laws should be viewed differently. While I appreciate that the Court has endeavored to set some bounds on the types of mistakes of law that it thinks will qualify as reasonable, and while I think that the set of reasonable mistakes of law ought to be narrowly circumscribed if they are to be countenanced at all, I am not at all convinced that the Court has done so in a clear way. It seems to me that the difference between qualified immunity’s reasonableness standard—which the Court insists without elaboration does not apply here—and the Court’s conception of reasonableness in this context—which remains undefined—will prove murky in application. See ante, at 11. I fear the Court’s unwillingness to sketch a fuller view of what makes a mistake of law reasonable only presages the likely difficulty that courts will have applying the Court’s decision in this case. *  *  * To my mind, the more administrable approach—and the one more consistent with our precedents and principles—would be to hold that an officer’s mistake of law, no matter how reasonable, cannot support the individualized suspicion necessary to justify a seizure under the Fourth Amendment. I respectfully dissent. Notes 1 Every other Circuit to have squarely addressed the question has held that police mistakes of law are not a factor in the reasonableness inquiry. See United States v. Miller , 146 F. 3d 274, 279 (CA5 1998); United States v. McDonald , 453 F. 3d 958, 962 (CA7 2006); United States v. King , 244 F. 3d 736, 741 (CA9 2001); United States v. Nicholson , 721 F. 3d 1236, 1244 (CA10 2013); United States v. Chanthasouxat , 342 F. 3d 1271, 1279–1280 (CA11 2003). Five States have agreed. See Hilton v. State , 961 So. 2d 284, 298 (Fla. 2007); State v. Louwrens , 792 N. W. 2d 649, 652 (Iowa 2010); Martin v. Kansas Dept. of Revenue , 285 Kan. 625, 637–639, 176 P. 3d 938, 948 (2008); State v. Anderson , 683 N. W. 2d 818, 823–824 (Minn. 2004); State v. Lacasella , 313 Mont. 185, 193–195, 60 P. 3d 975, 981–982 (2002). 2 In addition to North Carolina, it appears that 13 States do not provide a good-faith exception. See State v. Marsala , 216 Conn. 150, 151, 579 A. 2d 58, 59 (1990); Dorsey v. State , 761 A. 2d 807, 814 (Del. 2000); Gary v. State , 262 Ga. 573, 574–575, 422 S. E. 2d 426, 428 (1992); State v. Guzman , 122 Idaho 981, 998, 842 P. 2d 660, 677 (1992); State v. Cline , 617 N. W. 2d 277, 283 (Iowa 2000), abrogated on other grounds by State v. Turner , 630 N. W. 2d 601 (Iowa 2001); Commonwealth v. Upton , 394 Mass. 363, 370, n. 5, 476 N. E. 2d 548, 554, n. 5 (1985); State v. Canelo , 139 N. H. 376, 383, 653 A. 2d 1097, 1102 (1995); State v. Johnson , 168 N. J. 608, 622–623, 775 A. 2d 1273, 1281–1282 (2001); State v. Gutierrez , 116 N. M. 431, 432, 863 P. 2d 1052, 1053 (1993); People v. Bigelow , 66 N. Y. 2d 417, 427, 488 N. E. 2d 451, 457–458 (1985); Commonwealth v. Edmunds , 526 Pa. 374, 376, 586 A. 2d 887, 888 (1991); State v. Oakes , 157 Vt. 171, 173, 598 A. 2d 119, 121 (1991); State v. Afana , 169 Wash. 2d 169, 184, 233 P. 3d 879, 886 (2010);see also People v. Krueger , 175 Ill. 2d 60, 61, 76, 675 N. E. 2d 604, 606, 612 (1996) (limiting the exception to situations where police have a warrant). 3 The Court in fact errs even earlier in the chain when it represents United States v. Riddle , 5 Cranch 311 (1809), as containing some broad proposition. Ante , at 6–7. As Justice Story explained in a later case, the tolerance of mistakes of law in cases like Riddle was a result of the specific customs statute that Congress had enacted. The Apollon , 9 Wheat. 362, 373 (1824) (explaining that findings of probable cause “ha[d] never been supposed to excuse any seizure, except where some statute creates and defines the exemption from damages” (emphasis added)).

The Supreme Court ruled that a police officer's reasonable mistake of law can still be considered reasonable suspicion to justify a traffic stop under the Fourth Amendment. In this case, the officer pulled over a vehicle for a broken brake light, but it was later determined that only one working brake light was required by law. The Court held that the officer's mistake about the brake-light law was reasonable, and therefore the traffic stop was lawful.

Search & Seizure

Riley v. California

https://supreme.justia.com/cases/federal/us/573/373/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–132 and 13–212 _________________ DAVID LEON RILEY, PETITIONER 13–132      v. CALIFORNIA on writ of certiorari to the court of appeal of cali-fornia, fourth appellate district, division one UNITED STATES, PETITIONER 13–212      v. BRIMA WURIE on writ of certiorari to the united states court of appeals for the first circuit [June 25, 2014]      Chief Justice Roberts delivered the opinion of the Court.      These two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. I A      In the first case, petitioner David Riley was stopped by a police officer for driving with expired registration tags. In the course of the stop, the officer also learned that Riley’s license had been suspended. The officer impounded Riley’s car, pursuant to department policy, and another officer conducted an inventory search of the car. Riley was arrested for possession of concealed and loaded firearms when that search turned up two handguns under the car’s hood. See Cal. Penal Code Ann. §§12025(a)(1), 12031(a)(1) (West 2009).      An officer searched Riley incident to the arrest and found items associated with the “Bloods” street gang. He also seized a cell phone from Riley’s pants pocket. According to Riley’s uncontradicted assertion, the phone was a “smart phone,” a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity. The officer accessed information on the phone and noticed that some words (presumably in text messages or a contacts list) were preceded by the letters “CK”—a label that, he believed, stood for “Crip Killers,” a slang term for members of the Bloods gang.      At the police station about two hours after the arrest, a detective specializing in gangs further examined the contents of the phone. The detective testified that he “went through” Riley’s phone “looking for evidence, because . . . gang members will often video themselves with guns or take pictures of themselves with the guns.” App. in No. 13–132, p. 20. Although there was “a lot of stuff” on the phone, particular files that “caught [the detective’s] eye” included videos of young men sparring while someone yelled encouragement using the moniker “Blood.” Id., at 11–13. The police also found photographs of Riley standing in front of a car they suspected had been involved in a shooting a few weeks earlier.      Riley was ultimately charged, in connection with that earlier shooting, with firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder. The State alleged that Riley had committed those crimes for the benefit of a criminal street gang, an aggravating factor that carries an enhanced sentence. Compare Cal. Penal Code Ann. §246 (2008) with §186.22(b)(4)(B) (2014). Prior to trial, Riley moved to suppress all evidence that the police had obtained from his cell phone. He contended that the searches of his phone violated the Fourth Amendment, because they had been performed without a warrant and were not otherwise justified by exigent circumstances. The trial court rejected that argument. App. in No. 13–132, at 24, 26. At Riley’s trial, police officers testified about the photographs and videos found on the phone, and some of the photographs were admitted into evidence. Riley was convicted on all three counts and received an enhanced sentence of 15 years to life in prison.      The California Court of Appeal affirmed. No. D059840 (Cal. App., Feb. 8, 2013), App. to Pet. for Cert. in No. 13–132, pp. 1a–23a. The court relied on the California Supreme Court’s decision in People v. Diaz, 51 Cal. 4th 84, 244 P. 3d 501 (2011), which held that the Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee’s person. See id., at 93, 244 P. 3d, at 505–506.      The California Supreme Court denied Riley’s petition for review, App. to Pet. for Cert. in No. 13–132, at 24a, and we granted certiorari, 571 U. S. ___ (2014). B      In the second case, a police officer performing routine surveillance observed respondent Brima Wurie make an apparent drug sale from a car. Officers subsequently arrested Wurie and took him to the police station. At the station, the officers seized two cell phones from Wurie’s person. The one at issue here was a “flip phone,” a kind of phone that is flipped open for use and that generally has a smaller range of features than a smart phone. Five to ten minutes after arriving at the station, the officers noticed that the phone was repeatedly receiving calls from a source identified as “my house” on the phone’s external screen. A few minutes later, they opened the phone and saw a photograph of a woman and a baby set as the phone’s wallpaper. They pressed one button on the phone to access its call log, then another button to determine the phone number associated with the “my house” label. They next used an online phone directory to trace that phone number to an apartment building.      When the officers went to the building, they saw Wurie’s name on a mailbox and observed through a window a woman who resembled the woman in the photograph on Wurie’s phone. They secured the apartment while obtaining a search warrant and, upon later executing the warrant, found and seized 215 grams of crack cocaine, mari-juana, drug paraphernalia, a firearm and ammunition, and cash.      Wurie was charged with distributing crack cocaine, possessing crack cocaine with intent to distribute, and being a felon in possession of a firearm and ammunition. See 18 U. S. C. §922(g); 21 U. S. C. §841(a). He moved to suppress the evidence obtained from the search of the apartment, arguing that it was the fruit of an unconstitutional search of his cell phone. The District Court denied the motion. 612 F. Supp. 2d 104 (Mass. 2009). Wurie was convicted on all three counts and sentenced to 262 months in prison.      A divided panel of the First Circuit reversed the denial of Wurie’s motion to suppress and vacated Wurie’s convictions for possession with intent to distribute and possession of a firearm as a felon. 728 F. 3d 1 (2013). The court held that cell phones are distinct from other physical possessions that may be searched incident to arrest without a warrant, because of the amount of personal data cell phones contain and the negligible threat they pose to law enforcement interests. See id., at 8–11.      We granted certiorari. 571 U. S. ___ (2014). II      The Fourth Amendment provides:      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”      As the text makes clear, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Brigham City v. Stuart, 547 U. S. 398, 403 (2006) . Our cases have determined that “[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995) . Such a warrant ensures that the inferences to support a search are “drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14 (1948) . In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. See Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5–6).      The two cases before us concern the reasonableness of a warrantless search incident to a lawful arrest. In 1914, this Court first acknowledged in dictum “the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.” Weeks v. United States, 232 U. S. 383 . Since that time, it has been well accepted that such a search constitutes an exception to the warrant requirement. Indeed, the label “exception” is something of a misnomer in this context, as warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant. See 3 W. LaFave, Search and Seizure §5.2(b), p. 132, and n. 15 (5th ed. 2012).      Although the existence of the exception for such searches has been recognized for a century, its scope has been de-bated for nearly as long. See Arizona v. Gant, 556 U. S. 332, 350 (2009) (noting the exception’s “checkered his-tory”). That debate has focused on the extent to which officers may search property found on or near the arrestee. Three related precedents set forth the rules governing such searches:      The first, Chimel v. California, 395 U. S. 752 (1969) , laid the groundwork for most of the existing search incident to arrest doctrine. Police officers in that case arrested Chimel inside his home and proceeded to search his entire three-bedroom house, including the attic and garage. In particular rooms, they also looked through the contents of drawers. Id., at 753–754.      The Court crafted the following rule for assessing the reasonableness of a search incident to arrest: “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id., at 762–763. The extensive warrantless search of Chimel’s home did not fit within this exception, because it was not needed to protect officer safety or to preserve evidence. Id., at 763, 768.      Four years later, in United States v. Robinson, 414 U. S. 218 (1973) , the Court applied the Chimel analysis in the context of a search of the arrestee’s person. A police officer had arrested Robinson for driving with a revoked license. The officer conducted a patdown search and felt an object that he could not identify in Robinson’s coat pocket. He removed the object, which turned out to be a crumpled cigarette package, and opened it. Inside were 14 capsules of heroin. Id., at 220, 223.      The Court of Appeals concluded that the search was unreasonable because Robinson was unlikely to have evidence of the crime of arrest on his person, and because it believed that extracting the cigarette package and opening it could not be justified as part of a protective search for weapons. This Court reversed, rejecting the notion that “case-by-case adjudication” was required to determine “whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.” Id., at 235. As the Court explained, “[t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Ibid. Instead, a “custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Ibid.      The Court thus concluded that the search of Robinson was reasonable even though there was no concern about the loss of evidence, and the arresting officer had no specific concern that Robinson might be armed. Id., at 236. In doing so, the Court did not draw a line between a search of Robinson’s person and a further examination of the cigarette pack found during that search. It merely noted that, “[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it.” Ibid. A few years later, the Court clarified that this exception was limited to “personal property . . . immediately associated with the person of the arrestee.” United States v. Chadwick, 433 U. S. 1, 15 (1977) (200-pound, locked footlocker could not be searched incident to arrest), abrogated on other grounds by California v. Acevedo, 500 U. S. 565 (1991) .      The search incident to arrest trilogy concludes with Gant, which analyzed searches of an arrestee’s vehicle. Gant, like Robinson, recognized that the Chimel concerns for officer safety and evidence preservation underlie the search incident to arrest exception. See 556 U. S., at 338. As a result, the Court concluded that Chimel could authorize police to search a vehicle “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U. S., at 343. Gant added, however, an independent exception for a warrantless search of a vehicle’s passenger compartment “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Ibid. (quoting Thornton v. United States, 541 U. S. 615, 632 (2004) (Scalia, J., concurring in judgment)). That exception stems not from Chimel, the Court explained, but from “circumstances unique to the vehicle context.” 556 U. S., at 343. III      These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. See A. Smith, Pew Research Center, Smartphone Ownership—2013 Update (June 5, 2013). Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.      Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300 (1999) . Such a balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here.      But while Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones. On the government interest side, Robinson concluded that the two risks identified in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.      We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search. A      We first consider each Chimel concern in turn. In doing so, we do not overlook Robinson’s admonition that searches of a person incident to arrest, “while based upon theneed to disarm and to discover evidence,” are reasonable regardless of “the probability in a particular arrest situation that weapons or evidence would in fact be found.” 414 U. S., at 235. Rather than requiring the “case-by-case adjudication” that Robinson rejected, ibid., we ask instead whether application of the search incident to arrest doctrine to this particular category of effects would “untether the rule from the justifications underlying the Chimel exception,” Gant, supra, at 343. See also Knowles v. Iowa, 525 U. S. 113, 119 (1998) (declining to extend Robinson to the issuance of citations, “a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all”). 1      Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.      Perhaps the same might have been said of the cigarette pack seized from Robinson’s pocket. Once an officer gained control of the pack, it was unlikely that Robinson could have accessed the pack’s contents. But unknown physical objects may always pose risks, no matter how slight, during the tense atmosphere of a custodial arrest. The officer in Robinson testified that he could not identify the objects in the cigarette pack but knew they were not cigarettes. See 414 U. S., at 223, 236, n. 7. Given that, a further search was a reasonable protective measure. No such unknowns exist with respect to digital data. As the First Circuit explained, the officers who searched Wurie’s cell phone “knew exactly what they would find therein: data. They also knew that the data could not harm them.” 728 F. 3d, at 10.      The United States and California both suggest that a search of cell phone data might help ensure officer safety in more indirect ways, for example by alerting officers that confederates of the arrestee are headed to the scene. There is undoubtedly a strong government interest in warning officers about such possibilities, but neither the United States nor California offers evidence to suggest that their concerns are based on actual experience. The proposed consideration would also represent a broadening of Chimel’s concern that an arrestee himself might grab a weapon and use it against an officer “to resist arrest or effect his escape.” 395 U. S., at 763. And any such threats from outside the arrest scene do not “lurk[ ] in all custodial arrests.” Chadwick, 433 U. S., at 14–15. Accordingly, the interest in protecting officer safety does not justify dispensing with the warrant requirement across the board. To the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances. See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 –299 (1967) (“The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”). 2      The United States and California focus primarily on the second Chimel rationale: preventing the destruction of evidence.      Both Riley and Wurie concede that officers could have seized and secured their cell phones to prevent destruction of evidence while seeking a warrant. See Brief for Petitioner in No. 13–132, p. 20; Brief for Respondent in No. 13–212, p. 41. That is a sensible concession. See Illinois v. McArthur, 531 U. S. 326 –333 (2001); Chadwick, supra, at 13, and n. 8. And once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.      The United States and California argue that information on a cell phone may nevertheless be vulnerable to two types of evidence destruction unique to digital data—remote wiping and data encryption. Remote wiping occurs when a phone, connected to a wireless network, receives a signal that erases stored data. This can happen when a third party sends a remote signal or when a phone is preprogrammed to delete data upon entering or leaving certain geographic areas (so-called “geofencing”). See Dept. of Commerce, National Institute of Standards and Technology, R. Ayers, S. Brothers, & W. Jansen, Guidelines on Mobile Device Forensics (Draft) 29, 31 (SP 800–101 Rev. 1, Sept. 2013) (hereinafter Ayers). Encryption is a security feature that some modern cell phones use in addition to password protection. When such phones lock, data becomes protected by sophisticated encryption that renders a phone all but “unbreakable” unless police know the password. Brief for United States as Amicus Curiae in No. 13–132, p. 11.      As an initial matter, these broader concerns about the loss of evidence are distinct from Chimel’s focus on a defendant who responds to arrest by trying to conceal or destroy evidence within his reach. See 395 U. S., at 763–764. With respect to remote wiping, the Government’s primary concern turns on the actions of third parties who are not present at the scene of arrest. And data encryption is even further afield. There, the Government focuses on the ordinary operation of a phone’s security features, apart from any active attempt by a defendant or his associates to conceal or destroy evidence upon arrest.      We have also been given little reason to believe that either problem is prevalent. The briefing reveals only a couple of anecdotal examples of remote wiping triggered by an arrest. See Brief for Association of State Criminal Investigative Agencies et al. as Amici Curiae in No. 13–132, pp. 9–10; see also Tr. of Oral Arg. in No. 13–132,p. 48. Similarly, the opportunities for officers to search a password-protected phone before data becomes encrypted are quite limited. Law enforcement officers are very unlikely to come upon such a phone in an unlocked state because most phones lock at the touch of a button or, as a default, after some very short period of inactivity. See, e.g., iPhone User Guide for iOS 7.1 Software 10 (2014) (default lock after about one minute). This may explain why the encryption argument was not made until the merits stage in this Court, and has never been considered by the Courts of Appeals.      Moreover, in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other press-ing matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away. See Tr. of Oral Arg. in No. 13–132, at 50; see also Brief for United States as Amicus Curiae in No. 13–132, at 19. Cell phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any eventual search of the phone is completed, which might be at the station house hours later. Likewise, an officer who seizes a phone in an unlocked state might not be able to begin his search in the short time remaining before the phone locks and data becomes encrypted.      In any event, as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves. See Ayers 30–31. Such devices are commonly called “Faraday bags,” after the English scientist Michael Faraday. They are essentially sandwich bags made of aluminum foil: cheap, lightweight, and easy to use. See Brief for Criminal Law Professors as Amici Curiae 9. They may not be a complete answer to the problem, see Ayers 32, but at least for now they provide a reasonable response. In fact, a number of law enforcement agencies around the country already encourage the use of Faraday bags. See, e.g., Dept. of Justice, National Institute of Justice, Electronic Crime Scene Investigation: A Guide for First Responders 14, 32 (2d ed. Apr. 2008); Brief for Criminal Law Professors as Amici Curiae 4–6.      To the extent that law enforcement still has specific concerns about the potential loss of evidence in a particular case, there remain more targeted ways to address those concerns. If “the police are truly confronted with a ‘now or never’ situation,”—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately. Missouri v. McNeely, 569 U. S. ___, ___ (2013) (slip op., at 10) (quoting Roaden v. Kentucky, 413 U. S. 496, 505 (1973) ; some internal quotation marks omitted). Or, if officers happen to seize a phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data. See App. to Reply Brief in No. 13–132, p. 3a (diagramming the few necessary steps). Such a preventive measure could be analyzed under the principles set forth in our decision in McArthur, 531 U. S. 326 , which approved officers’ reasonable steps to secure a scene to preserve evidence while they awaited a warrant. See id., at 331–333. B      The search incident to arrest exception rests not only on the heightened government interests at stake in a volatile arrest situation, but also on an arrestee’s reduced privacy interests upon being taken into police custody. Robinson focused primarily on the first of those rationales. But it also quoted with approval then-Judge Cardozo’s account of the historical basis for the search incident to arrest exception: “Search of the person becomes lawful when grounds for arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion.” 414 U. S., at 232 (quoting People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923)); see also 414 U. S., at 237 (Powell, J., concurring) (“an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person”). Put simply, a patdown of Robinson’s cloth-ing and an inspection of the cigarette pack found in his pocket constituted only minor additional intrusions compared to the substantial government authority exercised in taking Robinson into custody. See Chadwick, 433 U. S., at 16, n. 10 (searches of a person are justified in part by “reduced expectations of privacy caused by the arrest”).      The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely because a person is in custody.” Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 26). To the contrary, when “privacy-related concerns are weighty enough” a “search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” Ibid. One such example, of course, is Chimel. Chimel refused to “characteriz[e] the invasion of privacy that results from a top-to-bottom search of a man’s house as ‘minor.’ ” 395 U. S., at 766–767, n. 12. Because a search of the arrestee’s entire house was a substantial invasion beyond the arrest itself, the Court concluded that a warrant was required.      Robinson is the only decision from this Court applying Chimel to a search of the contents of an item found on an arrestee’s person. In an earlier case, this Court had approved a search of a zipper bag carried by an arrestee, but the Court analyzed only the validity of the arrest itself. See Draper v. United States, 358 U. S. 307 –311 (1959). Lower courts applying Robinson and Chimel, however, have approved searches of a variety of personal items carried by an arrestee. See, e.g., United States v. Carrion, 809 F. 2d 1120, 1123, 1128 (CA5 1987) (billfold and address book); United States v. Watson, 669 F. 2d 1374, 1383–1384 (CA11 1982) (wallet); United States v. Lee, 501 F. 2d 890, 892 (CADC 1974) (purse).      The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13–212, p. 26. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom. 1      Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.      One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403, 404–405 (2013). Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.      But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. See Kerr, supra, at 404; Brief for Center for Democracy & Technol-ogy et al. as Amici Curiae 7–8. Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. See id., at 30; United States v. Flores-Lopez, 670 F. 3d 803, 806 (CA7 2012). We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.      The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.[ 1 ]      Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. See Harris Interactive, 2013 Mobile Consumer Habits Study (June 2013). A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. See, e.g., United States v. Frankenberry, 387 F. 2d 337 (CA2 1967) (per curiam). But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. See Ontario v. Quon, 560 U. S. 746, 760 (2010) . Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.      Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a stand-ard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U. S. ___, ___ (2012) (Sotomayor, J., concurring) (slip op., at 3) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”).      Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life. See Brief for Electronic Privacy Information Center as Amicus Curiae in No. 13–132, p. 9.      In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previ-ously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is. 2      To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. See New York v. Belton, 453 U. S. 454, 460, n. 4 (1981) (describing a “container” as “any object capable of holding another object”). But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. That is what cell phones, with increasing frequency, are designed to do by taking advantage of “cloud computing.” Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference. See Brief for Electronic Privacy Information Center in No. 13–132, at 12–14, 20. Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another.      The United States concedes that the search incident to arrest exception may not be stretched to cover a search of files accessed remotely—that is, a search of files stored in the cloud. See Brief for United States in No. 13–212, at 43–44. Such a search would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house. But officers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the time of the arrest or has been pulled from the cloud.      Although the Government recognizes the problem, its proposed solutions are unclear. It suggests that officers could disconnect a phone from the network before searching the device—the very solution whose feasibility it contested with respect to the threat of remote wiping. Compare Tr. of Oral Arg. in No. 13–132, at 50–51, with Tr. of Oral Arg. in No. 13–212, pp. 13–14. Alternatively, the Government proposes that law enforcement agencies “develop protocols to address” concerns raised by cloud computing. Reply Brief in No. 13–212, pp. 14–15. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols. The possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee is yet another reason that the privacy interests here dwarf those in Robinson. C      Apart from their arguments for a direct extension of Robinson, the United States and California offer various fallback options for permitting warrantless cell phone searches under certain circumstances. Each of the proposals is flawed and contravenes our general preference to provide clear guidance to law enforcement through categorical rules. “[I]f police are to have workable rules, the balancing of the competing interests . . . ‘must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers.’ ” Michigan v. Summers, 452 U. S. 692, 705, n. 19 (1981) (quoting Dunaway v. New York, 442 U. S. 200 –220 (1979) (White, J., concurring)).      The United States first proposes that the Gant standard be imported from the vehicle context, allowing a warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains evidence of the crime of arrest. But Gant relied on “circumstances unique to the vehicle context” to endorse a search solely for the purpose of gathering evidence. 556 U. S., at 343. Justice Scalia’s Thornton opinion, on which Gant was based, explained that those unique circumstances are “a reduced expectation of privacy” and “heightened law enforcement needs” when it comes to motor vehicles. 541 U. S., at 631; see also Wyoming v. Houghton, 526 U. S., at 303–304. For reasons that we have explained, cell phone searches bear neither of those characteristics.      At any rate, a Gant standard would prove no practical limit at all when it comes to cell phone searches. In the vehicle context, Gant generally protects against searches for evidence of past crimes. See 3 W. LaFave, Search and Seizure §7.1(d), at 709, and n. 191. In the cell phone context, however, it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurred. Similarly, in the vehicle context Gant restricts broad searches resulting from minor crimes such as traffic violations. See id., §7.1(d), at 713, and n. 204. That would not necessarily be true for cell phones. It would be a particularly inexperienced or unimaginative law enforcement officer who could not come up with sev-eral reasons to suppose evidence of just about any crime could be found on a cell phone. Even an individual pulled over for something as basic as speeding might well have locational data dispositive of guilt on his phone. An individual pulled over for reckless driving might have evidence on the phone that shows whether he was texting while driving. The sources of potential pertinent information are virtually unlimited, so applying the Gant standard to cell phones would in effect give “police officers unbridled discretion to rummage at will among a person’s private effects.” 556 U. S., at 345.      The United States also proposes a rule that would restrict the scope of a cell phone search to those areas of the phone where an officer reasonably believes that infor-mation relevant to the crime, the arrestee’s identity, or officer safety will be discovered. See Brief for United States in No. 13–212, at 51–53. This approach would again impose few meaningful constraints on officers. The proposed categories would sweep in a great deal of information, and officers would not always be able to discern in advance what information would be found where.      We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case. The Government relies on Smith v. Maryland, 442 U. S. 735 (1979) , which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745–746. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.      Finally, at oral argument California suggested a different limiting principle, under which officers could search cell phone data if they could have obtained the same information from a pre-digital counterpart. See Tr. of Oral Arg. in No. 13–132, at 38–43; see also Flores-Lopez, 670 F. 3d, at 807 (“If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.”). But the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years. And to make matters worse, such an analogue test would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form. In Riley’s case, for example, it is implausible that he would have strolled around with video tapes, photo albums, and an address book all crammed into his pockets. But because each of those items has a pre-digital analogue, police under California’s proposal would be able to search a phone for all of those items—a significant diminution of privacy.      In addition, an analogue test would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records. Is an e-mail equivalent to a letter? Is a voicemail equivalent to a phone message slip? It is not clear how officers could make these kinds of decisions before conducting a search, or how courts would apply the proposed rule after the fact. An analogue test would “keep defendants and judges guessing for years to come.” Sykes v. United States, 564 U. S. 1 , ___ (2011) (Scalia, J., dissenting) (slip op., at 7) (discussing the Court’s analogue test under the Armed Career Criminal Act). IV      We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.      Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of gov-ernment,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971) . Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (Roberts, C. J., concurring in part and dissenting in part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”).      Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’ ” Kentucky v. King, 563 U. S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978) ). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. 563 U. S., at ___. In Chadwick, for example, the Court held that the exception for searches incident to arrest did not justify a search of the trunk at issue, but noted that “if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage.” 433 U. S., at 15, n. 9.      In light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize—indeed, they stress—that such fact-specific threats may justify a warrantless search of cell phone data. See Reply Brief in No. 13–132, at 8–9; Brief for Respondent in No. 13–212, at 30, 41. The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case. See McNeely, supra, at ___ (slip op., at 6).[ 2 ] *  *  *      Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886) ).      Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.      We reverse the judgment of the California Court of Appeal in No. 13–132 and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the First Circuit in No. 13–212. It is so ordered. Notes 1 Because the United States and California agree that these cases involve incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances. 2 In Wurie’s case, for example, the dissenting First Circuit judge argued that exigent circumstances could have justified a search of Wurie’s phone. See 728 F. 3d 1, 17 (2013) (opinion of Howard, J.) (discussing the repeated unanswered calls from “my house,” the suspected location of a drug stash). But the majority concluded that the Government had not made an exigent circumstances argument. See at 1. The Government acknowledges the same in this Court. See Brief for United States in No. 13–212, p. 28, n. 8. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–132 and 13–212 _________________ DAVID LEON RILEY, PETITIONER 13–132      v. CALIFORNIA on writ of certiorari to the court of appeal of cali-fornia, fourth appellate district, division one UNITED STATES, PETITIONER 13–212      v. BRIMA WURIE on writ of certiorari to the united states court of appeals for the first circuit [June 25, 2014]      Justice Alito, concurring in part and concurring in the judgment.      I agree with the Court that law enforcement officers, in conducting a lawful search incident to arrest, must generally obtain a warrant before searching information stored or accessible on a cell phone. I write separately to address two points. I A      First, I am not convinced at this time that the ancient rule on searches incident to arrest is based exclusively (or even primarily) on the need to protect the safety of arresting officers and the need to prevent the destruction of evidence. Cf. ante, at 9. This rule antedates the adoption of the Fourth Amendment by at least a century. See T. Clancy, The Fourth Amendment: Its History and Interpretation 340 (2008); T. Taylor, Two Studies in Constitutional Interpretation 28 (1969); Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 764 (1994). In Weeks v. United States, 232 U. S. 383, 392 (1914) , we held that the Fourth Amendment did not disturb this rule. See also Taylor, supra, at 45; Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L. J. 393, 401 (1995) (“The power to search incident to arrest—a search of the arrested suspect’s person . . .—was well established in the mid-eighteenth century, and nothing in . . . the Fourth Amendment changed that”). And neither in Weeks nor in any of the authorities discussing the old common-law rule have I found any suggestion that it was based exclusively or primarily on the need to protect arresting officers or to prevent the destruction of evidence.      On the contrary, when pre-Weeks authorities discussed the basis for the rule, what was mentioned was the need to obtain probative evidence. For example, an 1839 case stated that “it is clear, and beyond doubt, that . . . constables . . . are entitled, upon a lawful arrest by them of one charged with treason or felony, to take and detain prop-erty found in his possession which will form material evi-dence in his prosecution for that crime.” See Dillon v. O’Brien, 16 Cox Crim. Cas. 245, 249–251 (1887) (citing Regina, v. Frost, 9 Car. & P. 129, 173 Eng. Rep. 771)). The court noted that the origins of that rule “deriv[e] from the interest which the State has in a person guilty (or reasonably believed to be guilty) of a crime being brought to justice, and in a prosecution, once commenced, being determined in due course of law.” 16 Cox Crim. Cas., at 249–250. See also Holker v. Hennessey, 141 Mo. 527, 537–540, 42 S. W. 1090, 1093 (1897).      Two 19th-century treatises that this Court has previ-ously cited in connection with the origin of the search-incident-to-arrest rule, see Weeks, supra, at 392, suggest the same rationale. See F. Wharton, Criminal Pleading and Practice §60, p. 45 (8th ed. 1880) (“Those arresting a defendant are bound to take from his person any articles which may be of use as proof in the trial of the offense with which the defendant is charged”); J. Bishop, Criminal Procedure §§210–212, p. 127 (2d ed. 1872) (if an arresting officer finds “about the prisoner’s person, or otherwise in his possession, either goods or moneys which there is reason to believe are connected with the supposed crime as its fruits, or as the instruments with which it was committed, or as directly furnishing evidence relating to the transaction, he may take the same, and hold them to be disposed of as the court may direct”).      What ultimately convinces me that the rule is not closely linked to the need for officer safety and evidence preser-vation is that these rationales fail to explain the rule’s well-recognized scope. It has long been accepted that written items found on the person of an arrestee may be examined and used at trial.[ 1 ]* But once these items are taken away from an arrestee (something that obviously must be done before the items are read), there is no risk that the arrestee will destroy them. Nor is there any risk that leaving these items unread will endanger the arresting officers.      The idea that officer safety and the preservation of evidence are the sole reasons for allowing a warrantless search incident to arrest appears to derive from the Court’s reasoning in Chimel v. California, 395 U. S. 752 (1969) , a case that involved the lawfulness of a search of the scene of an arrest, not the person of an arrestee. As I have explained, Chimel’s reasoning is questionable, see Arizona v. Gant, 556 U. S. 332 –363 (2009) (Alito, J., dissenting), and I think it is a mistake to allow that reasoning to affect cases like these that concern the search of the person of arrestees. B      Despite my view on the point discussed above, I agree that we should not mechanically apply the rule used in the predigital era to the search of a cell phone. Many cell phones now in use are capable of storing and accessing a quantity of information, some highly personal, that no person would ever have had on his person in hard-copy form. This calls for a new balancing of law enforcement and privacy interests.      The Court strikes this balance in favor of privacy interests with respect to all cell phones and all information found in them, and this approach leads to anomalies. For example, the Court’s broad holding favors information in digital form over information in hard-copy form. Suppose that two suspects are arrested. Suspect number one has in his pocket a monthly bill for his land-line phone, and the bill lists an incriminating call to a long-distance number. He also has in his a wallet a few snapshots, and one of these is incriminating. Suspect number two has in his pocket a cell phone, the call log of which shows a call to the same incriminating number. In addition, a number of photos are stored in the memory of the cell phone, and one of these is incriminating. Under established law, the police may seize and examine the phone bill and the snapshots in the wallet without obtaining a warrant, but under the Court’s holding today, the information stored in the cell phone is out.      While the Court’s approach leads to anomalies, I do not see a workable alternative. Law enforcement officers need clear rules regarding searches incident to arrest, and it would take many cases and many years for the courts to develop more nuanced rules. And during that time, the nature of the electronic devices that ordinary Americans carry on their persons would continue to change. II      This brings me to my second point. While I agree with the holding of the Court, I would reconsider the question presented here if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.      The regulation of electronic surveillance provides an instructive example. After this Court held that electronic surveillance constitutes a search even when no property interest is invaded, see Katz v. United States, 389 U. S. 347 –359 (1967), Congress responded by enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82Stat. 211. See also 18 U. S. C. §2510 et seq. Since that time, electronic surveillance has been governed primarily, not by decisions of this Court, but by the stat-ute, which authorizes but imposes detailed restrictions on electronic surveillance. See ibid.      Modern cell phones are of great value for both lawful and unlawful purposes. They can be used in committing many serious crimes, and they present new and difficult law enforcement problems. See Brief for United States in No. 13–212, pp. 2–3. At the same time, because of the role that these devices have come to play in contemporary life, searching their contents implicates very sensitive privacy interests that this Court is poorly positioned to understand and evaluate. Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago.      In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future. Notes 1 * Cf. v. , –802, and n. 1 (1971) (diary); v. , –199 (1927) (ledgerand bills); v. , , overruled on other grounds, v. , –301 (1967) (papers); see v. , 995 F. 2d 776, 778 (CA7 1993) (address book); v. , 949 F. 2d 151, 153 (CA5 1991) (notebook); v. , 877 F. 2d 1341 (CA7 1989) (wallet); v. , 764 F. 2d 1514, 1527 (CA11 1985) (wallet and papers); v. , 669 F. 2d 1374, 1383–1384 (CA11 1982) (documents found in a wallet); v. , 596 F. 2d 674, 677 (CA5 1979), cert. denied, (paper found in a pocket); v. , 520 F. 2d 1256, 1267–1268 (CA7 1975) (three notebooks and meeting minutes); v. , 126 F. 2d 585, 587 (CA10 1942) (papers, circulars, advertising matter, “memoranda containing various names and addresses”); v. , 56 F. 2d 753, 755 (CA2 1932) (“numerous prescriptions blanks” and a check book). See also 3 W. LaFave, Search and Seizure §5.2(c), p. 144 (5th ed. 2012) (“Lower courts, in applying Robinson, have deemed evidentiary searches of an arrested person to be virtually unlimited”); W. Cuddihy, FourthAmendment: Origins and Original Meaning 847–848 (1990) (in the pre-Constitution colonial era, “[a]nyone arrested could expect that not only his surface clothing but his body, luggage, and saddlebags would be searched”).

The Supreme Court ruled that police officers cannot search digital information on a cell phone without a warrant, even if the phone was seized from someone who was arrested. This decision recognizes the sensitive privacy interests associated with modern cell phones and digital technology, and highlights the need for legislative action to address these complex issues.

Separation of Powers

Ex Parte Grossman

https://supreme.justia.com/cases/federal/us/267/87/

U.S. Supreme Court Ex Parte Grossman, 267 U.S. 87 (1925) Ex Parte Grossman No. 24, Original Argued December 1, 1924 Decided March 2, 1925 267 U.S. 87 ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS Syllabus 1. A criminal contempt, committed by disobedience of an injunction issued by the District Court to abate a nuisance in pursuance of Page 267 U. S. 88 the Prohibition Law, is an "offence against the United States," within the meaning of Article II, 2, Cl. 1 of the Constitution, and pardonable by the President thereunder. P. 267 U. S. 108 . 2. Before our Revolution, the King of England had always exercised the power to pardon criminal contempts, the pardon being efficatious insofar as punishment was imposed in the public interest, to vindicate the authority of the King and Court (criminal contempt), but not insofar as imposed to secure the rights of a suitor (civil contempt). P. 267 U. S. 110 . 3. The like distinction between criminal and civil contempts is clearly made in our law. P. 267 U. S. 111 . 4. The history of the pardon clause in the Constitutional Convention, cited to show that the words "offences against the United States" therein were intended, presumably, to distinguish between offences against the General Government and offences against the States, and not to narrow the scope of a pardon as known in the common law. P. 267 U. S. 112 . 5. There is no substantial difference in this matter between the executive power of pardon in our Government and the King's prerogative. P. 267 U. S. 113 . 6. Nor does the ruling of this Court in United States v. Hudson , 7 Cranch 32, limiting the exercise of ordinary federal criminal jurisdiction to crimes defined by Congress, afford reason for confining "offences against the United States," in the pardon clause to statutory crimes and misdemeanors. P. 267 U. S. 114 . 7. Construction of "offences against the United States" in the pardon clause as including criminal contempts accords with the ordinary meaning of the words, and is not inconsistent with other parts of the Constitution where the term "offence" and the narrower terms "crimes" and "criminal prosecutions" appear. Art. I, 8; Amendments V and VI. P. 267 U. S. 115 . 8. The power of the President to pardon criminal contempts is sustained by long practice and acquiescence. P. 267 U. S. 118 . 9. The contention that to admit the power of the President to pardon criminal contempts (not to interfere with coercive measures of the courts to enforce the rights of suitors) would tend to destroy the independence of the Judiciary and would violate the principle of separation of the three departments of the Government is considered and rejected. P. 267 U. S. 119 . Rule in habeas corpus made absolute, and prisoner discharged. Habeas corpus, original in this Court, to try the constitutionality of petitioner's confinement notwithstanding a Page 267 U. S. 89 pardon granted by the President. The petitioner was found guilty by the District Court of having disobeyed a temporary injunction, issued under the Prohibition Act, forbidding illicit traffic in liquors on certain premises. He was sentenced by the District Court to pay a fine and to imprisonment for one year in the Chicago House of Correcting -- a judgment which was affirmed by the Circuit Court of Appeals. 280 Fed. 683. The President issued a pardon commuting the sentence to the fine upon condition that the fine were paid; which was done. Having been thereupon released from custody, the petitioner was again committed by the District Court, upon the ground that the pardon was ineffectual, 1 Fed.2d 941. He then sought this writ of habeas corpus, directed to Graham, the Superintendent of the House of Correction. Page 267 U. S. 107 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court. This is an original petition in this Court for a writ of habeas corpus by Philip Grossman against Ritchie V. Graham, Superintendent of the Chicago House of Correction, Cook County, Illinois. The respondent has answered the rule to show cause. The facts are not in dispute. On November 24, 1920, the United States filed a bill in equity against Philip Grossman in the District Court of the United States for the Northern District of Illinois, under Section 22 of the National Prohibition Act (Ch. 85, 41 Stat. 305, 314), averring that Grossman was maintaining a nuisance at his place of business in Chicago by sales of liquor in violation of the Act and asking an injunction to abate the same. Two days later, the District Judge granted a temporary order. January 11, 1921, an information was filed against Grossman, charging that, after the restraining order had been served on him, he had sold to several persons liquor to be drunk on his premises. He was arrested, tried, found guilty of contempt and sentenced to imprisonment in the Chicago House of Correction for one year and to pay a fine of $1,000 to the United States and costs. The decree was affirmed by the Circuit Court of Appeals, 280 Fed. 683. In December, 1923, the President issued a pardon in which he commuted the sentence of Grossman to the fine of $1,000 on condition that the fine be paid. The pardon was accepted, the fine was paid, and the defendant was released. In May, 1924, however, the District Court committed Grossman to the Chicago House of Correction to serve the sentence notwithstanding the pardon. 1 Fed.2d 941. The only Page 267 U. S. 108 question raised by the pleadings herein is that of the power of the President to grant the pardon. Special counsel, employed by the Department of Justice, appear for the respondent to uphold the legality of the detention. The Attorney General of the United States, as amicus curiae, maintains the validity and effectiveness of the President's action. The petitioner, by his counsel, urges his discharge from imprisonment. Article II, Section 2, clause one, of the Constitution, dealing with the powers and duties of the President, closes with these words: ". . . and he shall have power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." The argument for the respondent is that the President's power extends only to offenses against the United States, and a contempt of Court is not such an offense, that offenses against the United States are not common law offenses, but can only be created by legislative act, that the President's pardoning power is more limited than that of the King of England at common law, which was a broad prerogative and included contempts against his courts chiefly because the judges thereof were his agents and acted in his name; that the context of the Constitution shows that the word "offences" is used in that instrument only to include crimes and misdemeanors triable by jury, and not contempts of the dignity and authority of the federal courts, and that to construe the pardon clause to include contempts of court would be to violate the fundamental principle of the Constitution in the division of powers between the Legislative, Executive and Judicial branches, and to take from the federal courts their independence and the essential means of protecting their dignity and authority. The language of the Constitution cannot be interpreted safely except by reference to the common law and to Page 267 U. S. 109 British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood. In a case presenting the question whether a pardon should be pleaded in bar to be effective, Chief Justice Marshall said of the power of pardon ( United States v. Wilson , 7 Peters, 150, 32 U. S. 160 ): "As this power had been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it." In Ex parte William Wells , 18 Howard, 307, 59 U. S. 311 , the question was whether the President, under his power to pardon could commute a death sentence to life imprisonment by granting a pardon of the capital punishment on condition that the convict be imprisoned during his natural life. This Court, speaking through Mr. Justice Wayne, after quoting the above language of the Chief Justice, said: "We still think so, and that the language used in the Constitution, conferring the power to grant reprieves and pardons, must be construed with reference to its meaning Page 267 U. S. 110 at the time of its adoption. At the time of our separation from Great Britain, that power had been exercised by the King, as the chief executive. Prior to the Revolution, the Colonies, being in effect under the laws of England, were accustomed to the exercise of it in the various forms, as they may be found in the English law books. They were, of course, to be applied as occasions occurred, and they constituted a part of the jurisprudence of Anglo-America. At the time of the adoption of the Constitution, American statesmen were conversant with the laws of England and familiar with the prerogatives exercised by the crown. Hence, when the words to grant pardons were used in the Constitution, they conveyed to the mind the authority as exercised by the English crown, or by its representatives in the colonies. At that time, both Englishmen and Americans attached the same meaning to the word pardon. In the convention which framed the Constitution, no effort was made to define or change its meaning, although it was limited in cases of impeachment." The King of England, before our Revolution, in the exercise of his prerogative, had always exercised the power to pardon contempts of court, just as he did ordinary crime and misdemeanors and as he has done to the present day. In the mind of a common law lawyer of the eighteenth century, the word pardon included within its scope the ending by the King's grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both forms of trial for contempts were had. Thomas of Chartham v. Benet of Stamford (1313), 24 Selden Society 185; Fulwood v. Fulwood (1585), Toothill, 46; Rex v. Buckenham (1665), 1 Keble 751, 787, 852; Anonymous (1674), Cases in Chancery, 238; King and Codrington v. Rodman (1630), Cro.Car.198; Bartram v. Dannett (1676), Finch, 253; Phipps v. Earl of Angelsea (1721), 1 Peere Williams, 696. Page 267 U. S. 111 These cases also show that, long before our Constitution, a distinction had been recognized at common law between the effect of the King's pardon to wipe out the effect of a sentence for contempt insofar as it had been imposed to punish the contemnor for violating the dignity of the court and the King, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court's order necessary to secure the rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and criminal contempts, is still maintained in English law. In the Matter of a Special Reference from Bahama Islands, Appeal Cases [1893], 138; Wellesley v. Duke of Beaufort, 2 Russell & Mylne, 639, 667, (where it is shown in the effect of a privilege from arrest of members of Parliament analogous in its operation to a pardon); In re Freston, 11 Q.B.D. 545, 552; Queen v. Barnardo, 23 Q.B.D. 305; O'Shea v. O'Shea and Parnell, 15 P. & D. 59, 62, 63, 65; Lord Chancellor Selborne, in the House of Lords, 276 Hansard, 1714, commenting on Greene's Case, 6 Appeal Cases, 657. In our own law, the same distinction clearly appears. Gompers v. Bucks Stove & Range Company, 221 U. S. 418 ; Doyle v. London Guarantee Company, 204 U. S. 599 , 204 U. S. 607 ; Bessette v. Conkey Co., 194 U. S. 324 ; Alexander v. United States, 201 U. S. 117 ; Union Tool Co. v. Wilson, 259 U. S. 107 , 259 U. S. 109 . In the Gompers case, this Court points out that it is not the fact of punishment, but rather its character and purpose, that makes the difference between the two kinds of contempts. For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts, the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions. Page 267 U. S. 112 With this authoritative background of the common law and English history before the American Revolution to show that criminal contempts were within the understood scope of the pardoning power of the Executive, we come now to the history of the clause in the Constitutional Convention of 1787. The proceedings of the Convention from June 19, 1787, to July 23rd were, by resolution, referred to a Committee on Detail for report of the Constitution (II Farrand's Records of Constitutional Convention, 128, 129) and contained the following (II Farrand, 146): "The power of pardoning vested in the Executive (which) his pardon shall not, however, be pleadable to an impeachment." On August 6th, Mr. Rutledge of the Committee on Detail (II Farrand, 185) reported the provision as follows: "He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of impeachment." This is exactly what the King's pardon was at common law, with the same limitation. IV Blackstone, 399. On August 25th (II Farrand, 411), the words "except in cases of impeachment" were added after "pardons" and the succeeding words were stricken out. On Saturday, September 8th (II Farrand, 547), a committee of five to revise the style of and arrange the articles was agreed to by the House. As referred to the Committee on Style, the clause read (II Farrand, 575): "He shall have power to grant reprieves and pardons except in cases of impeachment." The Committee on Style reported this clause as it now is: "and he shall have power to grant reprieves and pardons for offences against the United States except in cases of impeachment." There seems to have been no discussion over the substance of the clause save that a motion to except cases of treason was referred to the Committee on Style, September 10th (II Farrand, 564), was not approved by the Committee, and, after discussion, was defeated in the Convention September 15th (II Farrand, 626, 627). Page 267 U. S. 113 We have given the history of the clause to show that the words "for offences against the United States" were inserted by a Committee on Style, presumably to make clear that the pardon of the President was to operate upon offenses against the United States, as distinguished from offenses against the States. It cannot be supposed that the Committee on Revision, by adding these words, or the Convention, by accepting them, intended sub silentio to narrow the scope of a pardon from one at common law, or to confer any different power in this regard on our Executive from that which the members of the Convention had seen exercised before the Revolution. Nor is there any substance in the contention that there is any substantial difference in this matter between the executive power of pardon in our Government and the King's prerogative. The courts of Great Britain were called the King's Courts, as indeed they were; but, for years before our Constitution, they were as independent of the King's interference as they are today. The extent of the King's pardon was clearly circumscribed by law and the British Constitution, as the cases cited above show. The framers of our Constitution had in mind no necessity for curtailing this feature of the King's prerogative in transplanting it into the American governmental structures, save by excepting cases of impeachment, and even in that regard, as already pointed out, the common law forbade the pleading a pardon in bar to an impeachment. The suggestion that the President's power of pardon should be regarded as necessarily less than that of the King was pressed upon this Court and was agreed to by Mr. Justice McLean, one of the dissenting Judges, in Ex parte William Wells , 18 Howard, 307, 59 U. S. 321 , but it did not prevail with the majority. It is said that "Offences against the United States," in the pardon clause can include only crimes and misdemeanors Page 267 U. S. 114 defined and denounced by Congressional Act, because of the decision of this Court in United States v. Hudson , 7 Cranch 32. This was a criminal case certified from the District Court upon a demurrer to an indictment for criminal libel at common law. The Court sustained the demurrer on the ground that indictments in federal courts could only be brought for statutory offenses. The reasoning of the Court was that the inferior courts of the United States must be created by Congress, that their jurisdiction, though limited by the Constitution, was in its nature very indefinite, applicable to a great variety of subjects, varying in every State in the Union, so that the courts could not assume to exercise it without legislative definition. The legislative authority of the Union must first make an act a crime, affix a punishment to it and declare the court that shall have jurisdiction of the offense. The Court admitted that "certain implied powers must necessarily result to our courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt -- imprison for contumacy -- enforce the observance of order, etc., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all the others, and so far our courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers." The decision was by a majority of the Court, and among the dissenting members was Mr. Justice Story, who expressed himself with vigor to the contrary in United States v. Coolidge, 1 Gall. 488; Fed. Case No. 14,857, which was reversed by a majority of the Court in 1 Wheat. 415. The Hudson decision was made in 1812. It is not too much to say that, immediately after the ratification of the Constitution, the power and jurisdiction of federal courts to indict and prosecute common law Page 267 U. S. 115 crimes within the scope of federal judicial power was thought to exist by most of the then members of this Court. The charge of Chief Justice Jay to the Grand Jury in the United States Circuit Court at Richmond in May, 1793, and the ruling by the United States Circuit Court in Henfield's Case, Fed. Case No. 6,360; Wharton's State Trials, 49, in which Mr. Justice Wilson and Mr. Justice Iredell constituted the court, sustained this view. Mr. Warren, in his valuable history of this Court, Vol. I, p. 433, says that, in the early years of the Court, Chief Justice Ellsworth and Justices Cushing, Paterson, and Washington had also delivered opinions or charges of the same tenor. Justices Wilson and Paterson were members of the Constitutional Convention, and the former was one of the five on the Committee on Style which introduced the words "offences against the United States" into the pardon clause. We can hardly assume under these circumstances that the words of the pardon clause were then used to include only statutory offenses against the United States and to exclude therefrom common law offenses in the nature of contempts against the dignity and authority of United States courts, merely because this Court, more than twenty years later, held that federal courts could only indict for statutory crimes, though they might punish for common law contempts. Nothing in the ordinary meaning of the words "offences against the United States" excludes criminal contempts. That which violates the dignity and authority of federal courts such as an intentional effort to defeat their decrees justifying punishment violates a law of the United States ( In re Neale, 135 U. S. 1 , 135 U. S. 59 , et seq. ), and so must be an offense against the United States. Moreover, this Court has held that the general statute of limitation, which forbids prosecutions "for any offense unless instituted within three years next after such offense shall have been committed," applies to criminal contempts. Page 267 U. S. 116 Gompers v. United States, 233 U. S. 604 . In that case, this Court said (p. 233 U. S. 610 ): "It is urged in the first place that contempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution and the amendments giving a right to trial by jury &c. to persons charged with such crimes. But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth. Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 , 165 U. S. 282 . It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute, offenses, because trial by jury, as it has been gradually worked out and fought out, has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that, in the early law, they were punished only by the usual criminal procedure, 3 Transactions of the Royal Historical Society, N.S., p. 147 (1885), and that, at least in England, it seems that they still may be, and preferably are, tried in that way. See 7 Halsbury, Laws of England, 280, sub. v. Contempt of Court (604); Re Clements v. Erlanger, 46 L.J. N. S., pp. 375, 383. Matter of Macleod, 6 Jur. 461. Schreiber v. Lateward, 2 Dick. 592. Wellesley's Case, 2 Russ. & M. 639, 667. In re Pollard, L.R. 2 P.C. 106, 120. Ex parte Kearney , 7 Wheat. 38, 20 U. S. 43 . Bessette v. W. B. Conkey Co., 194 U. S. 324 , 194 U. S. 328 , 194 U. S. 331 , 194 U. S. 332 . Gompers v. Bucks Stove & Range Co., 221 U. S. 418 , 221 U. S. 441 . " Page 267 U. S. 117 The recent case of Michaelson v. United States fully bears out the same view. 266 U. S. 42 , 266 U. S. 66 , 266 U. S. 67 . It is said, however, that whatever may be the scope of the word "offenses" in the particular statute construed in the Gompers case, its association in the Constitution is such as to show a narrower meaning. The word "offences" is only used twice in the original Constitution, once in the pardon clause, and once in Article I, Section 8, among the powers of Congress "to define and punish Piracies and Felonies committed on the high seas and offences against the Law of Nations." In the amendments, "offence" occurs but once, and that in the Fifth Amendment in the clause forbidding double jeopardy. We do not see how these other two uses of the word can be said to limit the meaning of "offences" in the pardon clause. The argument is that the word "offences" is used in the Constitution interchangeably with crimes and criminal prosecutions. But as has been pointed out in Shick v. United States, 195 U. S. 65 , the term "offences" is used in the Constitution in a more comprehensive sense than are the terms "crimes" and "criminal prosecutions." In Myers v. United States, 264 U. S. 95 , 264 U. S. 104 , 264 U. S. 105 , we have but recently held that "while contempt may be an offense against the law and subject to appropriate punishment, certain it is that, since the foundation of our Government, proceedings to punish such offenses have been regarded as sui generis, and not criminal prosecutions within the Sixth Amendment or common understanding." Bessette v. Conkey Co, 194 U. S. 324 , 194 U. S. 326 . Contempt proceedings are sui generis because they are not hedged about with all the safeguards provided in the bill of rights for protecting one accused of ordinary crime from the danger of unjust conviction. This is due, of course, to the fact that, for years before the American Constitution, courts had been held to be inherently empowered Page 267 U. S. 118 to protect themselves and the function they perform by summary proceeding without a jury to punish disobedience of their orders and disturbance of their hearings. So it is clear to us that the language of the Fifth and Sixth Amendments and of other cited parts of the Constitution are not of significance in determining the scope of pardons of "offences against the United States" in Article II, Section 2, clause 1, of the enumerated powers of the President. We think the arguments drawn from the common law, from the power of the King under the British Constitution, which plainly was the prototype of this clause, from the legislative history of the clause in the Convention, and from the ordinary meaning of its words, are much more relevant and convincing. Moreover, criminal contempts of a federal court have been pardoned for eighty-five years. In that time, the power has been exercised twenty-seven times. In 1830, Attorney General Berrien, in an opinion on a state of fact which did not involve the pardon of a contempt, expressed merely in passing the view that the pardoning power did not include impeachments or contempts, using Rawle's general words from his work on the Constitution. Examination shows that the author's exception of contempts had reference only to contempts of a House of Congress. In 1841, Attorney General Gilpin approved the pardon of a contempt on the ground that the principles of the common law embraced such a case and this Court had held that we should follow them as to pardons. (3 Op.A.G. 622.) Attorney General Nelson in 1844 (4 Op.A.G. 317), Attorney General Mason in 1845 (4 Op.A.G. 458), and Attorney General Miller in 1890 (19 Op.A.G. 476), rendered similar opinions. Similar views were expressed, though the opinions were not reported, by Attorney General Knox in 1901 and by Attorney General Daugherty in 1923. Such long practice under the pardoning power and acquiescence in it strongly Page 267 U. S. 119 sustains the construction it is based on. Stuart v. Laird , 1 Cranch 299, 5 U. S. 308 ; Cooley v. Board of Wardens , 12 How. 299, 53 U. S. 315 ; Lithographic Company v. Sarony, 111 U. S. 53 , 111 U. S. 57 ; The Laura, 114 U. S. 411 , 114 U. S. 416 . Finally, it is urged that criminal contempts should not be held within the pardoning power because it will tend to destroy the independence of the judiciary and violate the primary constitutional principle of a separation of the legislative, executive and judicial powers. This argument influenced the two district judges below. (1 Fed.2d 941.) The Circuit Court of Appeals of the Eighth Circuit sustained it in a discussion, though not necessary to the case, in In re Nevitt, 117 Fed. 448. The Supreme Court of Wisconsin, by a majority, upheld it in State ex rel. Rodd v. Verage, 177 Wis., 295, in remarks which were also obiter. Taylor v. Goodrich, 25 Texas Civil App. 109, is the only direct authority, and that deals with a clause a little differently worded. The opposite conclusion was reached in In re Mullee, 7 Blatchford, 23; Ex parte Hickey, 12 Miss. 751; Louisiana v. Sauvinet, 24 La.Ann. 119; Sharp v. State, 102 Tenn. 9; State v. Magee Publishing Company, 29 New Mexico 455. The Federal Constitution nowhere expressly declares that the three branches of the Government shall be kept separate and independent. All legislative powers are vested in a Congress. The executive power is vested in a President. The judicial power is vested in one Supreme Court and in such inferior courts as Congress may from time to time establish. The Judges are given life tenure and a compensation that may not be diminished during their continuance in office, with the evident purpose of securing them and their courts an independence of Congress and the Executive. Complete independence and separation between the three branches, however, are not attained, or intended, as other provisions of the Constitution and the normal operation of government under it Page 267 U. S. 120 easily demonstrate. By affirmative action through the veto power, the Executive and one more than one-third of either House may defeat all legislation. One-half of the House and two-thirds of the Senate may impeach and remove the members of the Judiciary. The Executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress. Ex parte Garland , 4 Wall. 333, 71 U. S. 380 . Negatively, one House of Congress can withhold all appropriations and stop the operations of Government. The Senate can hold up all appointments, confirmation of which either the Constitution or a statute requires, and thus deprive the President of the necessary agents with which he is to take care that the laws be faithfully executed. These are some instances of positive and negative restraints possibly available under the Constitution to each branch of the government in defeat of the action of the other. They show that the independence of each of the others is qualified, and is so subject to exception as not to constitute a broadly positive injunction or a necessarily controlling rule of construction. The fact is that the Judiciary, quite as much as Congress and the Executive, is dependent on the cooperation of the other two, that government may go on. Indeed, while the Constitution has made the Judiciary as independent of the other branches as is practicable, it is, as often remarked, the weakest of the three. It must look for a continuity of necessary cooperation in the possible reluctance of either of the other branches to the force of public opinion. Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate Page 267 U. S. 121 guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen their effectiveness than a wholesale pardon of other offenses. If we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery? A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor's right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning confirmed by its common law origin and long years of practice and acquiescence. If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment, rather than to a narrow and strained construction of the general powers of the President. Page 267 U. S. 122 The power of a court to protect itself and its usefulness by punishing contemnors is, of course, necessary, but it is one exercised without the restraining influence of a jury and without many of the guaranties which the bill of rights offers to protect the individual against unjust conviction. Is it unreasonable to provide for the possibility that the personal element may sometimes enter into a summary judgment pronounced by a judge who thinks his authority is flouted or denied? May it not be fairly said that, in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial? The pardoning by the President of criminal contempts has been practiced more than three-quarters of a century, and no abuses during all that time developed sufficiently to invoke a test in the federal courts of its validity. It goes without saying that nowhere is there a more earnest will to maintain the independence of federal courts and the preservation of every legitimate safeguard of their effectiveness afforded by the Constitution than in this Court. But the qualified independence which they fortunately enjoy is not likely to be permanently strengthened by ignoring precedent and practice and minimizing the importance of the coordinating checks and balances of the Constitution. The rule is made absolute, and the petitioner is discharged.

In Ex Parte Grossman (1925), the US Supreme Court ruled that criminal contempt, resulting from the disobedience of a court injunction, is an "offense against the United States" and falls under the President's pardon power. The Court's decision considered the historical context, the language of the Constitution, and long-standing practices, concluding that the President's power to pardon criminal contempt is established and does not undermine the independence of the judiciary.

Separation of Powers

U.S. v. Klein

https://supreme.justia.com/cases/federal/us/80/128/

U.S. Supreme Court United States v. Klein, 80 U.S. 13 Wall. 128 128 (1871) United States v. Klein 80 U.S. (13 Wall.) 128 Syllabus 1. The Act of March 12th, 1863 (12 Stat. at Large 820), to provide for the collection of abandoned and captured property in insurrectionary districts within the United States, does not confiscate, or in any case absolutely divest the property of the original owner, even though disloyal. By the seizure, the government constituted itself a trustee for those who were entitled, or whom it should thereafter recognize as entitled. 2. By virtue of the act of 17th July, 1862, authorizing the President to offer pardon on such conditions as he might think advisable, and the proclamation of 8th December, 1863, which promised a restoration of all rights Page 80 U. S. 129 of property, except as to slaves, on condition that the prescribed oath be taken and kept inviolate, the persons who had faithfully accepted the conditions offered became entitled to the proceeds of their property thus paid into the treasury, on application within two years from the close of the war. 3. The repeal, by an act of 21st January, 1867 (after the war had closed), of the act of 17th July, 1862, authorizing the executive to offer pardon, did not alter the operation of the pardon, or the obligation of Congress to give full effect to it if necessary by legislation. 4. The proviso in the appropriation act of July 12th, 1870 (16 Stat. at Large 235), in substance, "That no pardon or amnesty granted by the President shall be admissible in evidence on the part of any claimant in the Court of Claims as evidence in support of any claim against the United States, or to establish the standing of any claimant in said court, or his right to bring or maintain suit therein; and that no such pardon or amnesty heretofore put in evidence on behalf of any claimant in that court be considered by it, or by the appellate court on appeal from said court, in deciding upon the claim of such claimant, or any appeal therefrom, as any part of the proof to sustain the claim of the claimant, or to entitle him to maintain his action in the Court of Claims, or on appeal therefrom, . . . but that proof of loyalty [such as the proviso goes on to mention] shall be made irrespective of the effective of any executive proclamation, pardon, amnesty, or other set of condonation or oblivion. And that, in all cases where judgment shall have been heretofore rendered in the Court of Claims in favor of any claimant on any other proof of loyalty than such as the provision requires, this court shall, on appeal, have no further jurisdiction of the cause, and shall dismiss the same for want of jurisdiction;" "And further, that whenever any pardon shall have heretofore been granted by the President to any person bringing suit in the Court of Claims for the proceeds of abandoned or captured property under the act of March 12th, 1863, and such pardon shall recite, in substance, that such person took part in the late rebellion, or was guilty of any act of rebellion against, or disloyalty to, the United States, and such pardon shall have been accepted, in writing, by the person to whom the same issued, without an express disclaimer of and protestation against such fact of guilt contained in such acceptance, such pardon and acceptance shall be taken and deemed in such suit in the said Court of Claims, and on appeal therefrom, conclusive evidence that such person did take part in and give aid and comfort to the late rebellion, and did not maintain true allegiance or consistently adhere to the United States, and, on proof of such pardon and acceptance, the jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit of such claimant . . ." is in conflict with the views expressed in paragraphs 1, 2, and 3 above, and is unconstitutional and void. Its substance being that an acceptance of a pardon without a disclaimer shall be conclusive evidence of the acts pardoned, but shall be null and void as evidence of rights conferred by it, both in the Court of Claims and in this court; it invades the powers both of the judicial and of the executive departments of the government. Page 80 U. S. 130 This was a motion by Mr. Ackerman, Attorney General, in behalf of the United States, to remand an appeal from the Court of Claims which the government had taken in June, 1869, with a mandate that the same be dismissed for want of jurisdiction as now required by law. The case was thus: Congress, during the progress of the late rebellion, passed various laws to regulate the subject of forfeiture, confiscation, or appropriation to public use without compensation, of private property whether real or personal of noncombatant enemies. The first was the act of July 13th, 1861. [ Footnote 1 ] It made liable to seizure and forfeiture all property passing to and fro between the loyal and insurrectionary States, and the vessels and vehicles by which it should be attempted to be conveyed. So an act of August 6th, 1861, [ Footnote 2 ] subjected to seizure and forfeiture all property of every kind, used or intended to be used in aiding, abetting, or promoting the insurrection, or allowing or permitting it to be so used. These statutes require judicial condemnation to make the forfeiture complete. A more general law, and one upon which most of the seizures made during the rebellion was founded, is the act of July 17th, 1862. [ Footnote 3 ] It provides for the punishment of treason, and specifies its disqualifications and disabilities. In its sixth section, it provides that every person who shall be engaged in or be aiding the rebellion, and shall not cease and return to his allegiance within sixty days after proclamation made by the President of the United States, shall forfeit all his property, &c. The proclamation required by this act was issued by the President on the 25th day of July, 1862. [ Footnote 4 ] The sixty days expired September 23d, 1862. On the 12th of March, 1863, Congress passed another species of act -- the one entitled "An act to provide for the Page 80 U. S. 131 collection of abandoned property, &c., in insurrectionary districts within the United States." The statute authorized the Secretary of the Treasury to appoint special agents to receive and collect all abandoned or captured property in any State or Territory in insurrection: Provided, That such property shall not include any kind or description which has been used, or which was intended to be used, for waging or carrying on war against the United States, such as arms, ordnance, ships, steamboats, or other watercraft, and their furniture, forage, military supplies, or munitions of war. The statute went on: "And any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and on proof to the satisfaction of said court of his ownership of said property, of his right to the proceeds thereof, and that he has never given any aid or comfort to the present rebellion, to receive the residue of such proceeds after the deduction of any purchase money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof." Some other acts, amendatory of this one or relating to the Court of Claims, required proof of the petitioner's loyalty during the rebellion as a condition precedent to recovery. By the already mentioned confiscation act of July 17th, 1862, the President was authorized by proclamation to extend to persons who had participated in rebellion pardon and amnesty, with such exceptions, and at such times, and on such conditions as he should deem expedient for the public welfare. And on the 8th of December, 1863, he did issue his proclamation, reciting the act, and that certain persons who had been engaged in the rebellion desired to resume their allegiance and reinaugurate loyal State governments within and for their respective States. And thereupon proclaimed Page 80 U. S. 132 that a full pardon should be thereby granted to them, with restoration of all rights of property, except as to slaves, and in property cases where rights of third parties shall have intervened, and upon condition that every such person shall take and subscribe a prescribed oath of allegiance, and thenceforward keep and maintain said oath inviolate, &c. Under this proclamation, V. F. Wilson, who during the rebellion had voluntarily become the surety on the official bonds of certain officers of the rebel confederacy, and so given aid and comfort, to it, took, February 15th, 1864, this oath of allegiance, and had kept the same inviolate. He himself having died in 1865, one Klein, his administrator, filed a petition in the Court of Claims, setting forth Wilson's ownership of certain cotton which he had abandoned to the treasury agents of the United States, and which they had sold, putting the proceeds into the Treasury of the United States, where they now were, and from which the petitioner sought to obtain them. This petition was filed December 26th, 1865. The section of the act of 1862, by which the President was authorized to extend pardon and amnesty on such conditions as he should deem expedient for the public welfare, was repealed on the 21st of January, 1867. [ Footnote 5 ] The Court of Claims, on the 26th May, 1869, decided that Wilson had been entitled to receive the proceeds of his cotton, and decreed $125,300 to Klein, the administrator of his estate. An appeal was taken by the United States June 3d, following, and filed in this court on the 11th December, of the same year. Previously to this case of Klein's, the Court of Claims had had before it the case of one Padelford, quite like this one, for there also the claimant, who had abandoned his cotton and now claimed its proceeds, having participated in the rebellion, had taken the amnesty oath. The Court of Claims held that the oath cured his participation in the rebellion, Page 80 U. S. 133 and so it gave him a decree for the proceeds of his cotton in the treasury. The United States brought that case here by appeal, [ Footnote 6 ] and the decree of the Court of Claims was affirmed, this court declaring that, although Padelford had participated in the rebellion, yet, that having been pardoned, he was as innocent in law as though he had never participated, and that his property was purged of whatever offence he had committed and relieved from any penalty that he might have incurred. The judgment of this court to the effect above mentioned was publicly announced on the 30th of April, 1870. Soon after this -- the bill making appropriations for the legislative, executive, and judicial expenses of the government for the year 1870-71 then pending in Congress -- the following was introduced as a proviso to an appropriation of $100,000, in the first section, for the payment of judgments in the Court of Claims, and, with this proviso in it, the bill became a law July 12th, 1870: [ Footnote 7 ] " Provided, That no pardon or amnesty granted by the President, whether general or special, by proclamation or otherwise, nor any acceptance of such pardon or amnesty, nor oath taken, or other act performed in pursuance or as a condition thereof shall be admissible in evidence on the part of any claimant in the Court of Claims as evidence in support of any claim against the United States, or to establish the standing of any claimant in said court, or his right to bring or maintain suit therein; nor shall any such pardon, amnesty, acceptance, oath, or other act as aforesaid, heretofore offered or put in evidence on behalf of any claimant in said court, be used or considered by said court, or by the appellate court on appeal from said court, in deciding upon the claim of said claimant, or any appeal therefrom, as any part of the proof to sustain the claim of the claimant, or to entitle him to maintain his action in said Court of Claims, or on appeal therefrom; but the proof of loyalty required by the Abandoned and Captured Property Act, and by the sections of several acts quoted, shall be made by proof of the matters required, Page 80 U. S. 134 irrespective of the effect of any executive proclamation, pardon, amnesty, or other act of condonation or oblivion. And in all cases where judgment shall have been heretofore rendered in the Court of Claims in favor of any claimant, on any other proof of loyalty than such as is above required and provided, and which is hereby declared to have been and to be the true intent and meaning of said respective acts, the Supreme Court shall, on appeal, have no further jurisdiction of the cause, and shall dismiss the same for want of jurisdiction." " And provided further, That whenever any pardon shall have heretofore been granted by the President of the United States to any person bringing suit in the Court of Claims for the proceeds of abandoned or captured property under the said act, approved 12th March, 1863, and the acts amendatory of the same, and such pardon shall recite in substance that such person took part in the late rebellion against the government of the United States, or was guilty of any act of rebellion against, or disloyalty to, the United States; and such pardon shall have been accepted in writing by the person to whom the same issued without an express disclaimer of, and protestation against, such fact of guilt contained in such acceptance, such pardon and acceptance shall be taken and deemed in such suit in the said Court of Claims, and on appeal therefrom, conclusive evidence that such person did take part in, and give aid and comfort to, the late rebellion, and did not maintain true allegiance or consistently adhere to the United States; and on proof of such pardon and acceptance, which proof may be heard summarily on motion or otherwise, the jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit of such claimant." The motion already mentioned, of the Attorney General, that the case be remanded to the Court of Claims with a mandate that the same be dismissed for want of jurisdiction, as now required by law, was, of course, founded on this enactment in the appropriation bill of July 12th, 1870. Page 80 U. S. 136 The CHIEF JUSTICE delivered the opinion of the court. The general question in this case is whether or not the proviso relating to suits for the proceeds of abandoned and captured property in the Court of Claims, contained in the appropriation act of July 12th, 1870, debars the defendant in error from recovering, as administrator of V. F. Wilson, deceased, the proceeds of certain cotton belonging to the decedent which came into the possession of the agents of the Treasury Department as captured or abandoned property, and the proceeds of which were paid by them according to law into the Treasury of the United States. The answer to this question requires a consideration of the rights of property, as affected by the late civil war, in the hands of citizens engaged in hostilities against the United States. It may be said in general terms that property in the insurgent States may be distributed into four classes: 1st. That which belonged to the hostile organizations or was employed in actual hostilities on land. 2d. That which at sea became lawful subject of capture and prize. 3d. That which became the subject of confiscation. 4th. A peculiar description, known only in the recent war, called captured and abandoned property. The first of these descriptions of property, like property of other like kind in ordinary international wars, became, wherever taken, ipso facto, the property of the United States. [ Footnote 8 ] The second of these descriptions comprehends ships and vessels with their cargoes belonging to the insurgents or Page 80 U. S. 137 employed in aid of them, but property in these was not changed by capture alone, but by regular judicial proceeding and sentence. Accordingly, it was provided in the Abandoned and Captured Property Act of March 12th, 1863, [ Footnote 9 ] that the property to be collected under it "shall not include any kind or description used or intended to be used for carrying on war against the United States, such as arms, ordnance, ships, steamboats and their furniture, forage, military supplies, or munitions of war." Almost all the property of the people in the insurgent States was included in the third description, for after sixty days from the date of the President's proclamation of July 25th, 1862, [ Footnote 10 ] all the estates and property of those who did not cease to aid, countenance, and abet the rebellion became liable to seizure and confiscation, and it was made the duty of the President to cause the same to be seized and applied, either specifically or in the proceeds thereof, to the support of the army. [ Footnote 11 ] But it is to be observed that tribunals and proceedings were provided by which alone such property could be condemned, and without which it remained unaffected in the possession of the proprietors. It is thus seen that, except to property used in actual hostilities, as mentioned in the first section of the act of March 12th, 1863, no titles were divested in the insurgent States unless in pursuance of a judgment rendered after due legal proceedings. The government recognized to the fullest extent the humane maxims of the modern law of nations, which exempt private property of noncombatant enemies from capture as booty of war. Even the law of confiscation was sparingly applied. The cases were few indeed in which the property of any not engaged in actual hostilities was subjected to seizure and sale. The spirit which animated the government received special illustration from the act under which the present case arose. We have called the property taken into the custody Page 80 U. S. 138 of public officers under that act a peculiar species, and it was so. There is, so far as we are aware, no similar legislation mentioned in history. The act directs the officers of the Treasury Department to take into their possession and make sale of all property abandoned by its owners or captured by the national forces, and to pay the proceeds into the national treasury. That it was not the intention of Congress that the title to these proceeds should be divested absolutely out of the original owners of the property seems clear upon a comparison of different parts of the act. We have already seen that those articles which became by the simple fact of capture the property of the captor, as ordnance, munitions of war, and the like, or in which third parties acquired rights which might be made absolute by decree, as ships and other vessels captured as prize, were expressly excepted from the operation of the act; and it is reasonable to infer that it was the purpose of Congress that the proceeds of the property for which the special provision of the act was made should go into the treasury without change of ownership. Certainly such was the intention in respect to the property of loyal men. That the same intention prevailed in regard to the property of owners who, though then hostile, might subsequently become loyal, appears probable from the circumstance that no provision is anywhere made for confiscation of it, while there is no trace in the statute book of intention to divest ownership of private property not excepted from the effect of this act otherwise than by proceedings for confiscation. In the case of Padelford, we held that the right to the possession of private property was not changed until actual seizure by proper military authority, and that actual seizure by such authority did not divest the title under the provisions of the Abandoned and Captured Property Act. The reasons assigned seem fully to warrant the conclusion. The government constituted itself the trustee for those who were by that act declared entitled to the proceeds of captured and abandoned property, and for those whom it should thereafter Page 80 U. S. 139 recognize as entitled. By the act itself, it was provided that any person claiming to have been the owner of such property might prefer his claim to the proceeds thereof, and, on proof that he had never given aid or comfort to the rebellion, receive the amount after deducting expenses. This language makes the right to the remedy dependent upon proof of loyalty, but implies that there may be proof of ownership without proof of loyalty. The property of the original owner is in no case absolutely divested. There is, as we have already observed, no confiscation, but the proceeds of the property have passed into the possession of the government, and restoration of the property is pledged to none except to those who have continually adhered to the government. Whether restoration will be made to others, or confiscation will be enforced, is left to be determined by considerations of public policy subsequently to be developed. It is to be observed, however, that the Abandoned and Captured Property Act was approved on the 12th of March, 1863, and on the 17th of July, 1862, Congress had already passed an act -- the same which provided for confiscation -- which authorized the President, "at any time hereafter, by proclamation, to extend to persons who may have participated in the existing rebellion, in any State or part thereof, pardon and amnesty, with such exceptions and at such time and on such conditions as he may deem expedient for the public welfare." The act of the 12th of March, 1863, provided for the sale of enemies' property collected under the act, and payment of the proceeds into the treasury, and left them there subject to such action as the President might take under the act of the 17th of July, 1862. What was this action? The suggestion of pardon by Congress, for such it was, rather than authority, remained unacted on for more than a year. At length, however, on the 8th of December, 1863, [ Footnote 12 ] the President issued a proclamation in which he referred to that act and offered a full pardon, with restoration of all Page 80 U. S. 140 rights of property, except as to slaves and property in which rights of third persons had intervened, to all, with some exceptions, who, having been engaged in the rebellion as actual participants, or as aiders or abettors, would take and keep inviolate a prescribed oath. By this oath, the person seeking to avail himself of the offered pardon was required to promise that he would thenceforth support the Constitution of the United States and the union of the States thereunder, and would also abide by and support all acts of Congress and all proclamations of the President in reference to slaves, unless the same should be modified or rendered void by the decision of this court. In his annual message, transmitted to Congress on the same day, the President said "the Constitution authorizes the Executive to grant or withhold pardon at his own absolute discretion." He asserted his power "to grant it on terms as fully established," and explained the reasons which induced him to require applicants for pardon and restoration of property to take the oath prescribed, in these words: "Laws and proclamations were enacted and put forth for the purpose of aiding in the suppression of the rebellion. To give them their fullest effect, there had to be a pledge for their maintenance. In my judgment, they have aided, and will further aid, the cause for which they were intended. To now abandon them would not only be to relinquish a lever of power, but would also be a cruel and astounding breach of faith. . . . For these and other reasons, it is thought best that support of these measures shall be included in the oath, and it is believed the Executive may lawfully claim it in return for pardon and restoration of forfeited rights, which he has clear constitutional power to withhold altogether or grant upon the terms which he shall deem wisest for the public interest." The proclamation of pardon, by a qualifying proclamation issued on the 26th of March, 1864, [ Footnote 13 ] was limited to those persons only who, being yet at large and free from confinement Page 80 U. S. 141 or duress, shall voluntarily come forward and take the said oath with the purpose of restoring peace and establishing the national authority. On the 29th of May, 1865, [ Footnote 14 ] amnesty and pardon, with the restoration of the rights of property except as to slaves, and that as to which legal proceedings had been instituted under laws of the United States, were again offered to all who had, directly or indirectly, participated in the rebellion, except certain persons included in fourteen classes. All who embraced this offer were required to take and subscribe an oath of like tenor with that required by the first proclamation. On the 7th of September, 1867, [ Footnote 15 ] still another proclamation was issued, offering pardon and amnesty, with restoration of property, as before and on the same oath, to all but three excepted classes. And finally, on the 4th of July, 1868, [ Footnote 16 ] a full pardon and amnesty was granted, with some exceptions, and on the 25th of December, 1868, [ Footnote 17 ] without exception, unconditionally and without reservation, to all who had participated in the rebellion, with restoration of rights of property as before. No oath was required. It is true that the section of the act of Congress which purported to authorize the proclamation of pardon and amnesty by the President was repealed on the 21st of January, 1867, but this was after the close of the war, when the act had ceased to be important as an expression of the legislative disposition to carry into effect the clemency of the Executive, and after the decision of this court that the President's power of pardon "is not subject to legislation;" that "Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders." [ Footnote 18 ] It is not important, therefore, to refer to this repealing act further than to say that it is impossible to believe, while the repealed provision was in full force, and the faith of the legislature Page 80 U. S. 142 as well as the Executive was engaged to the restoration of the rights of property promised by the latter, that the proceeds of property of persons pardoned, which had been paid into the treasury, were to be withheld from them. The repeal of the section in no respect changes the national obligation, for it does not alter at all the operation of the pardon, or reduce in any degree the obligations of Congress under the Constitution to give full effect to it, if necessary, by legislation. We conclude, therefore, that the title to the proceeds of the property which came to the possession of the government by capture or abandonment, with the exceptions already noticed, was in no case divested out of the original owner. It was for the government itself to determine whether these proceeds should be restored to the owner or not. The promise of the restoration of all rights of property decides that question affirmatively as to all persons who availed themselves of the proffered pardon. It was competent for the President to annex to his offer of pardon any conditions or qualifications he should see fit; but after those conditions and qualifications had been satisfied, the pardon and its connected promises took full effect. The restoration of the proceeds became the absolute right of the persons pardoned, on application within two years from the close of the war. It was, in fact, promised for an equivalent. "Pardon and restoration of political rights" were "in return" for the oath and its fulfillment. To refuse it would be a breach of faith not less "cruel and astounding" than to abandon the freed people whom the Executive had promised to maintain in their freedom. What, then, was the effect of the provision of the act of 1870 [ Footnote 19 ] upon the right of the owner of the cotton in this case? He had done certain acts which this court [ Footnote 20 ] has adjudged to be acts in aid of the rebellion, but he abandoned the cotton to the agent of the Treasury Department, by whom it has been sold and the proceeds paid into the Treasury of the Page 80 U. S. 143 United States; and he took, and has not violated, the amnesty oath under the President's proclamation. Upon this case, the Court of Claims pronounced him entitled to a judgment for the net proceeds in the treasury. This decree was rendered on the 26th of May, 1869; the appeal to this court made on the 3d of June, and was filed here on the 11th of December, 1869. The judgment of the court in the case of Padelford, which, in its essential features, was the same with this case, was rendered on the 30th of April, 1870. It affirmed the judgment of the Court of Claims in his favor. Soon afterwards, the provision in question was introduced as a proviso to the clause in the general appropriation bill appropriating a sum of money for the payment of judgments of the Court of Claims, and became a part of the act, with perhaps little consideration in either House of Congress. This proviso declares in substance that no pardon, acceptance, oath, or other act performed in pursuance, or as a condition of pardon shall be admissible in evidence in support of any claim against the United States in the Court of Claims, or to establish the right of any claimant to bring suit in that court; nor, if already put in evidence, shall be used or considered on behalf of the claimant, by said court, or by the appellate court on appeal. Proof of loyalty is required to be made according to the provisions of certain statutes, irrespective of the effect of any executive proclamation, pardon, or amnesty, or act of oblivion; and when judgment has been already rendered on other proof of loyalty, the Supreme Court, on appeal, shall have no further jurisdiction of the cause, and shall dismiss the same for want of jurisdiction. It is further provided that whenever any pardon, granted to any suitor in the Court of Claims, for the proceeds of captured and abandoned property, shall recite in substance that the person pardoned took part in the late rebellion, or was guilty of any act of rebellion or disloyalty, and shall have been accepted in writing without express disclaimer and protestation against the fact so recited, such pardon or acceptance shall be taken as conclusive evidence Page 80 U. S. 144 in the Court of Claims, and on appeal, that the claimant did give aid to the rebellion, and, on proof of such pardon or acceptance, which proof may be made summarily on motion or otherwise, the jurisdiction of the court shall cease, and the suit shall be forthwith dismissed. The substance of this enactment is that an acceptance of a pardon without disclaimer shall be conclusive evidence of the acts pardoned, but shall be null and void as evidence of the rights conferred by it, both in the Court of Claims and in this court on appeal. It was urged in argument that the right to sue the government in the Court of Claims is a matter of favor, but this seems not entirely accurate. It is as much the duty of the government as of individuals to fulfil its obligations. Before the establishment of the Court of Claims, claimants could only be heard by Congress. That court was established in 1855 [ Footnote 21 ] for the triple purpose of relieving Congress, and of protecting the government by regular investigation, and of benefiting the claimants by affording them a certain mode of examining and adjudicating upon their claims. It was required to hear and determine upon claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States. [ Footnote 22 ] Originally it was a court merely in name, for its power extended only to the preparation of bills to be submitted to Congress. In 1863, the number of judges was increased from three to five, its jurisdiction was enlarged, and, instead of being required to prepare bills for Congress, it was authorized to render final judgment, subject to appeal to this court and to an estimate by the Secretary of the Treasury of the amount required to pay each claimant. [ Footnote 23 ] This court being of opinion [ Footnote 24 ] that the provision for an estimate was inconsistent with the finality essential to judicial decisions, Congress repealed that provision. [ Footnote 25 ] Since then, the Court of Claims has exercised Page 80 U. S. 145 all the functions of a court, and this court has taken full jurisdiction on appeal. [ Footnote 26 ] The Court of Claims is thus constituted one of those inferior courts which Congress authorizes, and has jurisdiction of contracts between the government and the citizen, from which appeal regularly lies to this court. Undoubtedly the legislature has complete control over the organization and existence of that court, and may confer or withhold the right of appeal from its decisions. And if this act did nothing more, it would be our duty to give it effect. If it simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make "such exceptions from the appellate jurisdiction" as should seem to it expedient. But the language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have. The proviso declares that pardons shall not be considered by this court on appeal. We had already decided that it was our duty to consider them and give them effect, in cases like the present, as equivalent to proof of loyalty. It provides that, whenever it shall appear that any judgment of the Court of Claims shall have been founded on such pardons, without other proof of loyalty, the Supreme Court shall have no further jurisdiction of the case, and shall dismiss the same for want of jurisdiction. The proviso further declares that every pardon granted to any suitor in the Court of Claims and reciting that the person pardoned has been guilty of any act of rebellion or disloyalty shall, if accepted in writing without disclaimer of the fact recited, be taken as conclusive evidence in that court and on appeal of the act recited, and, on proof of pardon or acceptance, summarily made on motion Page 80 U. S. 146 or otherwise, the jurisdiction of the court shall cease and the suit shall be forthwith dismissed. It is evident from this statement that the denial of jurisdiction to this court, as well as to the Court of Claims, is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress. The court has jurisdiction of the cause to a given point, but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction. It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power. The court is required to ascertain the existence of certain facts, and thereupon to declare that its jurisdiction on appeal has ceased by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? In the case before us, the Court of Claims has rendered judgment for the claimant, and an appeal has been taken to this court. We are directed to dismiss the appeal if we find that the judgment must be affirmed because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it? We think not, and, thus thinking, we do not at all question what was decided in the case of Pennsylvania v. Wheeling Bridge Company. [ Footnote 27 ] In that case, after a decree in this court that the bridge, in the then state of the law, was a nuisance, and must be abated as such, Congress passed an act legalizing the structure and making it a post-road, and the court, on a motion for process to enforce the decree, held that the bridge had ceased to be a nuisance by the exercise of the constitutional powers of Congress, and denied the motion. No arbitrary rule of decision was prescribed in that case, Page 80 U. S. 147 but the court was left to apply its ordinary rules to the new circumstances created by the act. In the case before us, no new circumstances have been created by legislation. But the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary. We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power. It is of vital importance that these powers be kept distinct. The Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress shall from time to time ordain and establish. The same instrument, in the last clause of the same article, provides that, in all cases other than those of original jurisdiction, "the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make." Congress has already provided that the Supreme Court shall have jurisdiction of the judgments of the Court of Claims on appeal. Can it prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself. The rule prescribed is also liable to just exception as impairing the effect of a pardon, and thus infringing the constitutional power of the Executive. It is the intention of the Constitution that each of the great coordinate departments of the government -- the Legislative, the Executive, and the Judicial -- shall be, in its sphere, independent of the others. To the executive alone is intrusted the power of pardon; and it is granted without limit. Pardon includes amnesty. It blots out the offence pardoned, and removes all its penal consequences. It may be granted on conditions. In these particular pardons, Page 80 U. S. 148 that no doubt might exist as to their character, restoration of property was expressly pledged, and the pardon was granted on condition that the person who availed himself of it should take and keep a prescribed oath. Now it is clear that the legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The court is required to receive special pardons as evidence of guilt, and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority, and directs the court to be instrumental to that end. We think it unnecessary to enlarge. The simplest statement is the best. We repeat that it is impossible to believe that this provision was not inserted in the appropriation bill through inadvertence, and that we shall not best fulfill the deliberate will of the legislature by DENYING the motion to dismiss and AFFIRMING the judgment of the Court of Claims; which is ACCORDINGLY DONE. [ Footnote 1 ] 12 Stat. at Large 257. [ Footnote 2 ] Ib. 319. [ Footnote 3 ] Ib. 589. [ Footnote 4 ] Id. 1266. [ Footnote 5 ] 14 Stat. at Large 377. [ Footnote 6 ] United States v. Padelford , 9 Wallace 531. [ Footnote 7 ] 16 Stat. at Large 235. [ Footnote 8 ] Halleck's International Law. [ Footnote 9 ] 12 Stat. at Large 820. [ Footnote 10 ] Ib. 1266. [ Footnote 11 ] Ib. 590. [ Footnote 12 ] 13 Stat. at Large 737. [ Footnote 13 ] 13 Stat. at Large 741. [ Footnote 14 ] 13 Stat. at Large 758. [ Footnote 15 ] 15 Id. 699. [ Footnote 16 ] Ib. 702. [ Footnote 17 ] Ib. 711. [ Footnote 18 ] 14th January, 1867. [ Footnote 19 ] 16 Stat. at Large 235. [ Footnote 20 ] United States v. Padelford , 9 Wallace 531. [ Footnote 21 ] 10 Stat. at Large 612. [ Footnote 22 ] Ib. [ Footnote 23 ] 12 Ib. 765. [ Footnote 24 ] 69 U. S. 2 Wallace 561. [ Footnote 25 ] 14 Stat. at Large 9. [ Footnote 26 ] 14 Stat. at Large 44, 391, 444. [ Footnote 27 ] 59 U. S. 18 Howard 429. Mr. Justice MILLER (with whom concurred Mr. Justice BRADLEY), dissenting. I cannot agree to the opinion of the court just delivered in an important matter, and I regret this the more because I do agree to the proposition that the proviso to the act of July 12th, 1870, is unconstitutional so far as it attempts to prescribe to the judiciary the effect to be given to an act of pardon or amnesty by the President. This power of pardon is confided to the President by the Constitution, and whatever may be its extent or its limits, the legislative branch of the government cannot impair its force or effect in a judicial proceeding in a constitutional court. But I have not been able to bring my mind to concur in the proposition that, under the act concerning captured and abandoned property, there remains in the former owner, who had given aid and Page 80 U. S. 149 comfort to the rebellion, any interest whatever in the property or its proceeds when it had been sold and paid into the treasury or had been converted to the use of the public under that act. I must construe this act, as all others should be construed, by seeking the intention of its framers, and the intention to restore the proceeds of such property to the loyal citizen, and to transfer it absolutely to the government in the case of those who had given active support to the rebellion, is, to me, too apparent to be disregarded. In the one case, the government is converted into a trustee for the former owner; in the other, it appropriates it to its own use as the property of a public enemy captured in war. Can it be inferred from anything found in the statute that Congress intended that this property should ever be restored to the disloyal? I am unable to discern any such intent. But if it did, why was not some provision made by which the title of the government could at some time be made perfect, or that of the owner established? Some judicial proceeding for confiscation would seem to be necessary if there remains in the disloyal owner any right or interest whatever. But there is no such provision, and unless the act intended to forfeit absolutely the right of the disloyal owner, the proceeds remain in a condition where the owner cannot maintain a suit for its recovery, and the United States can obtain no perfect title to it. This statute has recently received the attentive consideration of the court in two reported cases. In the case of the United States v. Anderson, [ Footnote 2/1 ] in reference to the relation of the government to the money paid into the treasury under this act, and the difference between the property of the loyal and disloyal owner, the court uses language hardly consistent with the opinion just read. It says that Congress, in a spirit of liberality, constituted the government a trustee for so much of this property as belonged to the faithful Southern people, and while it directed that all of it should be sold and its proceeds paid into the treasury, gave to this class of persons an opportunity to establish Page 80 U. S. 150 their right to the proceeds. Again, it is said that "the measure, in itself of great beneficence, was practically important only in its application to the loyal Southern people, and sympathy for their situation doubtless prompted Congress to pass it." These views had the unanimous concurrence of the court. If I understand the present opinion, however, it maintains that the government, in taking possession of this property and selling it, became the trustee of all the former owners, whether loyal or disloyal, and holds it for the latter until pardoned by the President, or until Congress orders it to be restored to him. The other case which I refer to is that of United States v. Padelford. [ Footnote 2/2 ] In that case, the opinion makes a labored and successful effort to show that Padelford, the owner of the property, had secured the benefit of the amnesty proclamation before the property was seized under the same statute we are now considering. And it bases the right of Padelford to recover its proceeds in the treasury on the fact that before the capture his status as a loyal citizen had been restored, and with it all his rights of property, although he had previously given aid and comfort to the rebellion. In this view, I concurred with all my brethren. And I hold now that, as long as the possession or title of property remains in the party, the pardon or the amnesty remits all right in the government to forfeit or confiscate it. But where the property has already been seized and sold, and the proceeds paid into the treasury, and it is clear that the statute contemplates no further proceeding as necessary to divest the right of the former owner, the pardon does not and cannot restore that which has thus completely passed away. And if such was not the view of the court when Padelford's case was under consideration, I am at a loss to discover a reason for the extended argument in that case, in the opinion of the court, to show that he had availed himself of the amnesty before the seizure of the property. If the views now advanced are sound, it was wholly immaterial whether Padelford was pardoned before or after the seizure. [ Footnote 2/1 ] 76 U. S. 9 Wallace 65. [ Footnote 2/2 ] 76 U. S. 9 Wallace 531.

The Supreme Court ruled that the US government acted as a trustee for the property of disloyal citizens during the Civil War, and that loyal citizens were entitled to the proceeds of their property paid into the treasury. The Court also determined that a pardon from the President restored property rights, even if the property had already been seized and sold, and that Congress was obligated to honor the terms of pardons. In this case, the Court interpreted the Abandoned and Captured Property Act of 1863 and related legislation, and established the government's role as a trustee for citizens' property during times of insurrection.

Search & Seizure

Kansas v. Glover

https://supreme.justia.com/cases/federal/us/589/18-556/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 18–556 _________________ KANSAS, PETITIONER v. CHARLES GLOVER on writ of certiorari to the supreme court of kansas [April 6, 2020] Justice Thomas delivered the opinion of the Court. This case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license. We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable. I Kansas charged respondent Charles Glover, Jr., with driving as a habitual violator after a traffic stop revealed that he was driving with a revoked license. See Kan. Stat. Ann. §8–285(a)(3) (2001). Glover filed a motion to suppress all evidence seized during the stop, claiming that the officer lacked reasonable suspicion. Neither Glover nor the police officer testified at the suppression hearing. Instead, the parties stipulated to the following facts: “1. Deputy Mark Mehrer is a certified law enforcement officer employed by the Douglas County Kansas Sheriff ’s Office. 2. On April 28, 2016, Deputy Mehrer was on routine patrol in Douglas County when he observed a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. 3. Deputy Mehrer ran Kansas plate 295ATJ through the Kansas Department of Revenue’s file service. The registration came back to a 1995 Chevrolet 1500 pickup truck. 4. Kansas Department of Revenue files indicated the truck was registered to Charles Glover Jr. The files also indicated that Mr. Glover had a revoked driver’s license in the State of Kansas. 5. Deputy Mehrer assumed the registered owner of the truck was also the driver, Charles Glover Jr. 6. Deputy Mehrer did not observe any traffic infractions, and did not attempt to identify the driver [of] the truck. Based solely on the information that the registered owner of the truck was revoked, Deputy Mehrer initiated a traffic stop. 7. The driver of the truck was identified as the defendant, Charles Glover Jr.” App. to Pet. for Cert. 60–61. The District Court granted Glover’s motion to suppress. The Court of Appeals reversed, holding that “it was reasonable for [Deputy] Mehrer to infer that the driver was the owner of the vehicle” because “there were specific and articulable facts from which the officer’s common-sense inference gave rise to a reasonable suspicion.” 54 Kan. App. 2d 377, 385, 400 P.3d 182, 188 (2017). The Kansas Supreme Court reversed. According to the court, Deputy Mehrer did not have reasonable suspicion because his inference that Glover was behind the wheel amounted to “only a hunch” that Glover was engaging in criminal activity. 308 Kan. 590, 591, 422 P.3d 64, 66 (2018). The court further explained that Deputy Mehrer’s “hunch” involved “applying and stacking unstated assumptions that are unreasonable without further factual basis,” namely, that “the registered owner was likely the primary driver of the vehicle” and that “the owner will likely disregard the suspension or revocation order and continue to drive.” Id., at 595–597, 422 P. 3d, at 68–70. We granted Kansas’ petition for a writ of certiorari, 587 U. S. ___ (2019), and now reverse. II Under this Court’s precedents, the Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez , 449 U.S. 411 , 417–418 (1981); see also Terry v. Ohio , 392 U.S. 1 , 21–22 (1968). “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Prado Navarette v. California , 572 U.S. 393 , 397 (2014) (quotation altered); United States v. Sokolow , 490 U.S. 1 , 7 (1989). Because it is a “less demanding” standard, “reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause.” Alabama v. White , 496 U.S. 325 , 330 (1990). The standard “depends on the factual and practical considerations of everyday life on which reasonable and prudent men , not legal technicians, act.” Navarette , supra , at 402 (quoting Ornelas v. United States , 517 U.S. 690 , 695 (1996) (emphasis added; internal quotation marks omitted)). Courts “cannot reasonably demand scientific certainty . . . where none exists.” Illinois v. Wardlow , 528 U.S. 119 , 125 (2000). Rather, they must permit officers to make “commonsense judgments and inferences about human behavior.” Ibid. ; see also Navarette , supra , at 403 (noting that an officer “ ‘need not rule out the possibility of innocent conduct’ ”). III We have previously recognized that States have a “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles [and] that licensing, registration, and vehicle inspection requirements are being observed.” Delaware v. Prouse , 440 U.S. 648 , 658 (1979). With this in mind, we turn to whether the facts known to Deputy Mehrer at the time of the stop gave rise to reason- able suspicion. We conclude that they did. Before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. He also knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle. From these three facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop. The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reason- ableness of Deputy Mehrer’s inference. Such is the case with all reasonable inferences. The reasonable suspicion inquiry “falls considerably short” of 51% accuracy, see United States v. Arvizu , 534 U.S. 266 , 274 (2002), for, as we have explained, “[t]o be reasonable is not to be perfect,” Heien v. North Carolina , 574 U.S. 54 , 60 (2014). Glover’s revoked license does not render Deputy Mehrer’s inference unreasonable either. Empirical studies demonstrate what common experience readily reveals: Drivers with revoked licenses frequently continue to drive and therefore to pose safety risks to other motorists and pedestrians. See, e.g. , 2 T. Neuman et al., National Coop. Hwy. Research Program Report 500: A Guide for Addressing Collisions Involving Unlicensed Drivers and Drivers With Suspended or Revoked Licenses, p. III–1 (2003) (noting that 75% of drivers with suspended or revoked licenses continue to drive); National Hwy. and Traffic Safety Admin., Research Note: Driver License Compliance Status in Fatal Crashes 2 (Oct. 2014) (noting that approximately 19% of motor vehicle fatalities from 2008–2012 “involved drivers with invalid licenses”). Although common sense suffices to justify this inference, Kansas law reinforces that it is reasonable to infer that an individual with a revoked license may continue driving. The State’s license-revocation scheme covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive. The Division of Vehicles of the Kansas Department of Revenue (Division) “shall” revoke a driver’s license upon certain convictions for involuntary manslaughter, vehicular homicide, battery, reckless driving, fleeing or attempting to elude a police officer, or conviction of a felony in which a motor vehicle is used. Kan. Stat. Ann. §§8–254(a), 8–252. Reckless driving is defined as “driv[ing] any vehicle in willful or wanton disregard for the safety of persons or property.” §8–1566(a). The Division also has discretion to revoke a license if a driver “[h]as been convicted with such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of other persons on the highways,” “has been convicted of three or more moving traffic violations committed on separate occasions within a 12-month period,” “is incompetent to drive a motor vehicle,” or “has been convicted of a moving traffic violation, committed at a time when the person’s driving privileges were restricted, suspended[,] or revoked.” §§8–255(a)(1)–(4). Other reasons include violating license restrictions, §8–245(c), being under house arrest, §21–6609(c), and being a habitual violator, §8–286, which Kansas defines as a resident or nonresident who has been convicted three or more times within the past five years of certain enumerated driving offenses, §8–285. The concerns motivating the State’s various grounds for revocation lend further credence to the inference that a registered owner with a revoked Kansas driver’s license might be the one driving the vehicle. IV Glover and the dissent respond with two arguments as to why Deputy Mehrer lacked reasonable suspicion. Neither is persuasive. A First, Glover and the dissent argue that Deputy Mehrer’s inference was unreasonable because it was not grounded in his law enforcement training or experience. Nothing in our Fourth Amendment precedent supports the notion that, in determining whether reasonable suspicion exists, an officer can draw inferences based on knowledge gained only through law enforcement training and experience. We have repeatedly recognized the opposite. In Navarette , we noted a number of behaviors—including driving in the median, crossing the center line on a highway, and swerving—that as a matter of common sense provide “sound indicia of drunk driving.” 572 U. S., at 402. In Wardlow , we made the unremarkable observation that “[h]eadlong flight—wherever it occurs—is the consummate act of evasion” and therefore could factor into a police officer’s reasonable suspicion determination. 528 U. S., at 124. And in Sokolow , we recognized that the defendant’s method of payment for an airplane ticket contributed to the agents’ reasonable suspicion of drug trafficking because we “fe[lt] confident” that “[m]ost business travelers . . . purchase airline tickets by credit card or check” rather than cash. 490 U. S., at 8–9. So too here. The inference that the driver of a car is its registered owner does not require any specialized training; rather, it is a reasonable inference made by ordinary people on a daily basis. The dissent reads our cases differently, contending that they permit an officer to use only the common sense derived from his “experiences in law enforcement.” Post , at 5 (opinion of Sotomayor, J.). Such a standard defies the “common sense” understanding of common sense, i.e. , information that is accessible to people generally, not just some specialized subset of society. More importantly, this standard appears nowhere in our precedent. In fact, we have stated that reasonable suspicion is an “abstract” concept that cannot be reduced to “a neat set of legal rules,” Arvizu , 534 U. S., at 274 (internal quotation marks omitted), and we have repeatedly rejected courts’ efforts to impose a rigid structure on the concept of reasonableness, ibid. ; Sokolow , 490 U. S., at 7–8. This is precisely what the dissent’s rule would do by insisting that officers must be treated as bifurcated persons, completely precluded from drawing factual inferences based on the commonly held knowledge they have acquired in their everyday lives. The dissent’s rule would also impose on police the burden of pointing to specific training materials or field experiences justifying reasonable suspicion for the myriad infractions in municipal criminal codes. And by removing common sense as a source of evidence, the dissent would considerably narrow the daylight between the showing required for probable cause and the “less stringent” showing required for reasonable suspicion. Prouse , 440 U. S., at 654; see White , 496 U. S., at 330. Finally, it would impermissibly tie a traffic stop’s validity to the officer’s length of service. See Devenpeck v. Alford , 543 U.S. 146 , 154 (2004). Such requirements are inconsistent with our Fourth Amendment jurisprudence, and we decline to adopt them here. In reaching this conclusion, we in no way minimize the significant role that specialized training and experience routinely play in law enforcement investigations. See, e.g. , Arvizu , 534 U. S., at 273–274. We simply hold that such experience is not required in every instance. B Glover and the dissent also contend that adopting Kansas’ view would eviscerate the need for officers to base reasonable suspicion on “specific and articulable facts” particularized to the individual, see Terry , 392 U. S., at 21, because police could instead rely exclusively on probabilities. Their argument carries little force. As an initial matter, we have previously stated that officers, like jurors, may rely on probabilities in the reasonable suspicion context. See Sokolow , 490 U. S., at 8–9; Cortez , 449 U. S., at 418. Moreover, as explained above, Deputy Mehrer did not rely exclusively on probabilities. He knew that the license plate was linked to a truck matching the observed vehicle and that the registered owner of the vehicle had a revoked license. Based on these minimal facts, he used common sense to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity—driving with a revoked license. Traffic stops of this nature do not delegate to officers “broad and unlimited discretion” to stop drivers at random. United States v. Brignoni-Ponce , 422 U.S. 873 , 882 (1975). Nor do they allow officers to stop drivers whose conduct is no different from any other driver’s. See Brown v. Texas , 443 U.S. 47 , 52 (1979). Accordingly, combining database information and commonsense judgments in this context is fully consonant with this Court’s Fourth Amendment precedents.[ 1 ] V This Court’s precedents have repeatedly affirmed that “ ‘the ultimate touchstone of the Fourth Amendment is “reasonableness.” ’ ” Heien , 574 U. S., at 60 (quoting Riley v. California , 573 U.S. 373 , 381 (2014)). Under the totality of the circumstances of this case, Deputy Mehrer drew an entirely reasonable inference that Glover was driving while his license was revoked. We emphasize the narrow scope of our holding. Like all seizures, “[t]he officer’s action must be ‘justified at its inception.’ ” Hiibel v. Sixth Judicial Dist. Court of Nev. , Humboldt Cty. , 542 U.S. 177 , 185 (2004) (quoting United States v. Sharpe , 470 U.S. 675 , 682 (1985)). “The standard takes into account the totality of the circumstances—the whole picture.” Navarette , 572 U. S., at 397 (internal quotation marks omitted). As a result, the presence of additional facts might dispel reasonable suspicion. See Terry , supra , at 28. For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not “raise a suspicion that the particular individual being stopped is engaged in wrongdoing.” Cortez , 449 U. S., at 418; Ornelas , 517 U. S., at 696 (“ ‘[e]ach case is to be decided on its own facts and circumstances’ ” (quoting Ker v. California , 374 U.S. 23 , 33 (1963))). Here, Deputy Mehrer possessed no exculpatory information—let alone sufficient information to rebut the reasonable inference that Glover was driving his own truck—and thus the stop was justified.[ 2 ] *  *  * For the foregoing reasons, we reverse the judgment of the Kansas Supreme Court, and we remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 The dissent contends that this approach “pave[s] the road to finding reasonable suspicion based on nothing more than a demographic profile.” Post , at 6–7 (opinion of Sotomayor, J.). To alleviate any doubt, we reiterate that the Fourth Amendment requires, and Deputy Mehrer had, an individualized suspicion that a particular citizen was engaged in a particular crime. Such a particularized suspicion would be lacking in the dissent’s hypothetical scenario, which, in any event, is already prohibited by our precedents. See United States v. Brignoni-Ponce , 422 U.S. 873 , 876 (1975) (holding that it violated the Fourth Amendment to stop and “question [a vehicle’s] occupants [about their immigration status] when the only ground for suspicion [was] that the occupants appear[ed] to be of Mexican ancestry”). 2 The dissent argues that this approach impermissibly places the burden of proof on the individual to negate the inference of reasonable suspicion. Post , at 3. Not so. As the above analysis makes clear, it is the information possessed by the officer at the time of the stop, not any information offered by the individual after the fact, that can negate the inference. SUPREME COURT OF THE UNITED STATES _________________ No. 18–556 _________________ KANSAS, PETITIONER v. CHARLES GLOVER on writ of certiorari to the supreme court of kansas [April 6, 2020] Justice Kagan, with whom Justice Ginsburg joins, concurring. When you see a car coming down the street, your common sense tells you that the registered owner may well be behind the wheel. See ante, at 4, 9. Not always, of course. Families share cars; friends borrow them. Still, a person often buys a vehicle to drive it himself. So your suspicion that the owner is driving would be perfectly reasonable. See ibid. Now, though, consider a wrinkle: Suppose you knew that the registered owner of the vehicle no longer had a valid driver’s license. That added fact raises a new question. What are the odds that someone who has lost his license would continue to drive? The answer is by no means obvious. You might think that a person told not to drive on pain of criminal penalty would obey the order—so that if his car was on the road, someone else (a family member, a friend) must be doing the driving. Or you might have the opposite intuition—that a person’s reasons for driving would overcome his worries about violating the law, no matter the possible punishment. But most likely (let’s be honest), you just wouldn’t know. Especially if you’ve not had your own license taken away, your everyday experience has given you little basis to assess the probabilities. Your common sense can therefore no longer guide you. Even so, Deputy Mark Mehrer had reasonable suspicion to stop the truck in this case, and I join the Court’s opinion holding as much. Crucially for me, Mehrer knew yet one more thing about the vehicle’s registered owner, and it related to his proclivity for breaking driving laws. As the Court recounts, Mehrer learned from a state database that Charles Glover, the truck’s owner, had had his license revoked under Kansas law. See ante, at 2. And Kansas almost never revokes a license except for serious or repeated driving offenses. See Kan. Stat. Ann. §8–254 (2001); ante, at 5. Crimes like vehicular homicide and manslaughter, or vehicular flight from a police officer, provoke a license revocation; so too do multiple convictions for moving traffic violations within a short time. See ante, at 5. In other words, a person with a revoked license has already shown a willingness to flout driving restrictions. That fact, as the Court states, provides a “reason[ ] to infer” that such a person will drive without a license—at least often enough to warrant an investigatory stop. Ibid. And there is nothing else here to call that inference into question. That is because the parties’ unusually austere stipulation confined the case to the facts stated above— i.e., that Mehrer stopped Glover’s truck because he knew that Kansas had revoked Glover’s license. But as already suggested, I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws. Consider, for example, if Kansas had suspended rather than revoked Glover’s license. Along with many other States, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support. See Kan. Stat. Ann. §8–2110(b) (2018 Cum. Supp.); see also, e.g. , N. J. Stat. Ann. §39:4–139.10 (West Supp. 2019); Ark. Code Ann. §9–14–239 (Supp. 2019). Indeed, several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor. See Brief for Fines and Fees Justice Center et al. as Amici Curiae 7. So the good reason the Court gives for thinking that someone with a revoked license will keep driving—that he has a history of disregarding driving rules—would no longer apply. And without that, the case for assuming that an unlicensed driver is at the wheel is hardly self-evident. It would have to rest on an idea about the frequency with which even those who had previously complied with driving laws would defy a State’s penalty-backed command to stay off the roads. But where would that idea come from? As discussed above, I doubt whether our collective common sense could do the necessary work. See supra, at 1. Or otherwise said, I suspect that any common sense invoked in this altered context would not much differ from a “mere ‘hunch’ ”—and so “not create reasonable suspicion.” Prado Navarette v. California , 572 U.S. 393 , 397 (2014) (quoting Terry v. Ohio , 392 U.S. 1 , 27 (1968)). And even when, as under the revocation scheme here, a starting presumption of reasonable suspicion makes sense, the defendant may show that in his case additional information dictates the opposite result. The Court is clear on this point, emphasizing that under the applicable totality-of-the-circumstances test, “the presence of additional facts might dispel reasonable suspicion” even though an officer knows that a car on the road belongs to a person with a revoked license. Ante, at 9; see ante, at 1 (stating that further information may “negat[e] an inference that the owner is the driver of the vehicle”). Just as the Court once said of a trained drug-detection dog’s “alert,” the license-revocation signal is always subject to a defendant’s challenge, whether through cross-examination of the officer or introduction of his own fact or expert witnesses. Florida v. Harris , 568 U.S. 237 , 247 (2013). That challenge may take any number of forms. The Court offers a clear example of observational evidence dispelling reasonable suspicion: if the officer knows the registered owner of a vehicle is an elderly man, but can see the driver is a young woman. See ante, at 9. Similarly (if not as cut-and-dry), when the officer learns a car has two or more registered owners, the balance of circumstances may tip away from reasonable suspicion that the one with the revoked license is driving. And so too, the attributes of the car may be relevant. Consider if a car bears the markings of a peer-to-peer carsharing service; or compare the likelihoods that someone other than the registered owner is driving (1) a family minivan and (2) a Ferrari. The officer himself may have a wealth of accumulated information about such matters, and the defendant may probe what that knowledge suggests about the stop at issue. Such a challenge may also use statistical evidence, which is almost daily expanding in sophistication and scope. States or municipalities often keep information about “hit rates” in stops like this one—in other words, the frequency with which those stops discover unlicensed drivers behind the wheel. See generally Brief for Andrew Manuel Crespo as Amicus Curiae 23–27. Somewhat less direct but also useful are state and local data (collected by governments, insurance companies, and academics alike) about the average number of drivers for each registered automobile and the extent to which unlicensed persons continue to drive. See id., at 13–18. (If, to use an extreme example, every car had 10 associated drivers, and losing a license reduced driving time by 90%, an officer would not have reasonable suspicion for a stop.) Here too, defendants may question testifying officers about such information. Indeed, an officer may have his own hit rate, which if low enough could itself negate reasonable suspicion. See, e.g. , United States v. Cortez-Galaviz , 495 F.3d 1203, 1208–1209 (CA10 2007) (Gorsuch, J.) (considering, as part of the reasonable suspicion inquiry, the frequency of an officer’s misses and the accuracy of the database on which he relied).[ 1 ] In this strange case, contested on a barebones stipulation, the record contains no evidence of these kinds. There is but a single, simple fact: A police officer learned from a state database that a car on the road belonged to a person with a revoked license. Given that revocations in Kansas nearly always stem from serious or repeated driving violations, I agree with the Court about the reasonableness of the officer’s inference that the owner, “Glover[,] was driving while his license was revoked.” Ante, at 9. And because Glover offered no rebuttal, there the matter stands. But that does not mean cases with more complete records will all wind up in the same place. A defendant like Glover may still be able to show that his case is different—that the “presence of additional facts” and circumstances “dispel[s] reasonable suspicion.” Ibid . Which is to say that in more fully litigated cases, the license-revocation alert does not (as it did here) end the inquiry. It is but the first, though no doubt an important, step in assessing the reasonableness of the officer’s suspicion. Notes 1 Of course, aggregate statistics of this kind cannot substitute for the individualized suspicion that the Fourth Amendment requires. See, e.g., Terry v. Ohio , 392 U.S. 1 , 21, n. 18 (1968) (“Th[e] demand for specificity . . . is the central teaching of this Court’s Fourth Amendment jurisprudence”). But in a case like this one, the officer’s suspicion is individualized: It arises from the license status of the known owner of a specific car. The only question is whether that suspicion is reasonable—whether, in other words, there is enough to back up the officer’s belief that the owner is driving the vehicle. As to that matter, statistics may be highly relevant, either to support or to cast doubt on the officer’s judgment. SUPREME COURT OF THE UNITED STATES _________________ No. 18–556 _________________ KANSAS, PETITIONER v. CHARLES GLOVER on writ of certiorari to the supreme court of kansas [April 6, 2020] Justice Sotomayor, dissenting. In upholding routine stops of vehicles whose owners have revoked licenses, the Court ignores key foundations of our reasonable-suspicion jurisprudence and impermissibly and unnecessarily reduces the State’s burden of proof. I therefore dissent. I I begin with common ground. The Fourth Amendment permits “brief investigatory” vehicle stops, United States v. Cortez , 449 U.S. 411 , 417 (1981), on “facts that do not constitute probable cause,” United States v. Brignoni-Ponce , 422 U.S. 873 , 881 (1975). To assess whether an officer had the requisite suspicion to seize a driver, past cases have considered the “totality of the circumstances—the whole picture,” Cortez , 449 U. S., at 417, and analyzed whether the officer assembled “fact on fact and clue on clue,” id. , at 419. The stop at issue here, however, rests on just one key fact: that the vehicle was owned by someone with a revoked license. The majority concludes—erroneously, in my view—that seizing this vehicle was constitutional on the record below because drivers with revoked licenses (as opposed to suspended licenses) in Kansas “have already demonstrated a disregard for the law or are categorically unfit to drive.” Ante , at 5. This analysis breaks from settled doctrine and dramatically alters both the quantum and nature of evidence a State may rely on to prove suspicion. A The State bears the burden of justifying a seizure. Florida v. Royer , 460 U.S. 491 , 500 (1983) (plurality opinion); Brown v. Texas , 443 U.S. 47 , 51–52 (1979). This requires the government to articulate factors supporting its reasonable suspicion, usually through a trained agent. See Ornelas v. United States , 517 U.S. 690 , 696 (1996); see also United States v. Sokolow , 490 U.S. 1 , 10 (1989). While the Court has not dictated precisely what evidence a government must produce, it has stressed that an officer must at least “articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” Illinois v. Wardlow , 528 U.S. 119 , 123–124 (2000) (quoting Terry v. Ohio , 392 U.S. 1 , 27 (1968)). That articulation must include both facts and an officer’s “rational inferences from those facts.” Brignoni-Ponce , 422 U. S., at 880, 884. A logical “gap as to any one matter” in this analysis may be overcome by “ ‘a strong showing’ ” regarding “ ‘other indicia of reliability.’ ” Florida v. Harris , 568 U.S. 237 , 245 (2013). But gaps may not go unfilled. Additionally, reasonable suspicion eschews judicial common sense, ante , at 5, in favor of the perspectives and inferences of a reasonable officer viewing “the facts through the lens of his police experience and expertise.” Ornelas , 517 U. S., at 699; Cortez , 449 U. S., at 416–418 (explaining that the facts and inferences giving rise to a stop “must be seen and weighed . . . as understood by those versed in the field of law enforcement”); Heien v. North Carolina , 574 U.S. 54 , 73 (2014) (Sotomayor, J., dissenting) (“[O]ur enunciation of the reasonableness inquiry and our justification for it . . . have always turned on an officer’s factual conclusions and an officer’s expertise with respect to those factual conclusions”). It is the reasonable officer’s assessment, not the ordinary person’s—or judge’s—judgment, that matters.[ 1 ] Finally, a stop must be individualized—that is, based on “a suspicion that the particular [subject] being stopped is engaged in wrongdoing.” Cortez , 449 U. S., at 418; Prado Navarette v. California , 572 U.S. 393 , 396–397 (2014). This does not mean that the officer must know the driver’s identity. But a seizure must rest on more than the “likelihood that [a] given person” or particular vehicle is engaged in wrongdoing. Brignoni-Ponce , 422 U. S., at 886–887. The inquiry ordinarily involves some observation or report about the target’s behavior—not merely the class to which he belongs. See, e.g. , Navarette , 572 U. S., at 398, 402 (upholding vehicle stop based on an anonymous tip about driver conduct, interpreted in light of the “accumulated experience of thousands of officers”); Sokolow , 490 U. S., at 10 (evaluating the collective facts giving rise to suspicion that an individual was transporting narcotics instead of relying on law enforcement’s simplified drug courier “ ‘profile’ ”). B Faithful adherence to these precepts would yield a significantly different analysis and outcome than that offered by the majority. For starters, the majority flips the burden of proof. It permits Kansas police officers to effectuate roadside stops whenever they lack “information negating an inference” that a vehicle’s unlicensed owner is its driver. Ante , at 1. This has it backwards: The State shoulders the burden to supply the key inference that tethers observation to suspicion. The majority repeatedly attributes such an inference to Deputy Mehrer. Ante , at 4, 6, 9. But that is an after-the-fact gloss on a seven-paragraph stipulation. Nowhere in his terse submission did Deputy Mehrer indicate that he had any informed belief about the propensity of unlicensed drivers to operate motor vehicles in the area—let alone that he relied on such a belief in seizing Glover. Ante , at 1–2. The consequence of the majority’s approach is to absolve officers from any responsibility to investigate the identity of a driver where feasible. But that is precisely what officers ought to do—and are more than capable of doing. Of course, some circumstances may not warrant an officer approaching a car to take a closer look at its occupants. But there are countless other instances where officers have been able to ascertain the identity of a driver from a distance and make out their approximate age and gender. Indeed, our cases are rife with examples of officers who have perceived more than just basic driver demographics. See, e.g. , Heien , 574 U. S., at 57 (officer thought that motorist was “ ‘very stiff and nervous’ ”); United States v. Arvizu , 534 U.S. 266 , 270 (2002) (officer observed an “adult man” driving who “appeared stiff”); United States v. Ross , 456 U. S 798, 801 (1982) (officer pulled alongside car and noticed that the driver matched a description from an informant); Brignoni-Ponce , 422 U. S., at 875 (officers stopped a vehicle whose occupants “appeared to be of Mexican descent”). The majority underestimates officers’ capabilities and instead gives them free rein to stop a vehicle involved in no suspicious activity simply because it is registered to an unlicensed person. That stop is based merely on a guess or a “hunch” about the driver’s identity. Wardlow , 528 U. S., at 124 (internal quotation marks omitted). With no basis in the record to presume that unlicensed drivers routinely continue driving, the majority endeavors to fill the gap with its own “common sense.” Ante , at 5. But simply labeling an inference “common sense” does not make it so, no matter how many times the majority repeats it. Cf. ante , at 5, 6, 7, 8. Whether the driver of a vehicle is likely to be its unlicensed owner is “by no means obvious.” Ante , at 1 (Kagan, J., concurring). And like the concurrence, I “doubt” that our collective judicial common sense could answer that question, even if our Fourth Amendment jurisprudence allowed us to do so. Ante , at 3. Contrary to the majority’s claims, ante , at 3–5, 7, the reasonable-suspicion inquiry does not accommodate the average person’s intuition. Rather, it permits reliance on a particular type of common sense—that of the reasonable officer, developed through her experiences in law enforcement. Cortez , 449 U. S., at 418. This approach acknowledges that what may be “common sense” to a layperson may not be relevant (or correct) in a law enforcement context. Indeed, this case presents the type of geographically localized inquiry where an officer’s “inferences and deductions that might well elude an untrained person” would come in handy. Ibid. ; see also Arvizu , 534 U. S., at 276 (prizing an officer’s “specialized training and familiarity with the customs of the area’s inhabitants”). By relying on judicial inferences instead, the majority promotes broad, inflexible rules that overlook regional differences. Allowing judges to offer their own brand of common sense where the State’s proffered justifications for a search come up short also shifts police work to the judiciary. Our cases—including those the majority cites—have looked to officer sensibility to establish inferences about human behavior, even though they just as easily could have relied on the inferences “made by ordinary people on a daily basis.” Ante , at 6. See, e.g. , Navarette , 572 U. S., at 402 (pointing to “the accumulated experience of thousands of officers” to identify certain “erratic” behaviors “as sound indicia of drunk driving”); Wardlow , 528 U. S., at 124 (permitting officers to account for the relevant characteristics of a location when interpreting whether flight from police is “evasive”); Sokolow , 490 U. S., at 9–10 (crediting the evidentiary significance of facts “as seen by a trained agent” to identify a suspicious traveler). There is no reason to depart from that practice here. Finally, to bolster its conclusion as grounded in “common experience,” the majority cites “empirical studies.” Ante , at 4. But its use of statistics illustrates the danger of relying on large-scale data to carry out what is supposed to be a particularized exercise. Neither of the referenced reports tells us the percentage of vehicle owners with revoked licenses in Kansas who continue to drive their cars. Neither report even offers a useful denominator: One lumps drivers with suspended and revoked licenses together, while the other examines the license status of only motorists involved in fatal collisions. The figures say nothing about how the behavior of revoked drivers measures up relative to their licensed counterparts—whether one group is more likely to be involved in accidents, or whether the incidences are comparable—which would inform a trooper’s inferences about driver identity. As the concurrence recognizes, while statistics may help a defendant challenge the reasonableness of an officer’s actions, they “cannot substitute for the individualized suspicion that the Fourth Amendment requires.” Ante , at 4–5, n. If courts do not scrutinize officer observation or expertise in the reasonable-suspicion analysis, then seizures may be made on large-scale data alone—data that say nothing about the individual save for the class to which he belongs. That analytical approach strays far from “acting upon observed violations” of law—which this Court has said is the “foremost method of enforcing traffic and vehicle safety regulations.” Delaware v. Prouse , 440 U.S. 648 , 659 (1979). The majority today has paved the road to finding reasonable suspicion based on nothing more than a demographic profile. Its logic has thus made the State’s task all but automatic. That has never been the law, and it never should be. II The majority’s justifications for this new approach have no foundation in fact or logic. It supposes that requiring officers to point to “training materials or field experiences” would demand “ ‘scientific certainty.’ ” Ante , at 3. But that is no truer in this case than in other circumstances where the reasonable-suspicion inquiry applies. Indeed, the State here was invited to stipulate to the evidence it relied on to make the stop. It could have easily described the individual or “accumulated experience” of officers in the jurisdiction. Cf. Navarette , 572 U. S., at 402. The State chose not to present such evidence and has not shown that it could not have done so. Accordingly, it has proved no harm to itself.[ 2 ] In fact, it is the majority’s approach that makes scant policy sense. If the State need not set forth all the information its officers considered before forming suspicion, what conceivable evidence could be used to mount an effective challenge to a vehicle stop, as the concurrence imagines? Ante , at 4. Who could meaningfully interrogate an officer’s action when all the officer has to say is that the vehicle was registered to an unlicensed driver? How would a driver counter that evidence—by stating that they were of a different age or gender than the owner and insisting that the officer could have easily discerned that? And where would a defendant bring his arguments if the trial judge makes the key inference, or by the same token, fails to make an inference that “might well elude” the untrained? Cortez , 449 U. S., at 418. Moreover, the majority’s distinction between revocation and suspension may not hold up in other jurisdictions. For one, whether drivers with suspended licenses have “demonstrated a disregard for the law or are categorically unfit to drive” is completely unknown. And in several States, the grounds for revocation include offenses unrelated to driving fitness, such as using a license to unlawfully buy alcohol. See, e.g. , Ky. Rev. Stat. Ann. §186.560 (West Cum. Supp. 2019); Mont. Code Ann. §61–5–206 (2019); R. I. Gen. Laws §31–11–6 (2010). In yet other jurisdictions, “revocation” is the label assigned to a temporary sanction, which may be imposed for such infractions as the failure to comply with child support payments. Okla. Stat., Tit. 47, §6–201.1 (2011). Whether the majority’s “common sense” assumptions apply outside of Kansas is thus open to challenge. *  *  * Vehicle stops “interfere with freedom of movement, are inconvenient, and consume time.” Prouse , 440 U. S., at 657. Worse still, they “may create substantial anxiety” through an “unsettling show of authority.” Ibid. Before subjecting motorists to this type of investigation, the State must possess articulable facts and officer inferences to form suspicion. The State below left unexplained key components of the reasonable-suspicion inquiry. In an effort to uphold the conviction, the Court destroys Fourth Amendment jurisprudence that requires individualized suspicion. I respectfully dissent. Notes 1 Cortez explained why this is so. Law enforcement officers, behaving akin to “jurors as factfinders,” have “formulated certain commonsense conclusions about human behavior” as it relates to “the field of law enforcement.” 449 U. S., at 418. A trained officer thus “draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.” Ibid. ; see also United States v. Arvizu , 534 U.S. 266 , 276 (2002) (crediting officer assessment of driver behavior that was based on “his specialized training and familiarity with the customs of the area’s inhabitants”). 2 The majority suggests that requiring the State to supply the missing link between fact and suspicion would “considerably narrow the daylight” between the reasonable-suspicion showing and that required to establish probable cause. Ante , at 7. But that may simply be a feature of this unique context, where the difference between a permissible and impermissible stop turns on a single fact. Given that reasonable suspicion and probable cause are not “reducible to ‘precise definition or quantification,’ ” Florida v. Harris , 568 U.S. 237 , 243 (2013), the gradation between the two is bound to vary from case to case.

The Supreme Court held that a police officer does not violate the Fourth Amendment by initiating a traffic stop after running a vehicle's license plate and learning that the registered owner has a revoked driver's license, as long as the officer lacks information negating an inference that the owner is the driver.

Search & Seizure

Utah v. Strieff

https://supreme.justia.com/cases/federal/us/579/14-1373/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 14–1373 _________________ UTAH, PETITIONER v. EDWARDJOSEPH STRIEFF, JR. on writ of certiorari to the supreme court of utah [June 20, 2016] Justice Thomas delivered the opinion of the Court. To enforce the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression. The question in this case is whether this attenuation doctrine applies when an officer makesan unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest. I This case began with an anonymous tip. In December 2006, someone called the South Salt Lake City police’s drug-tip line to report “narcotics activity” at a particular residence. App. 15. Narcotics detective Douglas Fackrell investigated the tip. Over the course of about a week, Officer Fackrell conducted intermittent surveillance of the home. He observed visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs. One of those visitors was respondent Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store’s parking lot, Officer Fackrell detained Strieff, identified himself, and asked Strieff what he was doing at the residence. As part of the stop, Officer Fackrell requested Strieff’s identification, and Strieff produced his Utah identification card. Officer Fackrell relayed Strieff’s information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell then arrested Strieff pursuant to that warrant. When Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia. The State charged Strieff with unlawful possession of methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that the evidence was inadmissible because it was derived from an unlawful investigatory stop. At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband. The trial court agreed with the State and admitted the evidence. The court found that the short time between the illegal stop and the search weighed in favor of suppressing the evidence, but that two countervailing considerations made it admissible. First, the court considered the presence of a valid arrest warrant to be an “ ‘extraordinary intervening circumstance.’ ” App. to Pet. for Cert. 102 (quoting United States v. Simpson , 439 F. 3d 490, 496 (CA8 2006). Second, the court stressed the absence of flagrant misconduct by Officer Fackrell, who was conducting a legitimate investigation of a suspected drug house. Strieff conditionally pleaded guilty to reduced charges of attempted possession of a controlled substance and possession of drug paraphernalia, but reserved his right to appeal the trial court’s denial of the suppression motion. The Utah Court of Appeals affirmed. 2012 UT App 245, 286 P. 3d 317. The Utah Supreme Court reversed. 2015 UT 2, 357 P. 3d 532. It held that the evidence was inadmissible because only “a voluntary act of a defendant’s free will (as in a confession or consent to search)” sufficiently breaks the connection between an illegal search and the discovery of evidence. Id. , at 536. Because Officer Fackrell’s discovery of a valid arrest warrant did not fit this description, the court ordered the evidence suppressed. Ibid . We granted certiorari to resolve disagreement about how the attenuation doctrine applies where an unconstitutional detention leads to the discovery of a valid arrest warrant. 576 U. S. ___ (2015). Compare, e.g., United States v. Green , 111 F. 3d 515, 522–523 (CA7 1997) (holding that discovery of the warrant is a dispositive intervening circumstance where police misconduct was not flagrant), with, e.g., State v. Moralez , 297 Kan. 397, 415, 300 P. 3d 1090, 1102 (2013) (assigning little significance to the discovery of the warrant). We now reverse. II A The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Because officers who violated the Fourth Amendment were traditionally considered trespassers, individuals subject to unconstitutional searches or seizures histori-cally enforced their rights through tort suits or self-help. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 625 (1999). In the 20th century, however, the exclusionary rule—the rule that often requires trial courts to exclude unlawfully seized evidence in a criminal trial—became the principal judicial remedy to deter Fourth Amendment violations. See, e.g., Mapp v. Ohio ,367 U. S. 643,655 (1961). Under the Court’s precedents, the exclusionary rule encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality,” the so-called “ ‘fruit of the poisonous tree.’ ” Segura v. United States ,468 U. S. 796,804 (1984). But the significant costs of this rule have led us to deem it “applicable only . . . where its deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan ,547 U. S. 586,591 (2006) (internal quotation marks omitted). “Suppression of evidence . . . has always been our last resort, not our first impulse.” Ibid. We have accordingly recognized several exceptions to the rule. Three of these exceptions involve the causal relationship between the unconstitutional act and the discovery of evidence. First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. See Murray v. United States ,487 U. S. 533,537 (1988). Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. See Nix v. Williams ,467 U. S. 431–444 (1984). Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Hudson , supra, at 593. B Turning to the application of the attenuation doctrine to this case, we first address a threshold question: whether this doctrine applies at all to a case like this, where the intervening circumstance that the State relies on is the discovery of a valid, pre-existing, and untainted arrest warrant. The Utah Supreme Court declined to apply the attenuation doctrine because it read our precedents as applying the doctrine only “to circumstances involving an independent act of a defendant’s ‘free will’ in confessing to a crime or consenting to a search.” 357 P. 3d, at 544. In this Court, Strieff has not defended this argument, and we disagree with it, as well. The attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions. And the logic of our prior attenuation cases is not limited to independent acts by the defendant. It remains for us to address whether the discovery of a valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff’s person. The three factors articulated in Brown v. Illinois ,422 U. S. 590 (1975), guide our analysis. First, we look to the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Id., at 603. Second, we consider “the presence of intervening circumstances.” Id., at 603–604. Third, and “particularly” significant, we examine “the purpose and flagrancy of the official misconduct.” Id., at 604. In evaluating these factors, we assume without deciding (because the State conceded the point) that Officer Fackrell lacked reasonable suspicion to initially stop Strieff. And, because we ultimately conclude that the warrant breaks the causal chain, we also have no need to decide whether the warrant’s existence alone would make the initial stop constitutional even if Officer Fackrell was unaware of its existence. 1 The first factor, temporal proximity between the ini-tially unlawful stop and the search, favors suppressing the evidence. Our precedents have declined to find that this factor favors attenuation unless “substantial time” elapses between an unlawful act and when the evidence is obtained. Kaupp v. Texas ,538 U. S. 626,633 (2003) ( per curiam ). Here, however, Officer Fackrell discovered drug contraband on Strieff’s person only minutes after the illegal stop. See App. 18–19. As the Court explained in Brown , such a short time interval counsels in favor of suppression; there, we found that the confession should be suppressed, relying in part on the “less than two hours” that separated the unconstitutional arrest and the confession. 422 U. S., at 604. In contrast, the second factor, the presence of intervening circumstances, strongly favors the State. In Segura ,468 U. S. 796, the Court addressed similar facts to those here and found sufficient intervening circumstances to allow the admission of evidence. There, agents had probable cause to believe that apartment occupants were dealing cocaine. Id., at 799–800. They sought a warrant. In the meantime, they entered the apartment, arrested an occupant, and discovered evidence of drug activity during a limited search for security reasons. Id., at 800–801. The next evening, the Magistrate Judge issued the search warrant. Ibid. This Court deemed the evidence admissible notwithstanding the illegal search because the information supporting the warrant was “wholly unconnected with the [arguably illegal] entry and was known to the agents well before the initial entry.” Id., at 814. Segura , of course, applied the independent source doctrine because the unlawful entry “did not contribute in any way to discovery of the evidence seized under the warrant.” Id., at 815. But the Segura Court suggested that the existence of a valid warrant favors finding that the connection between unlawful conduct and the discovery of evidence is “sufficiently attenuated to dissipate the taint.” Ibid. That principle applies here. In this case, the warrant was valid, it predated Officer Fackrell’s investigation, and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff. “A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.” United States v. Leon ,468 U. S. 897,920, n.21 (1984) (internal quotation marks omitted). Officer Fackrell’s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell’s safety. See Arizona v. Gant ,556 U. S. 332,339 (2009) (explaining the permissible scope of searches incident to arrest). Finally, the third factor, “the purpose and flagrancy of the official misconduct,” Brown, supra, at 604, also strongly favors the State. The exclusionary rule exists to deter police misconduct. Davis v. United States ,564 U. S. 229–237 (2011). The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant. Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short-term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell’s stated purpose was to “find out what was going on [in] the house.” App. 17. Nothing prevented him from approaching Strieff simply to ask. See Florida v. Bostick ,501 U. S. 429,434 (1991) (“[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions”). But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights. While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful. The officer’s decision to run the warrant check was a “negligibly burdensome precautio[n]” for officer safety. Rodriguez v. United States , 575 U. S. ___, ___ (2015) (slip op., at 7). And Officer Fackrell’s actual search of Strieff was a lawful search incident to arrest. See Gant, supra, at 339. Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house. Officer Fackrell saw Strieff leave a suspected drug house. And his suspicion about the house was based on an anonymous tip and his personal observations. Applying these factors, we hold that the evidence discovered on Strieff’s person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff’s arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct. 2 We find Strieff’s counterarguments unpersuasive. First, he argues that the attenuation doctrine should not apply because the officer’s stop was purposeful and flagrant. He asserts that Officer Fackrell stopped him solely to fish for evidence of suspected wrongdoing. But Officer Fackrell sought information from Strieff to find out what was happening inside a house whose occupants were legitimately suspected of dealing drugs. This was not a suspicionless fishing expedition “in the hope that something would turn up.” Taylor v. Alabama ,457 U. S. 687,691 (1982). Strieff argues, moreover, that Officer Fackrell’s conduct was flagrant because he detained Strieff without the necessary level of cause (here, reasonable suspicion). But that conflates the standard for an illegal stop with the standard for flagrancy. For the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure. See, e.g., Kaupp , 538 U. S., at 628, 633 (finding flagrant violation where a warrantless arrest was made in the arrestee’s home after police were denied a warrant and at least some officers knew they lacked probable cause). Neither the officer’s alleged purpose nor the flagrancy of the violation rise to a level of misconduct to warrant suppression. Second, Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think that this outcome is unlikely. Such wanton conduct would expose police to civil liability. See42 U. S. C. §1983; Monell v. New York City Dept. of Social Servs. ,436 U. S. 658,690 (1978); see also Segura , 468 U. S., at 812. And in any event, the Brown factors take account of the purpose and flagrancy of police misconduct. Were evidence of a dragnet search presented here, the application of the Brown factors could be different. But there is no evidence that the concerns that Strieff raises with the criminal justice system are present in South Salt Lake City, Utah. *  *  * We hold that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest. The judgment of the Utah Supreme Court, accordingly, is reversed. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 14–1373 _________________ UTAH, PETITIONER v. EDWARDJOSEPH STRIEFF, JR. on writ of certiorari to the supreme court of utah [June 20, 2016] Justice Sotomayor, with whom Justice Ginsburg joins as to Parts I, II, and III, dissenting. The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent. I Minutes after Edward Strieff walked out of a South Salt Lake City home, an officer stopped him, questioned him, and took his identification to run it through a police database. The officer did not suspect that Strieff had done anything wrong. Strieff just happened to be the first person to leave a house that the officer thought might contain “drug activity.” App. 16–19. As the State of Utah concedes, this stop was illegal. App. 24. The Fourth Amendment protects people from “unreasonable searches and seizures.” An officer breaches that protection when he detains a pedestrian to check his license without any evidence that the person is engaged in a crime. Delaware v. Prouse , 440 U. S. 648, 663 (1979) ; Terry v. Ohio , 392 U. S. 1, 21 (1968) . The officer deepens the breach when he prolongs the detention just to fish further for evidence of wrongdoing. Rodriguez v. United States , 575 U. S. ___, ___–___ (2015) (slip op., at 6–7). In his search for lawbreaking, the officer in this case himself broke the law. The officer learned that Strieff had a “small traffic warrant.” App. 19. Pursuant to that warrant, he arrested Strieff and, conducting a search incident to the arrest, discovered methamphetamine in Strieff’s pockets. Utah charged Strieff with illegal drug possession. Before trial, Strieff argued that admitting the drugs into evidence would condone the officer’s misbehavior. The methamphetamine, he reasoned, was the product of the officer’s illegal stop. Admitting it would tell officers that unlawfully discovering even a “small traffic warrant” would give them license to search for evidence of unrelated offenses. The Utah Supreme Court unanimously agreed with Strieff. A majority of this Court now reverses. II It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right. See Weeks v. United States , 232 U. S. 383, 392 (1914) . When “lawless police conduct” uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence. Terry , 392 U. S., at 12; Mapp v. Ohio , 367 U. S. 643, 655 (1961) . For example, if an officer breaks into a home and finds a forged check lying around, that check may not be used to prosecute the homeowner for bank fraud. We would describe the check as “ ‘fruit of the poisonous tree.’ ” Wong Sun v. United States , 371 U. S. 471, 488 (1963) . Fruit that must be cast aside includes not only evidence directly found by an illegal search but also evidence “come at by exploitation of that illegality.” Ibid . This “exclusionary rule” removes an incentive for officers to search us without proper justification. Terry , 392 U. S. , at 12 . It also keeps courts from being “made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.” Id., at 13. When courts admit only lawfully obtained evidence, they encourage “those who formulate law enforcement polices, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.” Stone v. Powell , 428 U. S. 465, 492 (1976) . But when courts admit illegally obtained evidence as well, they reward “manifest neglect if not an open defiance of the prohibitions of the Constitution.” Weeks , 232 U. S., at 394. Applying the exclusionary rule, the Utah Supreme Court correctly decided that Strieff’s drugs must be excluded because the officer exploited his illegal stop to discover them. The officer found the drugs only after learning of Strieff’s traffic violation; and he learned of Strieff’s traffic violation only because he unlawfully stopped Strieff to check his driver’s license. The court also correctly rejected the State’s argument that the officer’s discovery of a traffic warrant unspoiled the poisonous fruit. The State analogizes finding the warrant to one of our earlier decisions, Wong Sun v. United States . There, an officer illegally arrested a person who, days later, voluntarily returned to the station to confess to committing a crime. 371 U. S., at 491. Even though the person would not have confessed “but for the illegal actions of the police,” id., at 488, we noted that the police did not exploit their illegal arrest to obtain the confession, id., at 491 . Because the confession was obtained by “means sufficiently distinguishable” from the constitutional violation, we held that it could be admitted into evidence. Id., at 488, 491 . The State contends that the search incident to the warrant-arrest here is similarly distinguishable from the illegal stop. But Wong Sun explains why Strieff’s drugs must be excluded. We reasoned that a Fourth Amendment violation may not color every investigation that follows but it certainly stains the actions of officers who exploit the infraction. We distinguished evidence obtained by innocuous means from evidence obtained by exploiting misconduct after considering a variety of factors: whether a long time passed, whether there were “intervening circumstances,” and whether the purpose or flagrancy of the misconduct was “calculated” to procure the evidence. Brown v. Illinois , 422 U. S. 590 –604 (1975). These factors confirm that the officer in this case discovered Strieff’s drugs by exploiting his own illegal conduct. The officer did not ask Strieff to volunteer his name only to find out, days later, that Strieff had a warrant against him. The officer illegally stopped Strieff and immediately ran a warrant check. The officer’s discovery of a warrant was not some intervening surprise that he could not have anticipated. Utah lists over 180,000 misdemeanor warrants in its database, and at the time of the arrest, Salt Lake County had a “backlog of outstanding warrants” so large that it faced the “potential for civil liability.” See Dept. of Justice, Bureau of Justice Statistics,Survey of State Criminal History Information Systems, 2014 (2015) (Systems Survey) (Table 5a), online at https://www.ncjrs.gov/pdffiles1/bjs/grants/249799.pdf (all Internet materials as last visited June 16, 2016); Inst. for Law and Policy Planning, Salt Lake County Crim-inal Justice System Assessment 6.7 (2004), online at http://www. slco.org / cjac / resources / SaltLakeCJSAfinal.pdf. The officer’s violation was also calculated to procure evidence. His sole reason for stopping Strieff, he acknowledged, was investigative—he wanted to discover whether drug activity was going on in the house Strieff had just exited. App. 17. The warrant check, in other words, was not an “intervening circumstance” separating the stop from the search for drugs. It was part and parcel of the officer’s illegal “expedition for evidence in the hope that something might turn up.” Brown , 422 U. S., at 605. Under our precedents, because the officer found Strieff’s drugs by exploiting his own constitutional violation, the drugs should be excluded. III A The Court sees things differently. To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence. Ante, at 7. This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch. To explain its reasoning, the Court relies on Segura v. United States , 468 U. S. 796 (1984) . There, federal agents applied for a warrant to search an apartment but illegally entered the apartment to secure it before the judge issued the warrant. Id., at 800–801. After receiving the warrant, the agents then searched the apartment for drugs. Id., at 801. The question before us was what to do with the evidence the agents then discovered. We declined to suppress it because “[t]he illegal entry into petitioners’ apartment did not contribute in any way to discovery of the evidence seized under the warrant.” Id., at 815. According to the majority, Segura involves facts “similar” to this case and “suggest[s]” that a valid warrant will clean up whatever illegal conduct uncovered it. Ante, at 6–7. It is difficult to understand this interpretation. In Segura , the agents’ illegal conduct in entering the apartment had nothing to do with their procurement of a search warrant. Here, the officer’s illegal conduct in stopping Strieff was essential to his discovery of an arrest warrant. Segura would be similar only if the agents used information they illegally obtained from the apartment to procure a search warrant or discover an arrest warrant. Precisely because that was not the case, the Court admitted the untainted evidence. 468 U. S., at 814. The majority likewise misses the point when it calls the warrant check here a “ ‘negligibly burdensome precautio[n]’ ” taken for the officer’s “safety.” Ante, at 8 (quoting Rodriguez , 575 U. S., at ___ (slip op., at 7)). Remember, the officer stopped Strieff without suspecting him of committing any crime. By his own account, the officer did not fear Strieff. Moreover, the safety rationale we discussed in Rodriguez , an opinion about highway patrols, is conspicuously absent here. A warrant check on a highway “ensur[es] that vehicles on the road are operated safely and responsibly.” Id. , at ___ (slip op., at 6). We allow such checks during legal traffic stops because the legitimacy of a person’s driver’s license has a “close connection to roadway safety.” Id., at ___ (slip op., at 7). A warrant check of a pedestrian on a sidewalk, “by contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing.’ ” Ibid. (quoting Indianapolis v. Edmond , 531 U. S. 32 –41 (2000)). Surely we would not allow officers to warrant-check random joggers, dog walkers, and lemonade vendors just to ensure they pose no threat to anyone else. The majority also posits that the officer could not have exploited his illegal conduct because he did not violate the Fourth Amendment on purpose. Rather, he made “good-faith mistakes.” Ante, at 8. Never mind that the officer’s sole purpose was to fish for evidence. The majority casts his unconstitutional actions as “negligent” and therefore incapable of being deterred by the exclusionary rule. Ibid. But the Fourth Amendment does not tolerate an officer’s unreasonable searches and seizures just because he did not know any better. Even officers prone to negligence can learn from courts that exclude illegally obtained evidence. Stone , 428 U. S., at 492. Indeed, they are perhaps the most in need of the education, whether by the judge’s opinion, the prosecutor’s future guidance, or an updated manual on criminal procedure. If the officers are in doubt about what the law requires, exclusion gives them an “incentive to err on the side of constitutional behavior.” United States v. Johnson , 457 U. S. 537, 561 (1982) . B Most striking about the Court’s opinion is its insistence that the event here was “isolated,” with “no indication that this unlawful stop was part of any systemic or recurrent police misconduct.” Ante , at 8–9. Respectfully, nothing about this case is isolated. Outstanding warrants are surprisingly common. When a person with a traffic ticket misses a fine payment or court appearance, a court will issue a warrant. See, e.g., Brennan Center for Justice, Criminal Justice Debt 23 (2010), online at https://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf. When a person on probation drinks alcohol or breaks curfew, a court will issue a warrant. See, e.g., Human Rights Watch, Profiting from Probation 1, 51 (2014), online at https://www.hrw.org/report/2014/02/05/profiting-probation/ americas - offender - funded - probation-industry. The States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses. See Systems Survey (Table 5a). Even these sources may not track the “staggering” numbers of warrants, “ ‘drawers and drawers’ ” full, that many cities issue for traffic violations and ordinance infractions. Dept. of Justice, Civil Rights Div., Investigation of the Ferguson Police Department 47, 55 (2015) (Ferguson Report), online at https://www.justice.gov/ sites / default / files / opa / press - releases / attachments / 2015 / 03 / 04/ferguson_police_department_report.pdf. The county in this case has had a “backlog” of such warrants. See supra, at 4. The Department of Justice recently reported that in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them. Ferguson Report, at 6, 55. Justice Department investigations across the country have illustrated how these astounding numbers of warrants can be used by police to stop people without cause. In a single year in New Orleans, officers “made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neighboring parishes for such infractions as unpaid tickets.” Dept. of Justice, Civil Rights Div., Investigation of the New Orleans Police Department 29 (2011), online at https://www.justice.gov / sites / default / files / crt / legacy/2011/03/17/nopd_report.pdf. In the St. Louis metropolitan area, officers “routinely” stop people—on the street, at bus stops, or even in court—for no reason other than “an officer’s desire to check whether the subject had a municipal arrest warrant pending.” Ferguson Report, at 49, 57 . In Newark, New Jersey, officers stopped 52,235 pedestrians within a 4-year period and ran warrant checks on 39,308 of them. Dept. of Justice, Civil Rights Div., Investigation of the Newark Police Department 8, 19, n. 15 (2014), online at https://www.justice.gov/sites  /default  /  files  / crt   /legacy  /  2014  /  07 /  22  /  newark  _  findings  _7-22-14.pdf. The Justice Department analyzed these warrant-checked stops and reported that “approximately 93% of the stops would have been considered unsupported by articulated reason-able suspicion.” Id., at 9, n. 7. I do not doubt that most officers act in “good faith” and do not set out to break the law. That does not mean these stops are “isolated instance[s] of negligence,” however. Ante, at 8. Many are the product of institutionalized training procedures. The New York City Police Department long trained officers to, in the words of a District Judge, “stop and question first, develop reasonable suspicion later.” Ligon v. New York , 925 F. Supp. 2d 478, 537–538 (SDNY), stay granted on other grounds, 736 F. 3d 118 (CA2 2013). The Utah Supreme Court described as “ ‘routine procedure’ or ‘common practice’ ” the decision of Salt Lake City police officers to run warrant checks on pedestrians they detained without reasonable suspicion. State v. Topanotes , 2003 UT 30, ¶2, 76 P. 3d 1159, 1160. In the related context of traffic stops, one widely followed police manual instructs officers looking for drugs to “run at least a warrants check on all drivers you stop. Statistically, narcotics offenders are . . . more likely to fail to appear on simple citations, such as traffic or trespass violations, leading to the issuance of bench warrants. Discovery of an outstanding warrant gives you cause for an immediate custodial arrest and search of the suspect.” C. Remsberg, Tactics for Criminal Patrol 205–206 (1995); C. Epp et al., Pulled Over 23, 33–36 (2014). The majority does not suggest what makes this case “isolated” from these and countless other examples. Nor does it offer guidance for how a defendant can prove that his arrest was the result of “widespread” misconduct. Surely it should not take a federal investigation of Salt Lake County before the Court would protect someone in Strieff’s position. IV Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States , 517 U. S. 806, 813 (1996) . That justification must provide specific reasons why the officer suspected you were breaking the law, Terry , 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce , 422 U. S. 873 –887 (1975), where you live, Adams v. Williams , 407 U. S. 143, 147 (1972) , what you were wearing, United States v. Sokolow , 490 U. S. 1 –5 (1989), and how you behaved, Illinois v. Wardlow , 528 U. S. 119 –125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford , 543 U. S. 146 –155 (2004); Heien v. North Carolina , 574 U. S. ___ (2014). The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick , 501 U. S. 429, 438 (1991) . Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry , 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “ ‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ ” Id., at 17, n. 13. The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista , 532 U. S. 318 –324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington , 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King , 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014). This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra , at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015). By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. *  *  * I dissent. SUPREME COURT OF THE UNITED STATES _________________ No. 14–1373 _________________ UTAH, PETITIONER v. EDWARDJOSEPH STRIEFF, JR. on writ of certiorari to the supreme court of utah [June 20, 2016] Justice Kagan, with whom Justice Ginsburg joins, dissenting. If a police officer stops a person on the street without reasonable suspicion, that seizure violates the Fourth Amendment. And if the officer pats down the unlawfully detained individual and finds drugs in his pocket, the State may not use the contraband as evidence in a criminal prosecution. That much is beyond dispute. The question here is whether the prohibition on admitting evidence dissolves if the officer discovers, after making the stop but before finding the drugs, that the person has an outstanding arrest warrant. Because that added wrinkle makes no difference under the Constitution, I respectfully dissent. This Court has established a simple framework for determining whether to exclude evidence obtained through a Fourth Amendment violation: Suppression is necessary when, but only when, its societal benefits outweigh its costs. See ante, at 4; Davis v. United States , 564 U. S. 229, 237 (2011) . The exclusionary rule serves a crucial function—to deter unconstitutional police conduct. By barring the use of illegally obtained evidence, courts reduce the temptation for police officers to skirt the Fourth Amendment’s requirements. See James v. Illinois , 493 U. S. 307, 319 (1990) . But suppression of evidence also “exacts a heavy toll”: Its consequence in many cases is to release a criminal without just punishment. Davis, 564 U. S., at 237. Our decisions have thus endeavored to strike a sound balance between those two competing considerations—rejecting the “reflexive” impulse to exclude evidence every time an officer runs afoul of the Fourth Amendment, id., at 238, but insisting on suppression when it will lead to “appreciable deterrence” of police misconduct, Herring v. United States , 555 U. S. 135, 141 (2009) . This case thus requires the Court to determine whether excluding the fruits of Officer Douglas Fackrell’s unjustified stop of Edward Strieff would significantly deter police from committing similar constitutional violations in the future. And as the Court states, that inquiry turns on application of the “attenuation doctrine,” ante, at 5—our effort to “mark the point” at which the discovery of evidence “become[s] so attenuated” from the police misconduct that the deterrent benefit of exclusion drops below its cost. United States v. Leon , 468 U. S. 897, 911 (1984) . Since Brown v. Illinois , 422 U. S. 590 –605 (1975), three factors have guided that analysis. First, the closer the “temporal proximity” between the unlawful act and the discovery of evidence, the greater the deterrent value of suppression. Id., at 603. Second, the more “purpose[ful]” or “flagran[t]” the police illegality, the clearer the necessity, and better the chance, of preventing similar misbehavior. Id., at 604. And third, the presence (or absence) of “intervening circumstances” makes a difference: The stronger the causal chain between the misconduct and the evidence, the more exclusion will curb future constitutional violations. Id., at 603–604. Here, as shown below, each of those considerations points toward suppression: Nothing in Fackrell’s discovery of an outstanding warrant so attenuated the connection between his wrongful behavior and his detection of drugs as to diminish the exclusionary rule’s deterrent benefits. Start where the majority does: The temporal proximity factor, it forthrightly admits, “favors suppressing the evidence.” Ante, at 6. After all, Fackrell’s discovery of drugs came just minutes after the unconstitutional stop. And in prior decisions, this Court has made clear that only the lapse of “substantial time” between the two could favor admission. Kaupp v. Texas , 538 U. S. 626, 633 (2003) ( per curiam ); see, e.g., Brown , 422 U. S., at 604 (suppressing a confession when “less than two hours” separated it from an unlawful arrest). So the State, by all accounts, takes strike one. Move on to the purposefulness of Fackrell’s conduct, where the majority is less willing to see a problem for what it is. The majority chalks up Fackrell’s Fourth Amendment violation to a couple of innocent “mistakes.” Ante, at 8. But far from a Barney Fife-type mishap, Fackrell’s seizure of Strieff was a calculated decision, taken with so little justification that the State has never tried to defend its legality. At the suppression hearing, Fackrell acknowledged that the stop was designed for investigatory purposes— i.e., to “find out what was going on [in] the house” he had been watching, and to figure out “what [Strieff] was doing there.” App. 17–18. And Fackrell frankly admitted that he had no basis for his action except that Strieff “was coming out of the house.” Id., at 17 . Plug in Fackrell’s and Strieff’s names, substitute “stop” for “arrest” and “reasonable suspicion” for “probable cause,” and this Court’s decision in Brown perfectly describes this case: “[I]t is not disputed that [Fackrell stopped Strieff] without [reasonable suspicion]. [He] later testified that [he] made the [stop] for the purpose of questioning [Strieff] as part of [his] investigation . . . . The illegality here . . . had a quality of purposefulness. The impropriety of the [stop] was obvious. [A]wareness of that fact was virtually conceded by [Fackrell] when [he] repeatedly acknowledged, in [his] testimony, that the purpose of [his] action was ‘for investigation’: [Fackrell] embarked upon this expedition for evidence in the hope that something might turn up.” 422 U. S., at 592, 605 (some internal punctuation altered; footnote, citation, and paragraph break omitted). In Brown , the Court held those facts to support suppression—and they do here as well. Swing and a miss for strike two. Finally, consider whether any intervening circumstance “br[oke] the causal chain” between the stop and the evidence. Ante, at 6. The notion of such a disrupting event comes from the tort law doctrine of proximate causation. See Bridge v. Phoenix Bond & Indemnity Co. , 553 U. S. 639 –659 (2008) (explaining that a party cannot “establish[ ] proximate cause” when “an intervening cause break[s] the chain of causation between” the act and the injury); Kerr, Good Faith, New Law, and the Scope of the Exclusionary Rule, 99 Geo. L. J. 1077, 1099 (2011) ( Fourth Amendment attenuation analysis “looks to whether the constitutional violation was the proximate cause of the discovery of the evidence”). And as in the tort context, a circumstance counts as intervening only when it is unforeseeable—not when it can be seen coming from miles away. See W. Keeton, D. Dobbs, B. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 312 (5th ed. 1984). For rather than breaking the causal chain, predictable effects ( e.g., X leads naturally to Y leads naturally to Z) are its very links. And Fackrell’s discovery of an arrest warrant—the only event the majority thinks intervened—was an eminently foreseeable consequence of stopping Strieff. As Fackrell testified, checking for outstanding warrants during a stop is the “normal” practice of South Salt Lake City police. App. 18; see also State v. Topanotes , 2003 UT 30, ¶2, 76 P. 3d 1159, 1160 (describing a warrant check as “routine procedure” and “common practice” in Salt Lake City). In other words, the department’s standard detention procedures—stop, ask for identification, run a check—are partly designed to find outstanding warrants. And find them they will, given the staggering number of such warrants on the books. See generally ante, at 7–8 (Sotomayor, J., dissenting). To take just a few examples: The State of California has 2.5 million outstanding arrest warrants (a number corresponding to about 9% of its adult population); Pennsylvania (with a population of about 12.8 million) contributes 1.4 million more; and New York City (population 8.4 million) adds another 1.2 million. See Reply Brief 8; Associated Press, Pa. Database, NBC News (Apr. 8, 2007), online at http://goo.gl/3Yq3Nd (as last visited June 17, 2016); N. Y. Times, Oct. 8, 2015, p. A24.[ 1 ] So outstanding warrants do not appear as bolts from the blue. They are the run-of-the-mill results of police stops—what officers look for when they run a routine check of a person’s identification and what they know will turn up with fair regularity. In short, they are nothing like what intervening circumstances are supposed to be.[ 2 ] Strike three. The majority’s misapplication of Brown ’s three-part inquiry creates unfortunate incentives for the police—indeed, practically invites them to do what Fackrell did here. Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove. Because the majority thus places Fourth Amendment protections at risk, I respectfully dissent. Notes 1 What is more, outstanding arrest warrants are not distributed evenly across the population. To the contrary, they are concentrated incities, towns, and neighborhoods where stops are most likely to occur—and so the odds of any given stop revealing a warrant are even higher than the above numbers indicate. One study found, for example, that Cincinnati, Ohio had over 100,000 outstanding warrants with only 300,000 residents. See Helland & Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J. Law & Econ. 93, 98 (2004). And as Justice Sotomayor notes, 16,000 of the 21,000 people residing in the town of Ferguson, Missouri have outstanding warrants. See ante, at 8. 2 The majority relies on Segura v. United States , 468 U. S. 796 (1984) , to reach the opposite conclusion, see ante, at 6–7, but that decision lacks any relevance to this case. The Court there held that the Fourth Amendment violation at issue “did not contribute in any way” to the police’s subsequent procurement of a warrant and discovery of contraband. 468 U. S., at 815. So the Court had no occasion to consider the question here: What happens when an unconstitutional act in fact leads to a warrant which then leads to evidence?

The Supreme Court ruled that evidence obtained during an unlawful stop is admissible in court if the officer discovers an outstanding arrest warrant during the stop. In this case, Detective Fackrell conducted surveillance on a house based on an anonymous tip about drug activity. He observed frequent short visits, indicating possible drug dealing. When respondent Strieff left the house, Fackrell stopped him and requested identification. A warrant check revealed an outstanding warrant for a traffic violation, and Fackrell arrested Strieff and found drugs during a search. The Court held that the discovery of the warrant broke the connection between the unlawful stop and the evidence obtained, making the evidence admissible.

Search & Seizure

Torres v. Madrid

https://supreme.justia.com/cases/federal/us/592/19-292/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 19–292 _________________ ROXANNE TORRES, PETITIONER v. JANICE MADRID, et al. on writ of certiorari to the united states court of appeals for the tenth circuit [March 25, 2021] Chief Justice Roberts delivered the opinion of the Court. The Fourth Amendment prohibits unreasonable “seizures” to safeguard “[t]he right of the people to be secure in their persons.” Under our cases, an officer seizes a person when he uses force to apprehend her. The question in this case is whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting. The answer is yes: The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person. I At dawn on July 15, 2014, four New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white collar crimes, but also “suspected of having been involved in drug trafficking, murder, and other violent crimes.” App. to Pet. for Cert. 11a. What happened next is hotly contested. We recount the facts in the light most favorable to petitioner Roxanne Torres because the court below granted summary judgment to Officers Janice Madrid and Richard Williamson, the two respondents here. Tolan v. Cotton , 572 U.S. 650 , 655–656 (2014) ( per curiam ). The officers observed Torres standing with another person near a Toyota FJ Cruiser in the parking lot of the complex. Officer Williamson concluded that neither Torres nor her companion was the target of the warrant. As the officers approached the vehicle, the companion departed, and Torres—at the time experiencing methamphetamine withdrawal—got into the driver’s seat. The officers attempted to speak with her, but she did not notice their presence until one of them tried to open the door of her car. Although the officers wore tactical vests marked with police identification, Torres saw only that they had guns. She thought the officers were carjackers trying to steal her car, and she hit the gas to escape them. Neither Officer Madrid nor Officer Williamson, according to Torres, stood in the path of the vehicle, but both fired their service pistols to stop her. All told, the two officers fired 13 shots at Torres, striking her twice in the back and temporarily paralyzing her left arm. Steering with her right arm, Torres accelerated through the fusillade of bullets, exited the apartment complex, drove a short distance, and stopped in a parking lot. After asking a bystander to report an attempted carjacking, Torres stole a Kia Soul that happened to be idling nearby and drove 75 miles to Grants, New Mexico. The good news for Torres was that the hospital in Grants was able to airlift her to another hospital where she could receive appropriate care. The bad news was that the hospital was back in Albuquerque, where the police arrested her the next day. She pleaded no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully taking a motor vehicle. Torres later sought damages from Officers Madrid and Williamson under 42 U. S. C. §1983, which provides a cause of action for the deprivation of constitutional rights by persons acting under color of state law. She claimed that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The District Court granted summary judgment to the officers, and the Court of Appeals for the Tenth Circuit affirmed on the ground that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.” 769 Fed. Appx. 654, 657 (2019). The court relied on Circuit precedent providing that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect. Brooks v. Gaenzle , 614 F.3d 1213, 1223 (2010). We granted certiorari. 589 U. S. ___ (2019). II The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This case concerns the “seizure” of a “person,” which can take the form of “physical force” or a “show of authority” that “in some way restrain[s] the liberty” of the person. Terry v. Ohio , 392 U.S. 1 , 19, n. 16 (1968). The question before us is whether the application of physical force is a seizure if the force, despite hitting its target, fails to stop the person. We largely covered this ground in California v. Hodari D. , 499 U.S. 621 (1991). There we interpreted the term “seizure” by consulting the common law of arrest, the “quintessential ‘seizure of the person’ under our Fourth Amendment jurisprudence.” Id. , at 624. As Justice Scalia explained for himself and six other Members of the Court, the common law treated “the mere grasping or application of physical force with lawful authority” as an arrest, “whether or not it succeeded in subduing the arrestee.” Ibid. ; see id. , at 625 (“merely touching” sufficient to constitute an arrest). Put another way, an officer’s application of physical force to the body of a person “ ‘for the purpose of arresting him’ ” was itself an arrest—not an attempted arrest—even if the person did not yield. Id. , at 624 (quoting Whithead v. Keyes , 85 Mass. 495, 501 (1862)). The common law distinguished the application of force from a show of authority, such as an order for a suspect to halt. The latter does not become an arrest unless and until the arrestee complies with the demand. As the Court explained in Hodari D. , “[a]n arrest requires either physical force . . . or , where that is absent, submission to the assertion of authority.” 499 U. S., at 626 (emphasis in original). Hodari D. articulates two pertinent principles. First, common law arrests are Fourth Amendment seizures. And second, the common law considered the application of force to the body of a person with intent to restrain to be an arrest, no matter whether the arrestee escaped. We need not decide whether Hodari D. , which principally concerned a show of authority, controls the outcome of this case as a matter of stare decisis , because we independently reach the same conclusions. At the adoption of the Fourth Amendment, a “seizure” was the “act of taking by warrant” or “of laying hold on suddenly”—for example, when an “officer seizes a thief.” 2 N. Webster, An American Dictionary of the English Language 67 (1828) (Webster) (emphasis deleted). A seizure did not necessarily result in actual control or detention. It is true that, when speaking of property, “[f]rom the time of the founding to the present, the word ‘seizure’ has meant a ‘taking possession.’ ” Hodari D. , 499 U. S., at 624 (quoting 2 Webster 67). But the Framers selected a term—seizure—broad enough to apply to all the concerns of the Fourth Amendment: “persons,” as well as “houses, papers, and effects.” As applied to a person, “[t]he word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” 499 U. S., at 626. Then, as now, an ordinary user of the English language could remark: “She seized the purse-snatcher, but he broke out of her grasp.” Ibid. The “seizure” of a “person” plainly refers to an arrest. That linkage existed at the founding. Samuel Johnson, for example, defined an “arrest” as “[a]ny . . . seizure of the person.” 1 A Dictionary of the English Language 108 (4th ed. 1773). And that linkage persists today. As we have repeatedly recognized, “the arrest of a person is quintessentially a seizure.” Payton v. New York , 445 U.S. 573 , 585 (1980) (internal quotation marks omitted); see Hodari D. , 499 U. S., at 624. Because arrests are seizures of a person, Hodari D. properly looked to the common law of arrest for “historical understandings ‘of what was deemed an unreasonable search and seizure when the Fourth Amendment was adopted.’ ” Carpenter v. United States , 585 U. S. ___, ___ (2018) (slip op., at 6) (quoting Carroll v. United States , 267 U.S. 132 , 149 (1925); alteration omitted). Sometimes the historical record will not yield a well-settled legal rule. See, e.g. , Atwater v. Lago Vista , 532 U.S. 318 , 327–328 (2001); Payton , 445 U. S., at 593–596. We do not face that problem here. The cases and commentary speak with virtual unanimity on the question before us today. The common law rule identified in Hodari D. —that the application of force gives rise to an arrest, even if the officer does not secure control over the arrestee—achieved recognition to such an extent that English lawyers could confidently (and accurately) proclaim that “[a]ll the authorities, from the earliest time to the present, establish that a corporal touch is sufficient to constitute an arrest, even though the defendant do not submit.” Nicholl v. Darley , 2 Y. & J. 399, 400, 148 Eng. Rep. 974 (Exch. 1828) (citing Hodges v. Marks , Cro. Jac. 485, 79 Eng. Rep. 414 (K. B. 1615)). The slightest application of force could satisfy this rule. In Genner v. Sparks , 6 Mod. 173, 87 Eng. Rep. 928 (Q. B. 1704), the defendant did not submit to the authority of an arrest warrant, but the court explained that the bailiff would have made an arrest if he “had but touched the defendant even with the end of his finger.” Ibid. , 87 Eng. Rep., at 929. So too, if a “bailiff caught one by the hand (whom he had a warrant to arrest) as he held it out of a window,” that alone would accomplish an arrest. Anonymus , 1 Vent. 306, 86 Eng. Rep. 197 (K. B. 1677). The touching of the person—frequently called a laying of hands—was enough. See Dunscomb v. Smith , Cro. Car. 164, 79 Eng. Rep. 743 (K. B. 1629). Only later did English law grow to recognize arrest without touching through a submission to a show of authority. See Horner v. Battyn , Bull. N. P. 62 (K. B. 1738), reprinted in W. Loyd, Cases on Civil Procedure 798 (1916). Even so, the traditional rule persisted that all an arrest required was “corporal seising or touching the defendant’s body.” 3 W. Blackstone, Commentaries on the Laws of England 288 (1768) (Blackstone). Early American courts adopted this mere-touch rule from England, just as they embraced other common law principles of search and seizure. See Wilson v. Arkansas , 514 U.S. 927 , 933 (1995). Justice Baldwin, instructing a jury in his capacity as Circuit Justice, defined an arrest to include “touching or putting hands upon [the arrestee] in the execution of process.” United States v. Benner , 24 F. Cas. 1084, 1086–1087 (No. 14,568) (CC ED Pa. 1830). State courts agreed that “any touching, however slight, is enough,” Butler v. Washburn , 25 N. H. 251, 258 (1852), provided the officer made his intent to arrest clear, see Jones v. Jones , 35 N. C. 448, 448–449 (1852). Courts continued to hold that an arrest required only the application of force—not control or custody—through the framing of the Fourteenth Amendment, which incorporated the protections of the Fourth Amendment against the States. See Whithead , 85 Mass., at 501; Searls v. Viets , 2 Thomp. & C. 224, 226 (N. Y. Sup. Ct. 1873); State v. Dennis , 16 Del. 433, 436–437, 43 A. 261, 262 (1895); see also H. Voorhees, The Law of Arrest in Civil and Criminal Actions §74, p. 44 (1904). Stated simply, the cases “abundantly shew that the slightest touch [was] an arrest in point of law.” Nicholl , 2 Y. & J., at 404, 148 Eng. Rep., at 976. Indeed, it was not even required that the officer have, at the time of such an arrest, “the power of keeping the party so arrested under restraint.” Sandon v. Jervis , El. Bl. & El. 935, 940, 120 Eng. Rep. 758, 760 (Q. B. 1858). The consequences would be “pernicious,” an English judge worried, if the question of control “were perpetually to be submitted to a jury.” Ibid. ; cf. 3 Blackstone 120 (describing how “[t]he least touching of another’s person” could satisfy the common law definition of force to commit battery, “for the law cannot draw the line between different degrees of violence”). This case, of course, does not involve “laying hands,” Sheriff v. Godfrey , 7 Mod. 288, 289, 87 Eng. Rep. 1247 (K. B. 1739), but instead a shooting. Neither the parties nor the United States as amicus curiae suggests that the officers’ use of bullets to restrain Torres alters the analysis in any way. And we are aware of no common law authority addressing an arrest under such circumstances, or indeed any case involving an application of force from a distance. The closest decision seems to be Countess of Rutland’s Case , 6 Co. Rep. 52b, 77 Eng. Rep. 332 (Star Chamber 1605). In that case, serjeants-at-mace tracked down Isabel Holcroft, Countess of Rutland, to execute a writ for a judgment of debt. They “shewed her their mace, and touching her body with it, said to her, we arrest you, madam.” Id. , at 54a, 77 Eng. Rep., at 336. We think the case is best understood as an example of an arrest made by touching with an object, for the serjeants-at-mace announced the arrest at the time they touched the countess with the mace. See, e.g. , Hodges , Cro. Jac., at 485, 79 Eng. Rep., at 414 (similar announcement upon laying of hands). Maybe the arrest could be viewed as a submission to a show of authority, because a mace served not only as a weapon but also as an insignia of office. See Kelly, The Great Mace, and Other Corporation Insignia of the Borough of Leicester, 3 Transactions of the Royal Hist. Soc. 295, 296–301 (1874). But that view is difficult to reconcile with the fact that English courts did not recognize arrest by submission to a show of authority until the following century. See supra , at 6.[ 1 ]* However one reads Countess of Rutland , we see no basis for drawing an artificial line between grasping with a hand and other means of applying physical force to effect an arrest. The dissent (though not the officers) argues that the common law limited arrests by force to the literal placement of hands on the suspect, because no court published an opinion discussing a suspect who continued to flee after being hit with a bullet or some other weapon. See post , at 18–20 (opinion of Gorsuch, J.). This objection calls to mind the unavailing defense of the person who “persistently denied that he had laid hands upon a priest, for he had only cudgelled and kicked him.” 2 S. Pufendorf, De Jure Naturae et Gentium 795 (C. Oldfather & W. Oldfather transl. 1934). The required “corporal seising or touching the defendant’s body” can be as readily accomplished by a bullet as by the end of a finger. 3 Blackstone 288. We will not carve out this greater intrusion on personal security from the mere-touch rule just because founding-era courts did not confront apprehension by firearm. While firearms have existed for a millennium and were certainly familiar at the founding, we have observed that law enforcement did not carry handguns until the latter half of the 19th century, at which point “it bec[a]me possible to use deadly force from a distance as a means of apprehension.” Tennessee v. Garner , 471 U.S. 1 , 14–15 (1985). So it should come as no surprise that neither we nor the dissent has located a common law case in which an officer used a gun to apprehend a suspect. Cf. post , at 20 (discussing Dickenson v. Watson , Jones, T. 205, 84 Eng. Rep. 1218, 1218–1219 (K. B. 1682), in which a tax collector accidentally discharged hailshot into a passerby’s eye). But the focus of the Fourth Amendment is “the privacy and security of individuals,” not the particular manner of “arbitrary invasion[ ] by governmental officials.” Camara v. Municipal Court of City and County of San Francisco , 387 U.S. 523 , 528 (1967). As noted, our precedent protects “that degree of privacy against government that existed when the Fourth Amendment was adopted,” Kyllo v. United States , 533 U.S. 27 , 34 (2001)—a protection that extends to “[s]ubtler and more far-reaching means of invading privacy” adopted only later, Olmstead v. United States , 277 U.S. 438 , 473 (1928) (Brandeis, J., dissenting). There is nothing subtle about a bullet, but the Fourth Amendment preserves personal security with respect to methods of apprehension old and new. We stress, however, that the application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain . Accidental force will not qualify. See County of Sacramento v. Lewis , 523 U.S. 833 , 844 (1998). Nor will force intentionally applied for some other purpose satisfy this rule. In this opinion, we consider only force used to apprehend. We do not accept the dissent’s invitation to opine on matters not presented here—pepper spray, flash-bang grenades, lasers, and more. Post , at 23. Moreover, the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context. See Nieves v. Bartlett , 587 U. S. ___, ___ (2019) (slip op., at 10). Only an objective test “allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Michigan v. Chesternut , 486 U.S. 567 , 574 (1988). While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain. A tap on the shoulder to get one’s attention will rarely exhibit such an intent. See INS v. Delgado , 466 U.S. 210 , 220 (1984); Jones , 35 N. C., at 448–449. Nor does the seizure depend on the subjective perceptions of the seized person. Here, for example, Torres claims to have perceived the officers’ actions as an attempted carjacking. But the conduct of the officers—ordering Torres to stop and then shooting to restrain her movement—satisfies the objective test for a seizure, regardless whether Torres comprehended the governmental character of their actions. The rule we announce today is narrow. In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force. That is to say that the Fourth Amendment does not recognize any “ continuing arrest during the period of fugitivity.” Hodari D. , 499 U. S., at 625. The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial. See, e.g. , Utah v. Strieff , 579 U. S. ___, ___ (2016) (slip op., at 4). But brief seizures are seizures all the same. Applying these principles to the facts viewed in the light most favorable to Torres, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away. We therefore conclude that the officers seized Torres for the instant that the bullets struck her. III In place of the rule that the application of force completes an arrest even if the arrestee eludes custody, the officers would introduce a single test for all types of seizures: intentional acquisition of control. This alternative rule is inconsistent with the history of the Fourth Amendment and our cases. A The officers and their amici stress that common law rules are not automatically “elevated to constitutional proscriptions,” Hodari D. , 499 U. S., at 626, n. 2, especially if they are “distorted almost beyond recognition when literally applied,” Garner , 471 U. S., at 15. In their view, the common law doctrine recognized in Hodari D. is just “a narrow legal rule intended to govern liability in civil cases involving debtors.” Brief for National Association of Counties et al. as Amici Curiae 12. The dissent presses the same argument. See post , at 14–17. But the common law did not define the arrest of a debtor any differently from the arrest of a felon. Whether the arrest was authorized by a criminal indictment or a civil writ, “there must be a corporal seizing, or touching the defendant’s person; or, what is tantamount, a power of taking immediate possession of the body, and the party’s submission thereto, and a declaration of the officer that he makes an arrest.” 1 J. Backus, A Digest of Laws Relating to the Offices and Duties of Sheriff, Coroner and Constable 115–116 (1812). Treatises on the law governing criminal arrests cited Genner v. Sparks , 6 Mod. 173, 87 Eng. Rep. 928—the preeminent mere-touch case involving a debtor—for the proposition that, “[i]n making the arrest, the constable or party making it should actually seize or touch the offender’s body, or otherwise restrain his liberty.” 1 R. Burn, The Justice of the Peace 275 (28th ed. 1837). When English courts confronted arrests for criminal offenses, they too relied on precedents concerning arrests for civil offenses. See Bridgett v. Coyney , 1 Man. & Ryl. 1, 5–6 (K. B. 1827); Arrowsmith v. Le Mesurier , 2 Bos. & Pul. 211, 211–212, 127 Eng. Rep. 605, 606 (C. P. 1806). American courts likewise articulated a materially identical definition in criminal cases—that “[t]he arrest itself is the laying hands on the defendant,” State v. Townsend , 5 Del. 487, 488 (Ct. Gen. Sess. 1854), or that an arrest is “the taking, seizing, or detaining of the person of another, either by touching him or putting hands on him,” McAdams v. State , 30 Okla. Crim. 207, 210, 235 P. 241, 242 (1925). This uniform definition also explains why an arrest by mere touch carried legal consequences in both the criminal and civil contexts. The point of an arrest was of course to take custody of a person to secure his appearance at a proceeding. But some arrests did not culminate in actual control of the individual, let alone a trip to the gaol or compter. See Nicholl , 2 Y. & J., at 403–404, 148 Eng. Rep., at 975–976. When an officer let an arrestee get away, the officer risked becoming a defendant himself in an action for “escape.” See Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 204 (1940). The laying of hands constituted a taking custody and would expose the officer to liability for the escape of felons and debtors alike. See 1 M. Hale, Pleas of the Crown 590–591, 597, 603 (1736); 2 id. , at 93 (no liability for escape “if the felon were not once in the hands of an officer”); see also Perkins, 25 Iowa L. Rev., at 206. The tort of false imprisonment, which the dissent rightly acknowledges as the “ ‘closest analogy’ to an arrest without probable cause,” post , at 12 (quoting Wallace v. Kato , 549 U.S. 384 , 388–389 (2007)), reinforces the conclusion that the common law considered touching to be a seizure. Stated generally, false imprisonment required “confinement,” such as “taking a person into custody under an asserted legal authority.” Restatement of Torts §§35, 41 (1934); see 3 Blackstone 127. But that element of confinement demanded no more than that the defendant “had for one moment taken possession of the plaintiff ’s person”—including, “for example, if he had tapped her on the shoulder, and said, ‘You are my prisoner.’ ” Simpson v. Hill , 1 Esp. 431, 431–432, 170 Eng. Rep. 409 (N. P. 1795); see Restatement of Torts §41, Comment h (noting that “the touching alone of the person against whom [legal authority] was asserted would be sufficient to constitute” confinement by arrest when the authority was valid). While the dissent emphasizes that “the court [in Simpson ] proceeded to reject the plaintiff ’s claim for false imprisonment,” post , at 13, that was only because “the constable never touched the plaintiff, or took her into custody.” 1 Esp., at 431, 170 Eng. Rep., at 409. To be sure, the mere-touch rule was particularly well documented in cases involving the execution of civil process. An officer pursuing a debtor could not forcibly enter the debtor’s home unless the debtor had escaped arrest, such as by fleeing after being touched. See Semayne’s Case , 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K. B. 1604); see also Miller v. United States , 357 U.S. 301 , 307 (1958). Officers seeking to execute criminal process, on the other hand, possessed greater pre-arrest authority to enter a felon’s home. See Payton , 445 U. S., at 598. But the fact that the common law rules of arrest generated more litigation in the civil context proves only that creditors had ready recourse to the courts to pursue escape actions for unsatisfactory arrests. There is no reason to suspect that English jurists silently adopted a special definition of arrest only for debt collection—indeed, they told us just the opposite. See supra , at 12. Nothing specific to debt collection elevated escape from arrest into a justification for entry of the home. Whenever a person was “lawfully arrested for any Cause and afterwards escape[d], and shelter[ed] himself in a House,” the officer could break open the doors of the house. 2 W. Hawkins, Pleas of the Crown 87 (1721) (emphasis added). In any event, the officers and the dissent misapprehend the history of the Fourth Amendment by minimizing the role of practices in civil cases. “[A]rrests in civil suits were still common in America” at the founding. Long v. Ansell , 293 U.S. 76 , 83 (1934). And questions regarding the legality of an arrest “typically arose in civil damages actions for trespass or false arrest.” Payton , 445 U. S., at 592. Accordingly, this Court has not hesitated to rely on such decisions when interpreting the Fourth Amendment. See, e.g. , United States v. Jones , 565 U.S. 400 , 404–405 (2012); Boyd v. United States , 116 U.S. 616 , 626 (1886). We see no reason to break with our settled approach in this case. B The officers and the dissent derive from our cases a different touchstone for the seizure of a person: “an intentional acquisition of physical control.” Brower v. County of Inyo , 489 U.S. 593 , 596 (1989). Under their alternative rule, the use of force becomes a seizure “only when there is a governmental termination of freedom of movement through means intentionally applied.” Id. , at 597 (emphasis deleted); see Brief for Respondents 12–15; post , at 6–7. This approach improperly erases the distinction between seizures by control and seizures by force . In all fairness, we too have not always been attentive to this distinction when a case did not implicate the issue. See, e.g. , Brendlin v. California , 551 U.S. 249 , 254 (2007). But each type of seizure enjoys a separate common law pedigree that gives rise to a separate rule. See Hodari D. , 499 U. S., at 624–625; A. Cornelius, The Law of Search and Seizure §47, pp. 163–164 (2d ed. 1930) (contrasting actual control with “constructive detention” by touching). Unlike a seizure by force, a seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. A prime example of the latter comes from Brower , where the police seized a driver when he crashed into their roadblock. 489 U. S., at 598–599; see also, e.g. , Scott v. Harris , 550 U.S. 372 , 385 (2007) (ramming car off road); Williams v. Jones , Cas. t. Hard. 299, 301, 95 Eng. Rep. 193, 194 (K. B. 1736) (locking person in room). Under the common law rules of arrest, actual control is a necessary element for this type of seizure. See Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 553 (1924). Such a seizure requires that “a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Brower , 489 U. S., at 599. But that requirement of control or submission never extended to seizures by force. See, e.g. , Sandon , El. Bl. & El., at 940–941, 120 Eng. Rep., at 760. As common law courts recognized, any such requirement of control would be difficult to apply in cases involving the application of force. See supra , at 7. At the most basic level, it will often be unclear when an officer succeeds in gaining control over a struggling suspect. Courts will puzzle over whether an officer exercises control when he grabs a suspect, when he tackles him, or only when he slaps on the cuffs. Neither the officers nor the dissent explains how long the control must be maintained—only for a moment, into the squad car, or all the way to the station house. To cite another example, counsel for the officers speculated that the shooting would have been a seizure if Torres stopped “maybe 50 feet” or “half a block” from the scene of the shooting to allow the officers to promptly acquire control. Tr. of Oral Arg. 45. None of this squares with our recognition that “ ‘[a] seizure is a single act, and not a continuous fact.’ ” Hodari D. , 499 U. S., at 625 (quoting Thompson v. Whitman , 18 Wall. 457, 471 (1874)). For centuries, the common law rule has avoided such line-drawing problems by clearly fixing the moment of the seizure. IV The dissent sees things differently. It insists that the term “seizure” has always entailed a taking of possession, whether the officer is seizing a person, a ship, or a promissory note. See post , at 6–7. But the facts of the cases and the language of the opinions confirm that the concept of possession included the “constructive detention” of persons “never actually brought within the physical control of the party making an arrest.” Wilgus, 22 Mich. L. Rev., at 556 (emphasis deleted); see, e.g. , Nicholl , 2 Y. & J., at 404, 148 Eng. Rep., at 976 (explaining that the “slightest touch” can constitute “custody”); Anonymus , 1 Vent., at 306, 86 Eng. Rep., at 197 (describing a touch as a “taking” of a person). Even the dissent acknowledges that a touch can establish a form of constructive possession. See post , at 20. The dissent says that “common law courts never contemplated” that the touching itself could effect a seizure. Post, at 18.  But one need only look at the many decisions adopting that definition of arrest.  See supra , at 5–8, 12–13. The dissent can offer no case expressing doubt about the rule that the touching constitutes an arrest, much less refusing to apply that rule in any context—felon or debtor.  And we have, as noted, definitively stated that “the arrest of a person is quintessentially a seizure.” Payton , 445 U. S., at 585 (internal quotation marks omitted). The dissent’s attempt to ignore arrests it appraises as “unfortunate” or “peculiar,” post , at 15, 16, pays insufficient regard to the complete history underlying the Fourth Amendment. The dissent argues that we advance a “schizophrenic reading of the word ‘seizure.’ ” Post , at 7. But our cases demonstrate the unremarkable proposition that the nature of a seizure can depend on the nature of the object being seized. It is not surprising that the concept of constructive detention or the mere-touch rule developed in the context of seizures of a person—capable of fleeing and with an interest in doing so—rather than seizures of “houses, papers, and effects.” The dissent also criticizes us for “posit[ing] penumbras” of “privacy” and “personal security” in our analysis of the Fourth Amendment. Post , at 24. But the text of the Fourth Amendment expressly guarantees the “right of the people to be secure in their persons ,” and our earliest precedents recognized privacy as the “essence” of the Amendment—not some penumbral emanation. Boyd , 116 U. S., at 630. We have relied on that understanding in construing the meaning of the Amendment. See, e.g. , Riley v. California , 573 U.S. 373 , 403 (2014). The dissent speculates that the real reason for today’s decision is an “impulse” to provide relief to Torres, post , at 23, or maybe a desire “to make life easier for ourselves,” post , at 22. It may even be, says the dissent, that the Court “at least hopes to be seen as trying” to achieve particular goals. Post , at 25. There is no call for such surmise. At the end of the day we simply agree with the analysis of the common law of arrest and its relation to the Fourth Amendment set forth thirty years ago by Justice Scalia, joined by six of his colleagues, rather than the competing view urged by the dissent today. *  *  * We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Of course, a seizure is just the first step in the analysis. The Fourth Amendment does not forbid all or even most seizures—only unreasonable ones. All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement. We leave open on remand any questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Barrett took no part in the consideration or decision of this case. Notes 1 *The arrest was not Isabel’s first brush with the law or money trou-bles. A decade earlier, Elizabeth Charlton sued to recover for the estate of her husband, the fourth Earl of Rutland, an assortment of jewels allegedly taken by Isabel, the widow of the third Earl of Rutland. Elizabeth bested Isabel in the clash of the countesses, and Isabel was found liable for 940 pounds, worth about $400,000 today. Elizabeth Countess of Rutland v. Isabel Countess of Rutland , Cro. Eliz. 377, 78 Eng. Rep. 624 (C. P. 1595). SUPREME COURT OF THE UNITED STATES _________________ No. 19–292 _________________ ROXANNE TORRES, PETITIONER v. JANICE MADRID, et al. on writ of certiorari to the united states court of appeals for the tenth circuit [March 25, 2021] Justice Gorsuch, with whom Justice Thomas and Justice Alito join, dissenting. The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority’s account, a Fourth Amendment “seizure” takes place whenever an officer “merely touches” a suspect. It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel. Until today, a Fourth Amendment “seizure” has required taking possession of someone or something. To reach its contrary judgment, the majority must conflate a seizure with its attempt and confuse an arrest with a battery. In the process, too, the majority must disregard the Constitution’s original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. Unable to rely on any of these traditional sources of authority, the majority is left to lean on (really, repurpose) an abusive and long-abandoned English debt-collection practice. But there is a reason why, in two centuries filled with litigation over the Fourth Amendment’s meaning, this Court has never before adopted the majority’s definition of a “seizure.” Neither the Constitution nor common sense can sustain it. I A This case began when two Albuquerque police officers approached Roxanne Torres on foot. The officers thought Ms. Torres was the subject of an arrest warrant and suspected of involvement in murder and drug trafficking. As it turned out, they had the wrong person; Ms. Torres was the subject of a different arrest warrant. As she saw the officers walk toward her, Ms. Torres responded by getting into her car and hitting the gas. At the time, Ms. Torres admits, she was “tripping out bad” on methamphetamine. Fearing the oncoming car was about to hit them, the officers fired their duty weapons, and two bullets struck Ms. Torres while others hit her car. None of that stopped Ms. Torres. She continued driving—over a curb, across some landscaping, and into a street, eventually colliding with another vehicle. Abandoning her car, she promptly stole a different one parked nearby. Ms. Torres then drove over 75 miles to another city. When she eventually sought medical treatment, doctors decided she needed to be airlifted back to Albuquerque for more intensive care. Only at that point, a day after her encounter with the officers, was Ms. Torres finally identified and arrested. Ultimately, she pleaded no contest to assault on a police officer, aggravated fleeing from an officer, and the unlawful taking of a motor vehicle. More than two years later, Ms. Torres sued the officers for damages in federal court under 42 U. S. C. §1983. She alleged that they had violated the Fourth Amendment by unreasonably “seizing” her. After discovery, the officers moved for summary judgment. The district court granted the motion, and the court of appeals affirmed. Individuals like Ms. Torres are free to sue officers under New Mexico state law for assault or battery. They may also sue officers under the Fourteenth Amendment for conduct that “shocks the conscience.” But under longstanding circuit precedent, the courts explained, a Fourth Amendment “seizure” occurs only when the government obtains “physical control” over a person or object. Because Ms. Torres “managed to elude the police for at least a full day after being shot,” the courts reasoned, the officers’ bullets had not “seized” her; any seizure took place only when she was finally arrested back in Albuquerque the following day. Torres v. Madrid , 769 Fed. Appx. 654, 657 (CA10 2019). B Now before us, Ms. Torres argues that this Court’s decision in California v. Hodari D. , 499 U.S. 621 (1991), “compel[s] reversal.” Brief for Petitioner 25. As she reads it, Hodari D. held that a Fourth Amendment seizure takes place whenever an officer shoots or even “mere[ly] touch[es]” an individual with the intent to restrain. Brief for Petitioner 15. Whatever one thinks of Ms. Torres’s argument, one thing is certain: Hodari D. has generated considerable confusion. There, officers chased a suspect on foot. 499 U. S., at 623. Later, the suspect argued that he was “seized” for purposes of the Fourth Amendment the moment the chase began. See id. , at 625. Though he fled, the suspect argued, a “reasonable person” would not have felt at liberty given the officers’ “show of authority,” so a Fourth Amendment seizure had occurred. Id. , at 627–628. The Court rejected this argument. In doing so, it explained that, “[f]rom the time of the founding to the present, the word ‘seizure’ has meant a ‘taking possession.’ ” Id. , at 624. Because the defendant did not submit to the officers’ show of authority, the Court reasoned, the officers’ conduct amounted at most to an attempted seizure. See id. , at 626, and n. 2. And “neither usage nor common-law tradition makes an attempted seizure a seizure.” Ibid. At the same time, and as Ms. Torres emphasizes, the Court didn’t end its discussion there. It proceeded to imagine a different and hypothetical case, one in which the officers not only chased the suspect but also “appl[ied] physical force” to him. In these circumstances, the Court suggested, “merely touching” a suspect, even when officers fail to gain possession, might qualify as a seizure. Id. , at 624–625. Unsurprisingly, these dueling passages in Hodari D. led to a circuit split. For the first time, some lower courts began holding that a “mere touch” constitutes a Fourth Amendment “seizure.” Others, however, continued to adhere to the view, taken “[f]rom the time of the founding to the present,” that the word “seizure” means “taking possession.” Id ., at 624 (internal quotation marks omitted). We took this case to sort out the confusion. II As an initial matter, Ms. Torres is mistaken that Hodari D. ’s discussion of “mere touch” seizures compels a ruling in her favor. Under the doctrine of stare decisis , we normally afford prior holdings of this Court considerable respect. But, in the course of issuing their holdings, judges sometimes include a “witty opening paragraph, the background information on how the law developed,” or “digressions speculating on how similar hypothetical cases might be resolved.” B. Garner et al., The Law of Judicial Precedent 44 (2016). Such asides are dicta. The label is hardly an epithet: “Dicta may afford litigants the benefit of a fuller understanding of the court’s decisional path or related areas of concern.” Id. , at 65. Dicta can also “be a source of advice to successors.” Ibid. But whatever utility it may have, dicta cannot bind future courts. This ancient rule serves important purposes. A passage unnecessary to the outcome may not be fully considered. Parties with little at stake in a hypothetical question may afford it little or no adversarial testing. And, of course, federal courts possess no authority to issue rulings beyond the cases and controversies before them. If the respect we afford past holdings under the doctrine of stare decisis may be justified in part as an act of judicial humility, respecting that doctrine’s limits must be too. Fewer things could be less humble than insisting our every passing surmise constitutes a rule forever binding a Nation of over 300 million people. No judge can see around every corner, predict the future, or fairly resolve matters not at issue. See, e.g. , Cohens v. Virginia , 6 Wheat. 264, 399–400 (1821); Central Va. Community College v. Katz , 546 U.S. 356 , 363 (2006). On any account, the passage in Hodari D. Ms. Torres seeks to invoke was dicta. The only question presented in that case was whether officers seize a defendant by a show of authority without touching him. The Court answered that question in the negative. The separate question whether a “mere touch” also qualifies as a seizure was not presented by facts of the case. No party briefed the issue. And the opinion offered the matter only shallow consideration, resting on just three sources: A state court opinion from the 1860s, a “comment” in the 1934 Restatement of Torts, and a 1930s legal treatise. See 499 U. S., at 624–625. Already some lower courts, including those below, have recognized that Hodari D. ’s aside does not constitute a binding holding. See Brooks v. Gaenzle , 614 F.3d 1213, 1220–1221 (CA10 2010); Henson v. United States , 55 A.3d 859, 864–865 (D. C. 2012). Today’s majority seems to accept the point too. It acknowledges that Hodari D. “principally concerned a show of authority.” Ante , at 4. And it says it intends to rule for Ms. Torres “independently” of Hodari D. Ante , at 4. III Seeking to carry that burden, the majority picks up where Hodari D .’s dicta left off. It contends that an officer “seizes” a person by merely touching him with an “intent to restrain.” Ante , at 9. We are told that a touch is a seizure even if the suspect never stops or slows down; it’s a seizure even if he evades capture. In all the years before Hodari D. ’s dicta, this conclusion would have sounded more than a little improbable to most lawyers and judges—as it should still today. A mere touch may be a battery. It may even be part of an attempted seizure. But the Fourth Amendment’s text, its history, and our precedent all confirm that “seizing” something doesn’t mean touching it; it means taking possession. A Start with the text. The Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As at least part of Hodari D. recognized, “[f ]rom the time of the founding to the present,” the key term here—“seizure”—has always meant “ ‘taking possession.’ ” 499 U. S., at 624. Countless contemporary dictionaries define a “seizure” or the act of “seizing” in terms of possession.[ 1 ] This Court’s early cases reflect the same understanding. Just sixteen years after the Fourth Amendment’s adoption, Congress passed a statute regulating the “seizure” of ships. See The Josefa Segunda , 10 Wheat. 312, 322 (1825). This Court interpreted the term to require “an open, visible possession claimed,” so that those previously possessing the ship “understand that they are dispossessed, and that they are no longer at liberty to exercise any dominion on board of the ship.” Id. , at 325. Nor did the Court’s view change over time. In Pelham v. Rose , 9 Wall. 103, 106 (1870), the Court likewise explained that “[t]o effect [a] seizure” of something, one needed “to take” the thing “into his actual custody and control.” Id. , at 107. Today’s majority disputes none of this. It accepts that a seizure of the inanimate objects mentioned in the Fourth Amendment (houses, papers, and effects) requires possession. Ante , at 4. And when it comes to persons, the majority agrees (as Hodari D. held) that a seizure in response to a “show of authority” takes place if and when the suspect submits to an officer’s possession. Ante , at 15. The majority insists that a different rule should apply only in cases where an officer “touches” the suspect. Here—and here alone—possession is not required. So, under the majority’s logic, we are quite literally asked to believe the officers in this case “seized” Ms. Torres’s person, but not her car, when they shot both and both continued speeding down the highway. The majority’s need to resort to such a schizophrenic reading of the word “seizure” should be a signal that something has gone seriously wrong. The Fourth Amendment’s Search and Seizure Clause uses the word “seizures” once in connection with four objects (persons, houses, papers, and effects). The text thus suggests parity, not disparity, in meaning. It is close to canon that when a provision uses the same word multiple times, courts must give it the same meaning each time. Ratzlaf v. United States , 510 U.S. 135 , 143 (1994). And it is canonical that courts cannot give a single word different meanings depending on the happenstance of “which object it is modifying.” Reno v. Bossier Parish School Bd. , 528 U.S. 320 , 329 (2000) (“[W]e refuse to adopt a construction that would attribute different meanings to the same phrase in the same sentence, depending on which object it is modifying”). To “[a]scrib[e] various meanings” to a single word, we have observed, is to “render meaning so malleable” that written laws risk “becom[ing] susceptible to individuated interpretation.” Ratzlaf , 510 U. S., at 143 (internal quotation marks omitted). The majority’s conclusion that a single use of the word “seizures” bears two different meanings at the same time—indeed, in this very case—is truly novel. And when it comes to construing the Constitution, that kind of innovation is no virtue. If more textual evidence were needed, the Fourth Amendment’s neighboring Warrant Clause would seem to provide it. That Clause states that warrants must describe “the persons or things to be seized.” Once more, the Amendment uses the same verb—“seized”—for both persons and objects. Once more, it suggests parity, not some hidden divergence between people and their possessions. Nor does anyone dispute that a warrant for the “seizure” of a person means a warrant authorizing officers to take that person into their possession . Against all these adverse textual clues, the majority offers little in reply. It admits that its interpretation defies this Court’s teachings in Ratzlaf and Reno by ascribing different meanings to the word “seizure” depending on “the object being seized.” Ante , at 16. It says only that we should overlook the problem because “our cases” in the Fourth Amendment context compel this remarkable construction. Ibid. But it is unclear what cases the majority might have in mind for it cites none. Instead, the majority proceeds to reason that the word “seizure” must carry a different meaning for persons and objects because persons alone are “capable of fleeing” and have “an interest in doing so.” Ibid. But that reasoning faces trouble even from Hodari D ., which explained that “[a] ship still fleeing, even though under attack, would not be considered to have been seized as a war prize.” 499 U. S., at 624. Of course, as the majority observes, persons alone can possess “an interest” in fleeing. But, as Hodari D. ’s example shows, they can have as much (or more) interest in fleeing to prevent the seizure of their possessions as they do their persons. Even today, a suspect driving a car loaded with illegal drugs may be more interested in fleeing to avoid the loss of her valuable cargo than to prevent her own detention. Yet the majority offers no reasoned explanation why the meaning of the word “seizure” changes when officers hit the suspect and when they hit her drugs and car as all three speed away. Unable to muster any precedent or sound reason for its reading, the majority finishes its textual analysis with a selective snippet from Webster’s Dictionary and a hypothetical about a purse snatching. The majority notes that Webster equated a seizure with “ ‘the act of taking by warrant’ ” or “ ‘laying hold on suddenly.’ ” Ante , at 4. But Webster used the warrant definition to describe “the seizure of contraband goods”—a seizure the majority agrees requires possession. Meanwhile, the phrase “laying hold on” a person connotes physical possession, as a look at the dictionary’s entire definition demonstrates. A “seizure,” Webster continued, is the “act of taking possession by force,” the “act of taking by warrant,” “possession,” and “a catching.”[ 2 ] Read in full, Webster thus lends no support to the majority’s view. The purse hypothetical, borrowed from Hodari D. ’s dicta, turns out to be even less illuminating. It supposes that “an ordinary user of the English language could remark: ‘She seized the purse-snatcher, but he broke out of her grasp.’ ” Ante , at 5 (quoting Hodari D. , 499 U. S., at 626). But what does that prove? The hypothetical contemplates a woman who takes possession of the purse-snatcher, establishing a “grasp” for him to “break out of.” One doesn’t “break out of ” a mere touch. Really, the majority’s answer to the Constitution’s text is to ignore it. The majority stands mute before the consensus among founding-era dictionaries, this Court’s early cases interpreting the word “seizure,” and the Warrant Clause. It admits its interpretation spurns the canonical interpretive principle that a single word in a legal text does not change its meaning depending on what object it modifies. All we’re offered is a curated snippet and an unhelpful hypothetical. Ultimately, it’s hard not to wonder whether the majority says so little about the Constitution’s terms because so little can be said that might support its ruling. B Rather than focus on text, the majority turns quickly to history. At common law, it insists, a “linkage” existed between the “seizure” of a person and the concept of an “arrest.” Ante , at 5. Thus, the majority contends, we must examine how the common law defined that term. But following the majority down this path only leads to another dead end. Unsurprisingly, an “arrest” at common law ordinarily required possession too. 1 Consider what some of our usual common law guides say on the subject. Blackstone defined “an arrest” in the criminal context as “the apprehending or restraining of one’s person, in order to be forthcoming to answer an alleged or suspected crime.” 4 Commentaries on the Laws of England 286 (1769). Hale and Hawkins both equated an “arrest” with “apprehending,” “taking,” and “detain[ing]” a person. See 1 M. Hale, Pleas of the Crown 89, 93–94 (5th ed. 1716); 2 W. Hawkins, Pleas of the Crown 74–75, 77, 80–81, 86 (3d ed. 1739). And Hawkins stated that an arrest required the officer to “actually have” the suspect “in his Custody.” Id ., at 129. Any number of historical dictionaries attest to a similar understanding—defining an “arrest” as a “stop,” a “taking of a person,” and the act “by which a man becomes a prisoner.”[ 3 ] Common law causes of action point to the same common-sense conclusion. During the founding era, an individual who was unlawfully arrested could seek redress through the tort of false imprisonment. See 3 W. Blackstone, Commentaries on the Laws of England 127 (1768); see also Payton v. New York , 445 U.S. 573 , 592 (1980); Wallace v. Kato , 549 U.S. 384 , 388–389 (2007) (describing “false arrest and false imprisonment” as the “closest analogy” to an arrest without probable cause). That cause of action aimed to remedy “the violation of the right of personal liberty,” 3 Blackstone, supra , at 127, which was “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct,” 1 W. Blackstone, Commentaries on the Laws of England 130 (1765). Thus, false imprisonment—the violation of the right to move where one desired—required proof of “[t]he detention of the person” and “[t]he unlawfulness of such detention.” 3 Blackstone, supra , at 127. That detention could occur “in a gaol, house, stocks, or in the street,” but it occurred only if a person was “ under the custody of another.” 1 E. East, Pleas of the Crown 428 (1806) (emphasis added). Much the same held true in another related field. At common law, an officer could be held criminally liable for allowing an individual to escape after being arrested. And to prove the existence of an arrest in an “Indictment for an Escape,” a prosecutor had to “expressly shew” that “the Party was actually in the Defendant’s Custody for a Crime, Action, or Commitment for it.” 2 Hawkins, supra , at 132 (emphasis added). In other words, to demonstrate an arrest, a prosecutor had to prove the suspect had been “a Prisoner in [the officer’s] Custody .” 1 Hale, supra , at 112 (emphasis added). Here, too, an arrest required possession. Once more, the majority’s primary answer to all this countervailing evidence is to ignore it. And once more, the majority’s own sources do more to hurt than help its cause. Lifting a line from Simpson v. Hill , 1 Esp. 431, 170 Eng. Rep. 409 (N. P. 1795), the majority suggests that the tort of false imprisonment at common law required no more than a “tapping on the shoulder.” Ante , at 13 (citing 1 Esp., at 431–432, 170 Eng. Rep., at 409). But Simpson could not have stated the possession requirement more plainly: “[W]ithout any taking possession of the person,” there “is not, by law, a false imprisonment.” Id. , at 432, 170 Eng. Rep., at 409 (emphasis added). And the court proceeded to reject the plaintiff ’s claim for false imprisonment because the “constable did never take her into custody .” Ibid. (emphasis added). The majority offers no case finding the elements of false imprisonment satisfied by the mere touch of a fleeing person. What remains of the majority’s response follows the same course. The majority asserts that claims for escape only required proof that the officer touched a suspect. Ante , at 12. But to prove its point, the majority quotes a sentence from Hale stating that no liability for escape exists “ ‘if the felon were not once in the hands of an officer.’ ” Ibid. (quoting 2 Pleas of the Crown 93 (1736)). And as Hale proceeded to make plain, a felon “in the hands of an officer” was another way of saying the officer had “apprehended” or “taken” the felon into his “custody.” See id. , at 89, 93–94 (5th ed. 1716). Ultimately, the majority seeks to invoke Samuel Johnson’s dictionary and Payton , 445 U. S., at 585, to confirm only the anodyne point that some sort of “linkage” existed at common law between the concepts of “arrests” and “seizures.” Ante , at 5. Yet, even here it turns out there is more to the story. The majority neglects to mention that Johnson proceeded to define an “arrest” as a “caption” of the person, “a stop or stay,” a “restraint of a man’s person, depriving him of his own will,” and “the beginning of imprisonment.” 1 S. Johnson, A Dictionary of the English Language (6th ed. 1785). “To arrest,” Johnson said, was “[t]o seize,” “to detain by power,” “[t]o withhold; to hinder,” and “[t]o stop motion.” Ibid. Meanwhile, the sentence fragment the majority quotes from Payton turns out to have originated in Justice Powell’s concurrence in United States v. Watson , 423 U.S. 411 , 428 (1976). And looking to that sentence in full, it is plain Justice Powell, too, understood an arrest not as a touching, but as “the taking hold of one’s person.” Ibid. Thus, even the majority’s best sources only wind up pointing us back to the traditional possession rule. 2 Unable to identify anything helpful in the main current of the common law, the majority is forced to retreat to an obscure eddy. Starting from Hodari D. ’s three references to “mere touch” arrests, the majority traces these authorities back to their English origins. The tale that unfolds is a curious one. Before bankruptcy reforms in the 19th century, creditors seeking to induce repayment of their loans could employ bailiffs to civilly arrest delinquent debtors and haul them off to debtors prison. See Cohen, The History of Imprisonment for Debt and Its Relation to the Development of Discharge in Bankruptcy, 3 J. Legal Hist. 153, 154–155 (1982). But the common law also offered debtors some tools to avoid or delay that fate. Relevant here, the common law treated the home as a “castle of defence and asylum” so no bailiff could break into a debtor’s home to effect a civil arrest. 3 Blackstone, supra , at 288; see also Treiman, Escaping the Creditor in the Middle Ages, 43 L. Q. Rev. 230, 233 (1927). Over time, the practice of “keeping house” became an increasingly popular way for debtors to evade the bailiff. Id. , at 234. Naturally, too, creditors railed against this “notorious” practice. See ibid. And eventually Parliament responded to their clamor. The English bankruptcy statutes of 1542 and 1570 imposed serious penalties on debtors who “kept house” to avoid imprisonment. Cohen, supra , at 157. It was seemingly against this backdrop that the strange cases Hodari D. ’s dicta briefly alluded to and the majority has now dug up began to appear. Under their terms, a bailiff who could manage to touch a person hiding in his home, often through an open window or door, was deemed to have effected a civil “arrest.” See Genner v. Sparks , 6 Mod. 173, 87 Eng. Rep. 928 (K. B. 1704). And because this mere touch was deemed an “arrest,” the bailiff was then permitted by law to proceed to “br[eak] the house . . . to seize upon” the person and render him to prison. Ibid. , 87 Eng. Rep., at 929. Of course it was farcical to call a tap through an open window an “arrest.” But it proved a useful farce, at least for creditors. One of the majority’s lead cases, Sandon v. Jervis , El. Bl. & El. 935, 120 Eng. Rep. 758 (K. B. 1858), illustrates the absurdity of it all. There, a bailiff tried and failed “on several occasions” to arrest a debtor. Id. , at 936, 120 Eng. Rep., at 758. Eventually, the bailiff spotted an open window on “an upper story,” so he ordered an assistant to fetch a ladder. Ibid. But the debtor and his daughter noticed the ploy and “ran to the window,” slamming it closed. Ibid. Unfortunately, in the excitement a window pane broke. Seeing the opportunity, the bailiff ’s assistant, while perched atop the ladder, thrust his hand through the opening and managed to touch the debtor. Id. , at 936–937, 120 Eng. Rep., at 758. According to the court, this “arrest” was sufficient to justify the bailiff ’s later forcible entry into the home. Id. , at 946–948, 120 Eng. Rep., at 762–763. By everyone’s account, however, the farce extended only so far. Yes, the mere-touch arrest was a feature of civil bankruptcy practice for an unfortunate period. But the majority has not identified a single founding-era case extending the mere-touch arrest rule to the criminal context. The majority points to two nineteenth-century treatises, but both reference only a case about a debt-collection arrest. See ante , at 11–12 (citing 1 J. Backus, A Digest of Laws Relating to the Offices and Duties of Sheriff, Coroner and Constable 115–116, n. (c) (1812) (citing Genner v. Sparks , 6 Mod. 173, 87 Eng. Rep. 928 (K. B. 1704)), and 1 R. Burn, The Justice of the Peace 275 (28th ed. 1837) (citing the same)). The majority nods to dicta from an 1854 Delaware state trial court, but that came long after the founding and the majority does not explain how it sheds light on the Fourth Amendment’s original meaning. See ante , at 12 (citing State v. Townsend , 5 Del. 487, 488)). And every remaining early American case the majority cites for its “mere touch” rule—from the founding through the Civil War—involved only civil debt-collection arrests. See ante , at 4 (citing Whithead v. Keyes , 85 Mass. 495 (1862)); ante , at 6 (citing United States v. Benner , 24 F. Cas. 1084 (No. 14,568) (CC ED Pa. 1830)); ante , at 6 (citing Butler v. Washburn , 25 N. H. 251 (1852) (tax collection)). The same goes for the majority’s primary English authorities. See ante , at 7 (citing Nicholl v. Darley , 2 Y. & J. 399, 400, 148 Eng. Rep. 974 (Exch. 1828); Sandon , El. Bl. & El., at 940, 120 Eng. Rep., at 760)). So what relevance do these obscure and long-abandoned civil debt-collection practices have for today’s case concerning a criminal arrest and brought under the Fourth Amendment? The answer seems to be not much, for at least three reasons. In the first place, the Amendment speaks of “seizures,” not “arrests.” To the extent the common law of arrests informs the Amendment’s meaning, we have already seen that an arrest normally meant taking possession of an arrestee. Maybe in one peculiar area, and for less than admirable reasons, the common law deviated from this understanding. But this Court usually presumes that those who wrote the Constitution used words in their ordinary sense, not in some idiosyncratic way. See District of Columbia v. Heller , 554 U.S. 570 , 576 (2008). And today’s majority supplies no evidence that anyone during the founding era understood the Fourth Amendment to adopt the specialized definition of “arrest” from civil debt-collection practice. Second, even if we were to hypothesize that people did understand the Fourth Amendment to incorporate this quirky rule, what would that tell us? Here, the officers tried to arrest Ms. Torres in a parking lot on behalf of the State for serious crimes, not break into her home on behalf of the local credit union for missing a payment. So even if we were willing to suppose that the founding generation understood the Constitution to incorporate the majority’s civil debt-collection arrest rule, nothing before us suggests they contemplated, let alone endorsed, injecting it into the criminal law and overriding settled doctrine equating arrests with possession. Finally, even in the civil debt-collection context, the majority cannot point to even a single case suggesting that hitting a suspect with an object—an arrow, a bullet, a cudgel, anything —as she flees amounted to an arrest. Instead, the majority’s cases hold only that the “laying of hands” on an arrestee constituted an arrest. Ante , at 7. Thus, even if the Fourth Amendment did transpose the “mere touch” rule from the context of civil arrests into the criminal arena, it still would not reach this case. How does the majority respond? Again, it does little more than disregard the difficulties. The majority says there is “no reason to suspect” the common law defined criminal arrests of felons “any differently” than civil arrests of debtors. Ante , at 13, 11. But the majority skips over all the evidence canvassed above showing that a criminal arrest required possession, not a mere touch. See Part III–B–1, supra . It sails past its failure to identify any case holding that a mere touch qualified as a criminal arrest. It ignores the fact Blackstone defined criminal and civil arrests differently.[ 4 ] And it claims to find support in Hawkins’s statement that an officer could break into a house to capture an arrestee who escaped after being “ ‘lawfully arrested for any Cause.’ ” Ante , at 13–14 (quoting 2 Pleas of the Crown 87 (1721)). Yet, the question before us isn’t what an officer might do after making an arrest; it’s what constitutes an arrest in the first place . Rather than confront shortcomings like these, the majority asks us to glide past them. It suggests that importing the mere-touch rule into the criminal context is permissible because “no common law case” had occasion to reject that idea expressly. See ante , at 16. But this gets things backwards. Today, for the first time, the majority seeks to equate seizures and criminal arrests with mere touches, attempted seizures, and batteries. It is for the majority to show the Fourth Amendment commands this result. No amount of rhetorical maneuvering can obscure how flat it has fallen: Even its own authorities do more to undermine than support its thesis. If common law courts never contemplated the majority’s odd definition of a criminal arrest—and this Court didn’t either for more than two centuries—that can only be further proof of its implausibility. The majority asks us to glide past another problem too. It acknowledges that its debt-collection cases required a “laying on of hands” to complete an arrest. But it says we should overlook that rule as an accident of antiquity. “Touchings” by “firearm,” we are told, were unknown to “founding-era courts,” and no “officer used a gun to apprehend a suspect” before 1850. Ante , at 9. Never mind the shot heard round the world in 1775 and the adoption of the Second Amendment. Never mind that as early as 1592, when a bailiff “feared resistance” and thus “brought with him” a gun “to arrest” someone, a common law court deemed it lawful because “[t]he sheriff or any of his ministers may for the better execution of justice carry with them offensive or defensive weapons.” Seint John’s Case , 5 Co. Rep. 71b, 77 Eng. Rep. 162, 162–163 (K. B. 1592). Never mind that even tax collectors were carrying guns by the 1680s. E.g. , Dickenson v. Watson , Jones, T. 205, 205–206, 84 Eng. Rep. 1218, 1218–1219 (K. B. 1682). And never mind, too, that the majority’s problem isn’t limited to guns. It fails to cite any case in which a touching by any weapon was deemed sufficient to effect an arrest. Seemingly, the majority would have us believe that bailiffs wielding anything but their fists were beyond the framers’ imagination. Faced with all these problems, the majority tacks. It scrambles to locate a case—any case—suggesting that common law courts considered “touchings” by weapon enough to effect an arrest in the debt-collection context. Ultimately, the majority asks us to dwell at length on the Countess of Rutland’s case. In at least that lone instance, the majority promises, we will find bailiffs who arrested a debtor by touching her with an object (a mace) rather than a laying on of hands. See ante , at 7–8 (citing Countess of Rutland’s Case , 6 Co. Rep. 52b, 54a, 77 Eng. Rep. 332 (Star Chamber 1605)). But it turns out the dispute concerned whether a countess could be civilly arrested at all , not when or how the arrest was completed. The court had no reason to (and did not) decide whether the bailiffs accomplished their arrest when they “shewed her their mace,” “touch[ed]” her with the mace, or “compelled the coachman to carry” her to jail. Id. , at 54a, 77 Eng. Rep., at 336. And no one questions that these things together—a show of authority followed by compelled detention—have always been enough to complete an arrest. Not even minor royalty can rescue the majority. So the majority tacks again. Now it asks us to dispense with the common law’s “laying on of hands” requirement as an “artificial” rule. Ante , at 8. Distinguishing between “touchings” by hand and by weapon, it says, “calls to mind the unavailing defense of the person who ‘persistently denied that he had laid hands upon a priest, for he had only cudgelled and kicked him.’ ” Ibid. But the quip exposes the majority’s bind. To get where it wishes to go, the majority not only must rework the rules found in the cases on which it relies, it must also abandon their rationale. The debt-collection cases treated the “laying on of hands” as a sign of possession .[ 5 ] Maybe the possession was more “constructive” or even fictional than “actual.” See ante , at 16. But the idea was that someone who stood next to a debtor and laid hands on him could theoretically exercise a degree of control over his person. Common law courts never said the same of bailiffs who fired arrows at debtors, shot them with firearms, or cudgeled them as they ran away. Such conduct might have amounted to a battery , but it was never deemed sufficient to constitute an arrest . Doubtless that’s why when a tax collector shot a man in the eye with a (supposedly unavailable) firearm in 1682, the man sued the officer for “assault, battery, and wounding”— not false imprisonment. See Dickenson , Jones, T., at 205, 84 Eng. Rep., at 1218–1219. The majority implores us to study the common law history of arrests. But almost immediately, the majority realizes it cannot find what it seeks in the history of criminal arrests. So it is forced to disinter a long-abandoned mere-touch rule from civil bankruptcy practice. Then it must import that rule into the criminal law. And because even that isn’t enough to do the work it wishes done, the majority must jettison both the laying on of hands requirement and the rationale that sustained it. All of which leaves us confusing seizures with their attempts and arrests with batteries. The common law offers a vast legal library. Like any other, it must be used thoughtfully. We have no business wandering about and randomly grabbing volumes off the shelf, plucking out passages we like, scratching out bits we don’t, all before pasting our own new pastiche into the U. S. Reports. That does not respect legal history; it rewrites it. C If text and history pose challenges for the majority, so do this Court’s precedents. The majority admits (as it must) that the seizure of an object occurs only through taking possession. Ante , at 4. The majority also admits (as it must) that the seizure of a person through a “show of authority” occurs only if the suspect submits to an officer’s possession. Ante , at 15. But the majority fails to acknowledge that this Court has also said the same principle governs the seizure of persons effected through the use of force. In Terry v. Ohio , 392 U.S. 1 (1968), the Court explained that “ [o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. , at 19, n. 16 (emphasis added). The restraint of liberty Terry referred to was “interference” with a person’s “freedom of movement.” United States v. Jacobsen , 466 U.S. 109 , 113, n. 5 (1984). As the Court put it in Brower v. County of Inyo , 489 U.S. 593 (1989), a decision issued just two years before Hodari D. : “It is clear, in other words, that a Fourth Amendment seizure” occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.” 489 U. S., at 597 (emphasis deleted). Rather than follow these teachings, the majority disparages them. After highlighting (multiple times) that Justice Scalia authored Hodari D. ’s dicta, the majority turns about and faults his opinion for the Court in Brower for “improperly eras[ing] the distinction between seizures by control and seizures by force .” Ante , at 14. The majority continues on to blame other of our decisions, too, for “hav[ing] not always been attentive” to this supposedly fundamental distinction. Ibid . But this Court has not been “[in]attentive” to a fundamental Fourth Amendment distinction for over two centuries, let alone sought to “erase” it. In truth, the majority’s “distinction” is a product of its own invention. This Court has always recognized that how seizures take place can differ. Some may take place after a show of authority, others by the application of force, still others after a polite request. But to be a “seizure,” the same result has always been required: An officer must acquire possession. IV If text, history, and precedent cannot explain today’s result, what can? The majority seems to offer a clue when it promises its new rule will help us “avoi[d] . . . line-drawing problems.” Ante , at 15–16 (internal quotation marks omitted). Any different standard, the majority worries, would be “difficult to apply.” Ante , at 15. But if efficiency in judicial administration is the explanation, it is a troubling one. Surely our role as interpreters of the Constitution isn’t to make life easier for ourselves. Cf. Calabresi & Lawson, The Rule of Law as a Law of Law, 90 Notre Dame L. Rev. 483, 488 (2014). Nor, for that matter, has the majority even tried to show that the traditional possession rule—in use “[f]rom the time of the founding,” Hodari D ., 499 U. S., at 624—has proven unreasonably difficult to administer. Everyone agrees, too, that the possession rule will continue to govern when it comes to the seizures of objects and persons through a show of authority. So, rather than simplify things, the majority’s new rule for “mere touch” seizures promises only to add another layer of complexity to the law. Even within its field of operation, the majority’s rule seems destined to underdeliver on its predicted efficiencies. The majority tells us that its new test requires an “objective intent to restrain.” Ante , at 10. But what qualifies is far from clear. The majority assures us that a “tap on the shoulder to get one’s attention will rarely exhibit such an intent.” Ibid. Suppose, though, the circumstances “objectively” indicate that the tap was “intended” to secure a person’s attention for a minute, a quarter hour, or longer. Would that be enough? Then there’s the question what kind of “touching” will suffice. Imagine that, with an objective intent to detain a suspect, officers deploy pepper spray that enters a suspect’s lungs as he sprints away. Does the application of the pepper spray count? Suppose that, intending to capture a fleeing suspect, officers detonate flash-bang grenades that are so loud they damage the suspect’s eardrum, even though he manages to run off. Or imagine an officer shines a laser into a suspect’s eyes to get him to stop, but the suspect is able to drive away with now-damaged retinas. Are these “touchings”? What about an officer’s bullet that shatters the driver’s windshield, a piece of which cuts her as she speeds away? Maybe the officer didn’t touch the suspect, but he set in motion a series of events that yielded a touching. Does that count? While assuring us that its new rule will prove easy to administer, the majority refuses to confront its certain complications. Lower courts and law enforcement won’t have that luxury. If efficiency cannot explain today’s decision, what’s left? Maybe it is an impulse that individuals like Ms. Torres should be able to sue for damages. Sometimes police shootings are justified, but other times they cry out for a remedy. The majority seems to give voice to this sentiment when it disparages the traditional possession rule as “artificial” and promotes its alternative as more sensitive to “personal security” and “new” policing realities. Ante , at 8–9. It takes pains to explain, too, that its new rule will provide greater protection for personal “privacy” interests, which we’re told make up the “essence” of the Fourth Amendment. Ante , at 16 (internal quotation marks omitted). But tasked only with applying the Constitution’s terms, we have no authority to posit penumbras of “privacy” and “personal security” and devise whatever rules we think might best serve the Amendment’s “essence.” The Fourth Amendment allows this Court to protect against specific governmental actions—unreasonable searches and seizures of persons, houses, papers, and effects—and that is the limit of our license. Besides, it’s hard to see why we should stretch to invent a new remedy here. Ms. Torres had ready-made claims for assault and battery under New Mexico law to test the officers’ actions. See N. M. Stat. Ann §41–4–12 (2020). The only reason this case comes before us under §1983 and the Fourth Amendment rather than before a New Mexico court under state tort law seems to be that Ms. Torres (or her lawyers) missed the State’s two-year statutory filing deadline. See Tr. of Oral Arg. 16–17; Brief for Respondents 20, n. 4. That may be a misfortune for her, but it is hardly a reason to upend a 230 year-old understanding of our Constitution. Nor, if we are honest, does today’s decision promise much help to anyone else. Like Ms. Torres, many seeking to sue officers will be able to bring state tort claims. Even for those whose only recourse is a federal lawsuit, the majority’s new rule seems likely to accomplish little. This Court has already said that a remedy lies under §1983 and the Fourteenth Amendment for police conduct that “shocks the conscience.” County of Sacramento v. Lewis , 523 U.S. 833 , 840, 845–847 (1998). At the same time, qualified immunity poses a daunting hurdle for those seeking to recover for less egregious police behavior. In our own case, Ms. Torres has yet to clear that bar and still faces it on remand. So, at the end of it all, the majority’s new rule will help only those who (1) lack a state-law remedy, (2) evade custody, (3) after some physical contact by the police, (4) where the contact was sufficient to show an objective intent to restrain, (5) and where the police acted “unreasonably” in light of clearly established law, (6) but the police conduct was not “conscience shocking.” With qualification heaped on qualification, that can describe only a vanishingly small number of cases. Even if its holding offers little practical assistance to anyone, perhaps the majority at least hopes to be seen as trying to vindicate “personal security” and the “essence” of “privacy” when it derides the traditional possession rule as “artificial.” But an attractive narrative cannot obscure the hard truth. Not only does the majority’s “mere touch” rule allow a new cause of action in exceedingly few cases (non-conscience-shocking-but-still-unreasonable batteries intended to result in possession that don’t achieve it). It supplies no path to relief for otherwise identical near-misses (assaults). A fleeing suspect briefly touched by pursuing officers may have a claim. But a suspect who evades a hail of bullets unscathed, or one who endures a series of flash-bang grenades untouched, is out of luck. That distinction is no less “artificial” than the one the law has recognized for centuries. And the majority’s new rule promises such scarce relief that it can hardly claim more sensitivity to “personal security” than the rule the Constitution has long enshrined. In the face of these concerns, the majority replies by denying their relevance. It says there is “no call” to “surmise” that its decision rests on anything beyond an “analysis of the common law of arrest.” Ante , at 17. But there is no surmise about it. The majority itself tells us that its decision is also justified by the need to “avoi[d] . . . line-drawing problems,” protect “personal security,” and advance the “privacy” interests that form the “essence” of the Fourth Amendment. Having invoked these sundry considerations, it’s hard to see how the majority might disown them. * To rule as it does, the majority must endow the term “seizure” with two different meanings at the same time. It must disregard the dominant rule of the common law. It must disparage this Court’s existing case law for erasing distinctions that never existed. It cannot even guarantee that its new rule will offer great efficiencies or meaningfully vindicate the penumbral promises it supposes. Instead, we are asked to skip from one snippet to another, finally landing on a long-abandoned debt-collection practice that must be reengineered to do the work the majority wishes done. Our final destination confuses a battery for a seizure and an attempted seizure with its completion. All this is miles from where the standard principles of interpretation lead and just as far from the Constitution’s original meaning. And for what? A new rule that may seem tempting at first blush, but that offers those like Ms. Torres little more than false hope in the end. Respectfully, I dissent. Notes 1 N. Bailey, Universal Etymological English Dictionary (22 ed. 1770) (To seize is “to take into Custody or Possession by Force, or wrongfully; to distrain, to attack, to lay hold of, or catch”; a seizure is a “seizing, taking into Custody”); T. Dyche & W. Pardon, A New General English Dictionary (14th ed. 1771) (To seize is “to lay or take hold of violently or at unawares, wrongfully, or by force”; a seizing or seizure is “a taking possession of any thing by violent, force, &c”); 2 S. Johnson, A Dictionary of the English Language (6th ed. 1785) (To seize is “1. To take hold of; to gripe; to grasp.” “2. To take possession of by force.” “3. To take possession of; to lay hold on; to invade suddenly.” “4. To take forcible possession of by law.” “5. To make possessed; to put in possession of.” A seizure is “1. The act of seizing.” “2. The thing seized.” “3. The act of taking forcible possession.” “4. Gripe; possession.” “5. Catch”); 2 J. Ash, The New and Complete Dictionary of the English Language (2d ed. 1795) (To seize is “[t]o grasp, to lay hold on, to fasten on, to take possession of, to take possession by law”; a seizure is “[t]he act of seizing, a gripe, a catch; the act of taking possession by force of law; the thing seized, the thing possessed”). 2 2 N. Webster, An American Dictionary of the English Language 67 (1828) (To seize is “1. To fall or rush upon suddenly and lay hold on; or to gripe or grasp suddenly.” “2. To take possession by force, with or without right.” “3. To invade suddenly; to take hold of; to come upon suddenly; as, a fever seizes a patient.” “4. To take possession by virtue of a warrant or legal authority.” To be seized is to be “[s]uddenly caught or grasped; taken by force; invaded suddenly; taken possession of; fastened with a cord; having possession.” A seizure is “1. The act of seizing; the act of laying hold on suddenly; as the seizure of a thief. 2. The act of taking possession by force; as the seizure of lands or goods; the seizure of a town by an enemy; the seizure of a throne by an usurper. 3. The act of taking by warrant; as the seizure of contraband goods. 4. The thing taken or seized.” “5. Gripe; grasp; possession.” “6. Catch; a catching”). 3 See, e.g. , Bailey, Universal Etymological English Dictionary (To arrest is “to stop or stay”; an arrest (in the legal sense) is “a Legal taking of a Person, and restraining him from Liberty”); Dyche & Pardon, A New General English Dictionary (An arrest is “the stopping or detaining a person, by a legal process”); 1 Johnson, A Dictionary of the English Language (“1. In law. A stop or stay; as, a man apprehended for debt, is said to be arrested.” “An arrest is a certain restraint of a man’s person, depriving him of his own will, and binding it to become obedient to the will of the law, and may be called the beginning of imprisonment.” “2. Any caption, seizure of the person.” “3. A stop” (emphasis deleted)); 1 Ash, The New and Complete Dictionary of the English Language (To arrest is “[t]o seize a man for debt, to apprehend by virtue of a writ from any court of justice, to stop, to hinder”; an arrest is “[t]he act of seizing on a man’s person for debt, the execution of a writ from any court of justice by which a man becomes a prisoner, a stop, a hindrance”). 4 The majority cites only Blackstone’s definition of a civil arrest, which required a “corporal seising or touching the defendant’s body.” Ante , at 6 (quoting 3 W. Blackstone, Commentaries on the Laws of England 288 (1768)). But flipping from Blackstone’s third volume (discussing “private wrongs”) to his fourth volume (discussing “public wrongs”) reveals—as we have already seen but the majority fails to acknowledge—that Blackstone equated a criminal arrest with “apprehending or restraining . . . one’s person, in order to be forthcoming to answer an alleged or suspected crime.” See supra , at 11. 5 That is why the mere-touch cases often discussed the “corporal possession of the debtor.” E.g. , Sandon v. Jervis , El. Bl. & El. 935, 941–942, 120 Eng. Rep. 758 (K. B. 1858) (Hill, J.). A “corporal” touch was a legal term of art and was frequently used in the context of determining the possession of goods. E.g. , Jordan v. James , 5 Ohio 88, 98 (1831) (stating that an owner “may deliver any chattel he sells, symbolically and constructively, as well as by corporal touch”); see also 2 W. Blackstone, Commentaries on the Laws 448–449, n. 16 (J. Chitty ed. 1826); Friedman, Formative Elements in the Law of Sales: The Eighteenth Century, 44 Minn. L. Rev. 411, 445 (1960).

Here is a summary of the Supreme Court case, Roxanne Torres v. Janice Madrid and Richard Williamson: The Supreme Court ruled that when a police officer shoots someone who is temporarily evading capture, it constitutes a seizure under the Fourth Amendment, regardless of whether the force subdues the individual. In this case, the Court recounted the facts in the light most favorable to Roxanne Torres, who was shot by officers attempting to execute an arrest warrant. Torres, experiencing methamphetamine withdrawal, attempted to flee in her car. Officers Madrid and Williamson fired 13 shots, striking her twice but not subduing her. The Court concluded that the application of physical force with the intent to restrain, even if unsuccessful, constitutes a seizure.

Separation of Powers

Myers v. U.S.

https://supreme.justia.com/cases/federal/us/272/52/

U.S. Supreme Court Myers v. United States, 272 U.S. 52 (1925) Myers v. United States No. 2 Argued December 5, 1923 Reargued April 13, 14, 1925 Decided October 25, 1926 272 U.S. 52 APPEAL FROM THE COURT OF CLAIMS Syllabus 1. A postmaster who was removed from office petitioned the President and the Senate committee on Post Offices for a hearing on any charges filed; protested to the Post Office Department; and, Page 272 U. S. 53 three months before his four-year term expired, having pursued no other occupation and derived no compensation for other service in the interval, began suit in the Court of Claims for salary since removal. No notice of the removal, nor any nomination of a successor, had been sent in the meantime to the Senate whereby his case could have been brought before that body, and the commencement of suit was within a month after the ending of its last session preceding the expiration of the four years. Held that the plaintiff was not guilty of laches. P. 272 U. S. 107 . 2. Section 6 of the Act of July 12, 1876, providing that "Postmasters of the first, second and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law," is unconstitutional in its attempt to make the President's power of removal dependent upon consent of the Senate. Pp. 272 U. S. 107 , 272 U. S. 176 . 3. The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate, nor can it be made so by an act of Congress. Pp. 272 U. S. 119 , 272 U. S. 125 . 4. The provision of Art. II, § 1, of the Constitution that "the Executive power shall be vested in a President" is a grant of the power, and not merely a naming of a department of the government. Pp. 272 U. S. 151 , 272 U. S. 163 . 5. The provisions of Art. II, § 2, which blend action by the legislative branch, or by part of it, in the work of the Executive, are limitations upon this general grant of the Executive power which are to be strictly construed, and not to be extended by implication. P. 272 U. S. 164 . 6. It is a canon of interpretation that real effect should be given to all the words of the Constitution. P. 272 U. S. 151 . 7. Removal of executive officials from office is an executive function; the power to remove, like the power to appoint, is part of "the Executive power," -- a conclusion which is confirmed by the obligation "to take care that the laws be faithfully executed." Pp. 272 U. S. 161 , 272 U. S. 164 . 8. The power of removal is an incident of the power to appoint; but such incident does not extend the Senate's power of checking appointments, to removals. Pp. 272 U. S. 119 , 272 U. S. 121 , 272 U. S. 126 , 272 U. S. 161 . 9. The excepting clause in § 2 of Art. II, providing "but Congress may by law vest the appointment of such inferior officers Page 272 U. S. 54 as they may think proper in the President alone, in the courts of law or in the heads of departments," does not enable Congress to regulate the removal of inferior officers appointed by the President by and with the advice and consent of the Senate. Pp. 272 U. S. 158 -161. 10. A contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of the Constitution were actively participating in public affairs, acquiesced in for many years, fixes the meaning of the provisions so construed. P. 272 U. S. 175 . 11. Upon an historical examination of the subject, the Court finds that the action of the First Congress, in 1789, touching the Bill to establish a Department of Foreign Affairs, was a clean-cut and deliberate construction of the Constitution as vesting in the President alone the power to remove officers, inferior as well as superior, appointed by him with the consent of the Senate; that this construction was acquiesced in by all branches of the Government for 73 years, and that subsequent attempts of Congress, through the Tenure of Office Act of March 2, 1867, and other acts of that period, to reverse the construction of 1789 by subjecting the President's power to remove executive officers appointed by him and confirmed by the Senate to the control of the Senate or lodge such power elsewhere in the Government were not acquiesced in, but their validity was denied by the Executive whenever any real issue over it arose. Pp. 272 U. S. 111 , 272 U. S. 164 -176. 12. The weight of congressional legislation as supporting a particular construction of the Constitution by acquiescence depends not only upon the nature of the question, but also upon the attitude of the executive and judicial branches of the government and the number of instances in the execution of the law in which opportunity for objection in the courts or elsewhere has been afforded. P. 272 U. S. 170 . 13. The provisions of the Act of May 15, 1820, for removal of the officers therein named "at pleasure," were not based on the assumption that, without them, the President would not have that power, but were inserted in acquiescence to the legislative decision of 1789. P. 272 U. S. 146 . 14. Approval by the President of acts of Congress containing provisions purporting to restrict the President's constitutional power of removing officers held not proof of Executive acquiescence in such curtailment where the approval was explicable by the value of the legislation in other respects -- as where the restriction was in a rider imposed on an appropriation act. P. 272 U. S. 170 . Page 272 U. S. 55 15. Marbury v. Madison , 1 Cranch 137, considered, in connection with Parsons v. United States, 167 U. S. 324 , and held not authoritative on the question of removal power here involved. Pp. 272 U. S. 139 -144, 272 U. S. 158 . ----- The questions (1) whether a judge appointed by the President with the consent of the Senate under an act of Congress, not under authority of Art. III of the Constitution, can be removed by the President alone without the consent of the Senate; (2), whether the legislative decision of 1789 covers such a case, and (3), whether Congress may provide for his removal in some other way, present considerations different from those which apply in the removal of executive officers, and are not herein decided. Pp. 272 U. S. 154 -158. This Court has recognized ( United States v. Perkins, 116 U. S. 483 ) that Congress may prescribe incidental regulations controlling and restricting the heads of departments in the exercise of the power of removal; but it has never held, and could not reasonably hold, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of govern mental powers. P. 272 U. S. 161 . Assuming the power of Congress to regulate removals as incidental to the exercise of its constitutional power to vest appointments of inferior officers in the heads of departments, certainly so long as Congress does not exercise that power, the power of removal must remain where the Constitution places it -- with the President, as part of the executive power, in accordance with the legislative decision of 1789. P. 272 U. S. 161 . Whether the action of Congress in removing the necessity for the advice and consent of the Senate, and putting the power of appointment in the President alone, would make his power of removal in such case any more subject to Congressional legislation than before is a question not heretofore decided by this Court and not presented or decided in this case. P. 272 U. S. 161 . Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent. P. 272 U. S. 164 . 58 Ct.Cls. 199, affirmed. Page 272 U. S. 56 APPEAL from a judgment of the Court of Claims rejecting a claim for salary. Appellant's intestate, Frank S. Myers, was reappointed by the President, by and with the advice and consent of the Senate, as a postmaster of the first class. The Act of July, 1876, § 6, c. 179, 19 Stat. 80, provides that such postmasters shall hold office for four years, unless sooner removed or suspended according to law, and provides that they may be removed by the President "by and with the advice and consent of the Senate." Myers was removed, before the expiration of his term, by an order of the Postmaster General, sanctioned by the President. The removal was not referred to the Senate, either directly or through nomination of a successor, during the four-year period. Judgment of the Court below that Myers could not claim salary for the part of that period following the removal was based on the view that there had been laches in asserting the claim. The appeal was argued and submitted by counsel for the appellant on December 5, 1924. On January 5, 1925, the Court restored the case for reargument. It invited the Honorable George Wharton Pepper, United States Senator from Pennsylvania, to participate as amicus curiae. The reargument occurred on April 13, 14, 1925. In view of the great importance of the matter, the Reporter has deemed it advisable to print, in part, the oral arguments, in addition to summaries of the briefs. [Oral arguments and briefs omitted.] Page 272 U. S. 106 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court. This case presents the question whether, under the Constitution, the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate. Myers, appellant's intestate, was, on July 21, 1917, appointed by the President, by and with the advice and consent of the Senate, to be a postmaster of the first class at Portland, Oregon, for a term of four years. On January 20, 1920, Myers' resignation was demanded. He refused the demand. On February 2, 1920, he was removed from office by order of the Postmaster General, acting by direction of the President. February 10th, Myers sent a petition to the President and another to the Senate Committee on Post Offices, asking to be heard if any charges were filed. He protested to the Department against his removal, and continued to do so until the end of his term. He pursued no other occupation, and drew compensation for no other service during the interval. On April 21, 1921, he brought this suit in the Court of Claims for his salary from the date of his removal, which, as claimed by supplemental petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In August, 1920, the President made a recess appointment of one Jones, who took office September 19, 1920. Page 272 U. S. 107 The Court of Claims gave judgment against Myers, and this is an appeal from that judgment. The Court held that he had lost his right of action because of his delay in suing, citing Arant v. Lane, 249 U. S. 367 ; Nicholas v. United States, 257 U. S. 71 , and Norris v. United States, 257 U. S. 77 . These cases show that, when a United States officer is dismissed, whether in disregard of the law or from mistake as to the facts of his case, he must promptly take effective action to assert his rights. But we do not find that Myers failed in this regard. He was constant in his efforts at reinstatement. A hearing before the Senate Committee could not be had till the notice of his removal was sent to the Senate or his successor was nominated. From the time of his removal until the end of his term, there were three sessions of the Senate without such notice or nomination. He put off bringing his suit until the expiration of the Sixty-sixth Congress, March 4, 1921. After that, and three months before his term expired, he filed his petition. Under these circumstances, we think his suit was not too late. Indeed, the Solicitor General, while not formally confessing error in this respect, conceded at the bar that no laches had been shown. By the 6th section of the Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179, under which Myers was appointed with the advice and consent of the Senate as a first-class postmaster, it is provided that "Postmasters of the first, second and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law." The Senate did not consent to the President's removal of Myers during his term. If this statute, in its requirement that his term should be four years unless sooner removed by the President by and with the consent of the Page 272 U. S. 108 Senate, is valid, the appellant, Myers' administratrix, is entitled to recover his unpaid salary for his full term, and the judgment of the Court of Claims must be reversed. The Government maintains that the requirement is invalid for the reason that, under Article II of the Constitution the President's power of removal of executive officers appointed by him with the advice and consent of the Senate is full and complete without consent of the Senate. If this view is sound, the removal of Myers by the President without the Senate's consent was legal, and the judgment of the Court of Claims against the appellant was correct, and must be affirmed, though for a different reason from that given by that court. We are therefore confronted by the constitutional question, and cannot avoid it. The relevant parts of Article II of the Constitution are as follows: "Section 1. The executive Power shall be vested in a President of the United States of America." "Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments upon any subject relating to the duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur, and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States whose Appointments are not herein otherwise provided for, and which shall be established Page 272 U. S. 109 by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the End of their next Session." "Section 3. He shall from time to time give to the Congress information of the State of the Union and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." "Section 4. The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors." Section 1 of Article III, provides: "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior. . . ." The question where the power of removal of executive officers appointed by the President by and with the advice and consent of the Senate was vested was presented early in the first session of the First Congress. There is no express provision respecting removals in the Constitution, except as Section 4 of Article II, above quoted, provides for removal from office by impeachment. The subject Page 272 U. S. 110 was not discussed in the Constitutional Convention. Under the Articles of Confederation, Congress was given the power of appointing certain executive officers of the Confederation, and, during the Revolution and while the Articles were given effect, Congress exercised the power of removal. May, 1776, 4 Journals of the Continental Congress, Library of Congress Ed., 361; August 1, 1777, 8 Journals, 596; January 7, 1779, 13 Journals, 32-33; June 1779, 14 Journals, 542, 712, 714; November 23, 1780, 18 Journals, 1085; December 1, 1780, 18 Journals, 1115. Consideration of the executive power was initiated in the Constitutional Convention by the seventh resolution in the Virginia Plan, introduced by Edmund Randolph. 1 Farrand, Records of the Federal Convention, 21. It gave to the Executive "all the executive powers of the Congress under the Confederation," which would seem therefore to have intended to include the power of removal which had been exercised by that body as incident to the power of appointment. As modified by the Committee of the Whole, this resolution declared for a national executive of one person, to be elected by the legislature, with power to carry into execution the national laws and to appoint to offices in cases not otherwise provided for. It was referred to the Committee on Detail, 1 Farrand, 230, which recommended that the executive power should be vested in a single person, to be styled the President of the United States; that he should take care that the laws of the United States be duly and faithfully executed, and that he should commission all the officers of the United States and appoint officers in all cases not otherwise provided by the Constitution. 2 Farrand, 185. The committee further recommended that the Senate be given power to make treaties, and to appoint ambassadors and judges of the Supreme Court. After the great compromises of the Convention -- the one giving the States equality of representation in the Page 272 U. S. 111 Senate, and the other placing the election of the President not in Congress, as once voted, but in an electoral college in which the influence of larger States in the selection would be more nearly in proportion to their population -- the smaller States, led by Roger Sherman, fearing that, under the second compromise, the President would constantly be chosen from one of the larger States, secured a change by which the appointment of all officers, which theretofore had been left to the President without restriction, was made subject to the Senate's advice and consent, and the making of treaties and the appointments of ambassadors, public ministers, consuls and judges of the Supreme Court were transferred to the President, but made subject to the advice and consent of the Senate. This third compromise was effected in a special committee in which Gouverneur Morris of Pennsylvania represented the larger States and Roger Sherman the smaller States. Although adopted finally without objection by any State in the last days of the Convention, members from the larger States, like Wilson and others, criticized this limitation of the President's power of appointment of executive officers and the resulting increase of the power of the Senate. 2 Farrand, 537, 538, 539. In the House of Representatives of the First Congress, on Tuesday, May 18, 1789, Mr. Madison moved in the Committee of the Whole that there should be established three executive departments -- one of Foreign Affairs, another of the Treasury, and a third of War -- at the head of each of which there should be a Secretary, to be appointed by the President by and with the advice and consent of the Senate, and to be removable by the President. The committee agreed to the establishment of a Department of Foreign Affairs, but a discussion ensued as to making the Secretary removable by the President. 1 Annals of Congress, 370, 371. "The question was now taken and carried, by a considerable majority, in favor Page 272 U. S. 112 of declaring the power of removal to be in the President." 1 Annals of Congress, 383. On June 16, 1789, the House resolved itself into a Committee of the Whole on a bill proposed by Mr. Madison for establishing an executive department to be denominated the Department of Foreign Affairs, in which the first clause, after stating the title of the officer and describing his duties, had these words: "to be removable from office by the President of the United States." 1 Annals of Congress, 455. After a very full discussion, the question was put: shall the words "to be removable by the President " be struck out? It was determined in the negative yeas 20, nays 34. 1 Annals of Congress, 576. On June 22, in the renewal of the discussion, "Mr. Benson moved to amend the bill by altering the second clause so as to imply the power of removal to be in the President alone. The clause enacted that there should be a chief clerk, to be appointed by the Secretary of Foreign Affairs, and employed as he thought proper, and who, in case of vacancy, should have the charge and custody of all records, books, and papers appertaining to the department. The amendment proposed that the chief clerk, 'whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy,' should, during such vacancy, have the charge and custody of all records, books, and papers appertaining to the department." 1 Annals of Congress, 578. "Mr. Benson stated that his objection to the clause 'to be removable by the President' arose from an idea that the power of removal by the President hereafter might appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was fixed by a fair legislative construction of the Constitution." 1 Annals of Congress, 579. Page 272 U. S. 113 "Mr. Benson declared, if he succeeded in this amendment, he would move to strike out the words in the first clause, 'to be removable by the President' which appeared somewhat like a grant. Now, the mode he took would evade that point and establish a legislative construction of the Constitution. He also hoped his amendment would succeed in reconciling both sides of the House to the decision, and quieting the minds of gentlemen." 1 Annals of Congress, 578. Mr. Madison admitted the objection made by the gentleman near him (Mr. Benson) to the words in the bill. He said: "They certainly may be construed to imply a legislative grant of the power. He wished everything like ambiguity expunged, and the sense of the House explicitly declared, and therefore seconded the motion. Gentlemen have all along proceeded on the idea that the Constitution vests the power in the President, and what arguments were brought forward respecting the convenience or inconvenience of such disposition of the power were intended only to throw light upon what was meant by the compilers of the Constitution. Now, as the words proposed by the gentleman from New York expressed to his mind the meaning of the Constitution, he should be in favor of them, and would agree to strike out those agreed to in the committee." 1 Annals of Congress, 578, 579. Mr. Benson's first amendment to alter the second clause by the insertion of the italicized words, made that clause to read as follows: "That there shall be in the State Department an inferior officer to be appointed by the said principal officer, and to be employed therein as he shall deem proper, to be called the Chief Clerk in the Department of Foreign Affairs, and who, whenever the principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall, during such vacancy, Page 272 U. S. 114 have charge and custody of all records, books and papers appertaining to said department." The first amendment was then approved by a vote of thirty to eighteen. 1 Annals of Congress, 580. Mr. Benson then moved to strike out in the first clause the words "to be removable by the President," in pursuance of the purpose he had already declared, and this second motion of his was carried by a vote of thirty-one to nineteen. 1 Annals of Congress, 585. The bill as amended was ordered to be engrossed, and read the third time the next day, June 24, 1789, and was then passed by a vote of twenty-nine to twenty-two, and the Clerk was directed to carry the bill to the Senate and desire their concurrence. 1 Annals of Congress, 591. It is very clear from this history that the exact question which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt, after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and, until the Johnson Impeachment trial in 1868, its meaning was not doubted even by those who questioned its soundness. The discussion was a very full one. Fourteen out of the twenty-nine who voted for the passage of the bill, and eleven of the twenty-two who voted against the bill, took part in the discussion. Of the members of the House, eight had been in the Constitutional Convention, and, of these, six voted with the majority, and two, Roger Sherman and Eldridge Gerry, the latter of whom had refused to sign the Constitution, voted in the minority. After Page 272 U. S. 115 the bill as amended had passed the House, it was sent to the Senate, where it was discussed in secret session, without report. The critical vote there was upon the striking out of the clause recognizing and affirming the unrestricted power of the President to remove. The Senate divided by ten to ten, requiring the deciding vote of the Vice-President, John Adams, who voted against striking out, and in favor of the passage of the bill as it had left the House. * Ten of the Senators had been in the Constitutional Convention, and, of them, six voted that the power of removal was in the President alone. The bill, having passed as it came from the House, was signed by President Washington and became a law. Act of July 27, 1789, 1 Stat. 28, c. 4. The bill was discussed in the House at length and with great ability. The report of it in the Annals of Congress is extended. James Madison was then a leader in the House, as he had been in the Convention. His arguments in support of the President's constitutional power of removal independently of Congressional provision, and without the consent of the Senate, were masterly, and he carried the House. It is convenient in the course of our discussion of this case to review the reasons advanced by Mr. Madison and his associates for their conclusion, supplementing them, so far as may be, by additional considerations which lead this Court to concur therein. First. Mr. Madison insisted that Article II, by vesting the executive power in the President, was intended to grant to him the power of appointment and removal of executive officers except as thereafter expressly provided in that Article. He pointed out that one of the chief Page 272 U. S. 116 purposes of the Convention was to separate the legislative from the executive functions. He said: "If there is a principle in our Constitution, indeed in any free Constitution, more sacred than another, it is that which separates the Legislative, Executive and Judicial powers. If there is any point in which the separation of the Legislative and Executive powers ought to be maintained with great caution, it is that which relates to officers and offices." 1 Annals of Congress, 581. Their union under the Confederation had not worked well, as the members of the convention knew. Montesquieu's view that the maintenance of independence as between the legislative, the executive, and the judicial branches was a security for the people had their full approval. Madison in the Convention, 2 Farrand, Records of the Federal Convention, 56. Kendall v. United States , 12 Peters 524, 37 U. S. 610 . Accordingly, the Constitution was so framed as to vest in the Congress all legislative powers therein granted, to vest in the President the executive power, and to vest in one Supreme Court and such inferior courts as Congress might establish the judicial power. From this division on principle, the reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires. Madison, 1 Annals of Congress, 497. This rule of construction has been confirmed by this Court in Meriwether v. Garrett, 102 U. S. 472 , 102 U. S. 515 ; Kilbourn v. Thompson, 103 U. S. 168 , 103 U. S. 190 ; Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 662 . The debates in the Constitutional Convention indicated an intention to create a strong Executive, and, after a controversial discussion, the executive power of the Government was vested in one person and many of his important functions were specified so as to avoid the Page 272 U. S. 117 humiliating weakness of the Congress during the Revolution and under the Articles of Confederation. 1 Farrand, 66-97. Mr. Madison and his associates in the discussion in the House dwelt at length upon the necessity there was for construing Article II to give the President the sole power of removal in his responsibility for the conduct of the executive branch, and enforced this by emphasizing his duty expressly declared in the third section of the Article to "take care that the laws be faithfully executed." Madison, 1 Annals of Congress, 496, 497. The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this Court. Wilcox v. Jackson , 13 Peters 498, 38 U. S. 513 ; United States v. Eliason , 16 Peters 291, 302; Williams v. United States , 1 How. 290, 42 U. S. 297 ; Cunningham v. Neagle, 135 U. S. 1 , 135 U. S. 63 ; Russell Co. v. United States, 261 U. S. 514 , 261 U. S. 523 . As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that, as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. Fisher Ames, 1 Annals of Congress, 474. It was urged that the natural meaning of the term "executive power" granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly Page 272 U. S. 118 were not the exercise of legislative or judicial power in government as usually understood. It is quite true that, in state and colonial governments at the time of the Constitutional Convention, power to make appointments and removals had sometimes been lodged in the legislatures or in the courts, but such a disposition of it was really vesting part of the executive power in another branch of the Government. In the British system, the Crown, which was the executive, had the power of appointment and removal of executive officers, and it was natural, therefore, for those who framed our Constitution to regard the words "executive power" as including both. Ex Parte Grossman, 267 U. S. 87 , 267 U. S. 110 . Unlike the power of conquest of the British Crown, considered and rejected as a precedent for us in Fleming v. Page , 9 How. 603, 618, the association of removal with appointment of executive officers is not incompatible with our republican form of Government. The requirement of the second section of Article II that the Senate should advise and consent to the Presidential appointments, was to be strictly construed. The words of section 2, following the general grant of executive power under section 1, were either an enumeration and emphasis of specific functions of the Executive, not all-inclusive, or were limitations upon the general grant of the executive power, and, as such, being limitations, should not be enlarged beyond the words used. Madison, 1 Annals, 462, 463, 464. The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, and the fact that no express limit was placed on the power of removal by the Executive was convincing indication that none was intended. This is the same construction of Article II as that of Alexander Hamilton quoted infra. Page 272 U. S. 119 Second. The view of Mr. Madison and his associates was that not only did the grant of executive power to the President in the first section of Article II carry with it the power of removal, but the express recognition of the power of appointment in the second section enforced this view on the well approved principle of constitutional and statutory construction that the power of removal of executive officers was incident to the power of appointment. It was agreed by the opponents of the bill, with only one or two exceptions, that, as a constitutional principle, the power of appointment carried with it the power of removal. Roger Sherman, 1 Annals of Congress, 491. This principle, as a rule of constitutional and statutory construction then generally conceded, has been recognized ever since. Ex parte Hennen , 13 Peters 230, 38 U. S. 259 ; Reagan v. United States, 182 U. S. 419 ; Shurtleff v. United States, 189 U. S. 311 , 189 U. S. 315 . The reason for the principle is that those in charge of and responsible for administering functions of government who select their executive subordinates need, in meeting their responsibility, to have the power to remove those whom they appoint. Under section 2 of Article II, however, the power of appointment by the Executive is restricted in its exercise by the provision that the Senate, a part of the legislative branch of the Government, may check the action of the Executive by rejecting the officers he selects. Does this make the Senate part of the removing power? And this, after the whole discussion in the House is read attentively, is the real point which was considered and decided in the negative by the vote already given. The history of the clause by which the Senate was given a check upon the President's power of appointment makes it clear that it was not prompted by any desire to limit removals. As already pointed out, the important purpose of those who brought about the restriction was to lodge in the Senate, where the small States had equal Page 272 U. S. 120 representation with the larger States, power to prevent the President from making too many appointments from the larger States. Roger Sherman and Oliver Ellsworth, delegates from Connecticut, reported to its Governor: "The equal representation of the States in the Senate and the voice of that branch in the appointment to offices will secure the rights of the lesser as well as of the greater States." 3 Farrand, 99. The formidable opposition to the Senate's veto on the President's power of appointment indicated that, in construing its effect, it should not be extended beyond its express application to the matter of appointments. This was made apparent by the remarks of Abraham Baldwin, of Georgia, in the debate in the First Congress. He had been a member of the Constitutional Convention. In opposing the construction which would extend the Senate's power to check appointments to removals from office, he said: "I am well authorized to say that the mingling of the powers of the President and Senate was strongly opposed in the Convention which had the honor to submit to the consideration of the United States and the different States the present system for the government of the Union. Some gentlemen opposed it to the last, and finally it was the principal ground on which they refused to give it their signature and assent. One gentleman called it a monstrous and unnatural connexion, and did not hesitate to affirm it would bring on convulsions in the government. This objection was not confined to the walls of the Convention; it has been subject of newspaper declamation, and perhaps justly so. Ought we not, therefore, to be careful not to extend this unchaste connexion any further?" 1 Annals of Congress, 557. Madison said: "Perhaps there was no argument urged with more success or more plausibly grounded against the Constitution under which we are now deliberating than that founded Page 272 U. S. 121 on the mingling of the executive and legislative branches of the Government in one body. It has been objected that the Senate have too much of the executive power even, by having control over the President in the appointment to office. Now shall we extend this connexion between the legislative and executive departments which will strengthen the objection and diminish the responsibility we have in the head of the Executive?" 1 Annals of Congress, 380. It was pointed out in this great debate that the power of removal, though equally essential to the executive power, is different in its nature from that of appointment. Madison, 1 Annals of Congress, 497, et seq.; Clymer, 1 Annals, 489; Sedgwick, 1 Annals, 522; Ames, 1 Annals, 541, 542; Hartley, 1 Annals, 481. A veto by the Senate -- a part of the legislative branch of the Government -- upon removals is a much greater limitation upon the executive branch and a much more serious blending of the legislative with the executive than a rejection of a proposed appointment. It is not to be implied. The rejection of a nominee of the President for a particular office does not greatly embarrass him in the conscientious discharge of his high duties in the selection of those who are to aid him, because the President usually has an ample field from which to select for office, according to his preference, competent and capable men. The Senate has full power to reject newly proposed appointees whenever the President shall remove the incumbents. Such a check enables the Senate to prevent the filling of offices with bad or incompetent men or with those against whom there is tenable objection. The power to prevent the removal of an officer who has served under the President is different from the authority to consent to or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nominee Page 272 U. S. 122 as the President, but, in the nature of things, the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President are facts as to which the President, or his trusted subordinates, must be better informed than the Senate, and the power to remove him may, therefore, be regarded as confined, for very sound and practical reasons, to the governmental authority which has administrative control. The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal. Oliver Ellsworth was a member of the Senate of the First Congress, and was active in securing the imposition of the Senate restriction upon appointments by the President. He was the author of the Judiciary Act in that Congress, and subsequently Chief Justice of the United States. His view as to the meaning of this article of the Constitution, upon the point as to whether the advice of the Senate was necessary to removal, like that of Madison, formed and expressed almost in the very atmosphere of the Convention, was entitled to great weight. What he said in the discussion in the Senate was reported by Senator William Patterson, 2 Bancroft, History of the Constitution of the United States, 192, as follows: "The three distinct powers, legislative, judicial and executive, should be placed in different hands. 'He shall take care that the laws be faithfully executed' are sweeping words. The officers should be attentive to the President to whom the Senate is not a council. To turn a man out of office is an exercise neither of legislative nor of judicial power; it is like a tree growing upon land that has been granted. The advice of the Senate does not make the appointment. The President appoints. There Page 272 U. S. 123 are certain restrictions in certain cases, but the restriction is as to the appointment, and not as to the removal." In the discussion in the First Congress, fear was expressed that such a constitutional rule of construction as was involved in the passage of the bill would expose the country to tyranny through the abuse of the exercise of the power of removal by the President. Underlying such fears was the fundamental misconception that the President's attitude in his exercise of power is one of opposition to the people, while the Congress is their only defender in the Government, and such a misconception may be noted in the discussions had before this Court. This view was properly contested by Mr. Madison in the discussion (1 Annals of Congress, 461), by Mr. Hartley (1 Annals, 481), by Mr.Lawrence (1 Annals, 485), and by Mr. Scott (1 Annals, 533). The President is a representative of the people just as the members of the Senate and of the House are, and it may be, at some times, on some subjects, that the President elected by all the people is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local, and not countrywide; and, as the President is elected for four years, with the mandate of the people to exercise his executive power under the Constitution, there would seem to be no reason for construing that instrument in such a way as to limit and hamper that power beyond the limitations of it, expressed or fairly implied. Another argument advanced in the First Congress against implying the power of removal in the President alone from its necessity in the proper administration of the executive power was that all embarrassment in this respect could be avoided by the President's power of suspension of officers, disloyal or incompetent, until the Senate could act. To this, Mr. Benson, said: "Gentlemen ask, will not the power of suspending an officer be sufficient to prevent mal-conduct? Here is some Page 272 U. S. 124 inconsistency in their arguments. They declare that Congress have no right to construe the Constitution in favor of the President with respect to removal; yet they propose to give a construction in favor of the power of suspension being exercised by him. Surely gentlemen do not pretend that the President has the power of suspension granted expressly by the Constitution; if they do, they have been more successful in their researches into that instrument than I have been. If they are willing to allow a power of suspending, it must be because they construe some part of the Constitution in favor of such a grant. The construction in this case must be equally unwarrantable. But admitting it proper to grant this power, what then? When an officer is suspended, does the place become vacant? May the President proceed to fill it up? Or must the public business be likewise suspended? When we say an officer is suspended, it implies that the place is not vacant; but the parties may be heard, and, after the officer is freed from the objections that have been taken to his conduct, he may proceed to execute the duties attached to him. What would be the consequence of this? If the Senate, upon its meeting, were to acquit the officer, and replace him in his station, the President would then have a man forced on him whom he considered as unfaithful, and could not, consistent with his duty, and a proper regard to the general welfare, go so far as to entrust him with full communications relative to the business of his department. Without a confidence in the Executive department, its operations would be subject to perpetual discord, and the administration of the Government become impracticable." 1 Annals of Congress, 506. Mr. Vining said: "The Departments of Foreign Affairs and War are peculiarly within the powers of the President, and he must be responsible for them; but take away his controlling power, and upon what principle do you require his responsibility? " Page 272 U. S. 125 "The gentlemen say the President may suspend. They were asked if the Constitution gave him this power any more than the other? Do they contend the one to be a more inherent power than the other? If they do not, why shall it be objected to us that we are making a Legislative construction of the Constitution, when they are contending for the same thing?" 1 Annals of Congress, 512. In the case before us, the same suggestion has been made for the same purpose, and we think it is well answered in the foregoing. The implication of removal by the President alone is no more a strained construction of the Constitution than that of suspension by him alone, and the broader power is much more needed and more strongly to be implied. Third. Another argument urged against the constitutional power of the President alone to remove executive officers appointed by him with the consent of the Senate is that, in the absence of an express power of removal granted to the President, power to make provision for removal of all such officers is vested in the Congress by section 8 of Article I. Mr. Madison, mistakenly thinking that an argument like this was advanced by Roger Sherman, took it up and answered it as follows: "He seems to think (if I understand him rightly) that the power of displacing from office is subject to Legislative discretion, because, having a right to create, it may limit or modify as it thinks proper. I shall not say but at first view this doctrine may seem to have some plausibility. But when I consider that the Constitution clearly intended to maintain a marked distinction between the Legislative, Executive, and Judicial powers of Government, and when I consider that, if the Legislature has a power such as is contended for, they may subject and transfer at discretion powers from one department of our Government to another; they may, on that principle, Page 272 U. S. 126 exclude the President altogether from exercising any authority in the removal of officers; they may give [it] to the Senate alone, or the President and Senate combined; they may vest it in the whole Congress; or they may reserve it to be exercised by this house. When I consider the consequences of this doctrine, and compare them with the true principles of the Constitution, I own that I cannot subscribe to it. . . ." 1 Annals of Congress, 495, 496. Of the eleven members of the House who spoke from amongst the twenty-two opposing the bill, two insisted that there was no power of removing officers after they had been appointed, except by impeachment, and that the failure of the Constitution expressly to provide another method of removal involved this conclusion. Eight of them argued that the power of removal was in the President and the Senate -- that the House had nothing to do with it, and most of these were very insistent upon this view in establishing their contention that it was improper for the House to express in legislation any opinion on the constitutional question whether the President could remove without the Senate's consent. The constitutional construction that excludes Congress from legislative power to provide for the removal of superior officers finds support in the second section of Article II. By it, the appointment of all officers, whether superior or inferior, by the President is declared to be subject to the advice and consent of the Senate. In the absence of any specific provision to the contrary, the power of appointment to executive office carries with it, as a necessary incident, the power of removal. Whether the Senate must concur in the removal is aside from the point we now are considering. That point is that, by the specific constitutional provision for appointment of executive officers, with its necessary incident of removal, the power of appointment and removal is clearly provided for by Page 272 U. S. 127 the Constitution, and the legislative power of Congress in respect to both is excluded save by the specific exception as to inferior offices in the clause that follows, viz., "but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." These words, it has been held by this Court, give to Congress the power to limit and regulate removal of such inferior officers by heads of departments when it exercises its constitutional power to lodge the power of appointment with them. United States v. Perkins, 116 U. S. 483 , 116 U. S. 485 . Here, then, is an express provision, introduced in words of exception, for the exercise by Congress of legislative power in the matter of appointments and removals in the case of inferior executive officers. The phrase "But Congress may by law vest" is equivalent to "excepting that Congress may by law vest." By the plainest implication, it excludes Congressional dealing with appointments or removals of executive officers not falling within the exception, and leaves unaffected the executive power of the President to appoint and remove them. A reference of the whole power of removal to general legislation by Congress is quite out of keeping with the plan of government devised by the framers of the Constitution. It could never have been intended to leave to Congress unlimited discretion to vary fundamentally the operation of the great independent executive branch of government, and thus most seriously to weaken it. It would be a delegation by the Convention to Congress of the function of defining the primary boundaries of another of the three great divisions of government. The inclusion of removals of executive officers in the executive power vested in the President by Article II, according to its usual definition, and the implication of his power of removal of such officers from the provision of section 2 expressly recognizing in him the power of their appointment, Page 272 U. S. 128 are a much more natural and appropriate source of the removing power. It is reasonable to suppose also that, had it been intended to give to Congress power to regulate or control removals in the manner suggested, it would have been included among the specifically enumerated legislative powers in Article I, or in the specified limitations on the executive power in Article II. The difference between the grant of legislative power under Article I to Congress, which is limited to powers therein enumerated, and the more general grant of the executive power to the President under Article II, is significant. The fact that the executive power is given in general terms, strengthened by specific terms where emphasis is appropriate, and limited by direct expressions where limitation is needed, and that no express limit is placed on the power of removal by the executive, is a convincing indication that none was intended. It is argued that the denial of the legislative power to regulate removals in some way involves the denial of power to prescribe qualifications for office, or reasonable classification for promotion, and yet that has been often exercised. We see no conflict between the latter power and that of appointment and removal, provided, of course, that the qualifications do not so limit selection and so trench upon executive choice as to be, in effect, legislative designation. As Mr. Madison said in the First Congress: "The powers relative to offices are partly Legislative and partly Executive. The Legislature creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the Legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an Executive nature. Although it be qualified in the Constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to consider Page 272 U. S. 129 the Constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that, if the Legislature determines the powers, the honors, and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the Legislative and Executive authorities in this respect, and hence it is that the Constitution stipulates for the independence of each branch of the Government." 1 Annals of Congress, 581, 582. The legislative power here referred to by Mr. Madison is the legislative power of Congress under the Constitution, not legislative power independently of it. Article II expressly and by implication withholds from Congress power to determine who shall appoint and who shall remove except as to inferior offices. To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed, and their compensation -- all except as otherwise provided by the Constitution. An argument in favor of full Congressional power to make or withhold provision for removals of all appointed by the President is sought to be found in an asserted analogy between such a power in Congress and its power in the establishment of inferior federal courts. By Article III, the judicial power of the United States is vested in one Supreme Court and in such inferior courts as the Congress may from time to time establish. By section 8 of Article I, also, Congress is given power to constitute tribunals inferior to the Supreme Court. By the second section, the judicial power is extended to all cases in law and equity under this Constitution and to a substantial number of other classes of cases. Under the accepted Page 272 U. S. 130 construction, the cases mentioned in this section are treated as a description and reservoir of the judicial power of the United States and a boundary of that federal power as between the United States and the States, and the field of jurisdiction within the limits of which Congress may vest particular jurisdiction in anyone inferior federal court which it may constitute. It is clear that the mere establishment of a federal inferior court does not vest that court with all the judicial power of the United States as conferred in the second section of Article III, but only that conferred by Congress specifically on the particular court. It must be limited territorially and in the classes of cases to be heard, and the mere creation of the court does not confer jurisdiction except as it is conferred in the law of its creation or its amendments. It is said that, similarly, in the case of the executive power which is "vested in the President," the power of appointment and removal cannot arise until Congress creates the office and its duties and powers, and must accordingly be exercised and limited only as Congress shall, in the creation of the office, prescribe. We think there is little or no analogy between the two legislative functions of Congress in the cases suggested. The judicial power described in the second section of Article III is vested in the courts collectively, but is manifestly to be distributed to different courts and conferred or withheld as Congress shall, in its discretion, provide their respective jurisdictions, and is not all to be vested in one particular court. Any other construction would be impracticable. The duty of Congress, therefore, to make provision for the vesting of the whole federal judicial power in federal courts, were it held to exist, would be one of imperfect obligation, and unenforceable. On the other hand, the moment an office and its powers and duties are created, the power of appointment and removal, as limited by the Constitution, vests in the Executive. Page 272 U. S. 131 The functions of distributing jurisdiction to courts, and the exercise of it when distributed and vested, are not at all parallel to the creation of an office, and the mere right of appointment to, and of removal from, the office, which at once attaches to the Executive by virtue of the Constitution. Fourth. Mr. Madison and his associates pointed out with great force the unreasonable character of the view that the Convention intended, without express provision, to give to Congress or the Senate, in case of political or other differences, the means of thwarting the Executive in the exercise of his great powers and in the bearing of his great responsibility, by fastening upon him, as subordinate executive officers, men who, by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy, might make his taking care that the laws be faithfully executed most difficult or impossible. As Mr. Madison said in the debate in the First Congress: "Vest this power in the Senate jointly with the President, and you abolish at once that great principle of unity and responsibility in the Executive department which was intended for the security of liberty and the public good. If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved, the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community." 1 Annals of Congress, 499. Mr. Boudinot of New Jersey said upon the same point: "The supreme Executive officer against his assistant, and the Senate are to sit as judges to determine whether sufficient cause of removal exists. Does not this set the Senate over the head of the President? But suppose they Page 272 U. S. 132 shall decide in favor of the officer, what a situation is the President then in, surrounded by officers with whom, by his situation, he is compelled to act, but in whom he can have no confidence, reversing the privilege given him by the Constitution to prevent his having officers imposed upon him who do not meet his approbation? " 1 Annals of Congress, 468. Mr. Sedgwick of Massachusetts asked the question: "Shall a man under these circumstances be saddled upon the President who has been appointed for no other purpose but to aid the President in performing certain duties? Shall he be continued, I ask again, against the will of the President? If he is, where is the responsibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible, you weaken and destroy the strength and beauty of your system." 1 Annals of Congress, 522. Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet it the disciplinary influence upon those who act under him of a reserve power of removal. But it is contended that executive officers appointed by the President with the consent of the Senate are bound by the statutory law, and are not his servants to do his will, and that his obligation to care for the faithful execution of the laws does not authorize him to treat them as such. The degree of guidance in the discharge of their duties that the President may exercise over executive officers varies with the character of their service as prescribed in the law under which they act. The highest and most important duties which his subordinates perform are those in which they act for him. In such cases, they are exercising not their own, but his, discretion. This field is a very large one. It is sometimes described as political. Kendall v. United States , 12 Page 272 U. S. 133 Peters 524 at p. 37 U. S. 610 . Each head of a department is and must be the President's alter ego in the matters of that department where the President is required by law to exercise authority. The extent of the political responsibility thrust upon the President is brought out by Mr. Justice Miller, speaking for the Court in Cunningham v. Neagle, 135 U. S. 1 at p. 135 U. S. 63 : "The Constitution, section 3, Article 2, declares that the President 'shall take care that the laws be faithfully executed,' and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and by and with the advice and consent of the Senate to appoint the most important of them and to fill vacancies. He is declared to be commander in chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by Acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called cabinet ministers. These aid him in the performance of the great duties of his office and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed.'" He instances executive dealings with foreign governments, as in the case of Martin Koszta, and he might have added the Jonathan Robbins case as argued by John Marshall in Congress, 5 Wheat. Appendix 1, and approved by this Court in Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 714 . He notes the President's duty as to the protection of the mails, as to which the case of In re Debs, 158 U. S. 564 , 158 U. S. 582 -584 affords an illustration. He Page 272 U. S. 134 instances executive obligation in protection of the public domain, as in United States v. San Jacinto Tin Co., 125 U. S. 273 , and United States v. Hughes , 11 How. 552. The possible extent of the field of the President's political executive power may be judged by the fact that the quasi -civil governments of Cuba, Porto Rico and the Philippines, in the silence of Congress, had to be carried on for several years solely under his direction as commander in chief. In all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it. In this field, his cabinet officers must do his will. He must place in each member of his official family, and his chief executive subordinates, implicit faith. The moment that he loses confidence in the intelligence, ability, judgment or loyalty of anyone of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and coordination in executive administration essential to effective action. The duties of the heads of departments and bureaus in which the discretion of the President is exercised and which we have described are the most important in the whole field of executive action of the Government. There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him. Page 272 U. S. 135 But this is not to say that there are not strong reasons why the President should have a like power to remove his appointees charged with other duties than those above described. The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone. Laws are often passed with specific provision for the adoption of regulations by a department or bureau head to make the law workable and effective. The ability and judgment manifested by the official thus empowered, as well as his energy and stimulation of his subordinates, are subjects which the President must consider and supervise in his administrative control. Finding such officers to be negligent and inefficient, the President should have the power to remove them. Of course, there may be duties so peculiarly and specifically committed to the discretion of a particular officer as to raise a question whether the President may overrule or revise the officer's interpretation of his statutory duty in a particular instance. Then there may be duties of a quasi -judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control. But even in such a case, he may consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been, on the whole, intelligently or wisely exercised. Otherwise, he does not discharge his own constitutional duty of seeing that the laws be faithfully executed. Page 272 U. S. 136 We have devoted much space to this discussion and decision of the question of the Presidential power of removal in the First Congress, not because a Congressional conclusion on a constitutional issue is conclusive, but, first, because of our agreement with the reasons upon which it was avowedly based; second, because this was the decision of the First Congress, on a question of primary importance in the organization of the Government, made within two years after the Constitutional Convention and within a much shorter time after its ratification; and, third, because that Congress numbered among its leaders those who had been members of the Convention. It must necessarily constitute a precedent upon which many future laws supplying the machinery of the new Government would be based, and, if erroneous, it would be likely to evoke dissent and departure in future Congresses. It would come at once before the executive branch of the Government for compliance, and might well be brought before the judicial branch for a test of its validity. As we shall see, it was soon accepted as a final decision of the question by all branches of the Government. It was, of course, to be expected that the decision would be received by lawyers and jurists with something of the same division of opinion as that manifested in Congress, and doubts were often expressed as to its correctness. But the acquiescence which was promptly accorded it after a few years was universally recognized. A typical case of such acquiescence was that of Alexander Hamilton. In the discussion in the House of Representatives in 1789, Mr. White and others cited the opinion of Mr. Hamilton in respect of the necessity for the consent of the Senate to removals by the President, before they should be effective. (1 Annals, First Congress, 456.) It was expressed in No. 77 of the Federalist as follows: Page 272 U. S. 137 "It has been mentioned as one of the advantages to be expected from the cooperation of the Senate in the business of appointments that it would contribute to the stability of the Administration. The consent of that body would be necessary to displace, as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the Government as might be expected if he were the sole disposer of offices." Hamilton changed his view of this matter during his incumbency as Secretary of the Treasury in Washington's Cabinet, as is shown by his view of Washington's first proclamation of neutrality in the war between France and Great Britain. That proclamation was at first criticized as an abuse of executive authority. It has now come to be regarded as one of the greatest and most valuable acts of the first President's Administration, and has been often followed by succeeding Presidents. Hamilton's argument was that the Constitution, by vesting the executive power in the President, gave him the right, as the organ of intercourse between the Nation and foreign nations, to interpret national treaties and to declare neutrality. He deduced this from Article II of the Constitution on the executive power, and followed exactly the reasoning of Madison and his associates as to the executive power upon which the legislative decision of the First Congress as to Presidential removals depends, and he cites it as authority. He said: "The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.'" "The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the President shall be commander in chief of the army and navy of the United Page 272 U. S. 138 States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the Senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. " "It would not consist with the rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the cooperation of the Senate in the appointment of officers and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the Constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are 'All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expressions are 'The executive power shall be vested in a President of the United States.'" "The enumeration ought therefore to be considered as intended merely to specify the principal articles implied in the definition of executive power, leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government." "The general doctrine of our Constitution, then, is that the executive power of the nation is vested in the President, Page 272 U. S. 139 subject only to the exceptions and qualifications, which are expressed in the instrument." "Two of these have already been noticed; the participation of the Senate in the appointment of officers and in the making of treaties. A third remains to be mentioned: the right of the legislature to 'declare war and grant letters of marque and reprisal.'" "With these exceptions, the executive power of the United States is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts upon full consideration and debate, of which the power of removal from office is an important instance. It will follow that, if a proclamation of neutrality is merely an executive act, as it is believed, has been shown, the step which has been taken by the President is liable to no just exception on the score of authority." 7 J. C. Hamilton's "Works of Hamilton," 80-81. The words of a second great constitutional authority, quoted as in conflict with the Congressional decision, are those of Chief Justice Marshall. They were used by him in his opinion in Marbury v. Madison , 1 Cranch 137 (1803). The judgment in that case is one of the great landmarks in the history of the construction of the Constitution of the United States, and is of supreme authority, first, in respect of the power and duty of the Supreme Court and other courts to consider and pass upon the validity of acts of Congress enacted in violation of the limitations of the Constitution, when properly brought before them in cases in which the rights of the litigating parties require such consideration and decision, and, second, in respect of the lack of power of Congress to vest in the Supreme Court original jurisdiction to grant the remedy of mandamus in cases in which by the Constitution it is given only appellate jurisdiction. But it is not to be regarded as such authority in respect of the Page 272 U. S. 140 power of the President to remove officials appointed by the advice and consent of the Senate, for that question was not before the Court. The case was heard upon a rule served upon James Madison, Secretary of State, to show cause why a writ of mandamus should not issue directing the defendant, Madison, to deliver to William Marbury his commission as a justice of the peace for the County of Washington in the District of Columbia. The rule was discharged by the Supreme Court for the reason that the Court had no jurisdiction in such a case to issue a writ for mandamus. The Court had, therefore, nothing before it calling for a judgment upon the merits of the question of issuing the mandamus. Notwithstanding this, the opinion considered preliminarily, first, whether the relator had the right to the delivery of the commission, and second, whether it was the duty of the Secretary of State to deliver it to him, and a duty which could be enforced in a court of competent jurisdiction at common law by a writ of mandamus. The facts disclosed by affidavits filed were that President Adams had nominated Marbury to be a justice of the peace in the District of Columbia, under a law of Congress providing for such appointment, by and with the advice and consent of the Senate, for the term of five years, and that the Senate had consented to such an appointment; that the President had signed the commission as provided by the Constitution, and had transmitted it to the Secretary of State, who, as provided by statute, had impressed the seal of the United States thereon. The opinion of the Chief Justice on these questions was that the commission was only evidence of the appointment; that, upon delivery of the signed commission by the President to the Secretary of.State, the office was filled, and the occupant was thereafter entitled to the evidence of his appointment in the form of the commission; that the duty of the Secretary in delivering the commission to the officer entitled Page 272 U. S. 141 was.merely ministerial, and could be enforced by mandamus; that the function of the Secretary in this regard was entirely to be distinguished from his duty as a subordinate to the President in the discharge of the President's political duties, which could not be controlled. It would seem that this conclusion applied, under the reasoning of the opinion, whether the officer was removable by the President or not, if in fact the President had not removed him. But the opinion assumed that, in the case of a removable office, the writ would fail, on the presumption that there was in such a case discretion of the appointing power to withhold the commission. And so the Chief Justice proceeded to express an opinion on the question whether the appointee was removable by the President. He said: "As the law creating the office gave the officer a right to hold it for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country." There was no answer by Madison to the rule issued in the case. The case went by default. It did not appear, even by avowed opposition to the issue of the writ, that the President had intervened in the matter at all. It would seem to have been quite consistent with the case as shown that this was merely an arbitrary refusal by the Secretary to perform his ministerial function, and, therefore, that the expression of opinion that the officer was not removable by the President was unnecessary, even to the conclusion that a writ in a proper case could issue. However this may be, the whole statement was certainly obiter dictum with reference to the judgment actually reached. The question whether the officer was removable was not argued to the Court by any counsel contending for that view. Counsel for the relator, who made the only argument, contended that the officer was not removable by the President, because he held a judicial office and, Page 272 U. S. 142 under the Constitution, could not be deprived of his office for the five years of his term by Presidential action. The opinion contains no wider discussion of the question than that quoted above. While everything that the great Chief Justice said, whether obiter dictum or not, challenges the highest and most respectful consideration, it is clear that the mere statement of the conclusion made by him, without any examination of the discussion which went on in the First Congress, and without reference to the elaborate arguments there advanced to maintain the decision of 1789, cannot be regarded as authority in considering the weight to be attached to that decision -- a decision which, as we shall see, he subsequently recognized as a well established rule of constitutional construction. In such a case, we may well recur to the Chief Justice's own language in Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 399 , in which, in declining to yield to the force of his previous language in Marbury v. Madison, which was unnecessary to the judgment in that case and was obiter dictum, he said: "It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." The weight of this dictum of the Chief Justice as to a Presidential removal, in Marbury v. Madison, was considered by this Court in Parsons v. United States , 167 Page 272 U. S. 143 U.S. 324. It was a suit by Parsons against the United States for the payment of the balance due for his salary and fees as United States District Attorney for Alabama. He had been commissioned as such, under the statute, for the term of four years from the date of the commission, subject to the conditions prescribed by law. There was no express power of removal provided. Before the end of the four years, he was removed by the President. He was denied recovery. The language of the Court in Marbury v. Madison, already referred to, was pressed upon this Court to show that Parsons was entitled, against the Presidential action of removal, to continue in office. If it was authoritative and stated the law as to an executive office, it ended the case; but this Court did not recognize it as such, for the reason that the Chief Justice's language relied on was not germane to the point decided in Marbury v. Madison. If his language was more than a dictum, and was a decision, then the Parsons case overrules it. Another distinction, suggested by Mr. Justice Peckham in Parsons' case was that the remarks of the Chief Justice were in reference to an office in the District of Columbia over which, by Art. I, sec. 8, subd. 17, Congress had exclusive jurisdiction in all cases, and might not apply to offices outside of the District in respect to which the constant practice and the Congressional decision had been the other way (p. 167 U. S. 335 ). How much weight should be given to this distinction, which might accord to the special exclusive jurisdiction conferred on Congress over the District power to ignore the usual constitutional separation between the executive and legislative branches of the Government, we need not consider. If the Chief Justice, in Marbury v. Madison, intended to express an opinion for the Court inconsistent with the legislative decision of 1789, it is enough to observe that he changed his mind; for otherwise it is inconceivable that Page 272 U. S. 144 he should have written and printed his full account of the discussion and decision in the First Congress and his acquiescence in it, to be found in his Life of Washington (Vol. V, pages 192-200). He concluded his account as follows: "After an ardent discussion which consumed several days, the committee divided, and the amendment [ i.e., to strike out from the original bill the words 'to be removable by the President'] was negatived by a majority of thirty-four to twenty. The opinion thus expressed by the house of representatives did not explicitly convey their sense of the Constitution. Indeed, the express grant of the power to the president, rather implied a right in the legislature to give or withhold it at their discretion. To obviate any misunderstanding of the principle on which the question had been decided, Mr. Benson [later] moved in the house, when the report of the committee of the whole was taken up, to amend the second clause in the bill so as clearly to imply the power of removal to be solely in the president. He gave notice that, if he should succeed in this, he would move to strike out the words which had been the subject of debate. If those words continued, he said, the power of removal by the president might hereafter appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was by fair construction, fixed in the constitution. The motion was seconded by Mr. Madison, and both amendments were adopted. As the bill passed into a law, it has ever been considered as a full expression of the sense of the legislature on this important part of the American constitution." This language was first published in 1807, four years after the judgment in Marbury v. Madison, and the edition was revised by the Chief Justice in 1832. 3 Beveridge, Life of Marshall, 248, 252, 272, 273. Page 272 U. S. 145 Congress, in a number of acts, followed and enforced the legislative decision of 1789 for seventy-for years. In the act of the First Congress which adapted to the Constitution the ordinance of 1787 for the government of the Northwest Territory, which had provided for the appointment and removal of executive territorial officers by the Congress under the Articles of Confederation, it was said "in all cases where the United States in Congress assembled might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same powers of revocation and removal." 1 Stat. 53, c. 8. This was approved eleven days after the act establishing the Department of Foreign Affairs, and was evidently in form a declaration in accord with the legislative constitutional construction of the latter act. In the provision for the Treasury and War Departments, the same formula was used as occurred in the act creating the Department of Foreign Affairs; but it was omitted from other creative acts only because the decision was thought to be settled constitutional construction. In re Hennen , 13 Peters 230, 38 U. S. 259 . Occasionally we find that Congress thought it wiser to make express what would have been understood. Thus, in the Judiciary Act of 1789, we find it provided in § 27, 1 Stat. 87, c. 20, "that a marshal shall be appointed in and for each district for the term of four years, but shall be removable at pleasure, whose duty it shall be to attend the District and Circuit Courts." That act became a law on September 24th, a month after the Congressional debate on removals. It was formulated by a Senate committee, of which Oliver Ellsworth was chairman, and which presumably was engaged in drafting it during the time of that debate. Section 35 of the same act provided for the appointment of an attorney for the United States to prosecute crimes and conduct civil actions on behalf of Page 272 U. S. 146 the United States, but nothing was said as to his term of office or as to his removal. The difference in the two cases was evidently to avoid any inference from the fixing of the term that a conflict with the legislative decision of 1789 was intended. In the Act of May 15, 1820, 3 Stat. 582, c. 102, Congress provided that thereafter, all district attorneys, collectors of customs, naval officers, surveyors of the customs, navy agents, receivers of public moneys for land, registers of the land office, paymasters in the army, the apothecary general, the assistant apothecaries general, and the commissary general of purchases, to be appointed under the laws of the United States, should be appointed for the term of four years, but should be removable from office at pleasure. It is argued that these express provisions for removal at pleasure indicate that, without them, no such power would exist in the President. We cannot accede to this view. Indeed, the conclusion that they were adopted to show conformity to the legislative decision of 1789 is authoritatively settled by a specific decision of this Court. In the Parsons case, 167 U. S. 324 , already referred to, the exact question which the Court had to decide was whether, under § 769 of the Revised Statutes, providing that district attorneys should be appointed for a term of four years and their commissions should cease and expire at the expiration of four years from their respective dates, the appellant, having been removed by the President from his office as district attorney before the end of his term, could recover his salary for the remainder of the term. If the President had no power of removal, then he could recover. The Court held that, under that section, the President did have the power of removal, because of the derivation of the section from the Act of 1820, above quoted. In § 769, the specific provision of the Act of 1820 that the officers should be removable Page 272 U. S. 147 from office at pleasure was omitted. This Court held that the section should be construed as having been passed in the light of the acquiescence of Congress in the decision of 1789, and therefore included the power of removal by the President, even though the clause for removal was omitted. This reasoning was essential to the conclusion reached, and makes the construction by this Court of the Act of 1820 authoritative. The Court used, in respect of the Act of 1820, this language ( 167 U. S. 167 U.S. 324, 167 U. S. 339 ): "The provision for a removal from office at pleasure was not necessary for the exercise of that power by the President, because of the fact that he was then regarded as being clothed with such power in any event. Considering the construction of the Constitution in this regard as given by the Congress. of 1789, and having in mind the constant and uniform practice of the Government in harmony with such construction, we must construe this act as providing absolutely for the expiration of the term of office at the end of four years, and not as giving a term that shall last, at all events, for that time, and we think the provision that the officials were removable from office at pleasure was but a recognition of the construction thus almost universally adhered to and acquiesced in as to the power of the President to remove." In the Act of July 17, 1862, 12 Stat. 596, c. 200, Congress actually requested the President to make removals in the following language: "the President of the United States be, and hereby is, authorized and requested to dismiss and discharge from the military service, either in the army, navy, marine corps, or volunteer force, any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the public service." Attorney General Devens (15 Op.A.G. 421) said of this act that, so far as it gave authority to the President, Page 272 U. S. 148 it was simply declaratory of the long-established law; that the force of the act was to be found in the word "requested," by which it was intended to reenforce strongly this power in the hands of the President at a great crisis of the state -- a comment by the Attorney General which was expressly approved by this Court in Blake v. United States, 103 U. S. 227 , 103 U. S. 234 . The acquiescence in the legislative decision of 1789 for nearly three-quarters of a century by all branches of the Government has been affirmed by this Court in unmistakable terms. In Parsons v. United States, already cited, in which the matter of the power of removal was reviewed at length in connection with that legislative decision, this Court, speaking by Mr. Justice Peckham, said (page 167 U. S. 330 ): "Many distinguished lawyers originally had very different opinions in regard to this power from the one arrived at by this Congress, but, when the question was alluded to in after years, they recognized that the decision of Congress in 1789, and the universal practice of the Government under it, had settled the question beyond any power of alteration." We find this confirmed by Chancellor Kent's and Mr. Justice Story's comments. Chancellor Kent, in writing to Mr. Webster in January, 1830, concerning the decision of 1789, said: "I heard the question debated in the summer of 1789, and Madison, Benson, Ames, Lawrence, etc. were in favor of the right of removal by the President, and such has been the opinion ever since, and the practice. I thought they were right because I then thought this side uniformly right." Then, expressing subsequent pause and doubt upon this construction as an original question because of Hamilton's original opinion in The Federalist, already referred to, he continued: "On the other hand, it is too late to call the President's power in question after a declaratory act of Congress and Page 272 U. S. 149 an acquiescence of half a century. We should hurt the reputation of our government with the world, and we are accused already of the Republican tendency of reducing all executive power into the legislative, and making Congress a national convention. That the President grossly abuses the power of removal is manifest, but it is the evil genius of Democracy to be the sport of factions." 1 Private Correspondence of Daniel Webster, Fletcher Webster ed., 486; 1903 National ed., Little Brown Co. In his Commentaries, referring to this question, the Chancellor said: "This question has never been made the subject of judicial discussion, and the construction given to the Constitution in 1789 has continued to rest on this loose, incidental, declaratory opinion of Congress, and the sense and practice of government since that time. It may now be considered as firmly and definitely settled, and there is good sense and practical utility in the construction." 1 Kent Commentaries, Lecture 14, p. 310, Subject, Marshals. Mr. Justice Story, after a very full discussion of the decision of 1789 in which he intimates that, as an original question, he would favor the view of the minority, says: "That the final decision of this question so made was greatly influenced by the exalted character of the President then in office was asserted at the time, and has always been believed. Yet the doctrine was opposed, as well as supported, by the highest talents and patriotism of the country. The public, however, acquiesced in this decision, and it constitutes, perhaps, the most extraordinary case in the history of the government of a power, conferred by implication on the executive by the assent of a bare majority of Congress, which has not been questioned on many other occasions. Even the most jealous advocates of state rights seem to have slumbered over this vast reach of authority, and have left it untouched, as the neutral ground of controversy, in which they desired Page 272 U. S. 150 to reap no harvest, and from which they retired, without leaving any protestations of title or contest. Nor is this general acquiescence and silence without a satisfactory explanation." 2 Story, Constitution, § 1543. He finds that, until a then very recent period, namely the Administration of President Jackson, the power of unrestricted removal had been exercised by all the Presidents, but that moderation and forbearance had been shown, that, under President Jackson, however, an opposite course had been pursued extensively and brought again the executive power of removal to a severe scrutiny. The learned author then says: "If there has been any aberration from the true constitutional exposition of the power of removal (which the reader must decide for himself), it will be difficult, and perhaps impracticable, after forty years' experience, to recall the practice to correct theory. But, at all events, it will be a consolation to those who love the Union, and honor a devotion to the patriotic discharge of duty, that, in regard to 'inferior officers' (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government), the remedy for any permanent abuse is still within the power of Congress, by the simple expedient of requiring the consent of the Senate to removals in such cases." 2 Story Constitution, § 1544. In an article by Mr. Fish contained in the American Historical Association Reports, 1899, p. 67, removals from office, not including Presidential removals in the Army and the Navy, in the administrations from Washington to Johnson, are stated to have been as follows: Washington 17; Adams 19; Jefferson 62; Madison 24; Jackson 180; Van Buren 43; Harrison and Tyler 389; Polk 228; Taylor 491; Fillmore 73; Pierce 771; Buchanan 253; Lincoln 1400; Johnson 726. These, we may infer, were all made in conformity to the legislative decision of 1789. Mr. Webster is cited as opposed to the decision of the First Congress. His views were evoked by the controversy Page 272 U. S. 151 between the Senate and President Jackson. The alleged general use of patronage for political purposes by the President, and his dismissal of Duane, Secretary of the Treasury, without reference to the Senate, upon Duane's refusal to remove government deposits from the United States Bank, awakened bitter criticism in the Senate, and led to an extended discussion of the power of removal by the President. In a speech, May 7, 1834, on the President's protest, Mr. Webster asserted that the power of removal, without the consent of the Senate, was in the President alone, according to the established construction of the Constitution, and that Duane's dismissal could not be justly said to be a usurpation. 4 Webster, Works, 103-105. A year later, in February, 1835, Mr. Webster seems to have changed his views somewhat, and, in support of a bill requiring the President in making his removals from office to send to the Senate his reasons therefor, made an extended argument against the correctness of the decision of 1789. He closed his speech thus: "But I think the decision of 1789 has been established by practice, and recognized by subsequent laws, as the settled construction of the Constitution, and that it is our duty to act upon the case accordingly for the present, without admitting that Congress may not, hereafter, if necessity shall require it, reverse the decision of 1789." 4 Webster, 179, 198. Mr. Webster denied that the vesting of the executive power in the President was a grant of power. It amounted, he said, to no more than merely naming the department. Such a construction, although having the support of as great an expounder of the Constitution as Mr. Webster, is not in accord with the usual canon of interpretation of that instrument, which requires that real effect should be given to all the words it uses. Prout v. Starr, 188 U. S. 537 , 188 U. S. 544 ; Hurtado v. California, 110 U. S. 516 , 110 U. S. 534 ; Prigg v. Pennsylvania , 16 Pet. 539, 41 U. S. 612 ; Holmes v. Jennison , Page 272 U. S. 152 14 Pet. 540, 39 U. S. 570 -571; Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 398 ; Marbury v. Madison, supra, at p. 5 U. S. 174 . Nor can we concur in Mr. Webster's apparent view that, when Congress, after full consideration and with the acquiescence and long practice of all the branches of the Government, has established the construction of the Constitution, it may, by its mere subsequent legislation, reverse such construction. It is not given power by itself thus to amend the Constitution. It is not unjust to note that Mr. Webster's final conclusion on this head was reached after pronounced political controversy with General Jackson, which he concedes may have affected his judgment and attitude on the subject. Mr. Clay and Mr. Calhoun, acting upon a like impulse, also vigorously attacked the decision; but no legislation of any kind was adopted in that period to reverse the established constitutional construction, while its correctness was vigorously asserted and acted on by the Executive. On February 10, 1835, President Jackson declined to comply with the Senate resolution, regarding the charges which caused the removal of officials from office, saying: "The President, in cases of this nature, possesses the exclusive power of removal from office, and, under the sanctions of his official oath and of his liability to impeachment, he is bound to exercise it whenever the public welfare shall require. If, on the other hand, from corrupt motives he abuses this power, he is exposed to the same responsibilities. On no principle known to our institutions can he be required to account for the manner in which he discharges this portion of his public duties. save only in the mode and under the forms prescribed by the Constitution." 3 Messages of the Presidents, 1352. In Ex parte Hennen , 13 Peters 230, decided by this Court in 1839, the prevailing effect of the legislative decision of 1789 was fully recognized. The question there Page 272 U. S. 153 was of the legality of the removal from office by a United States District Court of its clerk, appointed by it under § 7 of the Judiciary Act, 1 Stat. 76, c. 20. The case was ably argued and the effect of the legislative decision of the First Congress was much discussed. The Court said (pp. 258-259): "The Constitution is silent with respect to the power of removal from office, where the tenure is not fixed. It provides that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior. But no tenure is fixed for the office of clerks. . . . It cannot, for a moment, be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of this government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate, and the great question was whether the removal was to be by the President alone, or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate jointly to remove where the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted as the practical construction of the Constitution that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution. For, in the organization of the three great Page 272 U. S. 154 departments of State, War and Treasury, in the year 1789, provision is made for the appointment of a subordinate officer by the head of the department, who should have the charge and custody of the records, books, and papers appertaining to the office when the head of the department should be removed from the office by the President of the United States. (1 Story, 5, 31, 47.) When the Navy Department was established in the year 1798 (1 Story, 498), provision is made for the charge and custody of the books, records, and documents of the department in case of vacancy in the office of secretary, by removal or otherwise. It is not here said, by removal by the President, as is done with respect to the heads of the other departments, and yet there can be no doubt that he holds his office by the same tenure as the other secretaries, and is removable by the President. The change of phraseology arose, probably, from its having become the settled and well understood construction of the Constitution that the power of removal was vested in the President alone in such cases, although the appointment of the officer was by the President and Senate." The legislative decision of 1789 and this Court's recognition of it were followed, in 1842, by Attorney General Legare, in the Administration of President Tyler (4 Op.A.G. 1); in 1847, by Attorney General Clifford, in the Administration of President Polk (4 Op.A.G. 603); by Attorney General Crittenden, in the Administration of President Fillmore (5 Op.A.G. 288, 290); by Attorney General Cushing, in the Administration of President Buchanan (6 Op.A.G. 4); all of whom delivered opinions of a similar tenor. It has been sought to make an argument, refuting our conclusion as to the President's power of removal of executive officers, by reference to the statutes passed and practice prevailing from 1789 until recent years in respect of the removal of judges whose tenure is not fixed by Page 272 U. S. 155 Article III of the Constitution, and who are not strictly United States Judges under that article. The argument is that, as there is no express constitutional restriction as to the removal of such judges, they come within the same class as executive officers, and that statutes and practice in respect of them may properly be used to refute the authority of the legislative decision of 1789 and acquiescence therein. The fact seems to be that judicial removals were not considered in the discussion in the First Congress, and that the First Congress, August 7, 1789, 1 Stat. 50-53, c. 8, and succeeding Congresses until 1804, assimilated the judges appointed for the territories to those appointed under Article III, and provided life tenure for them, while other officers of those territories were appointed for a term of years unless sooner removed. See, as to such legislation, dissenting opinion of Mr. Justice McLean in United States v. Guthrie , 17 How. 284, 58 U. S. 308 . In American Insurance Company v. Canter , 1 Peters 511 (1828), it was held that the territorial courts were not constitutional courts in which the judicial power conferred by the Constitution on the general government could be deposited. After some ten or fifteen years, the judges in some territories were appointed for a term of years, and the Governor and other officers were appointed for a term of years unless sooner removed. Inc Missouri and Arkansas only were the judges appointed for four years if not sooner removed. After 1804, removals were made by the President of territorial judges appointed for terms of years before the ends of their terms. They were sometimes suspended and sometimes removed. Between 1804 and 1867, there were ten removals of such judges in Minnesota, Utah, Washington, Oregon and Nebraska. The executive department seemed then to consider that territorial judges were subject to removal just as if they had been executive Page 272 U. S. 156 officers, under the legislative decision of 1789. Such was the opinion of Attorney General Crittenden on the question of the removal of the Chief Justice of Minnesota Territory (5 Op.A.G. 288) in 1851. Since 1867, territorial judges have been removed by the President, seven in Arizona, one in Hawaii, one in Indian Territory, two in Idaho, three in New Mexico, two in Utah, one in Wyoming, The question of the President's power to remove such a judge, as viewed by Mr. Crittenden, came before this Court in United States v. Guthrie , 17 How. 284. The relator, Goodrich, who had been removed by the President from his office as a territorial judge, sought by mandamus to compel the Secretary of the Treasury to draw his warrant for the relator's salary for the remainder of his term after removal, and contested the Attorney General's opinion that the President's removal in such a case was valid. This Court did not decide this issue, but held that it had no power to issue a writ of mandamus in such a case. Mr. Justice McLean delivered a dissenting opinion (at page 58 U. S. 308 ). He differed from the Court in its holding that mandamus would not issue. He expressed a doubt as to the correctness of the legislative decision of the First Congress as to the power of removal by the President alone of executive officers appointed by him with the consent of the Senate, but admitted that the decision as to them had been so acquiesced in, and the practice had so conformed to it, that it could not be set aside. But he insisted that the statutes and practice which had governed the appointment and removal of territorial judges did not come within the scope and effect of the legislative decision of 1789. He pointed out that the argument upon which the decision rested was based on the necessity for Presidential removals in the discharge by the President of his executive duties and his taking care that the laws be faithfully executed, and that such an argument could not Page 272 U. S. 157 apply to the judges over whose judicial duties he could not properly exercise any supervision or control after their appointment and confirmation. In the case of McAllister v. United States, 141 U. S. 174 , a judge of the District Court of Alaska, it was held, could be deprived of a right to salary as such by his suspension under Revised Statutes 1768. That section gave the President, in his discretion, authority to suspend any civil officer appointed by and with the advice and consent of the Senate, except judges of the courts of the United States, until the end of the next session of the Senate, and to designate some suitable person, subject to be removed in his discretion by the designation of another, to perform the duties of such suspended officer. It was held that the words "except judges of the courts of the United States" applied to judges appointed under Article III, and did not apply to territorial judges, and that the President, under § 1768, had power to suspend a territorial judge during a recess of the Senate, and no recovery could be had for salary during that suspended period. Mr. Justice Field, with Justices Gray and Brown, dissented on the ground that, in England, by the act of 13th William III, it had become established law that judges should hold their offices independent of executive removal, and that our Constitution expressly makes such limitation as to the only judges specifically mentioned in it, and should be construed to carry such limitation as to other judges appointed under its provisions. Referring in Parsons v. United States, 167 U. S. 324 , at p. 337, to the McAllister case, this Court said: "The case contains nothing in opposition to the contention as to the practical construction that had been given to the Constitution by Congress in 1789, and by the government generally since that time and up to the Act of 1867." The questions, first, whether a judge appointed by the President with the consent of the Senate under an act of Page 272 U. S. 158 Congress, not under authority of Article III of the Constitution, can be removed by the President alone without the consent of the Senate, second, whether the legislative decision of 1789 covers such a case, and third, whether Congress may provide for his removal in some other way present considerations different from those which apply in the removal of executive officers, and therefore we do not decide them. We come now to consider an argument advanced and strongly pressed on behalf of the complainant, that this case concerns only the removal of a postmaster; that a postmaster is an inferior officer; that such an office was not included within the legislative decision of 1789, which related only to superior officers to be appointed by the President by and with the advice and consent of the Senate. This, it is said, is the distinction which Chief Justice Marshall had in mind in Marbury v. Madison in the language already discussed in respect of the President's power to remove a District of Columbia justice of the peace appointed and confirmed for a term of years. We find nothing in Marbury v. Madison to indicate any such distinction. It cannot be certainly affirmed whether the conclusion there stated was based on a dissent from the legislative decision of 1789, or on the fact that the office was created under the special power of Congress exclusively to legislate for the District of Columbia, or on the fact that the office was a judicial one, or on the circumstance that it was an inferior office. In view of the doubt as to what was really the basis of the remarks relied on, and their obiter dictum character, they can certainly not be used to give weight to the argument that the 1789 decision only related to superior officers. The very heated discussions during General Jackson's Administration, except as to the removal of Secretary Duane, related to the distribution of offices which were, most of them, inferior offices, and it was the operation of Page 272 U. S. 159 the legislative decision of 1789 upon the power of removal of incumbents of such offices that led the General to refuse to comply with the request of the Senate that he give his reasons for the removals therefrom. It was to such inferior officers that Chancellor Kent's letter to Mr. Webster, already quoted, was chiefly directed, and the language cited from his Commentaries on the decision of 1789 was used with reference to the removal of United States marshal. It was such inferior offices that Mr. Justice Story conceded to be covered by the legislative decision in his Treatise on the Constitution, already cited, when he suggested a method by which the abuse of patronage in such offices might be avoided. It was with reference to removals from such inferior offices that the already cited opinions of the Attorneys General, in which the legislative decision of 1789 was referred to as controlling authority, were delivered. That of Attorney General Legare (4 Op.A.G. 1) affected the removal of a surgeon in the Navy. The opinion of Attorney General Clifford (4 Op.A.G. 603, 612) involved an officer of the same rank. The opinion of Attorney General Cushing (6 Op.A.G. 4) covered the office of military storekeeper. Finally, Parsons' case, where it was the point in judgment, conclusively establishes for this Court that the legislative decision of 1789 applied to a United States attorney, an inferior officer. It is further pressed on us that, even though the legislative decision of 1789 included inferior officers, yet, under the legislative power given Congress with respect to such officers, it might directly legislate as to the method of their removal without changing their method of appointment by the President with the consent of the Senate. We do not think the language of the Constitution justifies such a contention. Section 2 of Article II, after providing that the President shall nominate and with the consent of the Senate Page 272 U. S. 160 appoint ambassadors, other public ministers, consuls, judges of the Supreme Court and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law, contains the proviso: "but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law or in the heads of departments." In United States v. Perkins, 116 U. S. 483 , a cadet engineer, a graduate of the Naval Academy, brought suit to recover his salary for the period after his removal by the Secretary of the Navy. It was decided that his right was established by Revised Statutes 1229, providing that no officer in the military or naval service should in time of peace be dismissed from service except in pursuance of a sentence of court-martial. The section was claimed to be an infringement upon the constitutional prerogative of the Executive. The Court of Claims refused to yield to this argument, and said: "Whether or not Congress can restrict the power of removal incident to the power of appointment to those officers who are appointed by the President by and with the advice and consent of the Senate under the authority of the Constitution, Article 2, Section 2, does not arise in this case, and need not be considered. We have no doubt that, when Congress by law vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers appointed. The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed not only in making appointments, but in all that is incident thereto. " Page 272 U. S. 161 This language of the Court of Claims was approved by this Court and the judgment was affirmed. The power to remove inferior executive officers, like that to remove superior executive officers, is an incident of the power to appoint them, and is in its nature an executive power. The authority of Congress given by the excepting clause to vest the appointment of such inferior officers in the heads of departments carries with it authority incidentally to invest the heads of departments with power to remove. It has been the practice of Congress to do so and this Court has recognized that power. The Court also has recognized in the Perkins case that Congress, in committing the appointment of such inferior officers to the heads of departments, may prescribe incidental regulations controlling and restricting the latter in the exercise of the power of removal. But the Court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers. Assuming then the power of Congress to regulate removals as incidental to the exercise of its constitutional power to vest appointments of inferior officers in the heads of departments, certainly so long as Congress does not exercise that power, the power of removal must remain where the Constitution places it, with the President, as part of the executive power, in accordance with the legislative decision of 1789 which we have been considering. Whether the action of Congress in removing the necessity for the advice and consent of the Senate, and putting the power of appointment in the President alone, would Page 272 U. S. 162 make his power of removal in such case any more subject to Congressional legislation than before is a question this Court did not decide in the Perkins case. Under the reasoning upon which the legislative decision of 1789 was put, it might be difficult to avoid a negative answer, but it is not before us and we do not decide it. The Perkins case is limited to the vesting by Congress of the appointment of an inferior officer in the head of a department. The condition upon which the power of Congress to provide for the removal of inferior officers rests is that it shall vest the appointment in some one other than the President with the consent of the Senate. Congress may not obtain the power and provide for the removal of such officer except on that condition. If it does not choose to entrust the appointment of such inferior officers to less authority than the President with the consent of the Senate, it has no power of providing for their removal. That is the reason why the suggestion of Mr. Justice Story, relied upon in this discussion, cannot be supported if it is to have the construction which is contended for. He says that, in regard to inferior officers under the legislative decision of 1789, "the remedy for any permanent abuse ( i.e., of executive patronage) is still within the power of Congress by the simple expedient of requiring the consent of the Senate to removals in such cases." It is true that the remedy for the evil of political executive removals of inferior offices is with Congress by a simple expedient, but it includes a change of the power of appointment from the President with the consent of the Senate. Congress must determine first that the office is inferior, and second that it is willing that the office shall be filled by appointment by some other authority than the President with the consent of the Senate. That the latter may be an important consideration is manifest, and is the subject of comment by this Court in it opinion in the case of Shurtleff v. United States, 189 U. S. 311 , 189 U. S. 315 , where this Court said: Page 272 U. S. 163 "To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and explicit language. It should not be held to be taken away by mere inference or implication. Congress has regarded the office as of sufficient importance to make it proper to fill it by appointment to be made by the President and confirmed by the Senate. It has thereby classed it as appropriately coming under the direct supervision of the President, and to be administered by officers appointed by him (and confirmed by the Senate) with reference to his constitutional responsibility to see that the laws are faithfully executed. Art. 2, sec. 3." It is said that, for forty years or more, postmasters were all by law appointed by the Postmaster General. This was because Congress, under the excepting clause, so provided. But thereafter, Congress required certain classes of them to be, as they now are, appointed by the President with the consent of the Senate. This is an indication that Congress deemed appointment by the President with the consent of the Senate essential to the public welfare, and, until it is willing to vest their appointment in the head of the Department, they will be subject to removal by the President alone, and any legislation to the contrary must fall a in conflict with the Constitution. Summing up, then, the facts as to acquiescence by all branches of the Government in the legislative decision of 1789, as to executive officers, whether superior or inferior, we find that from 1789 until 1863, a period of 74 years, there was no act of Congress, no executive act, and no decision of this Court at variance with the declaration of the First Congress, but there was, as we have seen, clear, affirmative recognition of it by each branch of the Government. Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President Page 272 U. S. 164 the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers -- a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that Article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive are limitations to be strictly construed, and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not, by implication, extend to removals the Senate's power of checking appointments, and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed. We come now to a period in the history of the Government when both Houses of Congress attempted to reverse this constitutional construction and to subject the power of removing executive officers appointed by the President and confirmed by the Senate to the control of the Senate -- indeed, finally, to the assumed power in Congress to place the removal of such officers anywhere in the Government. This reversal grew out of the serious political difference between the two Houses of Congress and President Johnson. Page 272 U. S. 165 There was a two-thirds majority of the Republican party in control of each House of Congress, which resented what it feared would be Mr. Johnson's obstructive course in the enforcement of the reconstruction measures in respect of the States whose people had lately been at war against the National Government. This led the two Houses to enact legislation to curtail the then acknowledged powers of the President. It is true that, during the latter part of Mr. Lincoln's term, two important voluminous acts were passed, each containing a section which seemed inconsistent with the legislative decision of 1789 (Act of February 25, 1863, 12 Stat. 665, c. 58, § 1, Act of March 3, 1865, 13 Stat. 489, c. 79, § 12); but they were adopted without discussion of the inconsistency, and were not tested by executive or judicial inquiry. The real challenge to the decision of 1789 was begun by the Act of July 13, 1866, 14 Stat. 92, c. 176, forbidding dismissals of Army and Navy officers in time of peace without a sentence by court-martial, which this Court, in Blake v. United States, 103 U. S. 227 , at p. 103 U. S. 235 , attributed to the growing differences between President Johnson and Congress. Another measure having the same origin and purpose was a rider on an army appropriation act of March 2, 1867, 14 Stat. 487, c. 170, § 2, which fixed the headquarters of the General of the Army of the United States at Washington, directed that all orders relating to military operations by the President or Secretary of War should be issued through the General of the Army, who should not be removed, suspended, or relieved from command, or assigned to duty elsewhere, except at his own request, without the previous approval of the Senate, and that any orders or instructions relating to military operations issued contrary to this should be void, and that any officer of the Army who should issue, knowingly transmit, or obey any orders issued contrary to the provisions of Page 272 U. S. 166 this section should be liable to imprisonment for years. By the Act of March 27, 1868, 15 Stat. 44, c. 34, § 2, the next Congress repealed a statutory provision as to appeals in habeas corpus cases with the design, as was avowed by Mr. Schenck, chairman of the House Committee on Ways and Means, of preventing this Court from passing on the validity of reconstruction legislation. 81 Congressional Globe, pages 1881, 1883; Ex parte McArdle , 7 Wall. 506. But the chief legislation in support of the reconstruction policy of Congress was the Tenure of Office Act, of March 2, 1867, 14 Stat. 430, c. 154, providing that all officers appointed by and with the consent of the Senate should hold their offices until their successors should have in like manner been appointed and qualified, and that certain heads of departments, including the Secretary of War, should hold their offices during the term of the President by whom appointed and one month thereafter, subject to removal by consent of the Senate. The Tenure of Office Act was vetoed, but it was passed over the veto. The House of Representatives preferred articles of impeachment against President Johnson for refusal to comply with, and for conspiracy to defeat, the legislation above referred to, but he was acquitted for lack of a two-thirds vote for conviction in the Senate. In Parsons v. United States, supra, the Court thus refers to the passage of the Tenure of Office Act (p. 167 U. S. 340 ): "The President, as is well known, vetoed the tenure of office act because he said it was unconstitutional in that it assumed to take away the power of removal constitutionally vested in the President of the United States -- a power which had been uniformly exercised by the Executive Department of the Government from its foundation. Upon the return of the bill to Congress, it was passed over the President's veto by both houses, and became a law. The continued and uninterrupted practice of the Page 272 U. S. 167 Government from 1789 was thus broken in upon and changed by the passage of this act, so that, if constitutional, thereafter all executive officers whose appointments had been made with the advice and consent of the Senate could not be removed by the President without the concurrence of the Senate in such order of removal." "Mr. Blaine, who was in Congress at the time, in afterwards speaking of this bill, said:" "It was an extreme proposition -- a new departure from the long-established usage of the Federal Government -- and for that reason, if for no other, personally degrading to the incumbent of the Presidential chair. It could only have grown out of abnormal excitement created by dissensions between the two great departments of the Government. . . . The measure was resorted to as one of self-defense against the alleged aggressions and unrestrained power of the executive department." "Twenty Years of Congress, vol. 2, 273, 274." The extreme provisions of all this legislation were a full justification for the considerations so strongly advanced by Mr. Madison and his associates in the First Congress for insisting that the power of removal of executive officers by the President alone was essential in the division of powers between the executive and the legislative bodies. It exhibited in a clear degree the paralysis to which a partisan Senate and Congress could subject the executive arm and destroy the principle of executive responsibility and separation of the powers, sought for by the framers of our Government, if the President had no power of removal save by consent of the Senate. It was an attempt to redistribute the powers, and minimize those of the President. After President Johnson's term ended, the injury and invalidity of the Tenure of Office Act in its radical innovation were immediately recognized by the Executive, and objected to. General Grant, succeeding Mr. Johnson Page 272 U. S. 168 in the Presidency, earnestly recommended in his first message the total repeal of the act, saying: "It may be well to mention here the embarrassment possible to arise from leaving on the statute books the so-called 'tenure of office acts,' and to earnestly recommend their total repeal. It could not have been the intention of the framers of the Constitution, when providing that appointments made by the President should receive the consent of the Senate, that the latter should have the power to retain in office persons placed there by Federal appointment against the will of the President. The law is inconsistent with a faithful and efficient administration of the Government. What faith can an Executive put in officials forced upon him, and those, too, whom he has suspended for reason? How will such officials be likely to serve an Administration which they know does not trust them?" 9 Messages and papers of the Presidents, 3992. While, in response to this, a bill for repeal of that act passed the House, it failed in the Senate, and, though the law was changed, it still limited the Presidential power of removal. The feeling growing out of the controversy with President Johnson retained the act on the statute book until 1887, when it was repealed. 24 Stat. 500, c. 353. During this interval, on June 8, 1872, Congress passed an act reorganizing and consolidating the Post Office Department, and provided that the Postmaster General and his three assistants should be appointed by the President by and with the advice and consent of the Senate, and might be removed in the same manner. 17 Stat. 284, c. 335, § 2. In 1876 the act here under discussion was passed, making the consent of the Senate necessary both to the appointment and removal of first, second, and third class postmasters. 19 Stat. 80, c. 179, § 6. In the same interval, in March, 1886, President Cleveland, in discussing the requests which the Senate had Page 272 U. S. 169 made for his reasons for removing officials, and the assumption that the Senate had the right to pass upon those removals, and thus to limit the power of the President, said: "I believe the power to remove or suspend such officials is vested in the President alone by the Constitution, which, in express terms, provides that 'the executive power shall be vested in a President of the United States of America,' and that 'he shall take care that the laws be faithfully executed.'" "The Senate belongs to the legislative branch of the Government. When the Constitution, by express provision, superadded to its legislative duties the right to advise and consent to appointments to office and to sit as a court of impeachment, it conferred upon that body all the control and regulation of Executive action supposed to be necessary for the safety of the people, and this express and special grant of such extraordinary powers, not in any way related to or growing out of general Senatorial duties and, in itself, a departure from the general plan of our Government, should be held, under a familiar maxim of construction, to exclude every other right of interference with Executive functions." 11 Messages and Papers of the Presidents, 4964. The attitude of the Presidents on this subject has been unchanged and uniform to the present day whenever an issue has clearly been raised. In a message withholding his approval of an act which he thought infringed upon the executive power of removal, President Wilson said: "It has, I think, always been the accepted construction of the Constitution that the power to appoint officers of this kind carries with it, as an incident, the power to remove. I am convinced that the Congress is without constitutional power to limit the appointing power and its incident, the power of removal, derived from the Constitution." 59 Congressional Record (June 4, 1920), 8609. Page 272 U. S. 170 And President Coolidge, in a message to Congress in response to a resolution of the Senate that it was the sense of that body that the President should immediately request the resignation of the then Secretary of the Navy, replied: "No official recognition can be given to the passage of the Senate resolution relative to their opinion concerning members of the Cabinet or other officers under executive control." ". . . The dismissal of an officer of the Government, such as is involved in this case, other than by impeachment, is exclusively an executive function. I regard this as a vital principle of our Government." 65 Congressional Record (Feb. 13, 1924), 2335. In spite of the foregoing Presidential declarations, it is contended that, since the passage of the Tenure of Office Act, there has been general acquiescence by the Executive in the power of Congress to forbid the President alone to remove executive officers -- an acquiescence which has changed any formerly accepted constitutional construction to the contrary. Instances are cited of the signed approval by President Grant and other Presidents of legislation in derogation of such construction. We think these are all to be explained not by acquiescence therein, but by reason of the otherwise valuable effect of the legislation approved. Such is doubtless the explanation of the executive approval of the Act of 1876, which we are considering, for it was an appropriation act on which the section here in question was imposed as a rider. In the use of Congressional legislation to support or change a particular construction of the Constitution by acquiescence, its weight for the purpose must depend not only upon the nature of the question, but also upon the attitude of the executive and judicial branches of the Government, as well as upon the number of instances in the execution of the law in which opportunity for objection Page 272 U. S. 171 in the courts or elsewhere is afforded. When instances which actually involve the question are rare, or have not, in fact, occurred, the weight of the mere presence of acts on the statute book for a considerable time, as showing general acquiescence in the legislative assertion of a questioned power, is minimized. No instance is cited to us where any question has arisen respecting a removal of a Postmaster General or one of his assistants. The President's request for resignations of such officers is generally complied with. The same thing is true of the postmasters. There have been many executive removals of them, and but few protests or objections. Even when there has been a refusal by a postmaster to resign, removal by the President has been followed by a nomination of a successor, and the Senate's confirmation has made unimportant the inquiry as to the necessity for the Senate's consent to the removal. Other acts of Congress are referred to which contain provisions said to be inconsistent with the 1789 decision. Since the provision for an Interstate Commerce Commission, in 1887, many administrative boards have been created whose members are appointed by the President, by and with the advice and consent of the Senate, and in the statutes creating them have been provisions for the removal of the members for specified causes. Such provisions are claimed to be inconsistent with the independent power of removal by the President. This, however, is shown to be unfounded by the case of Shurtleff v. United States, 189 U. S. 311 (1903). That concerned an act creating a board of general appraisers, 26 Stat. 131, 136, c. 407, § 12, and providing for their removal for inefficiency, neglect of duty or malfeasance in office. The President removed an appraiser without notice or hearing. It was forcibly contended that the affirmative language of the statute implied the negative of the power to remove except for cause and after a hearing. This would Page 272 U. S. 172 have been the usual rule of construction, but the Court declined to apply it. Assuming for the purpose of that case only, but without deciding, that Congress might limit the President's power to remove, the Court held that, in the absence of constitutional or statutory provision otherwise, the President could, by virtue of his general power of appointment, remove an officer though appointed by and with the advice and consent of the Senate and notwithstanding specific provisions for his removal for cause, on the ground that the power of removal inhered in the power to appoint. This is an indication that many of the statutes cited are to be reconciled to the unrestricted power of the President to remove if he chooses to exercise his power. There are other later acts pointed out in which, doubtless, the inconsistency with the independent power of the President to remove is clearer, but these cannot be said really to have received the acquiescence of the executive branch of the Government. Whenever there has been a real issue in respect of the question of Presidential removals, the attitude of the Executive in Congressional message has been clear and positive against the validity of such legislation. The language of Mr. Cleveland in 1886, twenty years after the Tenure of Office Act, in his controversy with the Senate in respect of his independence of that body in the matter of removing inferior officers appointed by him and confirmed by the Senate, was quite as pronounced as that of General Jackson in a similar controversy in 1835. Mr. Wilson, in 1920, and Mr. Coolidge, in 1924, were quite as all-embracing in their views of the power of removal as General Grant in 1869, and as Mr. Madison and Mr. John Adams in 1789. The fact seems to be that all departments of the Government have constantly had in mind, since the passage of the Tenure of Office Act, that the question of power of removal by the President of officers appointed by him Page 272 U. S. 173 with the Senate's consent, has not been settled adversely to the legislative action of 1789, but, in spite of Congressional action, has remained open until the conflict should be subjected to judicial investigation and decision. The action of this Court cannot be said to constitute assent to a departure from the legislative decision of 1789, when the Parsons and Shurtleff cases, one decided in 1897 and the other in 1903, are considered; for they certainly leave the question open. Wallace v. United States, 257 U. S. 541 . Those cases indicate no tendency to depart from the view of the First Congress. This Court has, since the Tenure of Office Act, manifested an earnest desire to avoid a final settlement of the question until it should be inevitably presented, as it is here. An argument ab inconvenienti has been made against our conclusion in favor of the executive power of removal by the President, without the consent of the Senate -- that it will open the door to a reintroduction of the spoils system. The evil of the spoils system aimed at in the civil service law and its amendments is in respect of inferior offices. It has never been attempted to extend that law beyond them. Indeed, Congress forbids its extension to appointments confirmed by the Senate, except with the consent of the Senate. Act of January 16, 1883, 22 Stat. 403, 406, c. 27, sec. 7. Reform in the federal civil service was begun by the Civil Service Act of 1883. It has been developed from that time, so that the classified service now includes a vast majority of all the civil officers. It may still be enlarged by further legislation. The independent power of removal by the President alone, under present condition, works no practical interference with the merit system. Political appointments of inferior officers are still maintained in one important class, that of the first, second and third class postmasters, collectors of internal revenue, marshals, collectors of customs, and other officers of that Page 272 U. S. 174 kind, distributed through the country. They are appointed by the President with the consent of the Senate. It is the intervention of the Senate in their appointment, and not in their removal, which prevents their classification into the merit system. If such appointments were vested in the heads of departments to which they belong, they could be entirely removed from politics, and that is what a number of Presidents have recommended. President Hayes, whose devotion to the promotion of the merit system and the abolition of the spoils system was unquestioned, said, in his 4th Annual Message, of December 6, 1880, that the first step to improvement in the civil service must be a complete divorce between Congress and the Executive on the matter of appointments, and he recommended the repeal of the Tenure of Office Act of 1867 for this purpose. 10 & 11 Messages and Papers of the Presidents, 4555-4557. The extension of the merit system rests with Congress. What, then, are the elements that enter into our decision of this case? We have first a construction of the Constitution made by a Congress which was to provide by legislation for the organization of the Government in accord with the Constitution which had just then been adopted, and in which there were, as representatives and senators, a considerable number of those who had been members of the Convention that framed the Constitution and presented it for ratification. It was the Congress that launched the Government. It was the Congress that rounded out the Constitution itself by the proposing of the first ten amendments, which had, in effect, been promised to the people as a consideration for the ratification. It was the Congress in which Mr. Madison, one of the first in the framing of the Constitution, led also in the organization of the Government under it. It was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest Page 272 U. S. 175 weight in the interpretation of that fundamental instrument. This construction was followed by the legislative department and the executive department continuously for seventy-three years, and this although the matter, in the heat of political differences between the Executive and the Senate in President Jackson's time, was the subject of bitter controversy, as we have seen. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long-term of years, fixes the construction to be given its provisions. Stuart v. Laird , 1 Cranch 299, 5 U. S. 309 ; Martin v. Hunter's Lessee , 1 Wheat. 304, 14 U. S. 351 ; Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 420 ; Prigg v. Pennsylvania , 16 Pet. 544, 41 U. S. 621 ; Cooley v. Board of Wardens, etc. , 12 How. 299, 53 U. S. 315 ; Burroughs-Giles Lithographing Company v. Sarony, 111 U. S. 53 , 111 U. S. 57 ; Ames v. Kansas, 111 U. S. 449 , 111 U. S. 463 -469; The Laura, 114 U. S. 411 , 114 U. S. 416 ; Wisconsin v. Pelican Ins. Co., 127 U. S. 265 , 127 U. S. 297 ; McPherson v. Blacker, 146 U. S. 1 , 146 U. S. 28 , 146 U. S. 33 , 146 U. S. 35 ; Knowlton v. Moore, 178 U. S. 41 , 178 U. S. 56 ; Fairbank v. United States, 181 U. S. 283 , 181 U. S. 308 ; Ex parte Grossman, 267 U. S. 87 , 267 U. S. 118 . We are now asked to set aside this construction, thus buttressed, and adopt an adverse view because the Congress of the United States did so during a heated political difference of opinion between the then President and the majority leaders of Congress over the reconstruction measures adopted as a means of restoring to their proper status the States which attempted to withdraw from the Union at the time of the Civil War. The extremes to which the majority in both Houses carried legislative measures in that matter are now recognized by all who calmly review the history of that episode in our Government, leading to articles of impeachment against President Johnson, and his acquittal. Without animadverting Page 272 U. S. 176 on the character of the measures taken, we are certainly justified in saying that they should not be given the weight affecting proper constitutional construction to be accorded to that reached by the First Congress of the United States during a political calm and acquiesced in by the whole Government for three-quarters of a century, especially when the new construction contended for has never been acquiesced in by either the executive or the judicial departments. While this Court has studiously avoided deciding the issue until it was presented in such a way that it could not be avoided, in the references it has made to the history of the question, and in the presumptions it has indulged in favor of a statutory construction not inconsistent with the legislative decision of 1789, it has indicated a trend of view that we should not and cannot ignore. When, on the merits, we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct, and it therefore follows that the Tenure of Office Act of 1867, insofar as it attempted to prevent the President from removing executive officer who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so. For the reasons given, we must therefore hold that the provision of the law of 1876, by which the unrestricted power of removal of first class postmasters is denied to the President, is in violation of the Constitution, and invalid. This leads to an affirmance of the judgment of the Court of Claims. Before closing this opinion, we wish to express the obligation of the Court to Mr. Pepper for his able brief and argument as a friend of the Court. Undertaken at our request, our obligation is none the less if we find ourselves obliged to take a view adverse to his. The strong presentation of arguments against the conclusion of the Court Page 272 U. S. 177 is of the utmost value in enabling the Court to satisfy itself that it has fully considered all that can be said. Judgment affirmed. * Maclay shows the vote ten to ten. Journal of William Maclay, 116. John Adams' Diary shows nine to nine. 3 C. F. Adams, Works of John Adams, 412. Ellsworth's name appears in Maclay's list as voting against striking out, but not in that of Adams -- evidently an inadvertence. MR. JUSTICE HOLMES, dissenting. My brothers McREYNOLDS and BRANDEIS have discussed the question before us with exhaustive research, and I say a few words merely to emphasize my agreement with their conclusion. The arguments drawn from the executive power of the President, and from his duty to appoint officers of the United States (when Congress does not vest the appointment elsewhere), to take care that the laws be faithfully executed, and to commission all officers of the United States, seem to me spider's webs inadequate to control the dominant facts. We have to deal with an office that owes its existence to Congress, and that Congress may abolish tomorrow. Its duration and the pay attached to it while it lasts depend on Congress alone. Congress alone confers on the President the power to appoint to it, and at any time may transfer the power to other hands. With such power over its own creation, I have no more trouble in believing that Congress has power to prescribe a term of life for it free from any interference than I have in accepting the undoubted power of Congress to decree its end. I have equally little trouble in accepting its power to prolong the tenure of an incumbent until Congress or the Senate shall have assented to his removal. The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power. Page 272 U. S. 178 The separate opinion of MR. JUSTICE McREYNOLDS. The following provisions of the Act making appropriations for the Post Office Department, approved July 12, 1876, (c. 179, 19 Stat. 78, 80), have not been repealed or superseded. "Sec. 5. [That the postmasters shall be divided into four classes based on annual compensation]. . . . Sec. 6. Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law, and postmasters of the fourth class shall be appointed and may be removed by the Postmaster General, by whom all appointments and removals shall be notified to the Auditor for the Post Office Department." The President nominated, and, with consent of the Senate, appointed, Frank S. Myers first-class postmaster at Portland, Ore. for four years, commencing July 21, 1917, and undertook to remove him February 3, 1920. The Senate has never approved the removal. Myers protested, asserted illegality of the order, refused to submit, and was ejected. He sued to recover the prescribed salary for the period between February 3, 1920, and July 21, 1921. Judgment must go against the United States unless the President acted within powers conferred by the Constitution. II May the President oust at will all postmasters appointed with the Senate's consent for definite terms under an Act which inhibits removal without consent of that body? May he approve a statute which creates an inferior office and prescribes restrictions on removal, appoint an incumbent, and then remove without regard to the restrictions? Has he power to appoint to an inferior office for a definite term under an Act which prohibits removal except as therein specified, and then arbitrarily Page 272 U. S. 179 dismiss the incumbent and deprive him of the emoluments? I think there is no such power. Certainly it is not given by any plain words of the Constitution, and the argument advanced to establish it seems to me forced and unsubstantial. A certain repugnance must attend the suggestion that the President may ignore any provision of an Act of Congress under which he has proceeded. He should promote, and not subvert, orderly government. The serious evils which followed the practice of dismissing civil officers as caprice or interest dictated, long permitted under congressional enactments, are known to all. It brought the public service to a low estate and caused insistent demand for reform. "Indeed, it is utterly impossible not to feel that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man of high ambition and feeble principles, an instrument of the worst oppression and most vindictive vengeance." Story on the Constitution, 1539. During the notable Senate debate of 1835 (Debates, 23d Cong., 2d sess.) experienced statesmen pointed out the very real dangers and advocated adequate restraint, through congressional action, upon the power which statutes then permitted the President to exercise. Mr. Webster declared (p. 469): "I deem this degree of regulation, at least, necessary unless we are willing to submit all these officers to an absolute and perfectly irresponsible removing power, a power which, as recently exercised, tends to turn the whole body of public officers into partisans, dependants, favorites, sycophants, and man-worshippers." Mr. Clay asserted ( id., 515): "The power of removal, as now exercised, is nowhere in the Constitution expressly recognized. The only mode of displacing a public officer for which it does provide is by impeachment. But it has been argued on this occasion that it is a sovereign power, an inherent power, and an executive power, and therefore Page 272 U. S. 180 that it belongs to the President. Neither the premises nor the conclusion can be sustained. If they could be, the people of the United States have all along totally misconceived the nature of their government, and the character of the office of their supreme magistrate. Sovereign power is supreme power, and in no instance whatever is there any supreme power vested in the President. Whatever sovereign power is, if there be any, conveyed by the Constitution of the United States, is vested in Congress, or in the President and Senate. The power to declare war, to lay taxes, to coin money, is vested in Congress, and the treaty-making power in the president and Senate. The Postmaster General has the power to dismiss his deputies. Is that a sovereign power, or has he any?" "Inherent power! That is a new principle to enlarge the powers of the general government. . . . The partisans of the executive have discovered a third and more fruitful source of power. Inherent power! Whence is it derived? The Constitution created the office of President, and made it just what it is. It had no powers prior to its existence. It can have none but those which are conferred upon it by the instrument which created it, or laws passed in pursuance of that instrument. Do gentlemen mean by inherent power such power as is exercised by the monarchs or chief magistrates of other countries? If that be their meaning, they should avow it." And Mr. Calhoun argued ( id., 553): "Hear what that sacred instrument says: 'Congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers' (those granted to Congress itself) 'and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.' Mark the fulness of the expression. Congress shall have Page 272 U. S. 181 power to make all laws, not only to carry into effect the powers expressly delegated to itself, but those delegated to the government or any department or officer thereof, and, of course, comprehends the power to pass laws necessary and proper to carry into effect the powers expressly granted to the executive department. It follows, of course, to whatever express grant of power to the executive the power of dismissal may be supposed to attach, whether to that of seeing the law faithfully executed, or to the still more comprehensive grant, as contended for by some, vesting executive powers in the President, the mere fact that it is a power appurtenant to another power, and necessary to carry it into effect, transfers it, by the provisions of the Constitution cited, from the executive to Congress, and places it under the control of Congress, to be regulated in the manner which it may judge best." The long struggle for civil service reform and the legislation designed to insure some security of official tenure ought not to be forgotten. Again and again, Congress has enacted statutes prescribing restrictions on removals and, by approving them, many Presidents have affirmed its power therein. The following are some of the officers who have been or may be appointed with consent of the Senate under such restricting statutes. Members of the Interstate Commerce Commission, Board of General Appraisers, Federal Reserve Board, Federal Trade Commission, Tariff Commission, Shipping Board, Federal Farm Loan Board, Railroad Labor Board; officers of the Army and Navy; Comptroller General; Postmaster General and his assistants; postmasters of the first, second and third classes; judge of the United States Court for China; judges of the Court of Claims, established in 1855, the judges to serve "during good behavior"; judges of Territorial (statutory) courts; judges of the Page 272 U. S. 182 Supreme Court and Court of Appeals for the District of Columbia (statutory courts), appointed to serve "during good behavior." Also members of the Board of Tax Appeals provided for by the Act of February 26, 1926, to serve for 12 years, who "shall be appointed by the President by and with the advice and consent of the Senate solely on the grounds of fitness to perform the duties of the office. Members of the Board may be removed by the President after notice and opportunity for public hearing, for inefficiency, neglect of duty or malfeasance in office but for no other cause." Every one of these officers, we are now told, in effect, holds his place subject to the President's pleasure or caprice. [ Footnote 1 ] And it is further said, that Congress cannot create any office to be filled through appointment by the President with consent of the Senate -- except judges of the Supreme, Circuit and District (constitutional) courts -- and exempt the incumbent from arbitrary dismissal. These questions press for answer, and thus the cause becomes of uncommon magnitude. III Nothing short of language clear beyond serious disputation should be held to clothe the President with authority wholly beyond congressional control arbitrarily to dismiss every officer whom he appoints except a few judges. There are no such words in the Constitution, and the asserted inference conflicts with the heretofore accepted theory that this government is one of carefully enumerated powers under an intelligible charter. "This instrument contains an enumeration of powers expressly granted." Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 187 . "Nor should it ever be lost sight of that the government of Page 272 U. S. 183 the United States is one of limited and enumerated powers, and that a departure from the true import and sense of its powers is pro tanto the establishment of a new Constitution. It is doing for the people what they have not chosen to do for themselves. It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta est, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice than mere policy and convenience." Story on the Constitution, § 426. If the phrase "executive power" infolds the one now claimed, many others heretofore totally unsuspected may lie there awaiting future supposed necessity, and no human intelligence can define the field of the President's permissible activities. "A masked battery of constructive powers would complete the destruction of liberty." IV . Constitutional provisions should be interpreted with the expectation that Congress will discharge its duties no less faithfully than the Executive will attend to his. The legislature is charged with the duty of making laws for orderly administration obligatory upon all. It possesses supreme power over national affairs, and may wreck as well as speed them. It holds the purse; every branch of the government functions under statutes which embody its will; it may impeach and expel all civil officers. The duty is upon it "to make all laws which shall be necessary and proper for carrying into execution" all powers of the federal government. We have no such thing as three totally distinct and independent departments; the others must look to the legislative for direction and Page 272 U. S. 184 support. "In republican government, the legislative authority necessarily predominates." The Federalist, XLVI, XVII. Perhaps the chief duty of the President is to carry into effect the will of Congress through such instrumentalities as it has chosen to provide. Arguments, therefore, upon the assumption that Congress may willfully impede executive action are not important. The Constitution provides -- "Art I, Sec. 1. All legislative powers herein granted shall be vested in a Congress of the United States. . . ." "Sec. 2. . . . The House of Representatives . . . shall have the sole power of impeachment." "Sec. 3. . . . The Senate shall have the sole power to try all impeachments. . . ." "Sec. 8. The Congress shall have power . . . To establish post offices and post roads; . . . To raise and support armies . . . To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; . . . To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." "Art. II, Sec. 1. The executive power shall be vested in a President of the United States. . . ." "Sec. 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." "He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur, and he shall nominate, Page 272 U. S. 185 and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." "Sec. 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States." "Art. III, Sec. 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." "Sec. 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. . . ." V For the United States, it is asserted -- Except certain judges, the President may remove all officers, whether executive Page 272 U. S. 186 or judicial, appointed by him with the Senate's consent, and therein he cannot be limited or restricted by Congress. The argument runs thus -- The Constitution gives the President all executive power of the national government except as this is checked or controlled by some other definite provision; power to remove is executive and unconfined; accordingly, the President may remove at will. Further, the President is required to take care that the laws be faithfully executed; he cannot do this unless he may remove at will all officers whom he appoints; therefore, he has such authority. The argument assumes far too much. Generally, the actual ouster of an officer is executive action; but to prescribe the conditions under which this may be done is legislative. The act of hanging a criminal is executive; but to say when and where and how he shall be hanged is clearly legislative. Moreover, officers may be removed by direct legislation -- the Act of 1820 hereafter referred to did this. "The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society, while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate." The Federalist, No. LXXIV. The legislature may create post offices and prescribe qualifications, duties, compensation and term. And it may protect the incumbent in the enjoyment of his term unless in some way restrained therefrom. The real question, therefore, comes to this -- does any constitutional provision definitely limit the otherwise plenary power of Congress over postmasters, when they are appointed by the President with consent of the Senate? The question is not the much-mooted one whether the Senate is part of the appointing power under the Constitution, and therefore must participate in removals. Here, the restriction Page 272 U. S. 187 is imposed by statute alone, and thereby made a condition of the tenure. I suppose that beyond doubt Congress could authorize the Postmaster General to appoint all postmasters and restrain him in respect of removals. Concerning the insistence that power to remove is a necessary incident of the President's duty to enforce the laws, it is enough now to say: the general duty to enforce all laws cannot justify infraction of some of them. Moreover, Congress, in the exercise of its unquestioned power, may deprive the President of the right either to appoint or to remove any inferior officer by vesting the authority to appoint in another. Yet, in that event, his duty touching enforcement of the laws would remain. He must utilize the force which Congress gives. He cannot, without permission, appoint the humblest clerk or expend a dollar of the public funds. It is well to emphasize that our present concern is with the removal of an " inferior officer," within Art. II, Sec. 2, of the Constitution, which the statute positively prohibits without consent of the Senate. This is no case of mere suspension. The demand is for salary, and not for restoration to the service. We are not dealing with an ambassador, public minister, consul, judge or " superior officer." Nor is the situation the one which arises when the statute creates an office without a specified term, authorizes appointment and says nothing of removal. In the latter event, under long-continued practice and supposed early legislative construction, it is now accepted doctrine that the President may remove at pleasure. This is entirely consistent with implied legislative assent; power to remove is commonly incident to the right to appoint when not forbidden by law. But there has never been any such usage where the statute prescribed restrictions. From its first session down to the last one Congress has consistently asserted its power to prescribe conditions concerning the removal of inferior officers. The executive Page 272 U. S. 188 has habitually observed them, and this Court has affirmed the power of Congress therein. [ Footnote 2 ] VI Some reference to the history of postal affairs will indicate the complete control which Congress has asserted over them with general approval by the executive. The Continental Congress (1775) established a post office and made Benjamin Franklin Postmaster General, "with power to appoint such and so many deputies, as to him may seem proper and necessary." Under the Articles of Confederation (1781), Congress again provided for a post office and Postmaster General, with "full power and authority to appoint a clerk, or assistant to himself, and such and so many deputy postmasters as he shall think proper." The first Congress under the Constitution (1789) directed: "That there shall be appointed a Postmaster General; his powers and salary, and the compensation to the assistant or clerk and deputies which he may appoint, and the regulations of the post office shall be the same as they last were under the resolutions and ordinances of the late Congress. The Postmaster General to be subject to the direction of the President of the United States in performing the duties of his office, and in forming contracts for the transportation of the mail." The Act of 1792 (1 Stat. 232, 234) established certain post roads, prescribed regulations for the Department, Page 272 U. S. 189 and continued in the Postmaster General sole power of appointment; but it omitted the earlier provision that he should "be subject to the direction of the President of the United States in performing the duties of his office." The Act of March 2, 1799, provided: "That there be established at the seat of Government of the United States, a General Post Office, under the direction of a Postmaster General. The Postmaster General shall appoint an assistant, and such clerks as may be necessary for performing the business of his office; he shall establish post offices, and appoint postmasters, at all such places as shall appear to him expedient, on the post roads that are or may be established by law." This provision remained until 1836, and, prior to that time, all postmasters were appointed without designated terms and were subject to removal by the Postmaster General alone. In 1814, Postmaster General Granger appointed Senator Leib postmaster at Philadelphia contrary to the known wishes of President Madison. Granger was removed; but Leib continued to hold his office. John Quincy Adams records in his Memoirs (January 5, 1822), that the President "summoned an immediate meeting of the members of the administration, which was fully attended. It was upon the appointment of the postmaster at Albany." A warm discussion arose with much diversity of opinion concerning the propriety of the Postmaster General's request for the President's opinion concerning the proposed appointment. "The President said he thought it very questionable whether he ought to interfere in the case at all." Some members severely censured the Postmaster General for asking the President's opinion after having made up his own mind, holding it an attempt to shift responsibility. "I said I did not see his conduct exactly in the same light. The law gave the appointment of all the postmasters exclusively Page 272 U. S. 190 to the Postmaster General, but he himself was removable from his own office at the pleasure of the President. Now, Mr. Granger had been removed with disgrace by President Madison for appointing Dr. Leib postmaster at Philadelphia. Mr. Meigs, therefore, in determining to appoint General Van Renesselaer, not only exercised a right but performed a duty of his office; but, with the example of Mr. Granger's dismission before him, it was quite justifiable in him to consult the President's wish, with the declared intention of conforming to it. I thought I should have done the same under similar circumstances." Act of July 2, 1836 (5 Stat. 80, 87) -- "That there shall be appointed by the President of the United States, by and with the advice and consent of the Senate, a Deputy Postmaster for each post office at which the commissions allowed to the postmaster amounted to one thousand dollars or upwards in the year ending the thirtieth day of June, one thousand eight hundred and thirty-five, or which may, in any subsequent year, terminating on the thirtieth day of June, amount to or exceed that sum, who shall hold his office for the term of four years, unless sooner removed by the President." This is the first Act which permitted appointment of any postmaster by the President; the first also which fixed terms for them. It was careful to allow removals by the President, which otherwise, under the doctrine of Marbury v. Madison , 1 Cranch. 137, would have been denied him. And, by this legislation, Congress itself terminated the services of postmasters who had been appointed to serve at will. The Act of 1863 (12 Stat. 701) empowered the Postmaster General to appoint and commission all postmasters whose salary or compensation "have been ascertained to be less than one thousand dollars." In 1864, five distinct classes were created (13 Stat. 335), and the Act of 1872 (17 Stat. 292) provided -- "That postmasters of the fourth and fifth class shall be appointed and may be removed Page 272 U. S. 191 by the Postmaster General, and all others shall be appointed and may be removed by the President, by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law." In 1874 (18 Stat. 231, 233) postmasters were divided into four classes according to compensation, and the statute directed that those "of the first, second, and third classes shall be appointed, and may be removed by the President, by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law, and postmasters of the fourth class shall be appointed and may be removed by the Postmaster General, by whom all appointments and removals shall be notified to the Auditor for the Post Office Department." This language reappears in § 6, Act July 12, 1876, supra. On July 1, 1925, there were 50,957 postmasters; 35,758 were of the fourth class. For 47 years (1789 to 1836), the President could neither appoint nor remove any postmaster. The Act which first prescribed definite terms for these officers authorized him to do both. Always it has been the duty of the President to take care that the postal laws "be faithfully executed," but there did not spring from this any illimitable power to remove postmasters. VII The written argument for the United States by the former Solicitor General avers that it is based on this premise: "The President's supervision of the executive branch of the government, through the necessary power of removal, has always been recognized, and is now recognized, alike by considerations of necessity and the theory of government as an executive power, and is clearly indicated in the text of the Constitution, even though the Page 272 U. S. 192 power of removal is not expressly granted." A discourse proceeding from that premise helps only because it indicates the inability of diligent counsel to discover a solid basis for his contention. The words of the Constitution are enough to show that the framers never supposed orderly government required the President either to appoint or to remove postmasters. Congress may vest the power to appoint and remove all of them in the head of a department, and thus exclude them from presidential authority. From 1789 to 1836, the Postmaster General exercised these powers as to all postmasters (Story on the Constitution, § 1536), and the 35,000 in the fourth class are now under his control. For forty years, the President functioned and met his duty to "take care that the laws be faithfully executed" without the semblance of power to remove any postmaster. So I think the supposed necessity and theory of government are only vapors. VIII Congress has authority to provide for postmasters and prescribe their compensation, terms and duties. It may leave with the President the right to appoint them with consent of the Senate or direct another to appoint. In the latter event, United States v Perkins, 116 U. S. 483 , 116 U. S. 485 , makes it clear that the right to remove may be restricted. But, so the argument runs, if the President appoints with consent of the Senate, his right to remove cannot be abridged, because Art. II of the Constitution vests in him the "executive power," and this includes an illimitable right to remove. The Constitution empowers the President to appoint Ambassadors, other public ministers, consuls, judges of the Supreme Court and superior officers, and no statute can interfere therein. But Congress may authorize both appointment and removal of all inferior officers without regard to the President's wishes -- even in direct opposition to them. This important distinction Page 272 U. S. 193 must not be overlooked. And consideration of the complete control which Congress may exercise over inferior officers is enough to show the hollowness of the suggestion that a right to remove them may be inferred from the President's duty to "take care that the laws be faithfully executed." He cannot appoint any inferior officer, however humble, without legislative authorization; but such officers are essential to execution of the laws. Congress may provide as many or as few of them as it likes. It may place all of them beyond the President's control; but this would not suspend his duty concerning faithful execution of the laws. Removals, however important, are not so necessary as appointments. IX I find no suggestion of the theory that "the executive power" of Art. II, Sec. 1, includes all possible federal authority executive in nature unless definitely excluded by some constitutional provision, prior to the well known House debate of 1789, when Mr. Madison seems to have given it support. A resolution looking to the establishment of an executive department -- Department of Foreign Affairs (afterwards State) -- provided for a secretary, "who shall be appointed by the President by and with the advice and consent of the Senate and to be removable by the President." Discussion arose upon a motion to strike out, "to be removable by the President." The distinction between superior and inferior officers was clearly recognized; also that the proposed officer was superior, and must be appointed by the President with the Senate's consent. The bill prescribed no definite term -- the incumbent would serve until death, resignation or removal. In the circumstances, most of the speakers recognized the rule that, where there is no constitutional or legislative restriction, power to remove is incidental to that of appointment. Accordingly, they thought the Page 272 U. S. 194 President could remove the proposed officer; but many supposed he must do so with consent of the Senate. They maintained that the power to appoint is joint. Twenty-four of the fifty-four members spoke and gave their views on the Constitution and sundry matters of expediency. The record fairly indicates that nine, including Mr. Madison, thought the President would have the right to remove an officer serving at will under direct constitutional grant; three thought the Constitution did not, and although Congress might, it ought not to bestow such power; seven thought the Constitution did not, and Congress could, not confer it; five were of opinion that the Constitution did not, but that Congress ought to, confer it. Thus, only nine members said anything which tends to support the present contention, and fifteen emphatically opposed it. The challenged clause, although twice formally approved, was finally stricken out upon assurance that a new provision (afterwards adopted) would direct disposition of the official records "whenever the said principal officer shall be removed from office by the President of the United States or in any other case of vacancy." This was susceptible of different interpretations, and probably did not mean the same thing to all. The majority said nothing. The result of the discussion and vote was to affirm that the President held the appointing power with a right of negation in the Senate, and that, under the commonly accepted rule, he might remove without concurrence of the Senate when there was no inhibition by Constitution or statute. That the majority did not suppose they had assented to the doctrine under which the President could remove inferior officers contrary to an inhibition prescribed by Congress is shown plainly enough by the passage later in the same session of two Acts containing provisions wholly inconsistent with any such idea. Acts of August 7, 1789, and September 24, 1789, infra. Page 272 U. S. 195 Following much discussion of Mr. Madison's motion of May 19, a special committee reported this bill to the House on June 2. Debates upon it commenced June 16 and continued until June 24, when it passed by twenty-nine to twenty-two. The Senate gave it great consideration, commencing June 25, and passed it July 18, with amendments accepted by the House July 20. The Diary of President John Adams (Works 1851 ed. v. 3, p. 412) states that the Senate voted nine to nine, and that the deciding vote was given by the Vice President in favor of the President's power to remove. He also states that Senator Ellsworth strongly supported the bill, and Senator Patterson voted for it. These senators were members of the committee which drafted the Judiciary Bill spoken of below. It seems indubitable that, when the debate began, Mr. Madison did not entertain the extreme view concerning illimitable presidential power now urged upon us, and it is not entirely clear that he had any very definite convictions on the subject when the discussion ended. Apparently this notion originated with Mr. Vining, of Delaware, who first advanced it on May 19. Considering Mr. Madison's remarks (largely argumentative) as a whole, they give it small, if any, support. Some of them, indeed, are distinctly to the contrary. He was author of the provision that the Secretary shall "be removable by the President"; he thought it "safe and expedient to adopt the clause," and twice successfully resisted its elimination -- May 19 and June 19. He said: "I think it absolutely necessary that the President should have the power of removing from office. . . . On the constitutionality of the declaration, I have no manner of doubt." "He believed they [his opponents] would not assert that any part of the Constitution declared that the only way to remove should be by impeachment; the contrary might be inferred, because Congress may establish offices by law; Page 272 U. S. 196 therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behavior or during pleasure." "I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. . . . I have my doubts whether we are not absolutely tied down to the construction declared in the bill. . . . If the Constitution is silent, and it is a power the legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill. [ Footnote 3 ] " Page 272 U. S. 197 Writing to Edmund Randolph, June 17, 1789, Mr. Madison pointed out the precise point of the debate. "A very interesting question is started -- By whom officers appointed during pleasure by the President and Senate are to be displaced." And on June 21, 1789, he advised Edmund Pendleton of the discussion, stated the four opinions held by members, and said: "The last opinion Page 272 U. S. 198 [the one he held] has prevailed, but is subject to various modifications, by the power of the legislature to limit the duration of laws creating offices, or the duration of the appointments for filling them, and by the power over the salaries and appropriations." Defending the Virginia Resolutions (of 1798) after careful preparation aided by long experience with national affairs, Mr. Madison emphasized the doctrine that Page 272 U. S. 199 the powers of the United States are "particular and limited," that the general phrases of the Constitution must not be so expounded as to destroy the particular enumerations explaining and limiting their meaning, and that latitudinous exposition would necessarily destroy the fundamental purpose of the founders. He continued to hold these general views. In his letters, he clearly exposed the narrow point under consideration by the first Congress, also the modification to which his views were subject, and he supported, during the same session, the Judiciary Act and probably the Northwest Territory Act, which contained provisions contrary to the sentiment now attributed to him. It therefore seems impossible to regard what he once said in support of a contested measure as present authority for attributing to the executive those illimitable and undefinable powers which he thereafter reprobated. Moreover, it is the fixed rule that debates are not relied upon when seeking the meaning or effect of statutes. But if it were possible to spell out of the debate and action of the first Congress on the bill to establish the Department of Foreign Affairs some support for the present claim of the United States, this would be of little real consequence, for the same Congress on at least two occasions took the opposite position, and time and time again subsequent congresses have done the same thing. It would be amazing for this Court to base the interpretation of a constitutional provision upon a single doubtful congressional interpretation when there have been dozens of them extending through a hundred and thirty-five years, which are directly to the contrary effect. Following the debate of 1789, it became the commonly approved view that the Senate is not a part of the appointing power. Also it became accepted practice that the President might remove at pleasure all officers appointed by him when neither Constitution nor statute Page 272 U. S. 200 prohibited by prescribing a fixed term or otherwise. Prior to 1820, very few officers held for definite terms; generally they were appointed to serve at pleasure, and Mr. Madison seems always to have regarded this as the proper course. He emphatically disapproved the Act of 1820, which prescribed such terms, and even doubted its constitutionality. Madison's Writings, 1865 ed., vol. 3, p. 196. It was said that "He thought the tenure of all subordinate executive officers was necessarily the pleasure of the chief by whom they were commissioned. If they could be limited by Congress to four years, they might to one -- to a month -- to a day -- and the executive power might thus be annihilated." Diary, John Quincy Adams, 1875 ed., vol. VII, p. 425. During the early administrations, removals were infrequent and for adequate reasons. President Washington removed ten officers; President John Adams, eight. Complying with a Resolution of March 2, 1839, President Van Buren sent to the House of Representatives, March 13, 1840, "a list of all [civil] officers of the Government deriving their appointments from the nomination of the President and concurrence of the Senate whose commissions are recorded in the Department of State and who have been removed from office since the 3rd of March, 1789." Document No. 132, 26th Cong., 1st Sess. Two hundred and eight had been removed; and, after a somewhat careful survey of the statutes, I think it true to say that not one of these removals had been inhibited by Congress. On the contrary, all were made with it.s consent, either implied from authorization of the appointment for service at pleasure or indicated by express words of the applicable statute. The Act of 1789 authorized appointment of marshals for four years, removable at pleasure. The Act of 1820 established definite terms for many officers, but directed that they "shall be removable from office at pleasure." The Act of 1836 prescribed Page 272 U. S. 201 fixed terms for certain postmasters and expressly provided for removals by the President. A summary of the reported officers with commissions in the State Department who were removed, with the number in each class, is in the margin. [ Footnote 4 ] The Secretary of the Treasury reported that twenty-four officers in that Department had been removed "since the burning of the Treasury Building in 1833." The Postmaster General reported that thirteen postmasters appointed by the President had been dismissed (prior to 1836 all postmasters were appointed by the Postmaster General; after that time, the President had express permission to dismiss those whom he appointed). Nine Indian Agents were removed. One hundred and thirty-nine commissioned officers of the army and twenty-two of the navy were removed. I find no restriction by Congress on the President's right to remove any of these officers. See Wallace v. United States, 257 U. S. 541 . Prior to the year 1839, no President engaged in the practice of removing officials contrary to congressional direction. Page 272 U. S. 202 There is no suggestion of any such practice which originated after that date. Rightly understood, the debate and Act of 1789 and subsequent practice afford no support to the claim now advanced. In Marbury v. Madison, supra, this court expressly repudiated it, and that decision has never been overruled. On the contrary, Shurtleff v. United States, 189 U. S. 311 , clearly recognizes the right of Congress to impose restrictions. Concerning the legislative and practical construction following this debate, Mr. Justice Story wrote (1833): "It constitutes perhaps the most extraordinary case in the history of the government of a power, conferred by implication on the executive by the assent of a bare majority of Congress, which has not been questioned on many other occasions. . . . Whether the predictions of the original advocates of the executive power, or those of the opposers of it, are likely, in the future progress of the government, to be realized must be left to the sober judgment of the community and to the impartial award of time. If there has been any aberration from the true constitutional exposition of the power of removal (which the reader must decide for himself), it will be difficult, and perhaps impracticable, after forty years' experience to recall the practice to the correct theory. But, at all events, it will be a consolation to those who love the Union and honor a devotion to the patriotic discharge of duty that, in regard to 'inferior officers' (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government), the remedy for any permanent abuse is still within the power of Congress, by the simple expedient of requiring the consent of the Senate to removals in such cases." Story on the Constitution, §§ 1543, 1544. Writing in 1826 (*309, 310) Chancellor Kent affirmed: "The Act [the Judiciary Act of September 24, 1789, § 27] Page 272 U. S. 203 says that the marshal shall be removable at pleasure, without saying by whom, and, on the first organization of the government, it was made a question whether the power of removal, in case of officers appointed to hold at pleasure, resided anywhere but in the body which appointed, and, of course, whether the consent of the Senate was not requisite to remove. This was the construction given to the Constitution while it was pending for ratification before the state conventions, by the author of The Federalist. . . . But the construction which was given to the Constitution by Congress, after great consideration and discussion, was different. In the Act for establishing the Treasury Department, the Secretary was contemplated as being removable from office by the President. The words of the Act are," "That whenever the Secretary shall be removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act," "&c. This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as of decisive authority in the case. It applies equally to every other officer of government appointed by the President and Senate whose term of duration is not specially declared." These great expounders had no knowledge of any practical construction of the Constitution sufficient to support the theory here advanced. This court knew nothing of it in 1803 when it decided Marbury v. Madison, and we have the assurance of Mr. Justice McLean ( United States v. Guthrie , 17 How. 284, 58 U. S. 305 ) that it adhered to the view there expressed so long as Chief Justice Marshall lived. And neither Calhoun nor Clay nor Webster knew of any such thing during the debate of 1835 when they advocated limitation, by further legislation, of powers granted to the President by the Act of 1820. If the remedy suggested by Mr. Justice Story and long supposed to be efficacious should prove to be valueless, Page 272 U. S. 204 I suppose Congress may enforce its will by empowering the courts or heads of departments to appoint all officers except representatives abroad, certain judges and a few "superior" officers -- members of the cabinet. And, in this event, the duty to "take care that the laws be faithfully executed" would remain notwithstanding the President's lack of control. In view of this possibility, under plain provisions of the Constitution, it seems useless, if not, indeed, presumptuous for courts to discuss matters of supposed convenience or policy when considering the President's power to remove. X Congress has long and vigorously asserted its right to restrict removals, and there has been no common executive practice based upon a contrary view. The President has often removed, and it is admitted that he may remove, with either the express or implied assent of Congress; but the present theory is that he may override the declared will of that body. This goes far beyond any practice heretofore approved or followed; it conflicts with the history of the Constitution, with the ordinary rules of interpretation, and with the construction approved by Congress since the beginning and emphatically sanctioned by this court. To adopt it would be revolutionary. The Articles of Confederation contained no general grant of executive power. The first constitutions of the States vested in a governor or president, sometimes with and sometimes without a council, "the executive power," "the supreme executive power"; but always in association with carefully defined special grants, as in the federal Constitution itself. They contained no intimation of executive powers except those definitely enumerated or necessarily inferred therefrom or from the duty of the executive to enforce the laws. Speaking in the Convention, July 17, Page 272 U. S. 205 Mr. Madison said: "The executives of the States are in general little more than cyphers; the legislatures omnipotent." In the proceedings of the Constitutional Convention, no hint can be found of any executive power except those definitely enumerated or inferable therefrom or from the duty to enforce the laws. In the notes of Rufus King (June 1) upon the Convention, this appears -- "Wilson -- an extive. ought to possess the powers of secresy, vigour & Dispatch -- and to be so constituted as to be responsible -- Extive. powers are designed for the execution of Laws, and appointing Officers not otherwise to be appointed -- if appointments of Officers are made by a sing. Ex he is responsible for the propriety of the same. Not so where the Executive is numerous." "Mad: agrees wth. Wilson in his definition of executive powers executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers shd. be confined and defined -- if large we shall have the Evils of elective Monarchies -- probably the best plan will be a single Executive of long duration wth. a Council, with liberty to depart from their Opinion at his peril -- ." Farrand, Records Fed. Con. v. I, p. 70. If the Constitution or its proponents had plainly avowed what is now contended for, there can be little doubt that it would have been rejected. The Virginia plan, when introduced, provided -- "That a national executive be instituted, to be chosen by the national legislature for the term of years, to receive punctually at stated times a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the magistracy existing at the time of increase or diminution, and to be ineligible a second time, and that besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in Congress by the Confederation. " Page 272 U. S. 206 "That the executive and a convenient number of the national judiciary ought to compose a council of revision with authority to examine every act of the national legislature before it shall operate, and every act of a particular legislature before a negative thereon shall be final, and that the dissent of the said council shall amount to a rejection unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by ___ of the members of each branch." This provision was discussed and amended. When reported by the Committee of the Whole and referred to the Committee on Detail, June 13, it read thus -- "Resolved, That a national executive be instituted to consist of a single person, to be chosen by the national legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for -- to be ineligible a second time, and to be removable on impeachment and conviction of malpractices or neglect of duty -- to receive a fixed stipend by which he may be compensated for the devotion of his time to public service to be paid out of the national treasury. That the national executive shall have a right to negative any legislative act which shall not be afterwards passed unless by two-thirds of each branch of the national legislature." The Committee on Detail reported: "Sec. 1. The executive power of the United States shall be vested in a single person," etc. This was followed by Sec. 2 with the clear enumeration of the President's powers and duties. Among them were these: "He shall from time to time give information to the Legislature of the state of the Union. . . . He shall take care that the laws of the United States be duly and faithfully executed. . . . He shall receive ambassadors. . . . He shall be commander-in-chief of the Army and Navy." Many of these Page 272 U. S. 207 were taken from the New York Constitution. After further discussion, the enumerated powers were somewhat modified and others were added, among them (September 7), the power " to call for the opinions of the heads of departments, in writing." It is beyond the ordinary imagination to picture forty or fifty capable men, presided over by George Washington, vainly discussing, in the heat of a Philadelphia summer, whether express authority to require opinions in writing should be delegated to a President in whom they had already vested the illimitable executive power here claimed. The New Jersey plan -- "That the United States in Congress be authorized to elect a federal executive to consist of ___ persons, to continue in office for the term of ___ years, to receive punctually at stated times a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons composing the executive at the time of such increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or appointment during their time of service and for ___ years thereafter; to be ineligible a second time, and removable by Congress on application by a majority of the executives of the several States; that the executives, besides their general authority to execute the federal acts, ought to appoint all federal officers not otherwise provided for, and to direct all military operations; provided that none of the persons composing the federal executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as general or in other capacity." The sketch offered by Mr. Hamilton -- "The supreme executive authority of the United States to be vested in a governor to be elected to serve during good behavior -- the election to be made by electors chosen by the people in the election districts aforesaid -- the authorities Page 272 U. S. 208 and functions of the executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed; to have the direction of war when authorized or begun; to have with the advice and approbation of the Senate the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of Finance, War and Foreign Affairs; to have the nomination of all other officers (ambassadors to foreign nations included) subject to the approbation or rejection of the Senate; to have the power of pardoning all offences except treason, which he shall not pardon without the approbation of the Senate." XI The Federalist, Article LXXVI by Mr. Hamilton, says: "It has been mentioned as one of the advantages to be expected from the cooperation of the Senate in the business of appointments that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government. " Page 272 U. S. 209 XII Since the debate of June, 1789, Congress has repeatedly asserted power over removals; this court has affirmed the power, and practices supposed to be impossible have become common. Mr. Madison was much influenced by supposed expediency, the impossibility of keeping the Senate in constant session, etc.; also the extraordinary personality of the President. He evidently supposed it would become common practice to provide for officers without definite terms, to serve until resignation, death or removal. And this was generally done until 1820. The office under discussion was a superior one, to be filled only by Presidential appointment. He assumed as obviously true things now plainly untrue, and was greatly influenced by them. He said -- "The danger then consists merely in this: the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this House, before the Senate for such an act of maladministration, for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. . . . Now if this be the case with an hereditary monarch, possessed of those high prerogatives and furnished with so many means of influence, can we suppose a President, elected for four years only, dependent upon the popular voice, impeachable by the legislature, little, if at all, distinguished for wealth, personal talents, or influence from the head of the department himself; I say, will he bid defiance to all these considerations and wantonly dismiss a meritorious and virtuous officer? Page 272 U. S. 210 Such abuse of power exceeds my conception. If anything takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle." We face as an actuality what he thought was beyond imagination, and his argument must now be weighed accordingly. Evidently the sentiments which he then apparently held came to him during the debate, and were not entertained when he left the Constitutional Convention, nor during his later years. It seems fairly certain that he never consciously advocated the extreme view now attributed to him by counsel. His clearly stated exceptions to what he called the prevailing view and his subsequent conduct repel any such idea. By an Act approved August 7, 1789, (c. 8, 1 Stat. 50, 53) Congress provided for the future government of the Northwest Territory, originally organized by the Continental Congress. This statute directed: "The President shall nominate and by and with the advice and consent of the Senate shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him, and in all cases where the United States in Congress assembled, might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same powers of revocation and removal." The ordinance of 1787 authorized the appointment by Congress of a Governor "whose commission shall continue in force for the term of three years unless sooner revoked by Congress," a secretary "whose commission shall continue in force for four years unless sooner revoked," and three judges whose "commissions shall continue in force during good behavior." These were not constitutional judges. American Insurance Co. v. Canter , 1 Pet. 511. Thus, Congress, at its first session, inhibited removal of judges Page 272 U. S. 211 and assented to removal of the first civil offices for whom it prescribed fixed terms. It was wholly unaware of the now-supposed construction of the Constitution which would render these provisions improper. There had been no such construction; the earlier measure and debate related to an officer appointed by legislative consent to serve at will and whatever was said must be limited to that precise point. On August 18, 1789, the President nominated, and on the twentieth the Senate "did advise and consent" to the appointment of, the following officers for the Territory: Arthur St. Clair, Governor; Winthrop Sargent, Secretary; Samuel Holden Parsons, John Cleves Symmes and William Barton, judges of the court. The bill for the Northwest Territory was a House measure, framed and presented July 16, 1789, by a special committee of which Mr. Sedgwick of Massachusetts was a member, and passed July 21 without roll call. The Senate adopted it August 4. The debate on the bill to create the Department of Foreign Affairs must have been fresh in the legislative mind, and it should be noted that Mr. Sedgwick had actively supported the power of removal when that measure was up. The Act of September 24, 1789 (c. 20, § 27, 1 Stat. 73, 87), provided for another civil officer with fixed term. "A marshal shall be appointed in and for each district for the term of four years, but shall be removable from office at pleasure, whose duty it shall be," etc. This Act also provided for district attorneys and an Attorney General without fixed terms, and said nothing of removal. The legislature must have understood that, if an officer be given a fixed term and nothing is said concerning removal, he acquires a vested right to the office for the full period; also that officers appointed without definite terms were subject to removal by the President at will, assent of Congress being implied. Page 272 U. S. 212 This bill was a Senate measure, prepared by a committee of which Senators Ellsworth and Paterson were members and introduced June 12. It was much considered between June 22 and July 17, when it passed the Senate fourteen to six. During this same period, the House bill to create the Department of Foreign Affairs was under consideration by the Senate, and Senators Ellsworth and Paterson both gave it support. The Judiciary bill went to the House July 20, and there passed September 17. Mr. Madison supported it. If the theory of illimitable executive power now urged is correct, then the Acts of August 7 and September 24 contained language no less objectionable than the original phrase in the bill to establish the Department of Foreign Affairs over which the long debate arose. As nobody objected to the provisions concerning removals and life tenure in the two later Acts, it seems plain enough that the first Congress never entertained the constitutional views now advanced by the United States. As shown by Mr. Madison's letter to Edmund Randolph, supra, the point under discussion was the power to remove officers appointed to serve at will. Whatever effect is attributable to the action taken must be confined to such officers. Congress first established courts in the District of Columbia by the Act of February 27, 1801, c. 15, 2 Stat. 103. This authorized three judges to be appointed by the President with consent of the Senate "to hold their respective offices during good behavior." The same tenure has been bestowed on all subsequent superior District of Columbia judges. The same Act also provided for a marshal, to serve during four years, subject to removal at pleasure; for a district attorney without definite term, and "such number of discreet persons to be justices of the peace as the President of the United States shall from time to time think expedient, to Page 272 U. S. 213 continue in office five years." Here, again, Congress undertook to protect inferior officers in the District from executive interference, and the same policy has continued down to this time. ( See Act of February 9, 1893, c. 74, 27 Stat. 434.) The Acts providing "for the government of the Territory of the United States south of the River Ohio" (1790), and for the organization of the Territories of Indiana (1800), Illinois (1809), and Michigan (1805), all provided that the government should be similar to that established by the ordinance of 1787, for the Northwest Territory. Judges for the Northwest Territory were appointed for life. The Act establishing the territorial government of Wisconsin (1836) directed: "That the judicial power of the said Territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. The supreme court shall consist of a chief justice and two associate judges, any two of whom shall be a quorum, and who shall hold a term at the seat of government of the said Territory annually, and they shall hold their offices during god behaviour." The organization Acts for the territories of Louisiana (1804), Iowa (1838), Minnesota (1849), New Mexico (1850), Utah (1850), North Dakota (1861), Nevada (1861), Colorado (1861), and Arizona (1863), provided for judges " to serve for four years." Those for the organization of Oregon (1848), Washington (1853), Kansas (1854), Nebraska (1854), Idaho (1863), Montana (1864), Alaska (1884), Indian Territory (1889), and Oklahoma (1890), provided for judges "to serve for four years, and until their successors shall be appointed and qualified." Those for Missouri (1812), Arkansas (1819), Wyoming (1868), Hawaii (1900), and Florida (1822), provided that judges should be appointed to serve "four years unless sooner removed;" "four years unless sooner removed by Page 272 U. S. 214 the President;" "four years unless sooner removed by the President with the consent of the Senate of the United States;" "who shall be citizens of the Territory of Hawaii and shall be appointed by the President of the United States, by and with the advice and consent of the Senate of the United States, and may be removed by the President;" "for the term of four years and no longer." May 15, 1820, President Monroe approved the first general tenure of office Act, c. 102, 3 Stat. 582. If directed -- "All district attorneys, collectors of the customs, naval officers and surveyors of the customs, navy agents, receivers of public moneys for lands, registers of the land offices, paymasters in the army, the apothecary general, the assistant apothecaries general, and the commissary general of purchases, to be appointed under laws of the United States, shall be appointed for the term of four years, but shall be removable from office at pleasure. [Prior to this time, these officers were appointed without term to serve at will.]" "Sec. 2. . . . The commission of each and every of the officers named in the first section of this Act, now in office, unless vacated by removal from office, or otherwise, shall cease and expire in the manner following: all such commissions, bearing date on or before the thirtieth day of September, one thousand eight hundred and fourteen, shall cease and expire on the day and month of their respective dates, which shall next ensue after the thirtieth day of September next; all such commissions, bearing date after the said thirtieth day of September, in the year one thousand eight hundred and fourteen, and before the first day of October, one thousand eight hundred and sixteen, shall cease and expire on the day and month of their respective dates, which shall next ensue after the thirtieth day of September, one thousand eight hundred and twenty-one. And all other such commissions shall cease Page 272 U. S. 215 and expire at the expiration of the term of four years from their respective dates." Thus, Congress not only asserted its power of control by prescribing terms and then giving assent to removals, but it actually removed officers who were serving at will under presidential appointment with consent of the Senate. This seems directly to conflict with the notion that removals are wholly executive in their nature. XIII The claim advanced for the United States is supported by no opinion of this court, and conflicts with Marbury v. Madison (1803), supra, concurred in by all, including Mr. Justice Paterson, who was a conspicuous member of the Constitutional Convention and, as Senator from New Jersey, participated in the debate of 1789 concerning the power to remove and supported the bill to establish the Department of Foreign Affairs. By an original proceeding here, Marbury sought a mandamus requiring Mr. Madison, then Secretary of State, to deliver a commission signed by President Adams which showed his appointment (under the Act of February 27, 1801) as Justice of the Peace for the District of Columbia, "to continue in office five years." The Act contained no provision concerning removal. [ Footnote 5 ] As required by the circumstances, the court first considered Marbury's right to demand the commission, and affirmed it. Mr. Chief Justice Marshall said -- "It is, therefore, decidedly the opinion of the court, that, when a commission has been signed by the President, Page 272 U. S. 216 the appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State." "Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable, and the commission may be arrested if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed." "The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it." "Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and, as the law creating the office gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. [This freedom from executive interference had been affirmed by Representative Bayard in February, 1802, during the debate on repeal of the Judiciary Act of 1801.]" "To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right." "The office of justice of peace in the District of Columbia is such an office [of trust, honor, or profit]. . . . It has been created by special Act of Congress, and has been secured, so far as the laws can give security, to the person appointed to fill it, for five years. . . . " Page 272 U. S. 217 "It is, then, the opinion of the court -- 1st. that, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the County of Washington, in the District of Columbia, and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment, and that the appointment conferred on him a legal right to the office for the space of five years." "It has already been stated that the applicant has, to that commission, a vested legal right of which the executive cannot deprive him. He has been appointed to an office from which he is not removable at the will of the executive, and being so appointed, he has a right to the commission which the Secretary has received from the President for his use." The point thus decided was directly presented and essential to proper disposition of the cause. If the doctrine now advanced had been approved, there would have been no right to protect, and the famous discussion and decision of the great constitutional question touching the power of the court to declare an Act of Congress without effect would have been wholly out of place. The established rule is that doubtful constitutional problems must not be considered unless necessary to determination of the cause. The sometime suggestion that the Chief Justice indulged an obiter dictum is without foundation. The court must have appreciated that, unless it found Marbury had the legal right to occupy the office irrespective of the President's will, there would be no necessity for passing upon the much-controverted and far-reaching power of the judiciary to declare an Act of Congress without effect. In the circumstances then existing, it would have been peculiarly unwise to consider the second and more important question without first demonstrating the necessity therefor by ruling upon the first. Both points Page 272 U. S. 218 were clearly presented by the record, and they were decided in logical sequence. Cooley's Constitutional Limitations, 7th ed., 231. [ Footnote 6 ] But, assuming that it was unnecessary in Marbury v. Madison to determine the right to hold the office, nevertheless this Court deemed it essential and decided it. I cannot think this opinion is less potential than Mr. Madison's argument during a heated debate concerning an office without prescribed tenure. This opinion shows clearly enough why Congress, when it directed appointment of marshals for definite terms by the Act of 1789, also took pains to authorize their removal. The specification of a term, without more, would have prevented removals at pleasure. We are asked by the United States to treat the definite holding in Marbury v. Madison that the plaintiff was not subject to removal by the President at will as mere dictum -- to disregard it. But a solemn adjudication by this Court may not be so lightly treated. For a hundred and twenty years, that case has been regarded as among the most important ever decided. It lies at the very foundation of our jurisprudence. Every point determined was deemed essential, and the suggestion of dictum, either idle or partisan exhortation, ought not to be tolerated. The point here involved was directly passed upon by the great Chief Justice, and we must accept the result unless prepared to express direct disapproval and exercise the transient power which we possess to overrule our great predecessors -- the opinion cannot be shunted. At the outset, it became necessary to determine whether Marbury had any legal right which could, prima facie at least, create a justiciable or actual case arising under the laws of the United States. Otherwise, there would have Page 272 U. S. 219 been nothing more than a moot cause; the proceeding would have been upon an hypothesis, and he would have shown no legal right whatever to demand an adjudication on the question of jurisdiction and constitutionality of the statute. The court proceeded upon the view that it would not determine an important and far-reaching constitutional question unless presented in a properly justiciable cause by one asserting a clear legal right susceptible of protection. It emphatically declared, not by way of argument or illustration, but as definite opinion, that the appointment of Marbury "conferred on him a legal right to the office for the space of five years," beyond the President's power to remove; and, plainly on this premise, it thereupon proceeded to consider the grave constitutional question. Indeed, if Marbury had failed to show a legal right to protect or enforce, it could be urged that the decision as to invalidity of the statute lacked force as a precedent because rendered upon a mere abstract question raised by a moot case. The rule has always been cautiously to avoid passing upon important constitutional questions unless some controversy properly presented requires their decision. The language of Mr. Justice Matthews in Liverpool, etc., Steamship Co. v. Commissioners of Emigration, 113 U. S. 33 , 113 U. S. 39 , is pertinent -- "If, on the other hand, we should assume the plaintiff's case to be within the terms of the statute, we should have to deal with it purely as an hypothesis, and pass upon the constitutionality of an Act of Congress as an abstract question. That is not the mode in which this court is accustomed or willing to consider such questions. It has no jurisdiction to pronounce any statute, either of a State or of the United States, void because irreconcilable with the Constitution except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two Page 272 U. S. 220 rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully." Also the words of Mr. Justice Brewer in Union Pacific Co. v. Mason City Co., 199 U. S. 160 , 199 U. S. 166 -- "Of course, where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other. Whenever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling of the court in respect thereto can in no just sense be called mere dictum. Railroad Companies v. Schutte, 103 U. S. 118 , in which this court said (p. 103 U. S. 143 ):" "It cannot be said that a case is not authority on the point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was found in the end which disposed of the whole matter. Here, the precise question was properly presented, fully argued and elaborately considered in the opinion. The decision on this question was as much a part of the judgment of the court as was that on any other of the several matters on which the case as a whole depended." And see Chicago, etc., Railway Co. v. Wellman, 143 U. S. 339 , 143 U. S. 345 ; United States v. Chamberlin, 219 U. S. 250 , 219 U. S. 262 ; United States. v. Title Insurance Co., 265 U. S. 472 , 265 U. S. 486 ; Watson v. St. Louis, etc., Ry. Co., 169 Fed. 942, 944, 945. Although he was intensely hostile to Marbury v. Madison, and refused to recognize it as authoritative, I do not find that Mr. Jefferson ever controverted the view Page 272 U. S. 221 that an officer duly appointed for a definite time, without more, held his place free from arbitrary removal by the President. If there had been any generally accepted opinion or practice under which he could have dismissed such an officer, as now claimed, that cause would have been a rather farcical proceeding with nothing substantial at issue, since the incumbent could have been instantly removed. And, assuming such doctrine, it is hardly possible that Mr. Jefferson would have been ignorant of the practical way to end the controversy -- a note of dismissal or removal. Evidently he knew nothing of the congressional interpretation and consequent practice here insisted on. And this notwithstanding Mr. Madison sat at his side. Mr. Jefferson's letters to Spencer Roane (1819) and George Hay (1807) give his views. "In the case of Marbury and Madison, the federal judges declared that commissions, signed and sealed by the President, were valid although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is as yet no deed, it is in posse only, but not in esse, and I withheld delivery of the commissions." I think it material to stop citing Marbury v. Madison as authority and have it denied to be law. "1. Because the judges, in the outset, disclaimed all cognizance of the case, although they then went on to say what would have been their opinion, had they had cognizance of it. This, then, was confessedly an extrajudicial opinion. and, as such, of no authority. 2. Because, had it been judicially pronounced, it would have been against law; for to a commission, a deed, a bond, delivery is essential to give validity. Until, therefore, the commission is delivered out of the hands of the executive and his agents, it is not his deed." The judges did not disclaim all cognizance of the cause they were called upon to determine the question Page 272 U. S. 222 irrespective of the result reached -- and, whether rightly or wrongly, they distinctly held that actual delivery of the commission was not essential. That question does not now arise -- here the commission was delivered and the appointee took office. Ex parte Mennen (1839), 13 Peters 230, 38 U. S. 258 , involved the power of a United States District Judge to dismiss at will the clerk whom he had appointed. Mr. Justice Thompson said -- "The Constitution is silent with respect to the power of removal from office, where the tenure is not fixed. It provides, that the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour. But no tenure is fixed for the office of clerks. Congress has by law limited the tenure of certain officers to the term of four years, 3 Story, 1790; but expressly providing that the officers shall, within that term, be removable at pleasure; which, of course, is without requiring any cause for such removal. The clerks of courts are not included within this law, and there is no express limitation in the Constitution, or laws of Congress, upon the tenure of the office." "All offices, the tenure of which is not fixed by the Constitution or limited by law, must be held either during good behavior or (which is the same thing in contemplation of law) during the life of the incumbent; or must be held at the will and discretion of some department of the government, and subject to removal at pleasure." "It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of Page 272 U. S. 223 removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of this government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate, and the great question was whether the removal was to be by the President alone, or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate jointly to remove where the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted as the practical construction of the Constitution that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution. . . ." "It would be a most extraordinary construction of the law that all these offices were to be held during life, which must inevitably follow unless the incumbent was removable at the discretion of the head of the department: the President has certainly no power to remove. These clerks fall under that class of inferior officers the appointment of which the Constitution authorizes Congress to vest in the head of the department. The same rule as to the power of removal must be applied to offices where the appointment is vested in the President alone. The nature of the power, and the control over the officer appointed, does not at all depend on the source from which it emanates. The execution of the power depends upon the authority of law, and not upon the agent who is to administer it. And the Constitution has authorized Congress, in certain cases, to vest this power in the President alone, in the Courts of law, or in the heads of departments, and all inferior officers appointed under each, by authority of law, must hold their office at the discretion Page 272 U. S. 224 of the appointing power. Such is the settled usage and practical construction of the Constitution and laws under which these offices are held." United States v. Guthrie (1854), 17 How. 284. Goodrich had been removed from the office of Chief Justice of the Supreme Court, Territory of Minnesota, to which he had been appointed to serve "during the period of four years." He sought to recover salary for the time subsequent to removal through a mandamus to the Secretary of the Treasury. The court held this was not a proper remedy, and did not consider whether the President had power to remove a territorial judge appointed for a fixed term. The reported argument of counsel is enlightening; the dissenting opinion of Mr. Justice McLean is important. He points out that only two territorial judges had been removed -- the plaintiff Goodrich, in 1851, and William Trimble, May 20, 1830. The latter was judge of the Superior Court of the Territory of Arkansas, appointed to "continue in office for the term of four years, unless sooner removed by the President." United States v. Bigler, Fed. Cases, 14481 (1867). This opinion contains a valuable discussion of the general doctrine here involved. United States v. Perkins (1886), 116 U. S. 483 , 116 U. S. 485 , held that "when Congress, by law, vests the appointment of inferior officers in the heads of Departments, it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict and regulate the removal by such laws as Congress may enact in relation to the officers so appointed." McAllister v. United States (1891), 141 U. S. 174 . Plaintiff was appointed District Judge for Alaska "for the term of four years from the day of the date hereof, and until his successor shall be appointed and qualified, subject Page 272 U. S. 225 to the conditions prescribed by law." He was suspended, and the Senate confirmed his successor. He sought to recover salary for the time between his removal and qualification of his successor. Section 1768, R.S., authorized the President to suspend civil officers "except judges of the courts of the United States." This court reviewed the authorities and pointed out that judges of territorial courts were not judges of courts of the United States within § 1768, and, accordingly, were subject to suspension by the President as therein provided. This argument would have been wholly unnecessary if the theory now advanced, that the President has illimitable power to remove, had been approved. In an elaborate dissent, Mr. Justice Field, Mr. Justice Gray, and Mr. Justice Brown expressed the view that it was beyond the President's power to remove the judge of any court during the term for which appointed. They necessarily repudiated the doctrine of illimitable power. Parsons v. United States (1897), 167 U. S. 324 , 167 U. S. 343 . After a review of the history and cases supposed to be apposite, this court, through Mr. Justice Peckham, held that the President had power to remove Parsons from the office of District Attorney, to which he had been appointed "for the term of four years from the date hereof, subject to the conditions prescribed by law." "We are satisfied that its [Congress'] intention in the repeal of the Tenure of Office sections of the Revised Statutes was again to concede to the President the power of removal if taken from him by the original Tenure of Office Act, and, by reason of the repeal, to thereby enable him to remove an officer when, in his discretion, he regards it for the public good, although the term of office may have been limited by the words of the statute creating the office." He referred to the Act of 1820 and suggested that the situation following it had been renewed by repeal of the Tenure of Office Act. Page 272 U. S. 226 The opinion does express the view that, by practical construction prior to 1820, the President had power to remove an officer appointed for a fixed term; but this is a clear mistake. In fact, no removals of such duly commissioned officers were made prior to 1820, and Marbury v. Madison expressly affirms that this could not lawfully be done. The whole discussion in Parsons' case was futile if the Constitution conferred upon the President illimitable power to remove. It was pertinent only upon the theory that, by apt words, Congress could prohibit removals, and this view was later affirmed by Mr. Justice Peckham in Shurtleff v. United States. Apparently he regarded the specification of a definite term as not equivalent to positive inhibition of removal by Congress. Reagan v. United States (1901), 182 U. S. 419 , 182 U. S. 425 . Reagan, a Commissioner of the United States Court in Indian Territory, was dismissed by the judge, and sued to recover salary. He claimed that the judge's action was invalid because the cause assigned therefor was not one of those prescribed by law. This court, by Mr. Chief Justice Fuller, said: "The inquiry is, therefore, whether there were any causes of removal prescribed by law, March 1, 1895, or at the time of removal. If there were, then the rule would apply that, where causes of removal are specified by constitution or statute, as also where the the term of office is for a fixed period, notice and hearing are essential. If there were not, the appointing power could remove at pleasure or for such cause as it deemed sufficient. . . . The commissioners hold office neither for life nor for any specified time, and are within the rule which treats the power of removal as incident to the power of appointment unless otherwise provided. By chapters forty-five and forty-six, justices of the peace, on conviction of the offences enumerated, are removable from office, but these necessarily do not Page 272 U. S. 227 include all causes which might render the removal of commissioners necessary or advisable. Congress did not provide for the removal of commissioners for the causes for which justices of the peace might be removed, and if this were to be ruled otherwise by construction, the effect would be to hold the commissioners in office for life unless some of those specially enumerated causes became applicable to them. We agree with the Court of Claims that this would be a most unreasonable construction, and would restrict the power of removal in a manner which there is nothing in the case to indicate could have been contemplated by Congress." Shurtleff v. United States (1903), 189 U. S. 311 , 189 U. S. 313 . The plaintiff sought to recover his salary as General Appraiser. He was appointed to that office without fixed term, with consent of the Senate, and qualified July 24, 1890. The Act creating the office provided that the incumbents "shall not be engaged in any other business, avocation or employment, and may be removed from office at any time by the President for inefficiency, neglect of duty or malfeasance in office." Shurtleff was dismissed May 3, 1899, without notice or charges and without knowledge of the reasons for the President's action. Through Mr. Justice Peckham, the court said: "There is, of course, no doubt of the power of Congress to create such an office as is provided for in the above section. Under the provision that the officer might be removed from office at any time for inefficiency, neglect of duty, or malfeasance in office, we are of opinion that, if the removal is sought to be made for those causes, or either of them, the officer is entitled to notice and a hearing. Reagan v. United States, 182 U. S. 419 , 182 U. S. 425 . . . . The appellant contends that, because the statute specified certain causes for which the officer might be removed, it thereby impliedly excluded and denied the right to remove for any other cause, and that the President was Page 272 U. S. 228 therefore by the statute prohibited from any removal excepting for the causes, or some of them, therein defined. The maxim expressio unius est exclusio alterius is used as an illustration of the principle upon which the contention is founded. We are of opinion that, as thus used, the maxim does not justify the contention of the appellant. We regard it as inapplicable to the facts herein. The right of removal would exist if the statute had not contained a word upon the subject. It does not exist by virtue of the grant, but it inheres in the right to appoint, unless limited by Constitution or statute. It requires plain language to take it away." The distinct recognition of the right of Congress to require notice and hearing if removal were made for any specified cause is, of course, incompatible with the notion that the President has illimitable power to remove. And it is well to note the affirmation that the right of removal inheres in the right to appoint. XIV If the framers of the Constitution had intended "the executive power," in Art. II, Sec. 1, to include all power of an executive nature, they would not have added the carefully defined grants of Sec. 2. They were scholarly men, and it exceeds belief "that the known advocates in the Convention for a jealous grant and cautious definition of federal powers should have silently permitted the introduction of words and phrases in a sense rendering fruitless the restrictions and definitions elaborated by them." Why say, the President shall be commander-in-chief; may require opinions in writing of the principal officers in each of the executive departments; shall have power to grant reprieves and pardons; shall give information to Congress concerning the state of the union; shall receive ambassadors; shall take care that the laws be faithfully executed -- if all of these things and more had already Page 272 U. S. 229 been vested in him by the general words? The Constitution is exact in statement. Holmes v. Jennison , 14 Pet. 540. That the general words of a grant are limited when followed by those of special import is an established canon, and an accurate writer would hardly think of emphasizing a general grant by adding special and narrower ones without explanation. "An affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended." Story on the Constitution, § 448. "The powers delegated by the proposed Constitution to the federal government are few and defined." Federalist, No. XLIV. "Affirmative words are often, in their operation, negative of other objects than those affirmed, and in this case, a negative or exclusive sense must be given to them, or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." Marbury v. Madison, p. 5 U. S. 174 . In his address to the Senate (February 16, 1835) on "The Appointing and Removing Power," Mr. Webster considered and demolished the theory that the first section of Art. II conferred all executive powers upon the President except as therein limited -- Webster's Works (Little, B. & Co., 1866), vol. 4, pp. 179, 186; Debates of Congress -- and showed that the right to remove must be regarded as an incident to that of appointment. He pointed out the evils of uncontrolled removals and, I think, demonstrated that the claim of illimitable executive power here advanced has no substantial foundation. The argument is exhaustive, and ought to be conclusive. A paragraph from it follows: "It is true that the Constitution declares that the executive power shall be vested in the President; but the first question which then arises is what is executive power? What is the degree, and what are the limitations? Executive power is not a Page 272 U. S. 230 thing so well known, and so accurately defined, as that the written constitution of a limited government can be supposed to have conferred it in the lump. What is executive power? What are its boundaries? What model or example had the framers of the Constitution in their minds when they spoke of 'executive power'? Did they mean executive power as known in England, or as known in France, or as known in Russia? Did they take it as defined by Montesquieu, by Burlamaqui, or by De Lolme? All these differ from one another as to the extent of the executive power of government. What, then, was intended by 'the executive power'? Now, Sir, I think it perfectly plain and manifest that, although the framers of the Constitution meant to confer executive power on the President, yet they meant to define and limit that power, and to confer no more than they did thus define and limit. When they say it shall be vested in a President, they mean that one magistrate, to be called a President, shall hold the executive authority; but they mean, further, that he shall hold this authority according to the grants and limitations of the Constitution itself." XV Article I provides: "All legislative powers herein granted, shall be vested in a Congress," etc. I hardly suppose, if the words "herein granted" had not been inserted, Congress would possess all legislative power of Parliament, or of some theoretical government, except when specifically limited by other provisions. Such an omission would not have overthrown the whole theory of a government of definite powers and destroyed the meaning and effect of the particular enumeration which necessarily explains and limits the general phrase. When this Article went to the Committee on Style, it provided: "The legislative power shall be vested in a Congress," Page 272 U. S. 231 etc. The words "herein granted" were inserted by that committee September 12, and there is nothing whatever to indicate that anybody supposed this radically changed what already had been agreed upon. The same general form of words was used as to the legislative, executive and judicial powers in the draft referred to the Committee on Style. The difference between the reported and final drafts was treated as unimportant. "That the government of the United States is one of delegated, limited and enumerated powers," and "that the federal government is composed of powers specifically granted, with the reservation of all others to the States or to the people," are propositions which lie at the beginning of any effort rationally to construe the Constitution. Upon the assumption that the President, by immediate grant of the Constitution, is vested with all executive power without further definition or limitation, it becomes impossible to delimit his authority, and the field of federal activity is indefinitely enlarged. Moreover, as the Constitution authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof," it likewise becomes impossible to ascertain the extent of congressional power. Such a situation would be intolerable, chaotic indeed. If it be admitted that the Constitution by direct grant vests the President with all executive power, it does not follow that he can proceed in defiance of congressional action. Congress, by clear language, is empowered to make all laws necessary and proper for carrying into execution powers vested in him. Here, he was authorized only to appoint an officer of a certain kind, for a certain period, removable only in a certain way. He undertook to proceed under the law so far as agreeable, but repudiated the remainder. I submit that no warrant can be Page 272 U. S. 232 found for such conduct. This thought was stressed by Mr. Calhoun in his address to the Senate; from which quotation has been made ante. XVI Article III provides: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." But this did not endow the federal courts with authority to proceed in all matters within the judicial power of the federal government. Except as to the original jurisdiction of the Supreme Court, it is settled that the federal courts have only such jurisdiction as Congress sees fit to confer. "Only the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. . . . The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an Act of Congress to confer it." Kline v. Burke Construction Co., 260 U. S. 226 , 260 U. S. 234 . In Sheldon et al. v. Sill , 8 How. 441, 49 U. S. 449 , it was argued that Congress could not limit the judicial power vested in the courts by the Constitution -- the same theory, let it be observed, as the one now advanced concerning executive power. Replying, through Mr. Justice Grier, this court declared: "In the case of Turner v. Bank of North America [1799], 4 Dall. 10, it was contended, as in this case, that, as it was a controversy between citizens of different States, the Constitution gave the plaintiff a right to sue in the Circuit Court notwithstanding he was an assignee within the restriction of the eleventh section of the Judiciary Act. But the court said --" "The political Page 272 U. S. 233 truth is that the disposal of the judicial power (except in a few specified instances) belongs to Congress, and Congress is not bound to enlarge the jurisdiction of the federal courts to every subject, in every form which the Constitution might warrant." "This decision was made in 1799; since that time, the same doctrine has been frequently asserted by this court, as may be seen in McIntire v. Wood , 7 Cranch 506; Kendall v. United States , 12 Peters 616; Cary v. Curtis , 3 Howard 245." The argument of counsel, reported in 4 Dallas, is interesting. The bad reasoning there advanced, although exposed a hundred years ago, is back again asking for a vote of confidence. XVII The Federal Constitution is an instrument of exact expression. Those who maintain that Art. II, Sec. 1, was intended as a grant of every power of executive nature not specifically qualified or denied must show that the term "executive power" had some definite and commonly accepted meaning in 1787. This court has declared that it did not include all powers exercised by the King of England; and, considering the history of the period, none can say that it had then (or afterwards) any commonly accepted and practical definition. If anyone of the descriptions of "executive power" known in 1787 had been substituted for it, the whole plan would have failed. Such obscurity would have been intolerable to thinking men of that time. Fleming v. Page , 9 How. 603, 50 U. S. 618 -- "Neither is it necessary to examine the English decisions which have been referred to by counsel. It is true that most of the States have adopted the principles of English jurisprudence, so far as it concerns private and individual rights. And when such rights are in question, we habitually refer to the English decisions not only with respect, but in many Page 272 U. S. 234 cases as authoritative. But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States and the authority and sovereignty which belong to the English crown that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war or any other subject where the rights and powers of the executive arm of the government are brought into question. Our own Constitution and form of government must be our only guide." Blackstone, *190, 250, 252, affirms that "The supreme executive power of these kingdoms is vested by our laws in a single person, the king or queen," and that there are certain "branches of the royal prerogative which invest thus our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers in the execution whereof consists the executive part of government." And he defines "prerogative," as "consisting (as Mr. Locke has well defined it) in the discretionary power of acting for the public good where the positive laws are silent." Montesquieu's Spirit of Laws, in 1787 the most popular and influential work on government, says: "In every government, there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations, and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state. " Page 272 U. S. 235 Perhaps the best statement concerning "executive power" known in 1787 was by Mr. Jefferson in his Draft of a Fundamental Constitution for the Commonwealth of Virginia, proposed in 1783 (Writings, Ford's ed. 184, vol. 3, 155-156): "The executive powers shall be exercised by a Governor, who shall be chosen by joint ballot of both Houses of Assembly. . . . By executive powers, we mean no reference to those powers exercised under our former government by the crown as of its prerogative, nor that these shall be the standard of what may or may not be deemed the rightful powers of the Governor. We give them those powers only which are necessary to execute the laws (and administer the government), and which are not in their nature either legislative or judiciary. The application of this idea must be left to reason. We do, however, expressly deny him the prerogative powers of erecting courts, offices, boroughs, corporations, fairs, markets, ports, beacons, light-houses, and sea marks; of laying embargoes, of establishing precedence, of retaining within the State, or recalling to it any citizen thereof, and of making denizens, except so far as he may be authorized from time to time by the legislature to exercise any of those powers." This document was referred to by Mr. Madison in the Federalist, No. XLVIII. Substitute any of these descriptions or statements for the term "executive power" in Art. II, Sec. 1, and the whole plan becomes hopelessly involved -- perhaps impossible. The term "executive power" is found in most, if not all, of the state constitutions adopted between 1776 and 1787. They contain no definition of it, but certainly it was not intended to signify what is now suggested. It meant in those instruments what Mr. Webster declared it signifies in the federal Constitution -- "When they say it shall be vested in President, they mean that one magistrate, to be called a President, shall hold the executive Page 272 U. S. 236 authority; but they mean, further, that he shall hold this authority according to the grants and limitations of the Constitution itself." The Constitution of New York, much copied in the federal Constitution, declared: "The supreme executive power and authority of this State shall be vested in a Governor." It then defined his powers and duties, among them, "to take care that the laws are faithfully executed to the best of his ability." It further provided, "that the Treasurer of this State shall be appointed by Act of the Legislature;" and entrusted the appointment of civil and military officers to a council. The Governor had no power to remove them, but apparently nobody thought he would be unable to execute the laws through officers designated by another. The Constitution of Virginia, 1776, provided: "The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other." It then imposed upon the two Houses of Assembly the duty of selecting by ballot judges, Attorney General and Treasurer. New Jersey Constitution, 1776 -- "That the Governor . . . shall have the supreme executive power . . . and act as captain-general and commander in chief of all the militia. . . . That captains, and all other inferior officers of the militia, shall be chosen by the companies, in the respective counties; but field and general officers, by the Council and Assembly." North Carolina Constitution, 1776 -- "That the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other: . . . That the General Assembly shall, by joint ballot of both houses, appoint Judges of the Supreme Courts of Law and Equity, Judges of Admiralty, and Attorney-General. . . . That the General Assembly shall, by joint ballot of both houses, triennially appoint a Secretary for this State. " Page 272 U. S. 237 During the debate of 1789, Congressman Stone well said: "If gentlemen will tell us that powers, impliedly executive, belong to the President, they ought to go further with the idea, and give us a correct idea of executive power, as applicable to their rule. In an absolute monarchy, there never has been any doubt with respect to implication; the monarch can do what he pleases. In a limited monarchy, the prince has powers incident to kingly prerogative. How far will a federal executive, limited by a Constitution, extend in implications of this kind? Does it go so far as absolute monarchy? Or is it confined to a restrained monarchy? If gentlemen will lay down their rule, it will serve us as a criterion to determine all questions respecting the executive authority of this government. My conception may be dull, but telling me that this is an executive power raises no complete idea in my mind. If you tell me the nature of executive power, and how far the principle extends, I may be able to judge whether this has relation thereto, and how much is due to implication." See The Federalist, No. XLVI. XVIII In any rational search for answer to the questions arising upon this record, it is important not to forget -- That this is a government of limited powers definitely enumerated and granted by a written Constitution. That the Constitution must be interpreted by attributing to its words the meaning which they bore at the time of its adoption and in view of commonly accepted canons of construction, its history, early and long-continued practices under it, and relevant opinions of this court. That the Constitution endows Congress with plenary powers "to establish post offices and post roads." That, exercising this power during the years from 1789 to 1836, Congress provided for postmasters and vested the Page 272 U. S. 238 power to appoint and remove all of them at pleasure in the Postmaster General. That the Constitution contains no words which specifically grant to the President power to remove duly appointed officers. And it is definitely settled that he cannot remove those whom he has not appointed -- certainly they can be removed only as Congress may permit. That postmasters are inferior officers within the meaning of Art. II, Sec. 2, of the Constitution. That, from its first session to the last one, Congress has often asserted its right to restrict the President's power to remove inferior officers, although appointed by him with consent of the Senate. That many Presidents have approved statutes limiting the power of the executive to remove, and that from the beginning such limitations have been respected in practice. That this court, as early as 1803, in an opinion never overruled and rendered in a case where it was necessary to decide the question, positively declared that the President had no power to remove at will an inferior officer appointed with consent of the Senate to serve for a definite term fixed by an Act of Congress. That the power of Congress to restrict removals by the President was recognized by this court as late as 1903, in Shurtleff v. United States. That the proceedings in the Constitutional Convention of 1787, the political history of the times, contemporaneous opinion, common canons of construction, the action of Congress from the beginning, and opinions of this court all oppose the theory that, by vesting "the executive power" in the President, the Constitution gave him an illimitable right to remove inferior officers. That this court has emphatically disapproved the same theory concerning "the judicial power" vested in the courts by words substantially the same as those which Page 272 U. S. 239 vest "the executive power" in the President. "The executive power shall be vested in a President of the United States of America." "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." That to declare the President vested with indefinite and illimitable executive powers would extend the field of his possible action far beyond the limits observed by his predecessors, and would enlarge the powers of Congress to a degree incapable of fair appraisement. Considering all these things, it is impossible for me to accept the view that the President may dismiss, as caprice may suggest, any inferior officer whom he has appointed with consent of the Senate, notwithstanding a positive inhibition by Congress. In the last analysis, that view has no substantial support, unless it be the polemic opinions expressed by Mr. Madison (and eight others) during the debate of 1789, when he was discussing questions relating to a "superior officer" to be appointed for an indefinite term. Notwithstanding his justly exalted reputation as one of the creators and early expounders of the Constitution, sentiments expressed under such circumstances ought not now to outweigh the conclusion which Congress affirmed by deliberate action while he was leader in the House and has consistently maintained down to the present year, the opinion of this court solemnly announced through the great Chief Justice more than a century ago, and the canons of construction approved over and over again. Judgment should go for the appellant. Page 272 U. S. 240 [ Footnote 1 ] The suggestion that different considerations may possibly apply to nonconstitutional judicial officers I regard as a mere smokescreen. [ Footnote 2 ] Different phases of this general subject have been elaborately discussed in Congress. See discussions on the following measures: Bill to establish a Department of Foreign Affairs, 1789, Annals 1st Cong.; bill to amend the judicial system of the United States, 1802, Annals 7th Cong., 1st Sess.; bill to amend Act of May 15, 1820, fixing tenure of certain offices, 1835, Debates 23d Cong., 2d Sess.; bill to regulate the tenure of certain civil offices, 1866-1867, Globe, 39th Cong., 3d Sess.; Johnson impeachment trial, 1868, Globe Supplement, 40th Cong., 2d Sess. [ Footnote 3 ] This debate began May 19 in the Committee of the Whole on Mr. Madison's motion -- "That it is the opinion of this committee that there shall be established an executive department, to be denominated the Department of Foreign Affairs, at the head of which there shall be an officer, to be called the Secretary to the Department of Foreign Affairs, who shall be appointed by the President, by and with the advice and consent of the Senate, and to be removable by the President." The words "who shall be appointed by the President, by and with the advice and consent of the Senate" were objected to as superfluous, since "the Constitution had expressly given the power of appointment in words there used," and Mr. Madison agreed to their elimination. Doubts were then expressed whether the officer could be removed by the President. The suggestion was that this could only be done by impeachment. Mr. Madison opposed the suggestion, and said: "I think the inference would not arise from a fair construction of the words of that instrument. . . . I think it absolutely necessary that the President should have the power of removing from office. . . . On the constitutionality of the declaration I have no manner of doubt." Thereupon Mr. Vining, of Delaware, declared: "There were no negative words in the Constitution to preclude the President from the exercise of this power, but there was a strong presumption that he was invested with it, because it was declared that all executive power should be vested in him, except in cases where it is otherwise qualified; as, for example, he could not fully exercise his executive power in making treaties, unless with the advice and consent of the Senate -- the same in appointing to office." Mr. Bland and Mr. Jackson further insisted that removal could be effected only through impeachment, and Mr. Madison replied: He "did not conceive it was a proper construction of the Constitution to say that there was no other mode of removing from office than that by impeachment; he believed this, as applied to the judges, might be the case; but he could never imagine it extended in the manner which gentlemen contended for. He believed they would not assert that any part of the Constitution declared that the only way to remove should be by impeachment; the contrary might be inferred, because Congress may establish offices by law; therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behaviour or during pleasure." Later in the day, Mr. Madison discussed various objections offered, and said: "I cannot but believe, if gentlemen weigh well these considerations, they will think it safe and expedient to adopt the clause." Others spoke briefly, and then, as the record recites, "[t]he question was now taken, and carried by a considerable majority, in favor of declaring the power of removal to be in the President." The resolution was reported; the House concurred, and a committee (including Mr. Madison) was appointed to prepare and bring in a bill. On June 2, the committee reported a bill, providing for a Secretary, "to be removable from office by the President of the United States," which was read and referred to the Committee of the Whole. It was taken up for consideration June 16, and the discussion continued during five days. Members expressed radically different views. Among other things, Mr. Madison said -- "I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. . . . By a strict examination of the Constitution, on what appears to be its true principles, and considering the great departments of the government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill. . . ." "If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill." June 19, "the call for the question being now very general, it was put, shall the words 'to be removable by the President,' be struck out? It was determined in the negative; being yeas 20, nays 34." There were further remarks, and "the committee then rose and reported the bill . . . to the House." Discussion of the disputed provision was renewed on June 22. Mr. Benson moved to amend the bill "so as to imply the power of removal to be in the President," by providing for a Chief Clerk who should have custody of the records, etc., "whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy." He "hoped his amendment would succeed in reconciling both sides of the House to the decision and quieting the minds of gentlemen." If successful, he would move to strike out the words, "to be removable by the President." After a prolonged discussion, the amendment prevailed; the much-challenged clause was stricken out, and the ambiguous one suggested by Mr. Benson was inserted. June 24 the bill, thus amended, finally passed. Five members once delegates to the Constitutional Convention took part in the debate. Mr. Madison, Mr. Baldwin and Mr. Clymer expressed similar views; Mr. Sherman and Mr. Gerry were emphatically of the contrary opinion. [ Footnote 4 ] Officers with commissions in the State Department who were removed: Collectors of customs, 17; collectors and inspectors, 25; surveyors of ports, 4; surveyors and inspectors, 9; supervisors, 4; naval officers, 4; marshals, 28; district attorneys, 23; principal assessors, 3; collectors of direct taxes, 4; consuls, 49; ministers abroad, 5; charges des affaires, 2; secretaries of legation, 3; Secretary of State, l; Secretary of War, 1; Secretary of the Treasury, 1; Secretary of the Navy, 1; Attorney General, 1; Commissioner of Loans, 1; receivers of public moneys, 2; registers of land offices, 2; Agent of the Creek Nation, 1; Register of the Treasury, 1; Comptroller of the Treasury, 1; auditors, 2; Treasurer of the United States, 1; Treasurer of the Mint, 1; Commissioner of Public Buildings, 1; Recorder of Land Titles, 1; Judge of territory, 1; secretaries of territories, 2; Commissioner for the adjustment of private land claims, 1; surveyors-general, 2; surveyors of the public lands, 3. Officers in the Treasury Department who were removed: Surveyor and inspector, 1; naval officer, 1; appraisers, 2; collectors, 2; surveyors, 2; receivers of public moneys, 12; registers of the land office, 4. [ Footnote 5 ] Mr. Lee (theretofore Attorney General of the United States), counsel for Marbury, distinctly claimed that the latter was appointed to serve for a definite term independent of the President's will, and upon that predicate rested the legal right which he insisted should be enforced by mandamus. Unless that right existed, there was no occasion -- no propriety, indeed -- for considering the court's power to declare an Act of Congress invalid. [ Footnote 6 ] At this time, the power of the court to declare Acts of Congress unconstitutional was being vigorously denied. The Supreme Court in United States History, by Charles Warren, Vol. I. MR. JUSTICE BRANDEIS, dissenting. In 1833, Mr. Justice Story, after discussing in §§ 1537-1543 of his Commentaries on the Constitution the much debated question concerning the President's power of removal, said in § 1544: "If there has been any aberration from the true constitutional exposition of the power of removal (which the reader must decide for himself), it will be difficult, and perhaps impracticable, after forty years' experience, to recall the practice to the correct theory. But, at all events, it will be a consolation to those who love the Union and honor a devotion to the patriotic discharge of duty that, in regard to 'inferior officers' (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government), the remedy for any permanent abuse is still within the power of Congress by the simple expedient of requiring the consent of the Senate to removals in such cases." Postmasters are inferior officers. Congress might have vested their appointment in the head of the department. [ Footnote 2/1 ] The Act of July 12, 1876, c. 17, § 6, 19 Stat. 78, 80, reenacting earlier legislation, [ Footnote 2/2 ] provided that "postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law." That statute has been in force unmodified Page 272 U. S. 241 for half a century. Throughout the period, it has governed a large majority of all civil offices to which appointments are made by and with the advice and consent of the Senate. [ Footnote 2/3 ] May the President, having acted under the statute insofar as it creates the office and authorizes the appointment, ignore, while the Senate is in session, the provision which prescribes the condition under which a removal may take place? It is this narrow question, and this only, which we are required to decide. We need not consider what power the President, being Commander in Chief, has over officers in the Army and the Navy. We need not determine whether the President, acting alone, may remove high political officers. We need not even determine whether, acting alone, he may remove inferior civil officers when the Senate is not in session. It was in session when the President purported to remove Myers, and for a long time thereafter. All questions of statutory construction have been eliminated by the language of the Act. It is settled that, in the absence of a provision expressly providing for the consent of the Senate to a removal, the clause fixing the tenure will be construed as a limitation, not as a grant, and that, under such legislation, the President, acting alone, has the power of removal. Parsons v. United States, 167 U. S. 324 ; Burnap v. United States, 252 U. S. 512 , 252 U. S. 515 . But, in defining the tenure, this statute used words of grant. Congress clearly intended to preclude a removal without the consent of the Senate. Other questions have been eliminated by the facts found, by earlier decisions of this Court, and by the Page 272 U. S. 242 nature of the claim made. It is settled that, where the statute creating an office provides for the consent of the Senate to both appointment and removal, a removal by the President will be deemed to have been so made if consent is given to the appointment of a successor. Wallace v. United States, 257 U. S. 541 . But, in the case at bar, no successor was appointed until after the expiration of Myers' term. It is settled that, if Congress had, under clause 2 of section 2, Art II, vested the appointment in the Postmaster General, it could have limited his power of removal by requiring consent of the Senate. United States v. Perkins, 116 U. S. 483 . It is not questioned here that the President, acting alone, has the constitutional power to suspend an officer in the executive branch of the government. But Myers was not suspended. It is clear that Congress could have conferred upon postmasters the right to receive the salary for the full term unless sooner removed with the consent of the Senate. Compare Embry v. United States, 100 U. S. 680 , 100 U. S. 685 . It is not claimed by the appellant that the Senate has the constitutional right to share in the responsibility for the removal merely because it shared, under the Act of Congress, in the responsibility for the appointment. Thus, the question involved in the action taken by Congress after the great debate of 1789 is not before us. The sole question is whether, in respect to inferior offices, Congress may impose upon the Senate both responsibilities, as it may deny to it participation in the exercise of either function. In Marbury v. Madison , 1 Cranch 137, 5 U. S. 167 , it was assumed, as the basis of decision, that the President, acting alone, is powerless to remove an inferior civil officer appointed for a fixed term with the consent of the Senate, and that case was long regarded as so deciding. [ Footnote 2/4 ] In no Page 272 U. S. 243 case has this Court determined that the President's power of removal is beyond control, limitation, or regulation by Congress. Nor has any lower federal court ever so decided. [ Footnote 2/5 ] This is true of the power as it affects officers in the Army or the Navy and the high political officer like heads of departments, as well as of the power in respect to inferior statutory offices in the executive branch. Continuously for the last fifty-eight years, laws comprehensive in character, enacted from time to time with the approval of the President, have made removal from the Page 272 U. S. 244 great majority of the inferior presidential offices dependent upon the consent of the Senate. Throughout that period these laws have been continuously applied. We are requested to disregard the authority of Marbury v. Madison and to overturn this long established constitutional practice. The contention that Congress is powerless to make consent of the Senate a condition of removal by the President from an executive office rests mainly upon the clause in § 1 of Article II which declares that "The executive Power hall be vested in a President." The argument is that appointment and removal of officials are executive prerogatives; that the grant to the President of "the executive Power" confers upon him, as inherent in the office, the power to exercise these two functions without restriction by Congress, except insofar a the power to restrict his exercise of them is expressly conferred Page 272 U. S. 245 upon Congress by the Constitution; that, in respect to appointment, certain restrictions of the executive power are so provided for; but that, in respect to removal, there is no express grant to Congress of any power to limit the President's prerogative. The simple answer to the argument is this: the ability to remove a subordinate executive officer, being an essential of effective government, will, in the absence of express constitutional provision to the contrary, be deemed to have been vested in some person or body. Compare 38 U. S. 13 Pet. 230, 38 U. S. 259 . But it is not a power inherent in a chief executive. The President's power of removal from statutory civil inferior offices, like the power of appointment to them, comes immediately from Congress. It is true that the exercise of the power of removal is said to be an executive act, and that, when the Senate grants or withholds consent to a removal by the President, it participates in an executive act. [ Footnote 2/6 ] But the Constitution has confessedly granted to Congress the legislative power to create offices, and to prescribe the tenure thereof, and it has not in terms denied to Congress the power to control removals. To prescribe the tenure involves prescribing the conditions under which incumbency shall cease. For the possibility of removal is a condition or qualification of the tenure. [ Footnote 2/7 ] When Congress provides that the incumbent Page 272 U. S. 246 shall hold the office for four years unless sooner removed with the consent of the Senate, it prescribes the term of the tenure. It is also argued that the clauses in Article II, § 3, of the Constitution, which declare that the President "shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States" imply a grant to the President of the alleged uncontrollable power of removal. I do not find in either clause anything which supports this claim. The provision that the President "shall Commission all the Officers of the United States" clearly bears no such implication. Nor can it be spelled out of the direction that "he shall take Care that the Laws be faithfully executed." There is no express grant to the President of incidental powers resembling those conferred upon Congress by clause 18 of Article I, § 8. A power implied on the ground that it is inherent in the executive, must, according to established principles Page 272 U. S. 247 of constitutional construction, be limited to "the least possible power adequate to the end proposed." Compare Marshall v. Gordon, 243 U. S. 521 , 243 U. S. 541 ; Michaelson v. United States, 266 U. S. 42 , 266 U. S. 66 . The end to which the President's efforts are to be directed is not the most efficient civil service conceivable, but the faithful execution of the laws consistent with the provisions therefor made by Congress. A power essential to protection against pressing dangers incident to disloyalty in the civil service may well be deemed inherent in the executive office. But that need, and also insubordination and neglect of duty, are adequately provided against by implying in the President the constitutional power of suspension. [ Footnote 2/8 ] Such provisional executive power is comparable to the provisional judicial power of granting a restraining order without notice to the defendant and opportunity to be heard. Power to remove, as well as to suspend, a high political officer might conceivably be deemed indispensable to democratic government and, hence, inherent in the President. But power to remove an inferior administrative officer appointed for a fixed term cannot conceivably be deemed an essential of government. To imply a grant to the President of the uncontrollable power of removal from statutory inferior executive offices involves an unnecessary and indefensible limitation upon the constitutional power of Congress to fix the tenure of inferior statutory offices. That such a limitation cannot be justified on the ground of necessity is demonstrated by the practice of our governments, state and national. In none of the original thirteen States did the chief executive Page 272 U. S. 248 possess such power at the time of the adoption of the Federal Constitution. In none of the forty-eight States has such power been conferred at any time since by a state constitution, [ Footnote 2/9 ] with a single possible exception. [ Footnote 2/10 ] In a few States, the legislature has granted to the governor, or other Page 272 U. S. 249 appointing power, the absolute power of removal. [ Footnote 2/11 ] The legislative practice of most States reveals a decided tendency to limit, rather than to extend, the governor's power of removal. [ Footnote 2/12 ] The practice of the Federal Government will be set forth in detail. Page 272 U. S. 250 Over removal from inferior civil offices, Congress has, from the foundation of our Government, exercised continuously some measure of control by legislation. The instances of such laws are many. Some of the statutes were directory in character. Usually, they were mandatory. Some of them, comprehensive in scope, have endured for generations. During the first forty years of our Government, there was no occasion to curb removals. [ Footnote 2/13 ] Then, the power of Congress was exerted to ensure removals. Thus, the Act of September 2, 1789, c. 12, 1 Stat. 65, 67, establishing the Treasury Department, provided by § 8 that, if any person appointed to any office by that Act should be convicted of offending against any of its provisions, he shall "upon conviction be removed from office." The Act of March 3, 1791, c. 18, § 1, 1 Stat. 215, extended the provision to every clerk employed in the Department. Page 272 U. S. 251 The Act of May 8, 1792, c. 37, § 12, 1 Stat. 279, 281, extended it further to the Commissioner of the Revenue and the Commissioners of Loans, presidential appointments. The first Tenure of Office Act, May, 15, 1820, c. 102, 3 Stat. 582, introduced the four-year term, which was designed to ensure removal under certain conditions. [ Footnote 2/14 ] The Act of January 31, 1823, c. 9, § 3, 3 Stat. 723, directed that officers receiving public money and failing to account quarterly shall be dismissed by the President unless they shall account for such default to his satisfaction. The Act of July 2, 1836, c. 270, §§ 26, 37, 5 Stat. 80, 86, 88, which first vested the appointment of postmasters in the President by and with the advice and consent of the Senate, directed that postmasters and others offending against certain prohibitions "be forthwith dismissed from office;" and as to other offences provided Page 272 U. S. 252 for such dismissal upon conviction by any court. The Act of July 17, 1854, c. 84, § 6, 1 Stat. 305, 306, which authorized the President to appoint registers and receivers, provided that, "on satisfactory proof that either of said officers, or any other officer, has charged or received fees or other rewards not authorized by law, he shall be forthwith removed from office. [ Footnote 2/15 ]" In the later period, which began after the spoils system had prevailed for a generation, [ Footnote 2/16 ] the control of Congress over inferior offices was exerted to prevent removals. The removal clause here in question was first introduced by the Currency Act of February 25, 1863, c. 58, § 1, 12 Stat. 665, which was approved by President Lincoln. That statute provided for the appointment of the Comptroller, Page 272 U. S. 253 and that he "shall hold his office for the term of five years unless sooner removed by the President, by and with the advice and consent of the Senate." In 1867, this provision was inserted in the Tenure of Office Act, March 2, 1867, c. 154, §§ 1, 3, 6, 14 Stat. 431, which applied, in substance, to all presidential offices. It was passed over President Johnson's veto. [ Footnote 2/17 ] In 1868, after the termination of the impeachment proceedings, the removal clause was inserted in the Wyoming Act of July 25, 1868, c. 235, §§ 2, 3, 9, 10, 15 Stat. 178-181, which was approved by President Johnson. By Act of June 8, 1872, c. 335, 17 Stat. 283, a consolidation and revision of the postal laws was made. T he removal clause was inserted in § 63 in the precise form in which it had first appeared in the Currency Act of 1863. From the Act of 1872, it was carried as § 3830 into Revised Statutes, which consolidated the statutes in force December 1, 1873. The Act of 1872 was amended by the Act of June 23, 1874, c. 456, § 11, 18 Stat. 231, 234, so as to reduce the classes of postmasters outside New York City from five to four. The removal clause was again inserted. When the specific classification of New York City in § 11 of the Act of 1874 was repealed by the Act of July 12 1876, c. 179, § 4, 19 Stat. 80, the removal clause was retained. Thus, postmasters of the first three classes were made, independently of the Tenure of Office Act, subject to the removal clause. Each of these postal statutes was approved by President Grant. When President Cleveland secured, by Act of March 3, 1887, c. 353, 24 Stat. 500, the repeal of §§ 1767 to 1772 of Revised Statutes (which had reenacted as to all presidential offices the removal provision of the Tenure of Office Act), he made no attempt to apply the repeal to postmasters, although postmasters constituted then, as they have ever since, a large majority of all presidential appointees. The removal clause, which Page 272 U. S. 254 had become operative as to them by specific legislation, was continued in force. For more than half a century, this postal law has stood unmodified. No President has recommended to Congress that it be repealed. A few proposals for repeal have been made by bills introduced in the House. Not one of them has been considered by it. [ Footnote 2/18 ] It is significant that President Johnson, who vetoed in 1867 the Tenure of Office Act which required the Senate's consent to the removal of high political officers, approved other acts containing the removal clause which related only to inferior officers. Thus, he had approved the Act Page 272 U. S. 255 of July 13, 1866, c. 176, § 5, 14 Stat. 90, 92, which provided that "no officer in the military or naval service shall, in time of peace, be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof. [ Footnote 2/19 ]" And in 1868, he approved the Wyoming Act, which required such consent to the removal of inferior officers who had been appointed for fixed terms. It is significant also that the distinction between high political officers and inferior ones had been urged in the Senate in 1867 by Reverdy Johnson, when opposing the passage of the Tenure of Office Act. [ Footnote 2/20 ] It had apparently been recognized in 1789 at the time of the great debate in the First Congress, and by Chief Justice Marshall in 1807. [ Footnote 2/21 ] Page 272 U. S. 256 It had been repeatedly pointed out in later years. [ Footnote 2/22 ] Page 272 U. S. 257 The administrative action of President Johnson under the Tenure of Office Act indicates likewise a recognition of this distinction between inferior and high political offices. The procedure prescribed in § 2 required of the President a report to the Senate of the reasons for a suspension, and also made its consent essential to a removal. In respect to inferior officers, this course appears to have been scrupulously observed by the President in every case. This is true for the period before the institution of the impeachment proceedings [ Footnote 2/23 ] as well as for the later period. [ Footnote 2/24 ] On the other hand, in the case of a high political officer, Secretary of War Stanton, President Johnson declined on several grounds to follow the procedure prescribed by the Act. 16 Ex.Journ. 95. The requirement that the President should report reasons for suspension to the Senate was not retained by the amended Tenure of Office Act of April 5, 1869, c. 10, 16 Stat. 6; the other provisions, however, were substantially reenacted, and affirmative evidence of compliance by succeeding Presidents with its requirements as to inferior officers is recorded between 1869 and the repeal of the Act in 1887. Suspensions, and not removals, were made during recess. [ Footnote 2/25 ] In those rare instances where removals Page 272 U. S. 258 were sought by means other than the appointment of a "successor," Presidents Grant, Hayes, Garfield and Arthur requested the Senate's consent to the removals. [ Footnote 2/26 ] Where the Senate failed to confirm the nomination of a successor, the former incumbent retained office until either the expiry of his commission or the confirmation of a successor. [ Footnote 2/27 ] Page 272 U. S. 259 From the foundation of the Government to the enactment of the Tenure of Office Act, during the period while it remained in force, and from its repeal to this time, the administrative practice in respect to all offices has, so far as appears, been consistent with the existence in Congress of power to make removals subject to the consent of the Senate. [ Footnote 2/28 ] The practice during the earlier period was described by Webster in addressing the Senate on February 16, 1835: "If one man be Secretary of State, and another be appointed, the first goes out by the mere force of the appointment Page 272 U. S. 260 of the other, without any previous act of removal whatever. And this is the practice of the government, and has been from the first. In all the removals which have been made, they have generally been effected simply by making other appointments. I cannot find a case to the contrary. There is no such thing as any distinct official act of removal. I have looked into the practice and caused inquiries to be made in the departments, and I do not learn that any such proceeding is known as an entry or record of the removal of an officer from office, and the President could only act, in such cases, by causing some proper record or entry to be made, as proof of the Page 272 U. S. 261 fact of removal. I am aware that there have been some cases in which notice has been sent to persons in office that their services are, or will be, after a given day, dispensed with. These are usually cases in which the object is not to inform the incumbent that he is removed, but to tell him that a successor either is, or by a day named will be, appointed." 4 Works, 8th ed., 189. In 1877, President Hayes, in a communication to the Senate in response to a resolution requesting information as to whether removals had been made prior to the appointment of successors, said: "In reply, I would respectfully inform the Senate that, in the instances referred to, removals had not been made at the time the nominations were sent to the Senate. The form used for such nominations was one found to have ben in existence and heretofore used in some of the Departments, and was intended to inform the Senate that, if the nomination proposed were approved, it would operate to remove an incumbent whose name was indicated. R. B. Hayes." 7 Messages and Papers of the President, 481. Between 1877 and 1899, the latest date to which the records of the Senate are available for examination, the practice has, with few exceptions, been substantially the same. [ Footnote 2/29 ] It is doubtless because of this practice, and the long settled rule recently applied in Wallace v. United States, 257 U. S. 541 , 257 U. S. 545 , that this Court has not had occasion heretofore to pass upon the constitutionality of the removal clause. Page 272 U. S. 262 The practice of Congress to control the exercise of the executive power of removal from inferior offices is evidenced by many statutes which restrict it in many ways besides the removal clause here in question. Each of these restrictive statutes became law with the approval of the President. Every President who had held office since 1861, except President Garfield, approved one or more of such statutes. Some of these statutes, prescribing a fixed term, provide that removal shall be made only or one of several specified causes. [ Footnote 2/30 ] Some provide a fixed term, subject generally to removal for cause. [ Footnote 2/31 ] Some provide Page 272 U. S. 263 for removal only after hearing. [ Footnote 2/32 ] Some provide a fixed term, subject to removal for reasons to be communicated by the President to the Senate. [ Footnote 2/33 ] Some impose the restriction in still other ways. Thus, the Act of August 24, 1912, c. 389, § 6, 37 Stat. 539, 555, which deals only with persons in the classified civil service, prohibits removal "except for such cause as will promote the efficiency of the service and for reasons given in writing," and forbids removal for one cause which had theretofore been specifically prescribed by President Roosevelt and President Taft as a ground for dismissal. [ Footnote 2/34 ] The Budget Page 272 U. S. 264 Act of June 10, 1921, c. 18 § 303, 42 Stat. 20, 24, provides a fixed term for the Comptroller General and the Assistant Comptroller General, and makes these officers removable only by impeachment or by Joint resolution of Congress, after hearing, for one of the causes specified. It should be noted that, while President Wilson had, on June 4, 1920, vetoed an earlier Budget Act, which, like this, denied to the President any participation in the removal, he had approved the Mediation and Conciliation Act of July 15, 1918, and the Railroad Labor Board Act of February 28, 1920, which prohibited removals except for the causes therein specified. The assertion that the mere grant by the Constitution of executive power confers upon the President as a prerogative the unrestricted power of appointment and of removal from executive offices, except so far as otherwise expressly provided by the Constitution, is clearly inconsistent also with those statutes which restrict the exercise by the President of the power of nomination. There is not a word in the Constitution which, in terms, authorizes Page 272 U. S. 265 Congress to limit the President's freedom of choice in making nominations for executive offices. It is to appointment, as distinguished from nomination, that the Constitution imposes in terms the requirement of Senatorial consent. But a multitude of laws have been enacted which limit the President's power to make nominations, and which, through the restrictions imposed, may prevent the selection of the person deemed by him best fitted. Such restriction upon the power to nominate has been exercised by Congress continuously since the foundation of the Government. Every President has approved one or more of such acts. Every President has consistently observed them. This is true of those offices to which he makes appointments without the advice and consent of the Senate, as well as of those for which its consent is required. Thus, Congress has, from time to time, restricted the President's selection by the requirement of citizenship. [ Footnote 2/35 ] Page 272 U. S. 266 It has limited the power of nomination by providing that the office may be held only by a resident of the United States; [ Footnote 2/36 ] of a State; [ Footnote 2/37 ] of a particular State; [ Footnote 2/38 ] of a particular Page 272 U. S. 267 district; [ Footnote 2/39 ] of a particular territory; [ Footnote 2/40 ] of the District of Columbia; [ Footnote 2/41 ] of a particular foreign country. [ Footnote 2/42 ] It has limited the power of nomination further by prescribing specific professional attainments, [ Footnote 2/43 ] or occupational Page 272 U. S. 268 experience. [ Footnote 2/44 ] It has, in other cases, prescribed the test of examinations. [ Footnote 2/45 ] It has imposed the requirement of Page 272 U. S. 269 age; [ Footnote 2/46 ] of sex ; [ Footnote 2/47 ] of race; [ Footnote 2/48 ] of property; [ Footnote 2/49 ] and of habitual temperance in the use of intoxicating liquors. [ Footnote 2/50 ] Congress Page 272 U. S. 270 has imposed like restrictions on the power of nomination by requiring political representation; [ Footnote 2/51 ] or that the selection Page 272 U. S. 271 be made on a nonpartisan basis. [ Footnote 2/52 ] It has required in some cases that the representation be industrial; [ Footnote 2/53 ] in Page 272 U. S. 272 others, that it be geographic. [ Footnote 2/54 ] It has at times required that the President's nominees be take from, or include Page 272 U. S. 273 representatives from, particular branches or departments of the Government. [ Footnote 2/55 ] By still other statutes, Congress Page 272 U. S. 274 has confined the President's selection to a small number of persons to be named by others. [ Footnote 2/56 ] The significance of this mass of legislation restricting the power of nomination is heightened by the action which President Jackson and the Senate took when the right to impose such restrictions was, so far as appears, first mooted. On February 3, 1831, the Senate resolved that it was inexpedient to appoint a citizen of one State to an office created or made vacant in another State of which such citizen was not a resident, unless an apparent necessity for such appointment existed. 4 Ex.Journ. 150. Page 272 U. S. 275 Several nominations having been rejected by the Senate in accordance with the terms of this resolution, President Jackson communicated his protest to the Senate, on March 2, 1833, saying that he regarded "that resolution, in effect, as an unconstitutional restraint upon the authority of the President in relation to appointments to office." Thereupon, the Senate rescinded the resolution of 1831. 4 Ex.Journ. 331. But that Congress had the power was not questioned. The practice of prescribing by statute that nominations to an inferior presidential office shall be limited to residents of a particular State or district has prevailed, without interruption, for three-quarters of a century. [ Footnote 2/57 ] The practical disadvantage to the public service of denying to the President the uncontrollable power of removal from inferior civil offices would seem to have been exaggerated. Upon the service, the immediate effect would ordinarily be substantially the same whether the President, acting alone, has or has not the power of removal. For he can, at any time, exercise his constitutional right to suspend an officer and designate some other person to act temporarily in his stead, and he cannot, while the Senate is in session, appoint a successor without its consent. Compare Embry v. United States, 100 U. S. 680 . On the other hand, to the individual in the public service, and to the maintenance of its morale, the existence of a power in Congress to impose upon the Senate the duty to share in the responsibility for a removal is of paramount importance. The Senate's consideration of Page 272 U. S. 276 a proposed removal may be necessary to protect reputation and emoluments of office from arbitrary executive action. Equivalent protection is afforded to other inferior officers whom Congress has placed in the classified civil service and which it authorizes the heads of departments to appoint and to remove without the consent of the Senate. Act of August 24, 1912, c. 389, § 6, 37 Stat. 539, 55. The existence of some such provision is a common incident of free governments. In the United States, where executive responsibility is not safeguarded by the practice of parliamentary interpellation, such means of protection to persons appointed to office by the President with the consent of the Senate is of special value. Until the Civil Service Law, January 16, 1883, c. 27, 22 Stat. 403, was enacted, the requirement of consent of the Senate to removal and appointment was the only means of curbing the abuses of the spoils system. The contest over making Cabinet officers subject to the provisions of the Tenure of Office Act of 1867 has obscured the significance of that measure as an instrument designed to prevent abuses in the civil service. [ Footnote 2/58 ] But the importance of the measure as a means of civil service reform was urged at the time of its passage; [ Footnote 2/59 ] again, Page 272 U. S. 277 when its repeal was resisted in 1869 [ Footnote 2/60 ] and in 1872; [ Footnote 2/61 ] and finally in 1887, when its repeal was effected. [ Footnote 2/62 ] That Act Page 272 U. S. 278 was one of two far reaching measures introduced in 1866 aimed at the abuses of executive patronage. The Jenckes bill was to establish the classified service. The Tenure of Office bill was to control removals from presidential offices. Like the Jenckes bill, it applied, when introduced, only to inferior offices. The Jenckes bill, reported by the House Committee on June 13, 1866, was finally tabled in the House on February 6, 1867. [ Footnote 2/63 ] The Tenure of Office bill was reported out in the House on December 5, 1866, Page 272 U. S. 279 was amended by the Conference Committee so as to apply to Cabinet officers, and, having passed both Houses, was sent to the President on February 20, 1867, and passed over his veto on March 2, 1867. The fact that the removal clause had been inserted in the Currency bill of 1863, shows that it did not originate in the contest of Congress with President Johnson, as has been sometimes stated. Thirty years before that, it had been recommended by Mr. Justice Story as a remedial measure, after the wholesale removals of the first Jackson administration. The Post Office Department was then the chief field for plunder. Vacancies had been created in order that the spoils of office might be distributed among political supporters. Fear of removal had been instilled in continuing office holders to prevent opposition or lukewarmness in support. Gross inefficiency and hardship had resulted. Several remedies were proposed. One of the remedies urged was to require the President to report to the Senate the reasons for each removal. [ Footnote 2/64 ] The second was to take the power of appointing postmasters from the Postmaster General and to confer it upon the President, subject to the consent of the Senate. [ Footnote 2/65 ] A third Page 272 U. S. 280 proposal was to require consent of the Senate also to removals. [ Footnote 2/66 ] Experience since has taught that none of these remedies is effective. Then, however, Congress adopted the second measure. The evil continued, and the struggle against the spoils system was renewed. The Page 272 U. S. 281 other crude remedies which had been rejected -- accountability of the President to the Senate [ Footnote 2/67 ] and the requirement of its consent to removals [ Footnote 2/68 ] -- were again considered. Page 272 U. S. 282 And both continued to be urged upon Congress, even after the fourth and the more promising remedy enquiry into fitness for office and competitive examinations had been proposed. For a generation, the reformers failed to secure the adoption of any further measure. The first substantial victory of the civil service reform movement, though a brief one, was the insertion of the removal clause in the Currency bill of 1863. [ Footnote 2/69 ] The next forward step was taken by the Consular and Diplomatic Appropriation Act, June 20, 1864, c. 136, § 2, 13 Stat. 137, 139-140, also approved by President Lincoln, which contained a provision that consular clerks should be appointed by the President after examination, and that "no clerk so appointed shall be removed from office except for cause stated in writing, which shall be submitted to congress at the session first following such removal. [ Footnote 2/70 ]" It was in the next Congress that the removal clause was applied generally by the Tenure of Office Act. The long delay in adopting legislation to curb removals was not because Congress accepted the doctrine that the Constitution Page 272 U. S. 283 had vested in the President uncontrollable power over removal. It was because the spoils system held sway. The historical data submitted present a legislative practice, established by concurrent affirmative action of Congress and the President, to make consent of the Senate a condition of removal from statutory inferior, civil, executive offices to which the appointment is made for a fixed term by the President with such consent. They show that the practice has existed, without interruption, continuously for the last fifty-eight years; that, throughout this period, it has governed a great majority of all such offices; that the legislation applying the removal clause specifically to the office of postmaster was enacted more than half a century ago, and that recently the practice has, with the President's approval, been extended to several newly created offices. The data show further that the insertion of the removal clause in acts creating inferior civil offices with fixed tenure is part of the broader legislative practice, which has prevailed since the formation of our Government, to restrict or regulate in many ways both removal from and nomination to such offices. A persistent legislative practice which involves a delimitation of the respective powers of Congress and the President, and which has been so established and maintained, should be deemed tantamount to judicial construction in the absence of any decision by any court to the contrary. United States v. Midwest Oil Co., 236 U. S. 459 , 236 U. S. 469 . The persuasive effect of this legislative practice is strengthened by the fact that no instance has been found, even in the earlier period of our history, of concurrent affirmative action of Congress and the President which is inconsistent with the legislative practice of the last fifty-eight years to impose the removal clause. Nor has any instance been found of action by Congress which involves Page 272 U. S. 284 recognition in any other way of the alleged uncontrollable executive power to remove an inferior civil officer. The action taken by Congress in 1789 after the great debate does not present such an instance. The vote then taken did not involve a decision that the President had uncontrollable power. It did not involve a decision of the question whether Congress could confer upon the Senate the right, and impose upon it the duty, to participate in removals. It involved merely the decision that the Senate does not, in the absence of legislative grant thereof, have the right to share in the removal of an officer appointed with its consent, and that the President has, in the absence of restrictive legislation, the constitutional power of removal without such consent. Moreover, as Chief Justice Marshall recognized, the debate and the decision related to a high political office, not to inferior ones. [ Footnote 2/71 ] Nor does the debate show that the majority of those then in Congress thought that the President had the uncontrollable power of removal. The Senators divided equally in their votes. As to their individual views, we lack knowledge; for the debate was secret. [ Footnote 2/72 ] In the House, only 24 of the 54 members voting took part in the debate. Of the 24, only 6 appear to have held the opinion that the President possessed the uncontrollable power of removal. The clause which involve a denial of the claim that the Senate had the constitutional right to participate in removals was adopted, so far as appears, by aid of the votes of others who believed it expedient for Page 272 U. S. 285 Congress to confer the power of removal upon the President alone. [ Footnote 2/73 ] This is indicated both by Madison's appeal for support [ Footnote 2/74 ] and by the action taken on Benson's motions. [ Footnote 2/75 ] Page 272 U. S. 286 It is true that several Presidents have asserted that the Constitution conferred a power of removal uncontrollable Page 272 U. S. 287 by Congress. [ Footnote 2/76 ] But, of the many statutes enacted since the foundation of our Government which in express terms controlled the power of removal, either by the clause here in question or otherwise, only two were met with a veto: The Tenure of Office Act of 1867, which related to high political officers among others, and the Budget Act of 1920, which denied to the President any participation in the removal of the Comptroller and Assistant Comptroller. One was passed over the President's veto; the other was approved by the succeeding President. It is true also that several Presidents have at times insisted that, for the exercise of their power they were not accountable to the Senate. [ Footnote 2/77 ] But even these Presidents Page 272 U. S. 288 have at other times complied with requests that the ground of removal of inferior officers be stated. [ Footnote 2/78 ] Many of the Presidents have furnished the desired information Page 272 U. S. 289 without questioning the right to request it. [ Footnote 2/79 ] And neither the Senate nor the House has at any time receded Page 272 U. S. 290 from the claim that Congress has power both to control by legislation removal from inferior offices and to require the President to report to it the reasons for removals made therefrom. [ Footnote 2/80 ] Moreover, no instance has been found in which President refused to comply with an Act of Congress requiring that the reasons for removal of an inferior officer be given. On the contrary, President Cleveland, who refused to accede to the request of the Senate that he state the reasons for the removal of Duskin, had, in the case of Burchard, complied, without protest or reservation, Page 272 U. S. 291 with the requirement of the Act of February 12, 1873, c. 131, § 1, 17 Stat. 424 (now Rev.Stat. § 343) that the reasons for the removal of the Director of the Mint be communicated by him to the Senate. 25 Ex.Journ. 242. A construction given to the Constitution by the concurrent affirmative action of Congress and the President continued throughout a long period without interruption should be followed despite the isolated utterances, made in the heat of political controversies not involving the question here in issue by individual Presidents supported only by the advice of the Attorney General. [ Footnote 2/81 ] The separation of the powers of government did not make each branch completely autonomous. It left each in some measure dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial. Obviously the President cannot secure full execution of the Page 272 U. S. 292 laws, if Congress denies to him adequate means of doing so. Full execution may be defeated because Congress declines to create offices indispensable for that purpose. Or because Congress, having created the office, declines to make the indispensable appropriation. Or because Congress, having both created the office and made the appropriation, prevents, by restrictions which it imposes, the appointment of officials who in quality and character are indispensable to the efficient execution of the law. If, in any such way, adequate means are denied to the President, the fault will lie with Congress. The President performs his full constitutional duty if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted. Compare 37 U. S. United States, 12 Pet. 524, 37 U. S. 613 , 37 U. S. 626 . Checks and balances were established in order that this should be "a government of laws, and not of men." As White said in the House in 1789, an uncontrollable power of removal in the Chief Executive "is a doctrine not to be learned in American governments." Such power had been denied in Colonial Charters, [ Footnote 2/82 ] and even under Proprietary Page 272 U. S. 293 Grants [ Footnote 2/83 ] and Royal Commissions. [ Footnote 2/84 ] It had been denied in the thirteen States before the framing of the Federal Constitution. [ Footnote 2/85 ] The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. In order to prevent arbitrary executive action, the Constitution provided in terms that presidential appointments be made with the consent of the Senate, unless Congress should otherwise provide, and this clause was construed by Alexander Hamilton in The Federalist, No. 77, as requiring like consent to removals. [ Footnote 2/86 ] Limiting further executive Page 272 U. S. 294 prerogatives customary in monarchies, the Constitution empowered Congress to vest the appointment of inferior officers, "as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Nothing in support of the claim of uncontrollable power can be inferred from the silence of the Convention of 1787 on the subject of removal. For the outstanding fact remains that every specific proposal to confer such uncontrollable power upon the President was rejected. [ Footnote 2/87 ] In America, as in England, the conviction prevailed then that the people must look to representative Page 272 U. S. 295 assemblies for the protection of their liberties. And protection of the individual, even if he be an official, from the arbitrary or capricious exercise of power was then believed to be an essential of free government. [ Footnote 2/1 ] Prior to the Act of July 2, 1836, c. 270, § 33, 5 Stat. 80, 87, all postmasters were appointed by the Postmaster General. Fourth class postmasters are still appointed by him. See Acts of May 8, 1794, c. 23, § 3, 1 Stat. 354, 357; April 30, 1810, c. 37, §§ 1, 5, 28, 40, 42, 2 Stat. 592; March 3, 1825, c. 64, § 1, 4 Stat. 102; March 3, 1863, c. 71, § 1, 12 Stat. 701; July 1, 1864, c.197, § 1, 13 Stat. 335. [ Footnote 2/2 ] The removal provision was introduced specifically into the postal legislation by Act of Jan 8, 1872, c. 335, § 63, 17 Stat. 283, 292, and reenacted, in substance, in Act of June 23, 1874, c. 456, § 11, 18 Stat. 231, 234; in the Revised Statutes, § 3830, and the Act of 1876. [ Footnote 2/3 ] During the year ending June 30, 1913, there were in the civil service 10,543 presidential appointees. Of these 8,423 were postmasters of the first, second and third classes. Report of U.S. Civil Service Commission for 1913, p. 8. During the year ending June 30, 1923, the number of presidential appointees was 16,148. The number of postmasters of the first, second and third classes was 14,261. Report for 1923, pp. xxxii, 100. [ Footnote 2/4 ] In McAllister v. United States, 141 U. S. 174 , 141 U. S. 189 , it was said by this Court of the decision in Marbury v. Madison: "On the contrary, the Chief Justice asserted the authority of Congress to fix the term of a Justice of the Peace in the District of Columbia beyond the power of the President to lessen it by removal. . . ." The same significance is attached to the decision in 1 Kent, Commentaries, 12th ed., 311, note 1. Reverdy Johnson, who had been Attorney General, said of Marbury v. Madison while addressing the Senate on Jan. 15, 1867, in opposition to the Tenure of Office bill: "But, says my brother and friend from Oregon, that case decided that the President had no right to remove. Surely that is an entire misapprehension. The Constitution gives to the President the authority to appoint, by and with the advice and consent of the Senate, to certain high offices, but gives to Congress the power to vest the appointment and to give the removal of inferior officers to anybody they think proper, and these justices of the peace were inferior, and not high, officers within the meaning of those two terms in the Constitution. Congress, therefore, by providing that such an officer should hold his commission for four years, removed the officer from the power of removal of the President, as they could have taken from him the power to appoint. Nobody doubts that, if they were inferior officers, as they were, Congress might have given the power to appoint those officers to the people of the district by election, or to any individual that they might think proper, or to any tribunal other than the executive department of the Government. They had a right, although they thought proper to give it to the President himself, to provide that it should endure for four years against any such power of removal. That is all the case decided upon that question." Cong.Globe, 39th Cong., 2d sess., 461. See 272 U.S. 52 fn2/71|>Note 71, infra. [ Footnote 2/5 ] In United States v. Avery, 1 Deady 204, the statute creating the office did not prescribe a fixed tenure and there was no provision for removal only by and with the consent of the Senate. In United States v. Guthrie , 17 How. 284, 58 U. S. 305 , Mr. Justice McLean, dissenting, denied that the President's power of removal was uncontrollable. In Ex parte Hennen , 13 Pet. 230, 238 [argument of counsel -- omitted], it was stated that, where the power of appointment is vested in the head of a department "the President has certainly no power to remove." State courts have uniformly held that, in the absence of express provision in their constitution to the contrary, legislative restrictions upon the power of removal by the governor, or other appointing power, are valid as applied to persons holding statutory offices. Commonwealth v. Sutherland, 3 Serg. & R. 145, 155; Commonwealth v. Bussier, 5 Serg. & R. 451; also Bruce v. Matlock, 86 Ark. 555; People v. Jewett, 6 Cal. 291; Gray v. McLendon, 134 Ga. 224; Dubuc v. Voss, 19 La.Ann. 210; State v. Cowen, 96 Ohio St. 277; Att'y Gen'l v. Brown, 1 Wis. 513. Compare Rankin v. Jauman, 4 Ida. 53; State v. Curtis, 180 Ind.191; Shira v. State, 187 Ind. 441; State v. Henderson, 145 Ia. 657; Markey v. Schunk, 152 Ia. 508; State v. Martin, 87 Kan. 817; State v. Sheppard, 192 Mo. 497; State v. Sanderson, 280 Mo. 258; State v. District Court, 53 Mont. 350;. State v. Archibald, 5 N.D. 359; State v. Canson, 58 Ohio St. 313; Cameron v. Parker, 2 Okla. 277 ; Christy v. City of Kingfisher, 13 Okla. 585 ; State v. Hewitt, 3 S.D. 187; State v. Kipp, 10 S.D. 495; Skeen v. Paine, 32 Utah 295; State v. Burke, 8 Wash. 412; State v. Grant, 14 Wyo. 41. [ Footnote 2/6 ] Power to remove has been held not to be inherently an executive power in States whose constitution provides in terms for separation of the powers. See 272 U.S. 52 fn2/12|>note 12 infra; also Dullan v. Willson, 53 Mich. 392. [ Footnote 2/7 ] "If a law were to pass declaring that district attorneys or collectors of customs should hold their offices four years unless removed on conviction for misbehavior, no one could doubt its constitutional validity, because the legislature is naturally competent to prescribe the tenure of office. And is a reasonable check on the power of removal anything more than a qualification of the tenure of office?" Webster, Feb. 16, 1835, 4 Works, 8th ed., 197. "It is the legislative authority which creates the office, defines its duties, and may prescribe its duration. I speak, of course, of offices not created by the constitution, but the law. The office, coming into existence by the will of Congress, the same will may provide how and in what manner the office and the officer shall both cease to exist. It may direct the conditions on which he shall hold the office, and when and how he shall be dismissed." Clay, Feb. 18, 1835, 11 Cong. Deb. 518. "Congress shall have power to make all laws not only to carry into effect the powers expressly delegated to itself, but those delegated to the Government, or any department or office thereof, and, of course, comprehends the power to pass laws necessary and proper to carry into effect the powers expressly granted to the executive department. It follows, of course, to whatever express grant of power to the Executive the power of dismissal may be supposed to attach, whether to that of seeing the law faithfully executed, or to the still more comprehensive grant, as contended for by some, vesting executive powers in the President, the mere fact that it is a power appurtenant to another power, and necessary to carry it into effect, transfers it, by the provisions of the constitution cited, from the Executive to Congress, and places it under the control of Congress, to be regulated in the manner which it may judge best." Calhoun, Feb. 20, 1835, 11 Cong.Deb. 553. [ Footnote 2/8 ] See Debate of 1789 (June 17), Stone: "All the difficulties and embarrassments that have been mentioned can be removed by giving to the President the power of suspension during the recess of the Senate, and I think that an attention to the Constitution will lead us to decide that this is the only proper power to be vested in the President of the United States." 1 Ann.Cong. 495; also Gerry, 1 Ann.Cong. 504; Sherman, 1 Ann.Cong. 492; Jackson, 1 Ann.Cong. 489. [ Footnote 2/9 ] New York: Constitution of 1777, amended 1801. The powers of appointment and removal were vested in the Council of Appointment. People v. Foot, 19 Johns. 58. By later constitutions or amendments, varying restrictions were imposed on the governor's power of removal. 4 Lincoln, Constitutional History of New York, 554-594, 724-733. Massachusetts: Constitution of 1780. Appointments to be made by governor with the advice and consent of the council. No express provision for removals. By early practice, the council was associated with the governor in removals. The Constitutional Amendment of 1855 altering the manner of appointment left the practice as to removals unchanged. Opinion of the Justices, 3 Gray 601, 605. New Hampshire: Constitution of 1784. Provision and practice the same as Massachusetts. By Laws of 1850, c. 189, § 4, the legislature further limited the governor's power of removal over certain inferior offices. New Jersey: Constitution of 1776. The "supreme executive power" of the governor was limited to commissioning officers appointed by the council and assembly. Pennsylvania: Constitution of 1790. Appointing power vested in the governor alone. In the absence of restrictive legislation, he exercised the power of removal. Biddle, Autobiography, 283. Control by the legislature of his power of removal from inferior offices had early judicial sanction. Commonwealth v. Sutherland, 3 Serg. & R. 145. Maryland: The governor seems to have had such power under the constitution of 1776, but it was later taken away. The Constitutional Convention of 1851 considered but refused to grant the governor the sole power of removal. Cull v. Wheltle, 114 Md. 58, 80. Illinois: Constitution of 1818 was construed as denying the power of removal to the governor acting alone. Field v. People, 2 Scam. 79. The Constitution of 1870, Art. 5, § 12, conferred the power, but only for certain specified causes. In Maine and Florida, concurrent action of the senate is a constitutional requirement. Opinion of the Justices, 72 Me. 542; Advisor Opinion to the Governor, 69 Fla. 508. [ Footnote 2/10 ] The Pennsylvania Constitution of 1873 provided that "appointed officers . . . may be removed at the pleasure of the power by which they shall have been appointed." Art. VI, § 4. The Supreme Court held as to petty officers or subordinate ministerial agents appointed by the governor, that his power of removal is controllable, and that a statute prohibiting removal except for specified causes is valid. Commonwealth v. Black, 201 Pa.St. 433. Officials deemed agents of the legislature are also held to be without the scope of the governor's power of removal. Commonwealth v. Benn, 284 Pa.St. 421. [ Footnote 2/11 ] Oregon has, by statute, conferred a general power of removal upon the governor. 1920 Olson's Oregon Laws, § 4043. Vermont had also vested the power of removal with the governor. 1917 Vt.Gen.Laws, § 356. It later, however, placed restrictions upon the governor's power of removing members of the State Board of Education. 1917 Vt.Gen.Laws, § 1170. See Wyoming Act of Feb. 20, 1905, c. 59, State v. Grant, 14 Wyo. 41, 59-60. Compare State v. Peterson, 50 Minn. 239; State v. Hawkins, 44 Ohio St. 98. [ Footnote 2/12 ] By statute, in some States, removals can be made only upon concurrence of the senate or legislature with the governor. 1914 Ga.Civ.Code, § 2618; 1924 Ia.Code, § 315; N.Y.Consol.Laws, c. 47, § 3?; 1921 Throckmorton Ohio Gen.Code, § 13; 1913 Pa.Laws, 1374, 1401; 1923 R.I. Gen Laws, § 384; 1924 Va.Code, § 330. In some, the governor is required merely to record his reasons for dismissal. Conn.Rev.Stats. § 86; 1905 Wyo.Laws, c. 59. In many States, the power of removal is limited by statute to specific instances of misconduct or misbehavior in office. 1921 Colo.Comp.Laws, § 138; Carroll's Ky.Stats. § 3750; 1915 Mich.Comp.Laws, §§ 243, 252 (during recess of legislature only); 1913 N.D.Comp.Laws, § 685; 1910 Okla.Rev.Stats. § 8052; 1919 S.D.Rev.Code, §§ 7009, 7010; 1917 Utah Comp.Laws, § 5684 (during recess of legislature only); 1893 Wash.Laws, c. 101. In addition, a statement of record of the reasons for dismissal is often required. 1913 Ariz.Civ.Code, § 247 (inspector of apiaries), § 4757 (board of dental examiners), § 4769 (board of embalmers); 1914 Ga.Code, § 1697(b) (board of medical examiners), § 1963 (state geologist); 1919 Ida.Comp.Stats. § 793 (board of education), § 2398 (utility commissioners); 1855 La.Acts, No. 297, § 13 (public weighers); 1910 Md.Laws, c. 180, § 2 (utility commissioners); 1923 Minn.Gen.Stats. § 2229 (tax officers), § 2356 (tax commission); 1912 Nev.Rev.Laws, § 4432 (dental examiners); 1910 N.Y.Laws, c. 480, § 4 (Public Service Commission); 1921 N.Y.Laws, c. 134 (transit commission); 1921 Throckmorton Ohio Gen.Laws, § 88 (board of clemency), § 488 (utility commissioners), 486-3 (civil service commissioners), § 710-6 (superintendent of banks), § 744-16 (commissioner of securities), § 871-2 (industrial commission), § 1337 (board of embalming examiners), § 1465-2 (tax commission); 1917 Vt.Gen.Laws, § 1170 (board of education). In other States, or for other officers, the laws require the existence of "cause" or provide for notice and hearing. 1919 Mo.Rev.Stat. § 10414 (utility commissioners); 1921 Mont.Pol.Code, § 2820 (industrial accident commission); N.Y.Consol.Laws, c. 46, § 33 (officials appointed by governor alone); 1921 Throckmorton Ohio Gen.Laws, § 1236-4 (board of health), § 1380 (commissioners of state laws); 1920 Tex. Comp.Stats. Art. 4995b (board of water engineers), Art. 6027 (appointees of governor), Art. 6195 (board of prison commissioners), Art. 6286 (board of pharmacy); 1923 Wis.Stats. § 17.07 (appointees of governor). Some statutes make removal dependent upon the recommendation of a board. 1920 Tex. Comp.Stats. Art. 5927 (mining inspectors). [ Footnote 2/13 ] Removals made from 1789 to 1829 of Presidential appointees, exclusive of military officers, were as follows: Washington -- 17, Adams -- 19, Jefferson -- 62, Madison -- 24, Monroe -- 27, J. Q. Adams -- 7, being a total of 156. Fish, Removal of Officials, 1899 Am.Hist.Ass'n Rep. 67. Compare Sen.Rep. No. 576, 47th Cong., 1st sess., Ser. No. 2006, p. iv. "It was the intention of the founders of our Government that administrative officers should hold office during good behavior. . . . Madison, the expounder of the Constitution, said that the wanton removal of a meritorious officer was an impeachable offense. It was the established usage without question or variation during the first forty years of our Government to permit executive officers, except members of the Cabinet, to hold office during good behavior, and this practice was only changed by the four-year tenure act of 1820, which was passed at the instance of an appointing officer for the purpose of using this power to secure his nomination as a Presidential candidate." Report of U.S. Civil Service Commission for 1896, pp. 28-29. [ Footnote 2/14 ] Fish, Civil Service and Patronage, 66-70. Madison, in commenting upon the Four Year Limitation Act of 1820 to President Monroe, recognized the necessary identity of a power to prescribe qualifications of tenure and a power to remove from office. "Is not the law vacating periodically the described offices an encroachment on the Constitutional attributes of the Executive? . . . If a law can displace an officer at every period of four years, it can do so at the end of every year, or at every session of the Senate, and the tenure will then be the pleasure of the Senate as much as of the President, and not of the President alone." 3 Letters and Writings, 200. [ Footnote 2/15 ] The provisions of the Acts of 1789, 1791, 1792, 1836 and 1854, were reenacted in the Revised Statutes, and are still in force. Rev.Stats. §§ 243, 244, 2242, 3947 as amended. Mandatory directions of dismissal for specified offenses are also contained in the Act of Mar. 2, 1867, c. 172, § 3, 14 Stat. 489, 492, reenacted in Rev.Stats. § 1546; Act of Feb. 1, 1870, c. 11, 16 Stat. 63, reenacted in Rev.Stats. § 1784 and Act of Aug. 15, 1876, c. 287, § 6, 19 Stat. 143, 169. From the operation of the latter Act executive officers and employees appointed by the President by and with the advice and consent of the Senate are significantly excepted. [ Footnote 2/16 ] Removals made from 1829 to 1869 of Presidential appointees, exclusive of military officers, were as follows: Jackson -- 180, Van Buren -- 43, Harrison and Tyler -- 389, Polk -- 228, Taylor -- 491, Fillmore -- 73, Pierce -- 771, Buchanan -- 253, Lincoln -- 1400, Johnson -- 726, being a total of 4,554. Fish, Removal of Officials, 1899 Am.Hist.Ass'n Rep. 67. The great increase in removals under President Jackson included offices besides those to which appointments were made by the President and Senate, the accepted estimate during the first year of his administration being 2,000. 2 Story, Constitution, § 1543; House Rep, No 47, 40th Cong., 2d sess., Ser. No. 1352, p. 8. Of these, 491 were postmasters. 1 Am.State Papers, Post Office, 242. The increase in the number of such removals is testified to by the incomplete reports of the following years. The Post Office Department consistently suffered most. See Lucy Salmond, History of the Appointing Power, 1 Am.Hist.Ass'n Papers, No. 5, pp. 67-86. [ Footnote 2/17 ] It was amended by Act of April 5, 1869, c. 10, 16 Stat. 6. [ Footnote 2/18 ] On Feb. 8, 1887, while the bill for the repeal of the Tenure of Office Act was pending, the Committee on Post Offices and Post Roads reported a bill, H.R. 11108, for reclassifying postmasters into three classes, and provided (§ 1) that: "Postmasters of the first and second classes shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years, subject to the provisions of law respecting their removal or suspension, and the filling of vacancies occurring when the Senate shall not be in session. . . . Postmasters of the third class shall be appointed and commissioned by the Postmaster General, and hold their offices during his pleasure." 18 Cong.Rec. 1498. The bill was not considered by Congress. On Jan. 5, 1892, Sherman Hoar introduced a bill (H.R.196) to provide that all postmasters should hold office during good behavior 23 Cong.Rec. 130. § 1 contained the following proviso: "Provided, however, That the President may at any time remove or suspend a postmaster for cause stated." On Dec. 22, 1895, De Forest introduced H.R. 8328, 27 Cong.Rec. 576. Section 2 provided: "That postmasters of all classes now in office or hereafter to be appointed shall be appointed to hold their offices for good behavior; Provided, That the President may at any time remove or suspend a postmaster of the first, second or third class for cause, communicated in writing to the Senate at the next subsequent session of Congress after such removal, and that the Postmaster General may at any time remove or suspend a postmaster of the fourth class for cause, communicated in the letter of removal." Sec. 3 forbade appointment, removal or suspension for political reasons. On Jan. 28, 1896, Gillett introduced the identical bill (H.R. 8328). 28 Cong.Rec. 1061. None of these three bills was considered even by a committee. [ Footnote 2/19 ] This provision was reenacted by Rev.Stats. § 1229. Comp.Sen.Rep. Apr. 4, 1864, No. 42, 38th Cong. 1st sess., Ser. No. 1178. In Blake v. United States, 103 U. S. 227 , 103 U. S. 237 , this provision was interpreted as not denying "the power of the President, by and with the advice and consent of the Senate, to displace them by the appointment of others in their places." The Act of June 4, 1920, c. 227, Art. 118, 41 Stat. 759, 811, provides: "ART. 118. OFFICERS, SEPARATION FROM SERVICE. -- No officer shall be discharged or dismissed from the service, except by order of the President or by sentence of a general court-martial, and in time of peace no officer shall be dismissed except in pursuance of the sentence of a general court-martial or in mitigation thereof; but the President may at any time drop from the rolls of the Army any officer who has been absent from duty three months without leave or who has been absent in confinement in a prison or penitentiary for three months after final conviction by a court of competent jurisdiction." [ Footnote 2/20 ] See 272 U.S. 52 fn2/4|>Note 4, p. 242, supra. [ Footnote 2/21 ] See Lawrence, June 17, 1 Ann.Cong. 483-484; Smith, June 17, 1 Ann.Cong. 508-9; Madison, June 18, 1 Ann.Cong., 547-548. A few days subsequent to the debate on the removal provision in the Act establishing a Department of Foreign Affairs, Madison, although he believed that the power to prescribe the tenure of office and the power of removal were, in essence, the same, moved to amend the Act establishing a Treasury Department by providing that the Comptroller should hold office for a limited period of years. To the objection that such a provision was not within the power of Congress he replied: "When I was up before . . . , I endeavored to show that the nature of this office differed from the others upon which the House had decided; and, consequently, that a modification might take place, without interfering with the former distinction; so that it cannot be said we depart from the spirit of the Constitution." 1 Ann.Cong. 614. Stone, in support of Madison, added: "As the Comptroller was an inferior officer, his appointment might be vested in the President by the Legislature; but, according to the determination which had already taken place, it did not necessarily follow that he should have the power of dismissal, and before it was given, its propriety ought to be apparent." 1 Ann.Cong. 613. See 272 U.S. 52 fn2/71|>Note 71, infra. [ Footnote 2/22 ] In 1830, Senator Barton, in defense of his resolutions denying an uncontrollable Presidential power of removal, said: "It is no question whether a President may remove, at his own will and pleasure, his Secretary of State. That was the very question before Congress in the great debate of 1789. . . . Nobody would wish to force a disagreeable member of the cabinet on the President. . . . But the class of officers now before the Senate, and their predecessors, attempted to be removed by the President, were not under consideration in the debate of 1789. This is a class of public officers -- or officers of the law -- whose term, tenure, and duties of office are fixed and prescribed by the laws of the land, and not by the Executive will, as in the other class. . . . The power is now boldly asserted on this floor by the majority, for the first time since the foundation of the republic, of removing this class of federal officers by the President at discretion, without the slightest restraint by the Senate." 6 Cong. Deb. 458-459. The same distinction was taken in 1835, by Senators Wright and White, in the debate on the Executive Patronage Bill. 11 Cong.Deb. 480, 487. On June 15, 1844, the Senate Committee on Retrenchment dealing with the evils of executive patronage said: "It will be sufficient for the committee to show that Congress may regulate, by law, as well the power to appoint inferior officers as to remove them. . . . The committee will not protract the argument. It is not known to them that the power of Congress to regulate the appointment and removal of inferior officers has been questioned. It is very certain that the authority of the President to control the departments in the exercise of the power has not at any time been recognised by law." Sen.Doc. No. 399, 28th Cong. 1st sess., Ser. No. 437, p. 29-30. [ Footnote 2/23 ] In six instances, President Johnson, in separate messages, communicated his reasons for suspension. 16 Ex.Journ. 3, 109-110, 122, 133. In two further instances, misconduct was given as the ground for suspension. 16 ibid. 1. [ Footnote 2/24 ] Five cases of this nature are on record. 16 Ex.Journ. 411-412. [ Footnote 2/25 ] From President Grant's administration to the close of the first two years of President Cleveland's first administration, nominations of officials to succeed those who had been suspended during the recess follow one of two forms: "I nominate A.B., who was designated during the recess of the Senate, to be ___, vice C.D. suspended," or "I nominate A.B. to be postmaster at ___ in place of C.D., suspended under the provisions of the seventeen hundred and sixty-eighth section of the Revised Statutes of the United States." These forms are not used after Mar. 3, 1887. The case of A.C. Botkin, marshal of Montana Territory, is illustrative of the fact that suspension, and not removal, could be effected during the recess. On Jan. 28, 1885, President Arthur nominated E. A. Kreidler in place of A.C. Botkin to be removed. 24 Ex.Journ. 425. The Senate failed to act upon the nomination, and, on Dec. 21, 1885, President Cleveland nominated R.S. Kelly vice A.C. Botkin suspended. For several months, action upon the nomination was delayed, and, on April 28, 1886, the President sent the following message to the Senate: "I nominated Robert S. Kelly, of Montana, to the Senate on the 21st day of December, 1885, . . . in the place of A.C. Botkin, who was by me suspended under the provisions of section 1708 of the Revised Statutes. On the 12th day of April, 1886, the term of office for which said A.C. Botkin was originally appointed expired. And I renew the nomination of Robert S. Kelly, of Montana, . . . in the place of the said A.C. Botkin, whose term of office has so expired as aforesaid." 25 Ex.Journ. 441. These years of President Cleveland disclose 78 other cases of a similar nature. 25 ibid. 396-410, 426, 436, 441, 488, 490-494, 497, 501, 516, 539, 563, 714-715. [ Footnote 2/26 ] On Dec. 6, 1869, President Grant requested the consent of the Senate to the removal of certain Indian agents, to whose posts army officers had been assigned. 17 Ex.Journ. 289. On May 17, 1872, the Senate gave its consent to the removal of T. H. Bazin, appraiser of merchandise at Charleston, S.C., 18 ibid. 251. On Dec. 4, 1878, President Hayes requested the Senate's consent to the removal of A.M. Devereux, a third lieutenant in the revenue service. 21 ibid. 393. The Senate during that session took no action. To the three succeeding sessions of the Senate, the same request was made without securing its consent. 22 ibid. 23, 108, 410. President Garfield likewise made the same request, but failed to secure any action by the Senate. 23 ibid. 9, 29. On April 15, 1884, President Arthur recommended to the Senate the removal of F. N. Wicker as collector of customs at Key West. 24 ibid. 246. The Senate concurred in his removal without expressing an opinion upon the constitutional powers of the President and Senate upon the subject of removal. 24 ibid. 249. [ Footnote 2/27 ] The instances are numerous, and a few illustrations will suffice. On Mar. 2, 1883, Paul Strobach was nominated as a marshal vice M.C. Osborn to be removed. 23 Ex.Journ. 711. The Senate took no action during that session, and, in the recess, Osborn was suspended. Strobach was again nominated, but was rejected at the next session of the Senate. Thereupon, on May 8, 1884, J. H. Speed was nominated "vice Paul Strobach, temporarily appointed during the recess of the Senate." 24 Ex.Journ. 265. Pending action upon the nomination, President Arthur, on May 14, 1884, again nominated J. H. Speed "vice M.C. Osborn, whose term has expired. This nomination is made to correct an error in the nomination of Joseph H. Speed to the above-named office, which was delivered to the Senate on the 8th instant, and which is hereby withdrawn." 24 Ex.Journ. 267. The correction expressly recognizes that Osborn had never ceased to hold office. Compare 15 Op.A.G. 375. Again, on Mar. 2, 1884, Windus was nominated as a postmaster vice Lambert "whose removal for cause is hereby proposed." 24 Ex.Journ. 220. The Senate rejected Windus, and, on Dec. 17, 1885, President Cleveland nominated Gildea vice Lambert, "whose commission expired May 13, 1885." 25 ibid. 228. On Jan. 6, 1885, Richardson was nominated as a postmaster vice Corson "whose removal for cause is hereby proposed." 24 ibid. 412. The Senate failed to act upon the nomination, and, on April 1, 1885, Cleveland nominated Bonner to the post vice Corson "whose removal for cause is hereby proposed." 25 ibid. 45. [ Footnote 2/28 ] Since the enactment of the Tenure of Office Act, various forms have been used to nominate officials to succeed those whose removal is thereby sought. Examination of their use over a period of thirty-two years indicates that no significance is to be attached to the use of any particular form. Thus, the nomination is sometimes in the form A. B. vice C. D. "removed"; sometimes it is "to be removed"; sometimes "removed for cause "; sometimes "whose removal for cause is hereby proposed." "whose "removed removal for "re- "to be for cause is here moved" removed" cause" by proposed" 1867-1869 (Johnson). . . . . 37 72 3 1869-1873 (Grant). . . . . . 468 464 17 1873-1877 (Grant). . . . . . 120 144 19 1877-1881 (Hayes). . . . . . 8 102 10 42 1881 (Garfield). . . . . . . 1 19 1881-1885 (Arthur) . . . . . 4 78 69 1885-1887 (Cleveland). . . . 15 19 24 1887-1889 (Cleveland). . . . 178 1 1889-1893 (Harrison) . . . . 1080 118 9 1893-1897 (Cleveland). . . . 808 101 1897-1899 (McKinley) . . . . 813 26 Postmasters will be found included within all these categories. 16-31 Ex.Journ., passim. The form "who has been removed" was twice used by President Grant and once by President Harrison. On one occasion, President Grant used the form "whom I desire to remove," and on six occasions President Hayes used the form "to be thus removed." The simple form "removed," which has been exclusively used for postmasters since 1887, does not imply that removal has already been accomplished. That form was used in the Parsons and Shurtleff cases, where the notification of removal sent to the incumbent stated that the removal would take effect upon the qualification of a successor. 29 Ex.Journ. 11; 31 ibid. 1328. [ Footnote 2/29 ] Cases in this Court dealing with the removal of civil officers appointed by the President with the advice and consent of the Senate illustrate the practice of securing their removal by the appointment of a successor. In recent years, the formal notification of removal commonly reads: "Sir: You are hereby removed from the office of ___, to take effect upon the appointment and qualification of your successor." Parsons v. United States, 167 U. S. 324 , 167 U. S. 325 ; Shurtleff v. United States, 189 U. S. 311 , 189 U. S. 312 . [ Footnote 2/30 ] Provisions authorizing removal for (a) Inefficiency, neglect of duty, malfeasance in office, but for no other cause: Act of May 27, 1908, c. 205, § 3, 35 Stat. 403, 406, amending Act of June 10, 1890, c. 407, § 12, 26 Stat. 131, 136, Board of General Appraisers; Act of July 15, 1913, c. 6, § 11, 38 Stat. 103, 108, Commissioner of Mediation and Conciliation (misconduct in office only); Act of June 2, 1924, c. 234, § 900b, 43 Stat. 253, 336, Board of Tax Appeals. (b) Neglect of duty or malfeasance in office, but for no other cause: Act of Feb. 28, 1920, c. 91, § 306(b), 41 Stat. 456, 470, Railroad Labor Board; Act of Sept. 22, 1922, c. 412, § 1, 42 Stat. 1023, amended by Act of Mar. 4, 1923, c. 248, § 1, 42 Stat. 1446, United States Coal Commission. (c) Inefficiency, neglect of duty, malfeasance in office, not restricting, however, under Shurtleff v. United States, 189 U. S. 311 , the President's power to remove for other than the causes specified: Act of Feb. 4, 1887, c. 104, § 11, 24 Stat. 379, 383, Interstate Commerce Commission; Act of June 10, 1890, c. 407, § 12, 26 Stat. 131, 136, Board of General Appraisers; Act of Sept. 26, 1914, c. 311, 1, 38 Stat. 717, 718, Federal Trade Commission; Act of Sept. 7, 1916, c. 451, § 3, 39 Stat. 728, 729, United States Shipping Board; Act of Sept. 8, 1916, c. 473, § 700, 39 Stat. 756, 795, United States Tariff Commission. [ Footnote 2/31 ] Act of June 7, 1878, c. 162, § 1, 20 Stat. 100, justices of the peace of the District of Columbia; Act of June 6, 1900, c. 786, § 10, 31 Stat. 321, 325, governor, surveyor-general, attorneys, marshals of Alaska; Act of Aug. 24, 1912, c. 389, § 6, 37 Stat. 539, 555, removals from the classified civil service to be only for such cause as will promote the efficiency of the service and for reasons stated in writing; Act of July 17, 1916, c. 245, § 3, 39 Stat. 360, Federal Farm Loan Board; Act of June 3, 1922, c. 205, 42 Stat. 620, Federal Reserve Board. The provision is also common with respect to judgeships. Act of Mar.19, 1906, c. 960, § 1, 34 Stat. 73 (Juvenile Court of the District of Columbia); Act of June 30, 1906, c. 3934, § 7, 34 Stat. 814, 816 (United States Court for China); Act of Mar. 3, 1925, c. 443, § 3a, 43 Stat. 1119 (Police Court of the District of Columbia). [ Footnote 2/32 ] Act of May 27, 1908, c. 205, § 3, 35 Stat. 403, 406, does so in express terms. Shurtleff v. United States, 189 U. S. 311 , 189 U. S. 314 , 189 U. S. 317 , declares that, by construction, every Act which prescribes specific causes for removal requires that removal be not made for such cause without a hearing. In Reagan v. United States, 182 U. S. 419 , 182 U. S. 425 , it was said: "The inquiry is therefore whether there were any causes of removal prescribed by law, March 1, 1895, or at the time of the removal. If there were, then the rule would apply that, where causes of removal are specified by constitution or statute, as also where the term of office is for a fixed period, notice and hearing are essential. If there were not, the appointing power could remove at pleasure or for such cause as it deemed sufficient." State courts have held that statutes providing for removal "for cause" require that the appointee be given notice and an opportunity to defend himself. State v. Frazier, 47 N.D. 314; Street Commissioners v. Williams, 96 Md. 232; Ham v. Board of Police, 142 Mass. 90; Haight v. Love, 39 N.J.L. 14, aff'd. 39 N.J.L. 476; Biggs v. McBride, 17 Oreg. 640. [ Footnote 2/33 ] Act of June 3, 1864, c. 106, § 1, 13 Stat. 99, Comptroller of the Currency; Act of Feb. 12, 1873, c. 131, § 1, 17 Stat. 424, Director of the Mint. [ Footnote 2/34 ] The executive orders of Jan. 31, 1902, and Jan. 25, 1906, prescribed dismissal as a penalty for agitation by civil employees for an increase in wages. The executive orders of Nov. 26, 1909, and April 8, 1912, forbade communications to members of Congress save through heads of departments. Report of U.S. Civil Service Commission, for 1912, pp. 23-24. Section 6 of the Act of 1912 was intended to override these orders. See 48 Cong.Rec. 5634-5636. On Feb.19, 1886, the National Civil Service Reform League, in a series of resolutions, recommended that the reasons for removal be treated as "part of the public record." 5 Civ.Serv. Rec. 92. On Aug. 9, 1890, Commissioner Roosevelt advocated such a restriction upon removals. 10 Civ.Serv.Rec. 26. A bill reported from the Select Committee of the House on Civil Service Reform in 1891 contained such a provision. House Rep. No. 4038, 51 Cong., 2d sess., Ser. No. 2890. The Attorney General, in 1913, ruled, against an earlier opinion of the Civil Service Commission, that Presidential appointees were excluded from the terms of the Act of 1912. 30 Op.A.G. 181. The Civil Service Act of Jan. 16, 1883, c. 27, § 2, 22 Stat. 403, 404, which was approved by President Arthur, had also provided that failure to subscribe to political funds should not be a ground of dismissal. [ Footnote 2/35 ] Citizens of (a) The United States: Act of May 3, 1802, c. 53, § 5, 2 Stat. 195, 196, mayor of the District of Columbia; Act of Mar. 1, 1855, c. 133, § 9, 10 Stat. 619, 623, ministers and their subordinates; Act of Aug. 18, 1856, c. 127, § 7, 11 Stat. 52, 55, consular pupils; Act of June 20, 1864, c. 136, § 2, 13 Stat. 137, 139, consular clerks; Act of Mar. 22, 1902, c. 272, 32 Stat. 76, 78, Act of Feb. 9, 1903, c. 530, 32 Stat. 807, 809, Act of Mar. 12, 1904, c. 543, 33 Stat. 67, 69, Act of Mar. 3, 1905, c. 1407, 33 Stat. 915, 917, Act of June 16, 1906, c. 3337, 34 Stat. 286, 288, Act of Feb. 22, 1907, c. 1184, 34 Stat. 916, 918, Act of May 21, 1908, c. 183, 35 Stat. 171, 172, Act of Mar. 2, 1909, c. 235, 35 Stat. 672, 674, Act of May 6, 1910, c. 199, 36 Stat. 337, 339, Act of Mar. 3, 1911, c. 208, 36 Stat. 1027, 1029, Act of April 30, 1912, c. 97, 37 Stat. 94, 96, Act of Feb. 28, 1913, c. 86, 37 Stat. 688, 689, Act of June 30, 1914, c. 132, 38 Stat. 442, 444, Act of Mar. 4, 1915, c. 145, 38 Stat. 1116, 1117, Act of July 1, 1916, c. 208, 39 Stat. 252, 253, Act of Mar. 3, 1917, c. 161, 39 Stat. 1047, 1049, Act of April 15, 1918, c. 52, 40 Stat. 519, 520, Act of Mar. 4, 1919, c. 123, 40 Stat. 1325, 1327, Act of June 4, 1920, c. 223, 41 Stat. 739, 741, Act of Mar. 2, 1921, c. 113, 41 Stat. 1205, 1207, Act of June 1, 1922, c. 204, 42 Stat. 599, 601, Act of Jan. 3, 1923, c. 21, 42 Stat. 1068, 1070, student interpreters for China, Japan and Turkey; Act of April 5, 1906, c. 1366, § 5, 34 Stat. 99, 101, clerks in consular office receiving more than $1,000 per annum; Act of July 17, 1916, c. 245, § 3, 39 Stat. 360, Federal Farm Loan Board; Act of Feb. 23, 1917, c. 114, § 6, 39 Stat. 929, 932, Federal Board for Vocational Education; Act of May 24, 1924, c. 182, § 5, 43 Stat. 140, 141, Foreign Service officers; Act of June 7, 1924, c. 287, § 7, 43 Stat. 473, 474, board of advisors to the Federal Industrial Institution for Women. (b) A State: Act of Mar. 3, 1891, c. 539, § 2, 26 Stat. 854, 855, attorney and interpreter for the Court of Private Land Claims. (c) A Particular State: Act of July 27, 1854, c. 110, § 1, 10 Stat. 313, commissioner to adjust Indiana land claims; Act of Mar. l, 1907, c. 2285, 34 Stat. 1015, 1036, Act of May 30, 1910, c. 260, § 4, 36 Stat. 448, 450, Act of June 1, 1910, c. 264, § 7, 36 Stat. 455, 457, Act of Aug. 3, 1914, c. 224, § 3, 38 Stat. 681, 682, various commissions to appraise unallotted Indian lands. (d) A Particular Territory: Act of April 12, 1900, c.191, § 40, 31 Stat. 77, 86, commission to revise the laws of Porto Rico; Act of April 30, 1900, c. 339, §§ 66, 69, 31 Stat. 141, 153, 154, governor and secretary of Hawaii; Act of July 9, 1921, c. 42, §§ 303, 313, 42 Stat. 108, 116, 119, governor, attorney and marshal of Hawaii. (e) District of Columbia: Act of Mar. 3, 1855, c.199, § 2, 10 Stat. 682, board of visitors for Government Hospital for the Insane; Act of Feb. 21, 1871, c. 62, § 37, 16 Stat. 419, 426, Board of Public Works; Act of June 11, 1878, c. 180, § 2, 20 Stat. 102, 103, commissioners of the District; Act of Sept. 27, 1890, c. 1001, § 2, 26 Stat. 492, Rock Creek Park Commission. [ Footnote 2/36 ] Act of Mar. 1, 1855, c. 133, § 9, 10 Stat. 619, 623, ministers and their subordinates. [ Footnote 2/37 ] Act of Mar. 3, 1891, c. 539, § 2, 26 Stat. 854, 855, attorney and interpreter for the Court of Private Land Claims. [ Footnote 2/38 ] Act of Mar. 29, 1867, c. 14, § 1, 15 Stat. 9, commissioners to ascertain the amount raised in Indiana in enrolling the militia; Act of Mar. 1, 1907, c. 2285, 34 Stat. 1015, 1036, Act of May 30, 1910, c. 260, § 4, 36 Stat. 448, 450, Act of June 1, 1910, c. 264, § 7, 36 Stat. 455, 457, Act of Aug. 3, 1914, c. 224 § 3, 38 Stat. 681, 682, various commissions for the appraisal of unallotted Indian lands. [ Footnote 2/39 ] Act of July 1, 1862, c. 119, § 2, 12 Stat. 432, 433, assessors and collectors of internal revenue, and semble, Act of July 2, 1836, c. 270, § 36, 5 Stat. 80, 88, postmasters. [ Footnote 2/40 ] Act of Mar. 26, 1804, c. 38, § 4, 2 Stat. 283, 284, legislative council of Louisiana; Act of Mar. 3, 1891, c. 564, § 2, 26 Stat. 1104, territorial mine inspectors; Act of July 9, 1921, c. 42, §§ 303, 313, 42 Stat. 108, 116, 119, governor, attorney and marshal of Hawaii. [ Footnote 2/41 ] Act of May 3, 1802, c. 53, § 5, 2 Stat. 195, 196, mayor of the District of Columbia; Act of April 16, 1862, c. 54, § 3, 12 Stat. 376, commissioners for claims arising from the abolition of slavery; Act of Feb. 21, 1874, c. 62, § 37, 16 Stat. 419, 426, Board of Public Works; Act of June 7, 1878, c. 162, § 5, 20 Stat. 100, 101, notaries public; Act of June 11, 1878, c. 180, § 2, 20 Stat. 102, 103, commissioners of the District. [ Footnote 2/42 ] Act of Mar. 3, 1819, c. 101, § 2, 3 Stat. 532, 533, agents on the coast of Africa to receive negroes from vessels seized in the slave trade. [ Footnote 2/43 ] Professional qualifications: (a) Learning in the Law: Act of Sept. 24, 1789, c. 20, § 35, 1 Stat. 73, 92, Attorney General and district attorneys; Act of Mar. 26, 1804, c. 38, § 8, 2 Stat. 283, 286, attorney for Louisiana Territory; Act of April 3, 1818, c. 29, § 4, 3 Stat. 413, attorney for Mississippi; Act of Mar. 3, 1819, c. 70, § 4, 3 Stat. 502, 503, attorney for Illinois; Act of April 21, 1820, c. 47 § 6, 3 Stat. 564, 565, attorney for Alabama; Act of Mar. 16, 1822, c. 12, § 4, 3 Stat. 653, attorney for Missouri; Act of Mar. 30, 1822, c. 13, § 7, 3 Stat. 654, 656, attorney for Florida Territory; Act of Mar. 3, 1823, c. 28, § 9, 3 Stat. 750, 752, attorney for Florida Territory; Act of May 26, 1824, c. 163, § 3, 4 Stat. 45, 46, attorney for Florida Territory; Act of May 29, 1830, c. 153, § 1, 4 Stat. 414, solicitor of the Treasury; Act of June 15, 1836, c. 100, § 6, 5 Stat. 50, 51, attorney for Arkansas; Act of July 1, 1836, c. 234, § 4, 5 Stat. 61, 62, attorney for Michigan; Act of Mar. 3, 1845, c. 75, § 7, 5 Stat. 788, attorney for Florida; Act of Mar. 3, 1845, c. 76, § 4, 5 Stat. 789, attorney for Iowa; Act of Dec. 29, 1845, c. 1, § 3, 9 Stat. 1, attorney for Texas; Act of Aug. 6, 1846, c. 89, § 5, 9 Stat. 56, 57, attorney for Wisconsin; Act of Feb. 23, 1847, c. 20, § 5, 9 Stat. 131, attorney for Florida; Act of Sept. 28, 1850, c. 86, § 8, 9 Stat. 521, 522, attorney for California; Act of Mar. 3, 1851, c. 41, § 4, 9 Stat. 631, agent for California Land Commission; Act of Aug. 31, 1852, c. 108, § 12, 10 Stat. 76, 99, law agent for California; Act of July 27, 1854, c. 110, § 1, 10 Stat. 313, commissioner to adjust land claims; Act of Mar. 4, 1855, c. 174, § 1, 10 Stat. 642, commissioners to revise District of Columbia laws; Act of Mar. 3, 1859, c. 80, 11 Stat. 410, 420, Assistant Attorney General; Act of Mar. 2, 1861, c. 88, § 2, 12 Stat. 246, examiners in chief in Patent Office; Act of May 20, 1862, c. 79, § 1, 12 Stat. 403, commissioners to revise District of Columbia laws; Act of Mar. 3, 1863, c. 91, § 17, 12 Stat. 762, 765, commissioners to revise District of Columbia laws; Act of Mar. 3, 1863, c. 101, § 2, 12 Stat. 795, solicitor to Peruvian Commissioners; Act of June 27, 1866, c. 140, § 1, 14 Stat. 74, commissioners to revise United States laws, Joint Res. of May 27, 1870, No. 66, § 1, 16 Stat. 378, examiner of claims for the Department of State; Act of June 22, 1870, c. 150, §§ 2, 3, 16 Stat. 162, Solicitor General and Assistant Attorney Generals; Act of July 8, 1870, c. 230, § 10, 16 Stat. 198, 200, examiners in chief in Patent Office; Act of Mar. 2, 1877, c. 82, § 1, 19 Stat. 268, commissioner for a new edition of the Revised Statutes; Act of Mar. 6, 1890, c. 27, § 1, 26 Stat. 17, delegates to the International Conference at Madrid in patent and trademark laws; Act of Mar. 3, 1891, c. 539, § 2, 26 Stat. 854, 855, attorney of the Court of Private Land Claims; Act of Mar. 2, 1901, c. 800, § 1, 31 Stat. 877, Spanish claims commissioners; Act of June 13, 1902, c. 1079, § 4, 32 Stat. 331, 373, commission on Canadian boundary waters to include one lawyer experienced in international and riparian law. (b) Versed in Spanish and English Languages: Act of Mar. 3, 1849, c. 107, § 2, 9 Stat. 393, secretary to Mexican Treaty Commissioners; Act of Mar. 3, 1851, c. 41, § 4, 9 Stat. 631, agent for California Land Commission; Act of Aug. 31, 1852, c. 108, § 12, 10 Stat. 76, 99, law agent in California; Act of May 16, 1860, c. 48, § 2, 12 Stat. 15, secretary of Paraguay Commission; Act of Feb. 20, 1861, c. 45, § 2, 12 Stat. 145, secretary of New Granada Commission; Act of Mar. 3, 1863, c. 101, §§ 2, 3, 12 Stat. 795, solicitor and secretary of Peruvian Commissioners; Joint Res. of Jan. 12, 1871, No. 7, § 1, 16 Stat. 591, secretary of San Domingo Commissioners; Act of Mar. 3, 1891, c. 539, § 2, 26 Stat. 854, 855, interpreter to the Court of Private Land Claims. (c) Engineering: Act of Feb. 21, 1871, c. 62, 37, 16 Stat. 19, 426, District of Columbia Board of Public Works: Act of April 4, 1871, c. 9, § 1, 17 Stat. 3, commission to examine Sutro Tunnel; Act of June 22, 1874, c. 411, § 1, 18 Stat. 199, commission to examine alluvial basin of Mississippi River; Act of June 28, 1879, c. 43, § 2, 21 Stat. 3?, Mississippi River Commission; Act of June 4, 1897, c. 2, 30 Stat. 11, 59, Nicaragua Canal Commission; Act of June 13, 1902, c. 1079, § 4, 32 Stat. 331, 373, commission on Canadian boundary waters; Act of June 28, 1902, c. 1302, § 7, 32 Stat. 481, 483, Isthmian Canal Commission; Act of Aug. 24, 1912, c. 387, § 18, 37 Stat. 512, 517, Alaskan Railroad Commission; Act of Aug. 8, 1917, c. 49, § 18, 40 Stat. 250, 269, Inland Waterways Commission; Act of May 13, 1924, c. 153, 43 Stat. 118, Rio Grande Commission. (d) Miscellaneous: Joint Res. of July 5, 1866, No. 66, § 1, 14 Stat. 362, commissioners to Paris Universal Exhibition to be professional and scientific men; Act of June 10, 1896, c. 398, 29 Stat. 321, 342, commissioners to locate Indian boundaries to be surveyors; Act of Aug. 24, 1912, c. 387, § 18, 37 Stat. 512, 517, Alaskan Railroad Commission to include one geologist in charge of Alaskan survey. [ Footnote 2/44 ] Act of Aug. 26, 1852, c. 91, § 2, lo Stat. 30, superintendent of public printing to be a practical printer; Act of Aug. 31, 1852, c. 112, § 8, 10 Stat. 112, 119, Light House Board to include civilian of high scientific attainments; Act of July 27, 1866, c. 284, § 1, 14 Stat. 302, appraiser for New York to have had experience as an appraiser or to be practically acquainted with the quality and value of some one or more of the chief articles of importation subject to appraisement; Joint Res. of Feb. 9, 1871, No. 22, § 1, 16 Stat. 593, 594, commissioner for fish and fisheries to be a person of proved scientific and practical acquaintance with the fishes of the coast; Act of Feb. 28, 1871, c. 100, § 23, 63, 16 Stat. 440, 448, 458, supervising inspectors of steam vessels to be selected for their knowledge, skill, and practical experience in the uses of steam for navigation and to be competent judges of the character and qualities of steam vessels and of all parts of the machinery employed in steaming, inspector general to be selected with reference to his fitness and ability to systematize and carry into effect all the provisions of law relating to the steamboat inspection service, Act of June 23, 1874, c. 480, § 2, 18 Stat. 277, 278, inspector of gas in the District of Columbia to be a chemist, assistant inspector to be a gasfitter by trade; Joint Res. of Dec. 15, 1877, No. 1, § 2, 20 Stat. 245, commissioners to the International Industrial Exposition in Paris to include three practical artisan experts, four practical agriculturists, and nine scientific experts; Act of June 18, 1878, c. 265, § 6, 20 Stat. 163, 164, superintendent of Life Saving Service to be familiar with the various means employed in the Life Saving Service for the saving of life and property from shipwrecked vessels; Act of June 29, 1888, c. 503, § 8, 25 Stat. 217, 238, superintendent of Indian schools to be a person of knowledge and experience in the management, training and practical education of children; Act of July 9, 1888, c. 593, § 1, 25 Stat. 243, delegates to the International Marine Conference to include two masters of merchant marine (one sailing and one steam), and two civilians familiar with shipping and admiralty practice; Act of Mar. 3, 1891, c. 564, § 2, 26 Stat. 1104, mine inspectors in the territories to be practical miners; Act of July 13, 1892, c. 164, 27 Stat. 120, 139, Indian commissioners to be familiar with Indian affairs; Act of Jan. 12, 1895, c. 23, § 17, 28 Stat. 601, 603, public printer to be a practical printer; Act of Mar. 3, 1899, c. 419, § 2, 30 Stat. 1014, assistant director of the Census to be an experienced practical statistician; Act of May 16, 1910, c. 240, § 1, 36 Stat. 369, Director of Bureau of Mines to be equipped by technical education and experience; Act of Dec. 23, 1913, c. 6, § 10, 38 Stat. 251, 260, Federal Reserve Board to include two members experienced in banking or finance; Act of Mar. 3, 1919, c. 97, § 3, 40 Stat. 1291, 1292, assistant director of the Census to be an experienced practical statistician; Act of June 2, 1924, c. 234, § 900b, 43 Stat. 253, 336, Board of Tax Appeals to be selected solely on grounds of fitness to perform duties of the office. [ Footnote 2/45 ] Act of Mar. 3, 1853, c. 97, § 3, 10 Stat. 189, 211, examination required of clerks in the Departments of Treasury, War, Navy, Interior, and Post Office; Act of June 20, 1864, c. 136, § 2, 13 Stat. 137, 139, examination required of consular clerks; Act of Jan. 16, 1883, c. 27, § 2, 22 Stat. 403, examinations for civil service employees; Act of Jan. 4, 1889, c.19, § 1, 25 Stat. 639, medical officers of Marine Hospital Service; Act of May 22, 1917, c. 20, § 16, 40 Stat. 84, 88, officers of the Coast and Geodetic Survey; Act of Oct. 27, 1918, c.196, § 16, 40 Stat. 1017, examinations for Public Health Service Reserve; Act of May 24, 1924, c. 182, § 5, 43 Stat. 140, 141, examination for appointments as Foreign Service officers in Diplomatic Corps. [ Footnote 2/46 ] Act of June 20, 1864, c. 136, § 2, 13 Stat. 137, 139, consular clerks; Act of April 30, 1900, c. 339, § 66, 31 Stat. 141, 153, governor of Hawaii; Act of July 9, 1921, c. 42, § 303, 42 Stat. 108, 116, governor of Hawaii. [ Footnote 2/47 ] Joint Res. of Feb. 23, 1900, No. 9, 31 Stat. 711, one commissioner to represent the United States at the unveiling of the statue of Lafayette to be a woman; Act of June 5, 1920, c. 248, § 2, 41 Stat. 987, Director of Women's Bureau to be a woman. [ Footnote 2/48 ] Act of July 1, 1902, c. 1362, § 59, 32 Stat. 641, 654, commission to sell coal and asphalt deposits in Indian lands to include two Indians. [ Footnote 2/49 ] Act of Mar. 26, 1804, c. 38, § 4, 2 Stat. 283, 284, legislative council of Louisiana to be selected from those holding real estate. [ Footnote 2/50 ] Act of Jan. 16, 1883, c. 27, § 8, 22 Stat. 403, 406, civil service appointees. [ Footnote 2/51 ] Act of Mar. 22, 1882, c. 47, § 9, 22 Stat. 30, 32, board of elections in Utah Territory; Act of Jan. 16, 1883, c. 27, § 1, 22 Stat. 403, Civil Service Commission; Act of Feb. 4, 1887, c. 104, § 11, 24 Stat. 379, 383, amended by Act of June 29, 1906, c. 3591, § 8, 34 Stat. 584, 595, Act of Aug. 9, 1917, c. 50, § 1, 40 Stat. 270, and Act of Feb. 28, 1920, c. 91, § 440, 41 Stat. 456, 497, Interstate Commerce Commission; Act of June 10, 1890, c. 407, § 12, 26 Stat. 131, 136, Board of General Appraisers; Act of Mar. 2, 1889, c. 412, § 14, 25 Stat. 980, 1005, Act of Aug.19, 1890, c. 807, 26 Stat. 336, 354, Act of July 13, 1892, c. 164, 27 Stat. 120, 138, 139, Act of June 10, 1896, c. 398, 29 Stat. 321, 342, various commissions to negotiate Indian treaties; Act of Sept. 26, 1914, c. 311, § 1, 38 Stat. 717, Federal Trade Commission; Act of July 17, 1916, c. 245, § 3, 39 Stat. 360, Federal Farm Loan Board; Act of Sept. 7, 1916, c. 451, § 3, 39 Stat. 728, 729, amended by Act of June 5, 1920, c. 250, § 3a, 41 Stat. 988, 989, United States Shipping Board; Act of Sept. 7, 1916, c. 458, § 28, 39 Stat. 742, 748, United States Employees' Compensation Commission; Act of Sept. 8, 1916, c. 463, § 700, 39 Stat. 756, 795, United States Tariff Commission; Act of Sept. 21, 1922, c. 356, § 518, 42 Stat. 858, 972, Board of General Appraisers; Act of Feb. 28, 1923, c. 146, § 2, 42 Stat. 1325, 1326, World War Foreign Debt Commission. [ Footnote 2/52 ] Act of Mar. 3, 1901, c 864, § 2, 31 Stat. 1440, Louisiana Purchase Exposition commission; Act of Mar. 22, 1902, c. 272, 32 Stat. 76, 78, Act of Feb. 9, 1903, c. 530, 32 Stat. 807, 809, Act of Mar. 12, 1904, c. 543, 33 Stat. 67, 69, Act of Mar. 3, 1905, c. 1407, 33 Stat. 915, 917, Act of June 16, 1906, c. 3337, 34 Stat. 286, 288, Act of Feb. 22, 1907, c. 1184, 34 Stat. 916, 918, Act of May 21, 1908, c. 183, 35 Stat. 171, 172, Act of Mar. 2, 1909, c. 235, 35 Stat. 672, 674, Act of May 6, 1910, c. 199, 36 Stat. 337, 339, Act of Mar. 3, 1911, c. 208, 36 Stat. 1027, 1029, Act of April 30, 1912, c. 97, 37 Stat. 94, 96, Act of Feb. 28, 1913, c. 86, 37 Stat. 688, 689, Act of June 30, 1914, c. 132, 38 Stat. 442, 444, Act of Mar. 4, 1915, c. 145, 38 Stat. 1116, 1117, Act of July 1, 1916, c. 208, 39 Stat. 252, 253, Act of Mar. 3, 1917, c. 161, 39 Stat. 1047, 1049, Act of April 15, 1918, c. 52, 40 Stat. 519, 520, Act of Mar. 4, 1919, c. 123, 40 Stat. 1325, 1327, Act of June 4, 1920, c 223, 41 Stat. 739, 741, Act of Mar. 2, 1921, c. 113, 41 Stat. 1205, 1207, Act of June 1, 1922, c. 204, 42 Stat. 599, 601, Act of Jan. 3, 1923, c. 21, 42 Stat. 1068, 1070, student interpreters for China, Japan, and Turkey. [ Footnote 2/53 ] Joint Res. of Dec. 15, 1877, No. 1, § 2, 20 Stat. 245, commissioners to the International Industrial Exposition in Paris; Act of June 18, 1898, c. 466, § 1, 30 Stat. 476, Industrial Commission; Act of Aug. 23, 1912, c. 351, § 1, 37 Stat. 415, Commission on Industrial Relations; Act of Dec. 23, 1913, c. 6, § 10, 38 Stat. 251, 260, amended by Act of June 3, 1922, c. 205, 42 Stat. 620, Federal Reserve Board; Act of Feb. 23, 1917, c. 114, § 6, 39 Stat. 929, 932, Federal Board for Vocational Education; Act of Feb. 28, 1920, c. 91, § 304, 41 Stat. 456, 470. [ Footnote 2/54 ] Act of Aug. 6, 1861, c. 62, § 3, 12 Stat. 320, Board of Police Commissioners for the District of Columbia; Act of Feb. 16, 1863, c. 37, § 3, 12 Stat. 652, 653, commissioners to settle Sioux Indians' claims; Act of Mar. 3, 1863, c. 106, § 1, 12 Stat. 799, levy court of the District of Columbia; Act of Mar. 3, 1871, c. 105, § 2, 16 Stat. 470, 471, commissioners to the Philadelphia Exposition; Joint Res. of Dec. 15, 1877, No. 1, § 2, 20 Stat. 245, commissioners to the International Industrial Exposition in Paris; Act of Mar. 3, 1879, c. 202, § 1, 20 Stat. 484, National Board of Health; Act of Aug. 5, 1882, c. 389, § 4, 22 Stat. 219, 255, civil employees of certain departments; Act of Jan. 16, 1883, c. 27, § 2, 22 Stat. 403, civil service appointees; Act of Feb. 10, 1883, § 3, 22 Stat. 413, commissioners of World's Industrial and Cotton Centennial Exposition; Act of April 25, 1890, c. 156, § 3, 26 Stat. 62, World's Columbian Exposition Commission; Act of Aug.19, 1890, c. 807, 26 Stat. 336, 354-355, commissions to negotiate Indian treaties and investigate reservations; Act of Mar. 3, 1893, c. 209, § 1, 27 Stat. 612, 633, commission to select allotted Indian lands; Act of June 10, 1896, c. 398, 29 Stat. 321, 342, commission to adjust Indian boundaries; Act of Sept. 7, 1916, c. 451, § 3, 39 Stat. 728, 729, amended by Act of June 5, 1920, c. 250, § 3a, 41 Stat. 988, 989, United States Shipping Board; Act of Mar. 4, 1921, c. 171,-§ 3, 41 Stat. 1441, 1442, commission to appraise buildings of Washington Market Company; Act of June 3, 1922, c. 205, 42 Stat. 620, Federal Reserve Board; Joint Res. of Mar. 3, 1925, c. 482, § 1, 43 Stat. 1253, National Advisory Commission to the Sesquicentennial Exhibition Association. [ Footnote 2/55 ] (a) Selection to be from civil employees: Joint Res. of Feb. 9, 1871, No. 22, § 1, 16 Stat. 593, 594, commissioner of fish and fisheries; Act of May 27, 1908, c. 200, § 11, 35 Stat. 317, 388, board of managers of Alaska-Yukon-Pacific Exposition; Act of June 23, 1913, c. 3, 38 Stat. 4, 76, Panama-Pacific Exposition Government Exhibit Board. (b) Selection to be from particular civil employees: Act of April 5, 1906, c, 1366, § 4, 34 Stat. 99, 100, consulate inspectors from consulate force. (c) Selection to be from army officers: Act of July 20, 1867, c. 32, § 1, 15 Stat. 17, commission to treat with hostile Indians; Act of Mar. 3, 1873, c. 316, § 1, 17 Stat. 622, commission to report on irrigation in the San Joaquin valley; Act of Mar. 1, 1893, c. 183, § 1, 27 Stat. 507, California Debris Commission; Act of June 4, 1897, c. 2, 30 Stat. 11, 51, board to examine Arkansas Pass; Joint Res. of Aug. 9, 1912, No. 40, § 2, 37 Stat. 641, commission to investigate Mexican insurrection claims; Act of Mar. 4, 1923, c. 283, § 1, 42 Stat. 1509, secretary of American Battle Monuments Commission. (d) Selection to be from army and navy: Act of April 14, 1818, c 58, § 1, 3 Stat. 425, coast surveyors. (e) Boards to include civilian representative of the Government: Act of Mar. 1, 1907, c. 2285, 34 Stat. 1015, 1036, Act of May 30, 1910, c. 260, § 4, 36 Stat. 448, 450, Act of June 1, 1910, c. 264, § 7, 36 Stat. 455, 457, Act of Aug. 3, 1914, c. 224, § 3, 38 Stat. 681, 682, various commissions to appraise unallotted Indian lands to include one representative of the Indian Bureau; Joint Res. of Mar. 4, 1911, No. 16, 36 Stat. 1458, commission to investigate cost of handling mail to include one Supreme Court Justice. (f) Commissions to include army officers: Act of April 4, 1871, c. 9, § 1, 17 Stat. 3, commission to examine Sutro Tunnel; Act of June 13, 1902, c. 1079, § 4, 32 Stat. 331, 373, commission on Canadian boundary waters; Act of Aug. 8, 1917, c. 49, § 18, 40 Stat. 250, 269, Inland Waterways Commission. (g) Commissions to include army and navy officers: Act of Aug. 31 1852, c. 1 2 § 8, 10 Stat. 112, 119, Light House Board; Act of June 4, 1897, c. 2, 30 Stat. 11, 59, Nicaragua Canal Commission; Act of June 28, 1902, c. 1302, § 7, 32 Stat. 481, 483, Isthmian Canal Commission; Joint Res. of June 28, 1906, No. 37, 34 Stat. 835, commission to appraise Chesapeake and Delaware Canal; Act of Aug. 24, 1912, c. 387, § 18, 37 Stat. 512, 517, Alaskan Railroad Commission. (h) Commissions to include army and coast survey officers; Act of June 23, 1874, c. 457, § 3, 18 Stat. 237, 244, board of harbor engineers; Act of June 28, 1879, c. 43, § 2, 21 Stat. 37, Mississippi River Commission. (i) Board to include navy officers and official of Life Saving Service: Act of July 9, 1888, c. 593, § 1, 25 Stat. 243, delegates to International Marine Conference. [ Footnote 2/56 ] Act of Feb. 25, 1863, c. 58, § 1, 12 Stat. 665, Comptroller of the Currency, on nomination of the Secretary of the Treasury, amended by Act of June 3, 1864, c. 106, § 1, 13 Stat. 99; Act of April 23, 1880, c. 60, § 4, 21 Stat. 77, 78, United States International Commission, on nominations of state governors; Act of Feb. 10, 1883, c. 42, §§ 2, 3, 22 Stat. 413, managers of World's Industrial and Cotton Centennial Exposition, on recommendation of executive committee of National Cotton Planters' Association and majority of subscribers to enterprise in the city where it shall be located, commissioners to the Exposition to be appointed on nomination of state governors; Act of July 1, 1902, c. 1362, § 59, 32 Stat. 641, 654, commission to sell coal and asphalt deposits in Indian lands, one appointment to be made on recommendation of principal chief of Choctaw Nation, one on recommendation of Governor of Chickasaw Nation; Act of Feb. 23, 1920, c. 91, § 304, 41 Stat. 456, 470, Railroad Labor Board, three to be appointed from six nominees made by employees, three to be appointed from six nominees made by carriers. [ Footnote 2/57 ] On July 25, 1868, the Senate, having confirmed the nomination of J. Marr as collector of internal revenue in Montana Territory, voted to reconsider the nomination, and ordered the nomination to be returned to the President "with the notification that the nominee is ineligible on account of nonresidence in the district for which he is nominated." 16 Ex.Journ. 372. President Johnson thereafter did not press Marr's nomination, but appointed A. J. Simmons to the office. 16 ibid. 429. [ Footnote 2/58 ] The Tenure of Office Act as originally introduced excepted from its operation the Secretaries of State, Treasury, War, Navy, Interior and the Postmaster General. Howe's attempts to strike out this exception, opposed by Senators Edmunds and Sherman, who were the principal sponsors of the Act, failed twice in the Senate. A similar attempt in the House succeeded after first being rejected. The Senate again refused to concur in the House amendment. The amendment was, however, insisted upon by the House conferees. Finally, the Senate, by a margin of three, votes agreed to accept the conference report. Cong.Globe, 39th Cong., 2d sess., 1518. [ Footnote 2/59 ] The occasion of the passage of the Tenure of Office Act was the threatened attempt of President Johnson to interfere with the reconstruction policies of Congress through his control over patronage. An attempt by Schenck to secure its recommitment to the Joint Select Committee on Retrenchment was placed upon the ground that "this whole subject was expressly referred to that committee" which had before it "the bill introduced by the select committee on the civil service, at the head of which is the gentleman from Rhode Island [Mr. Jenckes]." Cong.Globe, 39th Cong., 2d sess., 23. Senator Edmunds, in resisting an attempt to expand the Tenure of Office Act to require the concurrence of the Senate in the appointment of all civil officers receiving more than $1,000 per annum, referred to the Jenckes bill as "another branch of the subject which is under consideration elsewhere." Ibid., 489. The committee, in introducing the Tenure of Office Act, speaking through Senator Edmunds, "recommended the adoption of this rule respecting the tenure of officers as a permanent and systematic, and as they believe an appropriate regulation of the Government for all Administrations and for all time." Ibid., 382. [ Footnote 2/60 ] The attempt on the part of the House to repeal the Act in 1869 brought forth the opposition of those members of the Senate who were most active in the general movement for civil service reform. Jenckes had voted against the repeal in the House. Carl Schurz, who, on Dec. 20, 1869, introduced a bill for the competitive principle in the civil service, opposed the repeal, and urged that it be recast at the next session more effectually to effect the desired civil service reform. Cong.Globe, 41st Cong., 1st sess., 155-156. Trumbull, speaking for the Committee on Judiciary, said that "they were unwilling after Congress had with such unanimity adopted this law within the last two years, and adopted it upon the principle that some law of this kind was proper to regulate the civil service, to recommend its absolute repeal . . . they thought it better to recommend the suspension of the act until the next session of Congress, and then Congress can either repeal it or adopt some civil service bill which in its judgment shall be thought to be for the best and permanent interests of the country." Ibid,. 88. The National Quarterly Review, recognizing the essential unanimity of purpose between the Tenure of Office Act and other measures for civil service reform, said in 1867: "The recent legislation on this subject by Congress was the first step in the right direction; Mr. Jencke's bill is the second; but the one without the other is incomplete and unsafe." House Rep. No. 47, 40th Cong., 2d sess., Ser. No. 1352, p 93 [ Footnote 2/61 ] The attempt to repeal the Act was resisted in the House by Holman on the ground that, since "the general impression exists in the country that executive patronage should be in some form reduced, rather than increased . . . this fragment of the original law should remain in force." Cong.Globe, 42nd Cong., 2d sess., 3411. [ Footnote 2/62 ] Edmunds, one of the few Senators still acquainted with the circumstances of its passage, thus protested against the passage of the repealing Act: "It is, as it looks to me, as if we were to turn our backs now and here upon the principle of civil service reform . . . the passage of this bill would be the greatest practical step backward on the theory of the reformation of the civil service of the United States." 18 Cong.Rec. 137. [ Footnote 2/63 ] The Jenckes bill was introduced in the House on Dec. 20, 1865. Sumner had already, on April 30, 1864, presented in the Senate a bill for a classified civil service. On June 1, 1866, the House Committee on Civil Service Reform reported out the Jenckes bill. It contained, among other provisions, a section requiring the proposed commission to prescribe, subject to the approval of the President, the misconduct or inefficiency which would be sufficient ground for removal, and also the manner by which such charges were to be proved. This provision was retained in the succeeding bills sponsored by Jenckes in the House. The provision was expressly omitted from the Pendleton bill, which later became the Civil Service Act of 1883, in order not to endanger the passage of a measure for a classified civil service by impinging upon the controversial ground of removal. Senators Sherman and Brown attempted to secure legislation restricting removal by amendments to the Pendleton bill. 14 Cong.Rec. 210, 277, 364. In the First Session of the Thirty-ninth Congress, no action was taken upon the Jenckes bill, but the bill was reintroduced in the following session on Jan. 29, 1867. An attempt on the part of Jenckes, after the initial passage of the Tenure of Office Act, to secure the passage of his bill resulted in the tabling of his scheme on Feb. 6, 1867, by a vote of 72 to 66. [ Footnote 2/64 ] This measure appears to have been first suggested on May 4, 1826, in a bill which accompanied the report presented by Benton from the Select Committee of the Senate appointed to investigate executive patronage, when abuse of the power by President John Quincy Adams was apprehended. Sen.Doc. No. 88, 19th Cong., 1st sess., Ser. No. 128. On Mar. 23, 1830, Barton's resolution asserting the right to such information was reported. Sen.Doc. 103, 21st Cong., 1st sess., Ser. No.193. On April 28, 1830, the proposal was renewed in a resolution introduced by Holmes. 6 Cong.Deb. 385. In 1835, it was embodied in the Executive Patronage Bill, which passed the Senate on two successive occasions, but failed of action in the House. [ Footnote 2/65 ] This measure appears to have been first suggested by President Monroe in his message of Dec. 2, 1823. 41 Ann.Cong. 20. Its proposal for enactment into law was first suggested on May 4, 1826, by the report of the Select Committee appointed by the Senate on possible abuses of Executive Patronage. In 1832, the proposal was again brought forward by Vance of Ohio in the nature of an amendment to the postal legislation, 8 Cong.Deb.1913. On Mar. 7, 1834, Clay's resolutions, that advocated the concurrence of the Senate in removals, also included a proposal for the appointment of postmasters by the President with the concurrence of the Senate. On Jan. 28, 1835, a report by the Senate Committee on Post Offices called attention to the extended removals of postmasters. Sen.Doc. No. 86, 23rd Cong., 2d sess., Ser. No. 268, p. 88. This report led to the introduction in 1835, and passage by the Senate of a bill reorganizing the Post Office which contained the proposal under consideration. The House having failed to act upon the 1835 bill, it was reintroduced at the next session and passed by both Houses. Act of July 2, 1836, c. 270, 5 Stat. 80. See also Sen.Doc. No. 362, 24th Cong., 1st sess., Ser. No. 283. [ Footnote 2/66 ] This measure appears to have been first proposed in Congress by Clay on Mar. 7, 1834. 10 Cong. Deb. 834. In 1835, it was, in substance, embodied in an amendment proposed by him to the Executive Patronage Bill, which read: "That in all instances of appointment to office by the President, by and with the advice and consent of the Senate, the power of removal shall be exercised only in concurrence with the Senate; and, when the Senate is not in session, the President may suspend any such officer, communicating his reasons for the suspension during the first month of its succeeding session, and if the Senate concur with him, the officer shall be removed; but if it do not concur with him, the officer shall be restored to office." 11 Cong.Deb. 523. In 1836 when a Senate Committee of Commerce investigated the removal of a gauger for political reasons, Levi Woodbury, then Secretary of the Treasury, suggested the assumption of Congressional control over removals, saying: "The Department deems it proper to add that . . . a great relief would be experienced if . . . the power of original appointment and removal in all these cases should be vested in Congress, if the exercise of it there is deemed more convenient and safe, and, at the same time, constitutional." Sen.Doc. No. 430, 24th Cong., 1st sess., Ser. No. 284, p. 30. [ Footnote 2/67 ] On July 1, 1841, Benton again reintroduced a proposal of this nature. Cong.Globe, 27th Cong., 1st sess., 63. On May 23, 1842, a Select Committee on Retrenchment reported to the House on the necessity of diminishing and regulating executive patronage, saying "they entertain no doubt of the power of Congress to prescribe, and of the propriety of prescribing, that, in all cases of removal by the President, he shall assign his reasons to the Senate at its next session." House Rep. No 741, 27th Cong., 2d sess., Ser. No. 410, p. 5. See also Report of July 27, 1842, House Rep. No. 945, 27th Cong., 2d sess., Ser. No. 410; 5 Ex.Journ. 401. On Jan. 3, 1844, after an attempt to impeach President Tyler for misusing the appointing power had failed, Thomasson in the House again sought to secure the adoption of such a measure. On December 24, 1849, after the Post Office Department under Taylor's administration had recorded 3,406 removals, Bradbury proposed a resolution requiring the President to give the number and reasons for removals made from the beginning of his term of office. Senator Mangum, in order to cut short debate on the resolution, contended that it was an unconstitutional invasion of executive powers, and called for a test vote upon the resolution. The Senate divided 29 to 23 in upholding its right to demand reasons for removals. Cong.Globe, 31st Cong., 1st sess., 160. On Jan. 4, 1850, the Senate adopted a resolution calling for a report upon the number and reasons for removals of deputy postmasters. Ibid. 100. [ Footnote 2/68 ] The character that this movement to restrict the power of removal had assumed in consequence of the continuance of the spoils system is illustrated by the remarks of Bell in the Senate in 1850: "To restrain this power by law, I would urge as one of the greatest reforms of the age, so far as this Government is concerned. . . . Sir, I repeat, that to restrain by law this unlimited, arbitrary, despotic power of the Executive over the twenty or thirty thousand valuable public officers of the country -- the tendency of which is to make them slave of his will -- is the greatest reform demanded by the true interest of the country, no matter who may at any time be the tenant of the White House." Cong.Globe, 31st Cong., 1st sess., App. 1043. Restrictions were twice advocated in the official utterances of President Tyler. 4 Messages and Papers of the Presidents, 50, 89. See also Report of June 15, 1844, by Sen. Com. on Retrenchment; Sen.Doc. 399, 28th Cong., 1st sess., Ser. No. 437, p. 55; Resolution of Dec. 17, 1844, by Grider in the House, Cong.Globe, 28th Cong., 2d sess., 40. [ Footnote 2/69 ] Act of Feb. 25, 1863, c. 58, § 1, 12 Stat. 665. [ Footnote 2/70 ] By the Act of Mar. 3, 1853, c. 97, § 3, 10 Stat. 189, 211, clerks in the departments of the Treasury, War, Navy, Interior and Post Office were to be classified, and appointments to the various classes were to be made only after examination by a select board. This scheme was later abandoned after it became evident that the examinations prescribed were conducted arbitrarily, and with no attempt to determine the fitness of candidates for positions. Fish, Civil Service and Patronage, 183. By the Act of Aug. 18, 1856, c. 127, § 7, 11 Stat. 52, 55, the appointment of twenty-five consular pupils was authorized, and examinations were to be conducted to determine the fitness of applicants for appointment. This provision was, however, stricken from the diplomatic and consular appropriation bill in the next session of Congress. The principle was not returned to again until the Act of June 20, 1864, c. 136, § 2, 13 Stat. 137, 139. [ Footnote 2/71 ] Chief Justice Marshall said of the proceedings of 1789: "In organizing the departments of the executive, the question in what manner the high officers who filled them should be removable came on to be discussed." 5 Marshall, Life of Washington, 196. [ Footnote 2/72 ] Of the ten Senators who had been members of the Constitutional Convention of 1787, four voted against the bill. A fifth, Bassett, changed sides during the debate. Maclay, Sketches of Debate, 110. [ Footnote 2/73 ] The six who held that the Constitution vested a sole power of removal in the President were Baldwin, 1 Ann.Cong. 557-560; Benson, 1 ibid. 505-507; Boudinot, 1 ibid. 526-532; Clymer, 1 ibid. 489; Madison, 1 ibid. 546; Vining. 1 ibid. 585. Madison, at first, considered it subject to Congressional control. 1 Ann.Cong. 374-375. Seven held that the power of removal was a subject for Congressional determination, and that it was either expedient or inexpedient to grant it to the President alone. Hartley, 1 Ann.Cong. 585; Lawrence, 1 ibid. 583; Lee, 1 ibid. 523-526; Sedgwick, 1 ibid. 582-583; Sherman, 1 ibid. 491-492; Sylvester, 1 ibid. 560-563; Tucker, 1 ibid. 584-585. Five held that the power of removal was constitutionally vested in the President and Senate. Gerry, 1 Ann.Cong. 502; Livermore, 1 ibid. 477-479; Page, 1 ibid. 519-520; Stone, 1 ibid. 567; White, 1 ibid. 517. Two held that impeachment was the exclusive method of removal. Jackson, 1 Ann.Cong. 374, 529-532; Smith, of South Carolina, 1 Ann.Cong. 457, 507-510. Three made desultory remarks, Goodhue, 1 Ann.Cong. 378, 533-534; Huntington, 1 Ann.Cong. 459, and Scott, 1 Ann.Cong. 532-533, which do not admit of definitive classification. Ames was only certain that the Senate should not participate in removals, and did not differentiate between a power vested in the President by the Constitution and a power granted him by the legislature. 1 Ann.Cong. 473-477, 538-543. He inclined, however, towards Madison's construction. 1 Works of Fisher Ames, 56. During the earlier debate upon the resolutions for the creation of Executive Departments, Bland had contended that the Senate shared in the power of removal. 1 Ann.Cong. 373-374. The conclusion that a majority of the members of the House did not hold the view that the Constitution vested the sole power of removal in the President was expressed by Senator Edmunds. 3 Impeachment of Andrew Johnson, 84. It had been expressed twenty years earlier by Lockwood, J., of the Supreme Court of Illinois, in a case involving a similar question and decided adversely to Madison's contention. Field v. People, 2 Scamm. 79, 162-173. [ Footnote 2/74 ] Madison's plea for support was addressed not only to those who conceived the power of removal to be vested in the President, but also to those who believed that Congress had power to grant the authority to the President and that, under the circumstances it was expedient to confer such authority. After expressing his own views on the subject, he continued: "If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the Legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill." 1 Ann.Cong. 464. [ Footnote 2/75 ] The initial vote of 34 to 20, defeating a motion to strike out the words "to be removable by the President," was indecisive save as a determination that the Senate had no constitutional right to share in removals. Madison, June 22, 1789, 1 Ann.Cong. 5757. "Indeed, the express grant of the power to the president rather implied a right in the legislature to give or withhold it at their discretion." 5 Marshall, Life of Washington, 200. Benson, therefore, proposed to remove this ambiguity by striking out the words "to be removable by the President," and inserting "whenever the said principal officer shall be removed from office by the President of the United States," thus implying the existence of the power in the President irrespective of legislative grant. The motions were successful, and their adoption has been generally interpreted as a legislative declaration of Benson's purpose. Such interpretation, although oft repeated, is not warranted by the facts of record. The individual votes on these two motions are given. An examination of the votes of those whose opinions are also on record shows that Benson's first motion succeeded only as a result of coalition between those who accepted Madison's views and those who considered removal subject to Congressional control but deemed it advisable to vest the power in the President. The vote on Benson's second motion to strike out the words "to be removable by the President" brought forth a different alignment. The minority now comprised those who, though they believed the grant of power to be expedient, did not desire to imply the existence of a power in the President beyond legislative control. Whereas the majority exhibits a combination of diverse views -- those who held to Madison's construction, those who initially had sought to strike out the clause on the ground that the Senate should share in removals, and those who deemed it unwise to make any legislative declaration of the Constitution. Thus, none of the three votes in the House revealed its sense upon the question whether the Constitution vested an uncontrollable power of removal in the President. On the contrary, the votes on Benson's amendments reveal that the success of this endeavor was due to the strategy of dividing the opposition, and not to unanimity of constitutional conceptions. [ Footnote 2/76 ] Presidents Jackson, 3 Messages and Papers of the Presidents, 133; Johnson, 6 ibid. 492; Cleveland, 8 ibid. 379; Wilson, 59 Cong.Rec. 8609. [ Footnote 2/77 ] On Feb. 2, 1835, the Senate adopted a resolution requesting the President to communicate to the Senate copies of the charges against Gideon Fitz, surveyor-general, in that such information was necessary for its constitutional action upon the nomination of his successor. 4 Ex.Journ. 465. On Feb. 10, 1835, President Jackson refused to comply with these alleged " unconstitutional demands." 4 Ex.Journ. 468. On Jan. 25, 1886, the Senate adopted a resolution directing the Attorney General to transmit copies of documents on file in the Department of Justice relating to the management of the office of district attorney for the southern district of Alabama. J. D. Burnett had been nominated to the office in place of G. M. Duskin suspended. 25 Ex.Journ. 294. On Feb. 1, 1886, a letter from the Attorney General was laid before the Senate refusing to accede with the request by direction of the President. On Mar. 1, 1886, President Cleveland, in a message to the Senate, denied the constitutional right of the Senate to demand such information. 8 Messages and Papers of the Presidents, 375. [ Footnote 2/78 ] During March, 1830, prior to the Fitz episode, three resolutions to request the President to communicate grounds for the removal of inferior officials failed of adoption in the Senate. 4 Ex.Journ. 75, 76, 79. However, during April, 1830, in the case of nominations sent to the Senate for confirmation, resolutions requesting the President to communicate information relative to the character and qualifications of the appointees were adopted and complied with by President Jackson. 4 ibid. 86, 88, 92. The instances of President Johnson's compliance with the second section of the Tenure of Office Act, requiring the communication of reasons for the suspension of inferior officials during the recess of the Senate, have been enumerated. See Notes 272 U.S. 52 fn2/23|>23 and 272 U.S. 52 fn2/24|>24, supra. President Johnson also complied with a resolution adopted by the Senate on Dec. 16, 1867, requesting him to furnish the petitions of Idaho citizens, filed with him, remonstrating against the removal of Governor Ballard. 16 Ex.Journ. 109, 121. Also, on April 5, 1867, his Attorney General complied with a Senate resolution calling for papers and other information relating to the charges against a judge of Idaho Territory whose removal the President was seeking through the appointment of a successor. 15 ibid. 630, 644. On Feb. 18, 1867, his Postmaster General, in compliance with a House resolution of Dec. 6, 1866, transmitted the number and reasons for the removals of postmasters, appointed by the President, between July 28, 1866, an Dec. 6, 1866. House Ex.Doc. No. 96, 39th Cong., 2d sess., Ser. No. 1293. His Secretary of the Interior also complied with a House resolution requesting information as to removals and reasons therefor in the department. House Ex.Doc. No. 113 39th Cong., 2d sess., Ser. No. 1293. Prior to the date on which President Cleveland upheld his right to refuse the Senate information as to the conduct of a suspended official, his Secretary of the Treasury twice complied with requests of the Senate for such information. 25 Ex.Journ. 312, 317. These requests were couched in substantially the same form as that which was refused in the Duskin case. Subsequent to that date, compliances with similar resolutions are recorded in four further cases, two by the Secretary of the Treasury, one by the Postmaster General and one by the Attorney General. 25 Ex. Journ 362, 368, 480, 559. [ Footnote 2/79 ] On Mar. 2, 1847, President Polk complied with a Senate resolution requesting reasons and papers relating to the failure to send in Captain H. Holmes' name for promotion. 7 Ex.Journ. 227. On Sept. 2, 1850, President Fillmore complied with a Senate resolution requesting the President to communicate correspondence relating to "the alleged resignation" of Lieut. E. C. Anderson. 8 ibid. 226. Fillmore, in compliance with a Senate resolution of Aug. 14, 1850, laid before the Senate a report of the Postmaster General communicating the charges on file against the deputy postmaster at Milwaukee. 8 ibid. 220. Nominations having been made for the collectorships of New York and Chicago and the former incumbents suspended, Edmunds on Nov. 26, 1877, proposed a resolution directing the Secretary of the Treasury to transmit all papers bearing upon the expediency of removing the collectors. On Jan. 15, 1879, the Secretary of the Treasury communicated to the Senate an official report, and on Jan. 31, 1879, President Hayes forwarded his reasons for the suspensions. 21 ibid. 140, 455, 497. Compliances with Senate resolutions directed to the Heads of Departments relative to the removal of Presidential appointees are also on record. In response to a House resolution of Feb. 13, 1843, requesting the charges against Roberts and Blythe, collectors, and the names of the persons who petitioned for their removal, the Secretary of the Treasury transmitted the material that he had in his control. House Doc. No. 158, 27th Cong., 3rd sess., Ser. No. 422. On Jan. 14, 1879, the Secretary of the Treasury complied with a Senate resolution requesting the charges on file against the Supervising Inspector-General of Steamboats. 21 Ex.Journ. 454. On Jan. 20, 1879, the Secretary of the Treasury complied with a Senate resolution calling for the papers showing why Lieutenant Devereux was discharged from the Revenue Marine Service. 21 ibid. 470. The Secretary of the Navy complied with a Senate resolution of Feb 25, 1880, asking why Edward Bellows was dropped from the roll of paymasters. Sen.Doc. No. 113, 46th Cong., 2d sess., Ser. No. 1885. Presidents Van Buren and Tyler also complied with resolutions requesting the number of removals. Sen.Doc. No. 399, 28th Cong., 1st sess., Ser. No. 437, p. 351; House Doc. No. 48, 27th Cong., 1st sess., Ser. No. 392. Senate resolutions, occasioned by the nomination of the successor in place of a former incumbent, requesting information as to the conduct or ability of the successor, have been complied with by Presidents Monroe on Feb. 1, 1822 (3 Ex.Journ. 273); Jackson on April 12, and 15, 1830 (4 ibid. 88, 92), and on April 24, 1834 (4 ibid. 390); by Tyler on June 29, 1842 (6 ibid. 97); by Polk on June 23, 1848 (7 ibid. 435); by Fillmore on Sept. 16, 1850 (8 ibid. 232); by Buchanan on Mar. 2, 1858 (10 ibid. 237); by Grant on Dec. 21, 1869 (17 ibid. 326), and by Heads of departments under Polk on June 23, 184 (7 ibid. 435); under Fillmore on Sept. 25, 1850, and Feb. 17, 1853 (8 ibid. 250, 9 ibid. 33); under Lincoln on Jan. 22, 1862, and on Feb. 23, 1865 (12 ibid. 95, 14 ibid. 135). The practice appears to have been suggested by President Washington. The Senate having rejected a nomination, President Washington, on Aug. 7, 1789, in nominating a successor, said: "Permit me to submit to your consideration whether, on occasions when the propriety of nominations appears questionable to you, it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which I would with pleasure lay before you." 1 Ex.Journ. 16. [ Footnote 2/80 ] The Executive Patronage Bill, containing such a requirement, passed the Senate on Feb. 21, 1835, and on Feb. 3, 1836. A test vote on the Senate's right in 1850 is also on record. See 272 U.S. 52 fn2/67|>Note 67, supra. Following the protest of President Cleveland, resolutions condemnatory of the Attorney General's refusal "under whatever influence" to communicate the information requested were favorably reported to the Senate, debated at length, and passed. Among the members of the committee advocating the adoption of the resolutions were Hoar and Evarts, the two most energetic opponents of the Tenure of Office Act. Sen.Rep. No. 135, 49th Cong., 1st sess., Ser. No. 2358. The Acts of 1864 and 1873, approved by Presidents Lincoln and Grant, embody such a requirement. See 272 U.S. 52 fn2/33|>Note 33, supra. [ Footnote 2/81 ] ^81. Attorneys General Legare, Clifford, and Crittenden seem to have been of the opinion that the President possessed an absolute power of removal. 4 Op.A.G. 1, 603; 5 ibid. 288. Legare, however, having occasion to consider Story's contention that the power of removal might be restricted by legislation with respect to inferior officers, said that he was "not prepared to dissent from any part of this sweeping proposition." 4 ibid. 165, 166. In 1818, Attorney General Wirt, in holding that, where an Act of Congress gave the President power to appoint an officer, whose tenure of office was not defined, that officer was subject to removal by the President, said: "Whenever Congress intend a more permanent tenure, (during good behaviour, for example), they take care to express that intention clearly and explicitly. . . ." 1 ibid. 212, 213. Following the passage of the Tenure of Office Act, the subject was considered by Attorney General Evarts, who disposed of the problem "within the premises of the existing legislation." 12 ibid. 443, 449. In 1873, Attorney General Akerman refused to concede the President a power of removal in that, under that Act, he was limited to a power of suspension. 13 ibid. 300. In 1877, Attorney General Devens concurred in the provisions of the Tenure of Office Act restoring a suspended officer to his office upon the failure of the Senate to act upon the confirmation of his successor. 15 ibid. 375. [ Footnote 2/82 ] The Connecticut Charter of 1662, vested the appointment of practically all officers in the assembly, and provided that such officers were to be removable by the Governor, Assistants, and Company for any misdemeanor or default. The Rhode Island Charter of 1663 contained the same provisions. The Massachusetts Charter of 1691 provided for the appointment of officers by and with the advice and consent of the Council. Under Governors Phipps and Stroughton, the council asserted its rights over appointments and dismissals, and in 1741, Shirley was prevented from going back to the earlier arbitrary practice of Governor Belcher. Spencer, Constitutional Conflict in Massachusetts, 28. The Georgia Charter of 1732 provided that the common council should have power to nominate and appoint and "at their will and pleasure to displace, remove and put out such treasurer or treasurers, secretary or secretaries, and all such other officers, ministers and servants." [ Footnote 2/83 ] As early as 1724, Mrs. Hannah Penn, in her instructions to Sir William Keith, governor of Pennsylvania, protested against his dismissal of the Secretary without seeking the advice of his council. The practice of seeking such advice continued in later years. Shepherd, Proprietary Government in Pennsylvania, 321, 370. [ Footnote 2/84 ] In the Royal Colonies, there was a recognized tendency to guard against arbitrariness in removals by making the governor responsible to the home government, instead of the local representative assembly. In New Hampshire, the first and second Andros Commissions entrusted the power to the governor alone, but the Bellomont Commission of 1697, the Dudley Commission of 1702, the Shute Commission of 1716, the Burnet Commission of 1728, the Belcher Commission of 1729, the Wentworth Commission of 1741, and the John Wentworth Commission of 1766 were accompanied with instructions requiring either that removals be made only upon good and sufficient cause or upon cause signified to the home government in the "fullest & most distinct manner." In Virginia, similar instructions accompanied the issuance of commissions to Governor Howard in 1683 and to Governor Dunmore in 1771. [ Footnote 2/85 ] Smith of South Carolina, June 17, 1789, 1 Ann.Cong. 471; Gerry, June 17, 1789, 1 Ann.Cong. 504. See 272 U.S. 52 fn2/9|>Note 9, supra. [ Footnote 2/86 ] Hamilton's opinion is significant in view of the fact that it was he who, on June 5, 1787, suggested the association of the Senate with the President in appointments as a compromise measure for dealing with the appointment of judges. 1 Farrand, Records of the Federal Convention, 128. The proposition that such appointments should be made by and with the advice and consent of the Senate was first brought forward by Nathaniel Corham of Massachusetts, "in the mode prescribed by the constitution of Masts." 2 ibid. 41. Later, this association of the President and the Senate was carried over generally to other appointments. The suggestion for the concurrence of the Senate in appointments of executive officials was advanced on May 29 by Pinckney in his "draught of a foederal government" and by Hamilton in resolutions submitted by him on June 18, 1787, 1 ibid. 292; 3 ibid. 599. [ Footnote 2/87 ] Rogers, Executive Power of Removal, 11, 39. On August 6, 1787, the Committee of Five reported the draft of the Constitution that, in Art. X, Sect. 2, provided for a single executive who "shall appoint officers in all cases not otherwise provided for by this Constitution." 2 Farrand, Records of the Federal Convention, 185. On August 20 propositions were submitted to the Committee of Five for the creation of a Council of State consisting of the Chief Justice, the Secretaries of domestic affairs, commerce and finance, foreign affairs, war, marine and state. All the Secretaries were to be appointed by the President and hold office during his pleasure. 2 ibid. 335-337. That proposition was rejected because "it was judged that the Presidt. by persuading his council to concur in his wrong measures, would acquire their protection. . . ." 2 ibid. 542. The criticism of Wilson, who had proposed the Council of State, and Mason of the Senate's participation in appointments was based upon this rejection. The lack of such a Council was the "fatal defect" from which "has arisen the improper power of the Senate in the appointment of public officers." 2 ibid. 537, 639.

In Myers v. United States (1926), the Supreme Court held that the President has the exclusive power to remove executive officials, and Congress cannot restrict this power by legislation. The Court interpreted the Constitution's grant of "executive power" to the President as including the power to remove officials, and viewed Senate involvement in removals as an unconstitutional infringement on executive authority. This decision affirmed the President's control over the executive branch and set a precedent for the separation of powers between the executive and legislative branches.

Search & Seizure

Collins v. Virginia

https://supreme.justia.com/cases/federal/us/584/16-1027/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 16–1027 _________________ RYAN AUSTIN COLLINS, PETITIONER v. VIRGINIA on writ of certiorari to the supreme court of virginia [May 29, 2018] Justice Sotomayor delivered the opinion of the Court. This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not. I Officer Matthew McCall of the Albemarle County Police Department in Virginia saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction. The driver eluded Officer McCall’s attempt to stop the motorcycle. A few weeks later, Officer David Rhodes of the same department saw an orange and black motorcycle traveling well over the speed limit, but the driver got away from him, too. The officers compared notes and concluded that the two incidents involved the same motorcyclist. Upon further investigation, the officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street. It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week.[ 1 ] From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph. Officer Rhodes, who did not have a warrant, exited his car and walked toward the house. He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. In order “to investigate further,” App. 80, Officer Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident. He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen. After gathering this information, Officer Rhodes took a photograph of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins. Shortly thereafter, Collins returned home. Officer Rhodes walked up to the front door of the house and knocked. Collins answered, agreed to speak with Officer Rhodes, and admitted that the motorcycle was his and that he had bought it without title. Officer Rhodes then arrested Collins. Collins was indicted by a Virginia grand jury for receiving stolen property. He filed a pretrial motion to suppress the evidence that Officer Rhodes had obtained as a result of the warrantless search of the motorcycle. Collins argued that Officer Rhodes had trespassed on the curtilage of the house to conduct an investigation in violation of the Fourth Amendment. The trial court denied the motion and Collins was convicted. The Court of Appeals of Virginia affirmed. It assumed that the motorcycle was parked in the curtilage of the home and held that Officer Rhodes had probable cause to believe that the motorcycle under the tarp was the same motorcycle that had evaded him in the past. It further concluded that Officer Rhodes’ actions were lawful under the Fourth Amendment even absent a warrant because “numerous exigencies justified both his entry onto the property and his moving the tarp to view the motorcycle and record its identification number.” 65 Va. App. 37, 46, 773 S. E. 2d 618, 623 (2015). The Supreme Court of Virginia affirmed on different reasoning. It explained that the case was most properly resolved with reference to the Fourth Amendment’s automobile exception. 292 Va. 486, 496–501, 790 S. E. 2d 611, 616–618 (2016). Under that framework, it held that Officer Rhodes had probable cause to believe that the motorcycle was contraband, and that the warrantless search therefore was justified. Id., at 498–499, 790 S. E. 2d, at 617. We granted certiorari, 582 U. S. ___ (2017), and now reverse. II The Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home. A 1 The Court has held that the search of an automobile can be reasonable without a warrant. The Court first articulated the so-called automobile exception in Carroll v. United States ,267 U. S. 132 (1925). In that case, law enforcement officers had probable cause to believe that a car they observed traveling on the road contained illegal liquor. They stopped and searched the car, discovered and seized the illegal liquor, and arrested the occupants. Id., at 134–136. The Court upheld the warrantless search and seizure, explaining that a “necessary difference” exists between searching “a store, dwelling house or other structure” and searching “a ship, motor boat, wagon or automobile” because a “vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Id., at 153. The “ready mobility” of vehicles served as the core justification for the automobile exception for many years. California v. Carney ,471 U. S. 386, 390 (1985) (citing, e.g., Cooper v. California ,386 U. S. 58, 59 (1967); Chambers v. Maroney ,399 U. S. 42, 51–52 (1970)). Later cases then introduced an additional rationale based on “the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U. S., at 392. As the Court explained in South Dakota v. Opperman ,428 U. S. 364 (1976): “Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.” Id., at 368. In announcing each of these two justifications, the Court took care to emphasize that the rationales applied only to automobiles and not to houses, and therefore supported “treating automobiles differently from houses” as a constitutional matter. Cady v. Dombrowski ,413 U. S. 433, 441 (1973). When these justifications for the automobile exception “come into play,” officers may search an automobile without having obtained a warrant so long as they have probable cause to do so. Carney , 471 U. S., at 392–393. 2 Like the automobile exception, the Fourth Amendment’s protection of curtilage has long been black letter law. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines ,569 U. S. 1, 6 (2013). “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Ibid. (quoting Silverman v. United States ,365 U. S. 505, 511 (1961)). To give full practical effect to that right, the Court considers curtilage—“the area ‘immediately surrounding and associated with the home’ ”—to be “ ‘part of the home itself for Fourth Amendment purposes.’ ” Jardines , 569 U. S., at 6 (quoting Oliver v. United States ,466 U. S. 170, 180 (1984)). “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo ,476 U. S. 207, 212–213 (1986). When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Jardines , 569 U. S., at 11. Such conduct thus is presumptively unreasonable absent a warrant. B 1 With this background in mind, we turn to the application of these doctrines in the instant case. As an initial matter, we decide whether the part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage. According to photographs in the record, the driveway runs alongside the front lawn and up a few yards past the front perimeter of the house. The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provides direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door of the house would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house. The “ ‘conception defining the curtilage’ is . . . familiar enough that it is ‘easily understood from our daily experience.’ ” Jardines , 569 U. S., at 7 (quoting Oliver , 466 U. S., at 182, n. 12). Just like the front porch, side garden, or area “outside the front window,” Jardines, 569 U. S., at 6, the driveway enclosure where Officer Rhodes searched the motorcycle constitutes “an area adjacent to the home and ‘to which the activity of home life extends,’ ” and so is properly considered curtilage, id., at 7 (quoting Oliver , 466 U. S., at 182, n. 12). 2 In physically intruding on the curtilage of Collins’ home to search the motorcycle, Officer Rhodes not only invaded Collins’ Fourth Amendment interest in the item searched, i.e., the motorcycle, but also invaded Collins’ Fourth Amendment interest in the curtilage of his home. The question before the Court is whether the automobile exception justifies the invasion of the curtilage.[ 2 ] The answer is no. Applying the relevant legal principles to a slightly different factual scenario confirms that this is an easy case. Imagine a motorcycle parked inside the living room of a house, visible through a window to a passerby on the street. Imagine further that an officer has probable cause to believe that the motorcycle was involved in a traffic infraction. Can the officer, acting without a warrant, enter the house to search the motorcycle and confirm whether it is the right one? Surely not. The reason is that the scope of the automobile exception extends no further than the automobile itself. See, e.g., Pennsylvania v. Labron ,518 U. S. 938, 940 (1996) ( per curiam ) (explaining that the automobile exception “permits police to search the vehicle”); Wyoming v. Houghton ,526 U. S. 295, 300 (1999) (“[T]he Framers would have regarded as reasonable (if there was probable cause) the warrantless search of containers within an automobile”). Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Expanding the scope of the automobile exception in this way would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and “ ‘untether’ ” the automobile exception “ ‘from the justifications underlying’ ” it. Riley v. California , 573 U. S. ___, ___ (2014) (slip op., at 10) (quoting Arizona v. Gant ,556 U. S. 332, 343 (2009)). The Court already has declined to expand the scope of other exceptions to the warrant requirement to permit warrantless entry into the home. The reasoning behind those decisions applies equally well in this context. For instance, under the plain-view doctrine, “any valid warrantless seizure of incriminating evidence” requires that the officer “have a lawful right of access to the object itself.” Horton v. California ,496 U. S. 128, 136–137 (1990); see also id., at 137, n. 7 (“ ‘[E]ven where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure’ ”); G. M. Leasing Corp. v. United States ,429 U. S. 338, 354 (1977) (“It is one thing to seize without a warrant property resting in an open area . . . , and it is quite another thing to effect a warrantless seizure of property . . . situated on private premises to which access is not otherwise available for the seizing officer”). A plain-view seizure thus cannot be justified if it is effectuated “by unlawful trespass.” Soldal v. Cook County ,506 U. S. 56, 66 (1992). Had Officer Rhodes seen illegal drugs through the window of Collins’ house, for example, assuming no other warrant exception applied, he could not have entered the house to seize them without first obtaining a warrant. Similarly, it is a “settled rule that warrantless arrests in public places are valid,” but, absent another exception such as exigent circumstances, officers may not enter a home to make an arrest without a warrant, even when they have probable cause. Payton v. New York ,445 U. S. 573, 587–590 (1980). That is because being “ ‘arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.’ ” Id. , at 588–589 (quoting United States v. Reed , 572 F. 2d 412, 423 (CA2 1978)). Likewise, searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage. Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage. As noted, the rationales underlying the automobile exception are specific to the nature of a vehicle and the ways in which it is distinct from a house. See Part II–A–1, supra . The rationales thus take account only of the balance between the intrusion on an individual’s Fourth Amendment interest in his vehicle and the governmental interests in an expedient search of that vehicle; they do not account for the distinct privacy interest in one’s home or curtilage. To allow an officer to rely on the automobile exception to gain entry into a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application. Indeed, its name alone should make all this clear enough: It is, after all, an exception for automobiles.[ 3 ] Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage. III A Virginia argues that this Court’s precedent indicates that the automobile exception is a categorical one that permits the warrantless search of a vehicle anytime, anywhere, including in a home or curtilage. Specifically, Virginia points to two decisions that it contends resolve this case in its favor. Neither is dispositive or persuasive. First, Virginia invokes Scher v. United States ,305 U. S. 251 (1938). In that case, federal officers received a confidential tip that a particular car would be transporting bootleg liquor at a specified time and place. The officers identified and followed the car until the driver “turned into a garage a few feet back of his residence and within the curtilage.” Id., at 253. As the driver exited his car, an officer approached and stated that he had been informed that the car was carrying contraband. The driver acknowledged that there was liquor in the trunk, and the officer proceeded to open the trunk, find the liquor, arrest the driver, and seize both the car and the liquor. Id., at 253–254. Although the officer did not have a search warrant, the Court upheld the officer’s actions as reasonable. Id., at 255. Scher is inapposite. Whereas Collins’ motorcycle was parked and unattended when Officer Rhodes intruded on the curtilage to search it, the officers in Scher first encountered the vehicle when it was being driven on public streets, approached the curtilage of the home only when the driver turned into the garage, and searched the vehicle only after the driver admitted that it contained contraband. Scher by no means established a general rule that the automobile exception permits officers to enter a home or its curtilage absent a warrant. The Court’s brief analysis referenced Carroll , but only in the context of observing that, consistent with that case, the “officers properly could have stopped” and searched the car “just before [petitioner] entered the garage,” a proposition the petitioner did “not seriously controvert.” Scher, 305 U. S., at 254–255. The Court then explained that the officers did not lose their ability to stop and search the car when it entered “the open garage closely followed by the observing officer” because “[n]o search was made of the garage.” Id., at 255. It emphasized that “[e]xamination of the automobile accompanied an arrest, without objection and upon admission of probable guilt,” and cited two search-incident-to-arrest cases. Ibid. (citing Agnello v. United States ,269 U. S. 20, 30 (1925); Wisniewski v. United States , 47 F. 2d 825, 826 (CA6 1931)). Scher ’s reasoning thus was both case specific and imprecise, sounding in multiple doctrines, particularly, and perhaps most appropriately, hot pursuit. The decision is best regarded as a factbound one, and it certainly does not control this case. Second, Virginia points to Labron ,518 U. S. 938, where the Court upheld under the automobile exception the warrantless search of an individual’s pickup truck that was parked in the driveway of his father-in-law’s farmhouse. Id., at 939–940; Commonwealth v. Kilgore , 544 Pa. 439, 444, 677 A.2d 311 , 313 (1995). But Labron provides scant support for Virginia’s position. Unlike in this case, there was no indication that the individual who owned the truck in Labron had any Fourth Amendment interest in the farmhouse or its driveway, nor was there a determination that the driveway was curtilage. B Alternatively, Virginia urges the Court to adopt a more limited rule regarding the intersection of the automobile exception and the protection afforded to curtilage. Virginia would prefer that the Court draw a bright line and hold that the automobile exception does not permit warrantless entry into “the physical threshold of a house or a similar fixed, enclosed structure inside the curtilage like a garage.” Brief for Respondent 46. Requiring officers to make “case-by-case curtilage determinations,” Virginia reasons, unnecessarily complicates matters and “raises the potential for confusion and . . . error.” Id., at 46–47 (internal quotation marks omitted). The Court, though, has long been clear that curtilage is afforded constitutional protection. See Oliver , 466 U. S., at 180. As a result, officers regularly assess whether an area is curtilage before executing a search. Virginia provides no reason to conclude that this practice has proved to be unadministrable, either generally or in this context. Moreover, creating a carveout to the general rule that curtilage receives Fourth Amendment protection, such that certain types of curtilage would receive Fourth Amendment protection only for some purposes but not for others, seems far more likely to create confusion than does uniform application of the Court’s doctrine. In addition, Virginia’s proposed rule rests on a mistaken premise about the constitutional significance of visibility. The ability to observe inside curtilage from a lawful vantage point is not the same as the right to enter curtilage without a warrant for the purpose of conducting a search to obtain information not otherwise accessible. Cf. Cir- aolo , 476 U. S., at 213–214 (holding that “physically non- intrusive” warrantless aerial observation of the curtilage of a home did not violate the Fourth Amendment, and could form the basis for probable cause to support a warrant to search the curtilage). So long as it is curtilage, a parking patio or carport into which an officer can see from the street is no less entitled to protection from trespass and a warrantless search than a fully enclosed garage. Finally, Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage. See United States v. Ross ,456 U. S. 798, 822 (1982) (“[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion”). IV For the foregoing reasons, we conclude that the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein. We leave for resolution on remand whether Officer Rhodes’ warrantless intrusion on the curtilage of Collins’ house may have been reasonable on a different basis, such as the exigent circumstances exception to the warrant requirement. The judgment of the Supreme Court of Virginia is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 Virginia does not dispute that Collins has Fourth Amendment standing. See Minnesota v. Olson ,495 U. S. 91, 96–100 (1990). 2 Helpfully, the parties have simplified matters somewhat by each making a concession. Petitioner concedes “for purposes of this appeal” that Officer Rhodes had probable cause to believe that the motorcycle was the one that had eluded him, Brief for Petitioner 5, n. 3, and Virginia concedes that “Officer Rhodes searched the motorcycle,” Brief for Respondent 12. 3 The dissent concedes that “the degree of the intrusion on privacy” is relevant in determining whether a warrant is required to search a motor vehicle “located on private property.” Post , at 5–6 (opinion of Alito, J.). Yet it puzzlingly asserts that the “privacy interests at stake” here are no greater than when a motor vehicle is searched “on public streets.” Post, at 3–4. “An ordinary person of common sense,” post, at 2, however, clearly would understand that the privacy interests atstake in one’s private residential property are far greater than on a public street. Contrary to the dissent’s suggestion, it is of no significance that the motorcycle was parked just a “short walk up the driveway.” Ibid . The driveway was private, not public, property, and the motorcycle was parked in the portion of the driveway beyond where a neighbor would venture, in an area “intimately linked to the home, . . . where privacy expectations are most heightened.” California v. Ciraolo ,476 U. S. 207, 213 (1986). Nor does it matter that Officer Rhodes“did not damage any property,” post , at 2, for an officer’s care in conducting a search does not change the character of the place being searched. And, as we explain, see infra , at 13–14, it is not dispositive that Officer Rhodes did not “observe anything along the way” to the motorcycle “that he could not have seen from the street,” post, at 2. Law enforcement officers need not “shield their eyes when passing by a home on public thoroughfares,” Ciraolo , 476 U. S., at 213, but the ability visually to observe an area protected by the Fourth Amendment does not give officers the green light physically to intrude on it. See Florida v. Jardines ,569 U. S. 1, 7–8 (2013). It certainly does not permit an officer physically to intrude on curtilage, remove a tarp to reveal license plate and vehicle identification numbers, and use those numbers to confirm that the defendant committed a crime. The dissent also mistakenly relies on a law enacted by the First Congress and mentioned in Carroll v. United States ,267 U. S. 132, 150–151 (1925), that authorized the warrantless search of vessels. Post , at 4–5, n. 3. The dissent thinks it implicit in that statute that “officers could cross private property such as wharves in order to reach and board those vessels.” Ibid. Even if it were so that a police officer could have entered a private wharf to search a vessel, that would not prove he could enter the curtilage of a home to do so. To the contrary, whereas the statute relied upon in Carroll authorized warrantless searches of vessels, it expressly required warrants to search houses. See 267 U. S., at 150–157; Act of July 31, 1789, §24,1Stat.43. Here, Officer Rhodes did not invade a private wharf to undertake a search; he invaded the curtilage of a home. SUPREME COURT OF THE UNITED STATES _________________ No. 16–1027 _________________ RYAN AUSTIN COLLINS, PETITIONER v. VIRGINIA on writ of certiorari to the supreme court of virginia [May 29, 2018] Justice Thomas, concurring. I join the Court’s opinion because it correctly resolves the Fourth Amendment question in this case. Notably, the only reason that Collins asked us to review this question is because, if he can prove a violation of the Fourth Amendment, our precedents require the Virginia courts to apply the exclusionary rule and potentially suppress the incriminating evidence against him. I write separately because I have serious doubts about this Court’s authority to impose that rule on the States. The assumption that state courts must apply the federal exclusionary rule is legally dubious, and many jurists have complained that it encourages “distort[ions]” in substantive Fourth Amendment law, Rakas v. Illinois , 439 U. S. 128, 157 (1978) (White, J., dissenting); see also Coolidge v. New Hampshire , 403 U. S. 443, 490 (1971) (Harlan, J., concurring); Calabresi, The Exclusionary Rule, 26 Harv. J. L. & Pub. Pol’y 111, 112 (2003). The Fourth Amendment, as relevant here, protects the people from “unreasonable searches” of “their . . . houses.” As a general rule, warrantless searches of the curtilage violate this command. At the founding, curtilage was considered part of the “hous[e]” itself. See 4 W. Blackstone, Commentaries on the Laws of England 225 (1769) (“[T]he capital house protects and privileges all its branches and appurtenants, if within the curtilage”). And except in circumstances not present here, house searches required a specific warrant. See W. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, p. 743 (2009) (Cuddihy); Donahue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1237–1240 (2016); Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 643–646 (1999). A warrant was required even if the house was being searched for stolen goods or contraband—objects that, unlike cars, are not protected by the Fourth Amendment at all. Id., at 647–650; see also Carroll v. United States , 267 U. S. 132, 150–152 (1925) (Taft, C. J.) (discussing founding-era evidence that a search warrant was required when stolen goods and contraband were “concealed in a dwelling house” but not when they were “in course of transportation and concealed in a movable vessel”). Accordingly, the police acted “unreasonabl[y]” when they searched the curtilage of Collins’ house without a warrant.[ 1 ] While those who ratified the Fourth and Fourteenth Amendments would agree that a constitutional violation occurred here, they would be deeply confused about the posture of this case and the remedy that Collins is seeking. Historically, the only remedies for unconstitutional searches and seizures were “tort suits” and “self-help.” Utah v. Strieff , 579 U. S. ___, ___ (2016) (slip op., at 4). The exclusionary rule—the practice of deterring illegal searches and seizures by suppressing evidence at criminal trials—did not exist. No such rule existed in “Roman Law, Napoleonic Law or even the Common Law of England.” Burger, Who Will Watch the Watchman? 14 Am. U. L. Rev. 1 (1964). And this Court did not adopt the federal exclusionary rule until the 20th century. See Weeks v. United States , 232 U. S. 383 (1914). As late as 1949, nearly two-thirds of the States did not have an exclusionary rule. See Wolf v. Colorado , 338 U. S. 25, 29 (1949). Those States, as then-Judge Cardozo famously explained, did not understand the logic of a rule that allowed “[t]he criminal . . . to go free because the constable has blundered.” People v. Defore , 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926). The Founders would not have understood the logic of the exclusionary rule either. Historically, if evidence was relevant and reliable, its admissibility did not “depend upon the lawfulness or unlawfulness of the mode, by which it [was] obtained.” United States v. The La Jeune Eugenie , 26 F. Cas. 832, 843 (No. 15, 551) (CC Mass. 1822) (Story, J.); accord, 1 S. Greenleaf, Evidence §254a, pp. 825–826 (14th ed. 1883) (“[T]hat . . . subjects of evidence may have been . . . unlawfully obtained . . . is no valid objection to their admissibility if they are pertinent to the issue”); 4 J. Wigmore, Evidence §2183, p. 626 (2d ed. 1923) (“[I]t has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence” (emphasis deleted)). And the common law sometimes reflected the inverse of the exclusionary rule: The fact that someone turned out to be guilty could justify an illegal seizure. See Gelston v. Hoyt , 3 Wheat. 246, 310 (1818) (Story, J.) (“At common law, any person may at his peril, seize for a forfeiture to the government; and if the government adopt his seizure, and the property is condemned, he will be completely justified”); 2 W. Hawkins, Pleas of the Crown 77 (1721) (“And where a Man arrests another, who is actually guilty of the Crime for which he is arrested, . . . he needs not in justifying it, set forth any special Cause of his Suspicion”). Despite this history, the Court concluded in Mapp v. Ohio , 367 U. S. 643 (1961), that the States must apply the federal exclusionary rule in their own courts. Id., at 655.[ 2 ] Mapp suggested that the exclusionary rule was required by the Constitution itself. See, e.g., id., at 657 (“[T]he exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments”); id., at 655 (“[E]vidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court”); id., at 655–656 (“[I]t was . . . constitutionally necessary that the exclusion doctrine—an essential part of the right to privacy—be also insisted upon”).[ 3 ] But that suggestion could not withstand even the slightest scrutiny. The exclusionary rule appears nowhere in the Constitution, postdates the founding by more than a century, and contradicts several longstanding principles of the common law. See supra, at 2–3; Cuddihy 759–760; Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 786 (1994); Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L. Rev. 1027, 1030–1031 (1974). Recognizing this, the Court has since rejected Mapp ’s “ ‘[e]xpansive dicta’ ” and clarified that the exclusionary rule is not required by the Constitution. Davis v. United States , 564 U. S. 229, 237 (2011) (quoting Hudson v. Michigan , 547 U. S. 586, 591 (2006)). Suppression, this Court has explained, is not “a personal constitutional right.” United States v. Calandra , 414 U. S. 338, 348 (1974); accord, Stone v. Powell , 428 U. S. 465, 486 (1976). The Fourth Amendment “says nothing about suppressing evidence,” Davis , supra , at 236, and a prosecutor’s “use of fruits of a past unlawful search or seizure ‘work[s] no new Fourth Amendment wrong,’ ” United States v. Leon , 468 U. S. 897, 906 (1984) (quoting Calandra , supra , at 354).[ 4 ] Instead, the exclusionary rule is a “judicially created” doctrine that is “prudential rather than constitutionally mandated.” Pennsylvania Bd. of Probation and Parole v. Scott , 524 U. S. 357, 363 (1998); accord, Herring v. United States , 555 U. S. 135, 139 (2009); Arizona v. Evans , 514 U. S. 1, 10 (1995); United States v. Janis , 428 U. S. 433, 459–460 (1976).[ 5 ] Although the exclusionary rule is not part of the Constitution, this Court has continued to describe it as “federal law” and assume that it applies to the States. Evans , supra ; Massachusetts v. Sheppard , 468 U. S. 981, 991 (1984). Yet the Court has never attempted to justify this assumption. If the exclusionary rule is federal law, but is not grounded in the Constitution or a federal statute, then it must be federal common law. See Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 10 (1975). As federal common law, however, the exclusionary rule cannot bind the States. Federal law trumps state law only by virtue of the Supremacy Clause, which makes the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties . . . the supreme Law of the Land,” Art. VI, cl. 2. When the Supremacy Clause refers to “[t]he Laws of the United States made in Pursuance [of the Constitution],” it means federal statutes, not federal common law. Ramsey, The Supremacy Clause, Original Meaning, and Modern Law, 74 Ohio St. L. J. 559, 572–599 (2013) (Ramsey); Clark, Separation of Powers as a Safeguard of Federalism, 79 Texas L. Rev. 1321, 1334–1336, 1338–1367 (2001) (Clark); see also Gibbons v. Ogden , 9 Wheat. 1, 211 (1824) (Marshall, C. J.) (“The appropriate application of that part of the clause which confers . . . supremacy on laws . . . is to . . . the laws of Congress, made in pursuance of the constitution”); Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 500 (1954) (“[T]he supremacy clause is limited to those ‘Laws’ of the United States which are passed by Congress pursuant to the Constitution”). By referencing laws “made in Pursuance” of the Constitution, the Supremacy Clause incorporates the requirements of Article I, which force Congress to stay within its enumerated powers, §8, and follow the cumbersome procedures for enacting federal legislation, §7. See Wyeth v. Levine , 555 U. S. 555, 585–587 (2009) (Thomas, J., concurring in judgment); 3 J. Story, Commentaries on the Constitution of the United States §1831, pp. 693–694 (1833); Clark 1334. Those procedures—especially the requirement that bills pass the Senate, where the States are represented equally and Senators were originally elected by state legislatures—safeguard federalism by making federal legislation more difficult to pass and more responsive to state interests. See Ramsey 565; Clark 1342–1343. Federal common law bypasses these procedures and would not have been considered the kind of “la[w]” that can bind the States under the Supremacy Clause. See Ramsey 564–565, 568, 574, 581; Jay, Origins of Federal Common Law: Part Two, 133 U. Pa. L. Rev. 1231, 1275 (1985). True, this Court, without citing the Supremacy Clause, has recognized several “enclaves of federal judge-made law which bind the States.” Banco Nacional de Cuba v. Sabbatino , 376 U. S. 398, 426 (1964); see, e.g., id., at 427–428 (foreign affairs); Hinderlider v. La Plata River & Cherry Creek Ditch Co. , 304 U. S. 92, 110 (1938) (disputes between States); Garrett v. Moore-McCormack Co. , 317 U. S. 239, 245 (1942) (admiralty); Clearfield Trust Co. v. United States , 318 U. S. 363, 366 (1943) (certain rights and obligations of the United States); Textile Workers v. Lincoln Mills of Ala. , 353 U. S. 448, 456–457 (1957) (aspects of federal labor law). To the extent these enclaves are delegations of lawmaking authority from the Constitution or a federal statute, they do not conflict with the original meaning of the Supremacy Clause (though they might be illegitimate for other reasons). See Ramsey 568–569; Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw. U. L. Rev. 100, 131–132 (1985). To the extent these enclaves are not rooted in the Constitution or a statute, their pre-emptive force is questionable. But that is why this Court has “limited” them to a “ ‘few’ ” “narrow areas” where “the authority and duties of the United States as sovereign are intimately involved” or where “the interstate or international nature of the controversy makes it inappropriate for state law to control.” Texas Industries, Inc. v. Radcliff Materials, Inc. , 451 U. S. 630, 640–641 (1981) (quoting Wheeldin v. Wheeler , 373 U. S. 647, 651 (1963)). Outside these narrow enclaves, the general rule is that “[t]here is no federal general common law” and “[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.” Erie R. Co. v. Tompkins , 304 U. S. 64, 78 (1938). These precedents do not support requiring the States to apply the exclusionary rule. As explained, the exclusionary rule is not rooted in the Constitution or a federal statute. This Court has repeatedly rejected the idea that the rule is in the Fourth and Fourteenth Amendments, expressly or implicitly. See Davis , 564 U. S., at 236; Leon , 468 U. S., at 905–906; cf. Ziglar v. Abbasi , 582 U. S. ___, ___ (2017) (slip op., at 11) (explaining that reading implied remedies into the Constitution is “a ‘disfavored’ judicial activity”). And the exclusionary rule does not implicate any of the special enclaves of federal common law. It does not govern the sovereign duties of the United States or disputes of an interstate or international character. Instead, the rule governs the methods that state police officers use to solve crime and the procedures that state courts use at criminal trials—subjects that the Federal Government generally has no power to regulate. See United States v. Morrison , 529 U. S. 598, 618 (2000) (explaining that “[t]he regulation” and “vindication” of intrastate crime “has always been the province of the States”); Smith v. Phillips , 455 U. S. 209, 221 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings”). These are not areas where federal common law can bind the States.[ 6 ] *  *  * In sum, I am skeptical of this Court’s authority to impose the exclusionary rule on the States. We have not yet revisited that question in light of our modern precedents, which reject Mapp ’s essential premise that the exclusionary rule is required by the Constitution. We should do so. Notes 1 Collins did not live at the house; he merely stayed there with his girlfriend several times a week. But Virginia does not contest Collins’ assertion that the house is his, so I agree with the Court that Virginia has forfeited any argument to the contrary. See ante, at 2, n. 1; United States v. Jones , 565 U. S. 400, 404, n. 2 (2012). 2 Twelve years before Mapp , the Court declined to apply the federal exclusionary rule to the States. See Wolf v. Colorado , 338 U. S. 25 (1949). Wolf denied that the Constitution requires the exclusionary rule, since “most of the English-speaking world” does not apply that rule and alternatives such as civil suits and internal police discipline do not “fal[l] below the minimal standards assured by the Due Process Clause.” Id., at 29, 31. In Mapp , the Court overruled Wolf and applied the exclusionary rule to the States, even though no party had briefed or argued that question. See 367 U. S., at 672–674, and nn. 4–6 (Harlan, J., dissenting); Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule, 83 Colum. L. Rev. 1365, 1368 (1983). 3 Justice Black, the essential fifth vote in Mapp , did not agree that the Fourth Amendment contains an exclusionary rule. See 367 U. S., at 661–662 (concurring opinion) (“[T]he Fourth Amendment does not itself contain any provision expressly precluding the use of such evidence, and I am extremely doubtful that such a provision could prop-erly be inferred”). But he concluded that, when the police seize private papers, suppression is required by a combination of the Fourth and Fifth Amendments . See id., at 662–666. 4 The exclusionary rule is not required by the Due Process Clause either. Given its nonexistent historical foundation, the exclusionary rule cannot be a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestors.” Murray’s Lessee v. Hoboken Land & Improvement Co. , 18 How. 272, 277 (1856). And the rule “has ‘no bearing on . . . the fairness of the trial.’ ” Desist v. United States , 394 U. S. 244, 254, n. 24 (1969). If anything, the exclusionary rule itself “ ‘offends basic concepts of the criminal justice system’ ” and exacts a “ ‘costly toll upon truth-seeking.’ ” Herring v. United States , 555 U. S. 135, 141 (2009). “The [excluded] evidence is likely to be the most reliable that could possibly be obtained [and thus] exclusion rather than admission creates the danger of a verdict erroneous on the true facts.” H. Friendly, Benchmarks 260 (1967). 5 These statements cannot be dismissed as mere dicta. Cf. Dickerson v. United States , 530 U. S. 428, 438–441, and n. 2 (2000) (constitutionalizing the rule announced in Miranda v. Arizona , 384 U. S. 436 (1966), despite earlier precedents to the contrary). The nonconstitutional status of the exclusionary rule is why this Court held in Stone v. Powell , 428 U. S. 465, 482–495 (1976), that violations are not cognizable on federal habeas review. Cf. Dickerson , supra , at 439 n. 3. And the nonconstitutional status of the rule is why this Court has created more than a dozen exceptions to it, which apply even when the Fourth Amendment is concededly violated. See United States v. Weaver , 808 F. 3d 26, 49 (CADC 2015) (Henderson, J., dissenting) (collecting cases); cf. Dickerson , supra , at 441. 6 Of course, the States are free to adopt their own exclusionary rules as a matter of state law. But nothing in the Federal Constitution requires them to do so. Even assuming the Constitution requires particular state-law remedies for federal constitutional violations, it does not require the exclusionary rule. The “sole purpose” of the exclusionary rule is “to deter future Fourth Amendment violations”; it does not “ ‘redress’ ” or “ ‘repair’ ” past ones. Davis v. United States , 564 U. S. 229, 236–237 (2011). This Court has noted the lack of evidence supporting its deterrent effect, see United States v. Janis , 428 U. S. 433, 450, n. 22 (1976), and this Court has recognized the effectiveness of alternative deterrents such as state tort law, state criminal law, internal police discipline, and suits under 42 U. S. C. §1983, see Hudson v. Michigan , 547 U. S. 586, 597–599 (2006). SUPREME COURT OF THE UNITED STATES _________________ No. 16–1027 _________________ RYAN AUSTIN COLLINS, PETITIONER v. VIRGINIA on writ of certiorari to the supreme court of virginia [May 29, 2018] Justice Alito, dissenting. The Fourth Amendment prohibits “unreasonable” searches. What the police did in this case was entirely reasonable. The Court’s decision is not. On the day in question, Officer David Rhodes was standing at the curb of a house where petitioner, Ryan Austin Collins, stayed a couple of nights a week with his girlfriend. From his vantage point on the street, Rhodes saw an object covered with a tarp in the driveway, just a car’s length or two from the curb. It is undisputed that Rhodes had probable cause to believe that the object under the tarp was a motorcycle that had been involved a few months earlier in a dangerous highway chase, eluding the police at speeds in excess of 140 mph. See Tr. of Oral Arg. 22; App. to Pet. for Cert. 67. Rhodes also had probable cause to believe that petitioner had been operating the motorcycle[ 1 ] and that a search of the motorcycle would provide evidence that the motorcycle had been stolen.[ 2 ] If the motorcycle had been parked at the curb, instead of in the driveway, it is undisputed that Rhodes could have searched it without obtaining a warrant. See Tr. of Oral Arg. 9; Reply Brief 1. Nearly a century ago, this Court held that officers with probable cause may search a motor vehicle without obtaining a warrant. Carroll v. United States , 267 U. S. 132, 153, 155–156 (1925). The principal rationale for this so-called automobile or motor-vehicle exception to the warrant requirement is the risk that the vehicle will be moved during the time it takes to obtain a warrant. Id. , at 153; California v. Carney , 471 U. S. 386, 390–391 (1985). We have also observed that the owner of an automobile has a diminished expectation of privacy in its contents. Id. , at 391–393. So why does the Court come to the conclusion that Officer Rhodes needed a warrant in this case? Because, in order to reach the motorcycle, he had to walk 30 feet or so up the driveway of the house rented by petitioner’s girlfriend, and by doing that, Rhodes invaded the home’s “curtilage.” Ante , at 6–7. The Court does not dispute that the motorcycle, when parked in the driveway, was just as mobile as it would have been had it been parked at the curb. Nor does the Court claim that Officer Rhodes’s short walk up the driveway did petitioner or his girlfriend any harm. Rhodes did not damage any property or observe anything along the way that he could not have seen from the street. But, the Court insists, Rhodes could not enter the driveway without a warrant, and therefore his search of the motorcycle was unreasonable and the evidence obtained in that search must be suppressed. An ordinary person of common sense would react to the Court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, “the law is a ass—a idiot.” C. Dickens, Oliver Twist 277 (1867). The Fourth Amendment is neither an “ass” nor an “idiot.” Its hallmark is reasonableness, and the Court’s strikingly unreasonable decision is based on a misunderstanding of Fourth Amendment basics. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects.” A “house,” for Fourth Amendment purposes, is not limited to the structure in which a person lives, but by the same token, it also does not include all the real property surrounding a dwelling. See, e.g. , Florida v. Jardines , 569 U. S. 1, 6 (2013); United States v. Dunn , 480 U. S. 294, 300–301 (1987). Instead, a person’s “house” encompasses the dwelling and a circumscribed area of surrounding land that is given the name “curtilage.” Oliver v. United States , 466 U. S. 170, 180 (1984). Land outside the curtilage is called an “open field,” and a search conducted in that area is not considered a search of a “house” and is therefore not governed by the Fourth Amendment. Ibid. Ascertaining the boundaries of the curtilage thus determines only whether a search is governed by the Fourth Amendment. The concept plays no other role in Fourth Amendment analysis. In this case, there is no dispute that the search of the motorcycle was governed by the Fourth Amendment, and therefore whether or not it occurred within the curtilage is not of any direct importance. The question before us is not whether there was a Fourth Amendment search but whether the search was reasonable. And the only possible argument as to why it might not be reasonable concerns the need for a warrant. For nearly a century, however, it has been well established that officers do not need a warrant to search a motor vehicle on public streets so long as they have probable cause. Carroll , supra , at 153, 156; see also, e.g. , Pennsylvania v. Labron , 518 U. S. 938, 940 (1996) ( per curiam ); Carney , supra , at 394; South Dakota v. Opperman , 428 U. S. 364, 367–368 (1976); Chambers v. Maroney , 399 U. S. 42, 50–51 (1970). Thus, the issue here is whether there is any good reason why this same rule should not apply when the vehicle is parked in plain view in a driveway just a few feet from the street. In considering that question, we should ask whether the reasons for the “automobile exception” are any less valid in this new situation. Is the vehicle parked in the driveway any less mobile? Are any greater privacy interests at stake? If the answer to those questions is “no,” then the automobile exception should apply. And here, the answer to each question is emphatically “no.” The tarp-covered motorcycle parked in the driveway could have been uncovered and ridden away in a matter of seconds. And Officer Rhodes’s brief walk up the driveway impaired no real privacy interests. In this case, the Court uses the curtilage concept in a way that is contrary to our decisions regarding other, exigency-based exceptions to the warrant requirement. Take, for example, the “emergency aid” exception. See Brigham City v. Stuart , 547 U. S. 398 (2006). When officers reasonably believe that a person inside a dwelling has urgent need of assistance, they may cross the curtilage and enter the building without first obtaining a warrant. Id. , at 403–404. The same is true when officers reasonably believe that a person in a dwelling is destroying evidence. See Kentucky v. King , 563 U. S. 452, 460 (2011). In both of those situations, we ask whether “ ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable.” Brigham City , supra , at 403 (quoting Mincey v. Arizona , 437 U. S. 385, 394 (1978)). We have not held that the need to cross the curtilage independently necessitates a warrant, and there is no good reason to apply a different rule here.[ 3 ] It is no answer to this argument that the emergency-aid and destruction-of-evidence exceptions require an inquiry into the practicality of obtaining a warrant in the particular circumstances of the case. Our precedents firmly establish that the motor-vehicle exception, unlike these other exceptions, “has no separate exigency requirement.” Maryland v. Dyson , 527 U. S. 465, 466–467 (1999) ( per curiam ). It is settled that the mobility of a motor vehicle categorically obviates any need to engage in such a case-specific inquiry. Requiring such an inquiry here would mark a substantial alteration of settled Fourth Amendment law. This does not mean, however, that a warrant is never needed when officers have probable cause to search a motor vehicle, no matter where the vehicle is located. While a case-specific inquiry regarding exigency would be inconsistent with the rationale of the motor-vehicle exception, a case-specific inquiry regarding the degree of intrusion on privacy is entirely appropriate when the motor vehicle to be searched is located on private property. After all, the ultimate inquiry under the Fourth Amendment is whether a search is reasonable, and that inquiry often turns on the degree of the intrusion on privacy. Thus, contrary to the opinion of the Court, an affirmance in this case would not mean that officers could perform a warrantless search if a motorcycle were located inside a house. See ante , at 7. In that situation, the intrusion on privacy would be far greater than in the present case, where the real effect, if any, is negligible. I would affirm the decision below and therefore respectfully dissent. Notes 1 Petitioner had a photo on his Facebook profile of a motorcycle that resembled the unusual motorcycle involved in the prior highway chase. See ante , at 1–2 (majority opinion). 2 Rhodes suspected the motorcycle was stolen based on a conversation he had with the man who had sold the motorcycle to petitioner. See App. 57–58. 3 Indeed, I believe that the First Congress implicitly made the same judgment in enacting the statute on which Carroll v. United States , 267 U. S. 132 (1925), relied when the motor-vehicle exception was first recognized. Since the First Congress sent the Bill of Rights to the States for ratification, we have often looked to laws enacted by that Congress as evidence of the original understanding of the meaning of those Amendments. See, e.g. , id. , at 150–151; Town of Greece v. Galloway , 572 U. S. ___, ___–___ (2014) (slip op., at 7–8); United States v. Villamonte-Marquez , 462 U. S. 579, 585–586 (1983); United States v. Ramsey , 431 U. S. 606, 616–617 (1977). Carroll itself noted that the First Congress enacted a law authorizing officers to search vessels without a warrant. 267 U. S., at 150–151. Although this statute did not expressly state that these officers could cross private property such as wharves in order to reach and board those vessels, I think that was implicit. Otherwise, the statute would very often have been ineffective. And when Congress later enacted similar laws, it made this authorization express. See, e.g. , An Act Further to Prevent Smuggling and for Other Purposes, §5, 14Stat. 179. For this reason, Officer Rhodes’s conduct in this case is consistent with the original understanding of the Fourth Amendment, as explicated in Carroll .

The Supreme Court ruled that a police officer cannot enter the private property (curtilage) of a home without a warrant to search a vehicle, even if there is probable cause to believe it is stolen. This case affirms that the automobile exception to the Fourth Amendment, which allows warrantless searches of vehicles, does not extend to private residential property. The officer's search of the petitioner's motorcycle, parked in his girlfriend's driveway, violated the Fourth Amendment.

Separation of Powers

Humphrey's Executor v. U.S.

https://supreme.justia.com/cases/federal/us/295/602/

U.S. Supreme Court Humphrey's Executor v. United States, 295 U.S. 602 (1935) Humphrey's Executor v. United States* No. 667 Argued 1, 1935 Decided May 27, 1935 295 U.S. 602 CERTIFICATE FROM THE COURT OF CLAIMS Syllabus 1. The Federal Trade Commission Act fixes the terms of the Commissioners and provides that any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. Held that Congress intended to restrict the power of removal to one or more of those causes. Shurtleff v. United States, 189 U. S. 311 , distinguished. Pp. 295 U. S. 621 , 295 U. S. 626 . 2. This construction of the Act is confirmed by a consideration of the character of the Commission -- an independent, nonpartisan body of experts, charged with duties neither political nor executive, but predominantly quasi -judicial and quasi -legislative, and by the legislative history of the Act. P. 295 U. S. 624 . 3. When Congress provides for the appointment of officers whose functions, like those of the Federal Trade Commissioners, are of Legislative and judicial quality, rather than executive, and limits the grounds upon which they may be removed from office, the President has no constitutional power to remove them for reasons other than those so specified. Myers v. United States, 272 U. S. 52 , limited, and expressions in that opinion in part disapproved. Pp. 295 U. S. 626 , 295 U. S. 627 . Page 295 U. S. 603 The Myers case dealt with the removal of a postmaster, an executive officer restricted to executive functions and charged with no duty at all related to either the legislative or the judicial power. The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate he is. That decision goes no farther than to include purely executive officers. The Federal Trade Commission, in contrast, is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control. To the extent that it exercises any executive function -- as distinguished from executive power in the constitutional sense -- it does so in the discharge and effectuation of its quasi -legislative or quasi -judicial powers, or as an agency of the legislative or judicial departments of the Government. Pp. 295 U. S. 627 -628. 4. The authority of Congress, in creating quasi -legislative or quasi -judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted, and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. P. 295 U.S. 629 . 5. The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others has often been stressed, and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution, and in the rule which recognizes their essential coequality. P. 295 U.S. 629 . 6. Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office. To the extent that, between the decision in the Myers case, which sustains the unrestrictable power of the President to remove purely executive officers, and the present decision that such power does not extend to an office Page 295 U. S. 604 such as that here involved there shall remain a field of doubt, such cases as may fall within it are left for future consideration and determination as they may arise. P. 295 U. S. 631 . 7. While the general rule preclude the use of congressional debates to explain the meaning of the words of a statute, they may be considered as reflecting light upon its general purposes and the evils which it sought to remedy. P. 295 U. S. 625 . 8. Expressions in an opinion which are beyond the point involved do not come within the rule of stare decisis. P. 295 U. S. 626 . CERTIFICATE from the Court of Claims, propounding questions arising on a claim for the salary withheld from the plaintiff's testator, from the time when the President undertook to remove him from office to the time of his death. Page 295 U. S. 618 MR. JUSTICE SUTHERLAND delivered the opinion of the Court. Plaintiff brought suit in the Court of Claims against the United States to recover a sum of money alleged to be due the deceased for salary as a Federal Trade Commissioner from October 8, 1933, when the President undertook to remove him from office, to the time of his death on February 14, 1934. The court below has certified to this court two questions (Act of February 13, 1925, § 3(a), c. 229, 43 Stat. 936, 939; 28 U.S.C. § 288) in respect of the power of the President to make the removal. The material facts which give rise to the questions are as follows: William E. Humphrey, the decedent, on December 10, 1931, was nominated by President Hoover to succeed himself as a member of the Federal Trade Commission, and was confirmed by the United States Senate. He was duly commissioned for a term of seven years expiring September 25, 1938; and, after taking the required oath of office, entered upon his duties. On July 25, 1933, President Roosevelt addressed a letter to the commissioner asking for his resignation, on the ground "that the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection," but disclaiming any reflection upon the commissioner personally or upon his services. The commissioner replied, asking time to consult Page 295 U. S. 619 his friends. After some further correspondence upon the subject, the President, on August 31, 1933, wrote the commissioner expressing the hope that the resignation would be forthcoming, and saying: "You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence." The commissioner declined to resign, and on October 7, 1933, the President wrote him: "Effective as of this date, you are hereby removed from the office of Commissioner of the Federal Trade Commission." Humphrey never acquiesced in this action, but continued thereafter to insist that he was still a member of the commission, entitled to perform its duties and receive the compensation provided by law at the rate of $10,000 per annum. Upon these and other facts set forth in the certificate, which we deem it unnecessary to recite, the following questions are certified: "1. Do the provisions of section 1 of the Federal Trade Commission Act, stating that 'any commissioner may be removed by the President for inefficiency, neglect of duly, or malfeasance in office,' restrict or limit the power of the President to remove a commissioner except upon one or more of the causes named?" "If the foregoing question is answered in the affirmative, then -- " "2. If the power of the President to remove a commissioner is restricted or limited as shown by the foregoing interrogatory and the answer made thereto, is such a restriction or limitation valid under the Constitution of the United States?" The Federal Trade Commission Act, c. 311, 38 Stat. 717; 15 U.S.C. §§ 41, 42, creates a commission of five Page 295 U. S. 620 members to be appointed by the President by and with the advice and consent of the Senate, and § 1 provides: "Not more than three of the commissioners shall be members of the same political party. The first commissioners appointed shall continue in office for terms of three, four, five, six, and seven years, respectively, from the date of the taking effect of this Act, the term of each to be designated by the President, but their successors shall be appointed for terms of seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed. The commission shall choose a chairman from its own membership. No commissioner shall engage in any other business, vocation, or employment. Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. . . ." Section 5 of the act in part provides: "That unfair methods of competition in commerce are hereby declared unlawful." "The commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, and common carriers subject to the Acts to regulate commerce, from using unfair methods of competition in commerce." In exercising this power, the commission must issue a complaint stating its charges and giving notice of hearing upon a day to be fixed. A person, partnership, or corporation proceeded against is given the right to appear at the time and place fixed and show cause why an order to cease and desist should not be issued. There is provision for intervention by others interested. If the commission finds the method of competition is one prohibited by the act, it is directed to make a report in writing stating its findings as to the facts, and to issue and cause to be served a cease and desist order. If the order is disobeyed, the commission may apply to the appropriate circuit court of Page 295 U. S. 621 appeals for its enforcement. The party subject to the order may seek and obtain a review in the circuit court of appeals in a manner provided by the act. Section 6, among other things, gives the commission wide powers of investigation in respect of certain corporations subject to the act and in respect of other matters, upon which it must report to Congress with recommendations. Many such investigations have been made, and some have served as the basis of congressional legislation. Section 7 provides: "That in any suit in equity brought by or under the direction of the Attorney General as provided in the antitrust Acts, the court may, upon the conclusion of the testimony therein, if it shall be then of opinion that the complainant is entitled to relief, refer said suit to the commission, as a master in chancery, to ascertain and report an appropriate form of decree therein. The commission shall proceed upon such notice to the parties and under such rules of procedure as the court may prescribe, and upon the coming in of such report such exceptions may be filed and such proceedings had in relation thereto as upon the report of a master in other equity causes, but the court may adopt or reject such report, in whole or in part, and enter such decree as the nature of the case may in its judgment require." First. The question first to be considered is whether, by the provisions of § 1 of the Federal Trade Commission Act, already quoted, the President's power is limited to removal for the specific causes enumerated therein. The negative contention of the government is based principally upon the decision of this court in Shrutleff v. United States, 189 U. S. 311 . That case involved the power of the President to remove a general appraiser of merchandise appointed under the Act of June 10, 1890, 26 Stat. 131. Section 12 of the act provided for the appointment by the President, by and with the advice and consent Page 295 U. S. 622 of the Senate, of nine general appraisers of merchandise, who "may be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office." The President removed Shurtleff without assigning any cause therefor. The Court of Claims dismissed plaintiff's petition to recover salary, upholding the President's power to remove for causes other than those stated. In this court, Shurtleff relied upon the maxim expressio unius est exclusio alterius, but this court held that, while the rule expressed in the maxim was a very proper one, and founded upon justifiable reasoning in many instances, it "should not be accorded controlling weight when to do so would involve the alteration of the universal practice of the government for over a century and the consequent curtailment of the powers of the executive in such an unusual manner." What the court meant by this expression appears from a reading of the opinion. That opinion -- after saying that no term of office was fixed by the act and that, with the exception of judicial officers provided for by the Constitution, no civil officer had ever held office by life tenure since the foundation of the government -- points out that to construe the statute as contended for by Shurtleff would give the appraiser the right to hold office during his life or until found guilty of some act specified in the statute, the result of which would be a complete revolution in respect of the general tenure of office, effected by implication with regard to that particular office only. "We think it quite inadmissible," the court said (pp. 189 U. S. 316 , 189 U. S. 318 ), "to attribute an intention on the part of Congress to make such an extraordinary change in the usual rule governing the tenure of office, and one which is to be applied to this particular office only, without stating such intention in plain and explicit language, instead of leaving it to be implied from doubtful inferences. . . . We cannot bring ourselves to the belief that Congress ever Page 295 U. S. 623 intended this result while omitting to use language which would put that intention beyond doubt." These circumstances, which led the court to reject the maxim as inapplicable, are exceptional. In the face of the unbroken precedent against life tenure, except in the case of the judiciary, the conclusion that Congress intended that, from among all other civil officers, appraisers alone should be selected to hold office for life was so extreme as to forbid, in the opinion of the court, any ruling which would produce that result if it reasonably could be avoided. The situation here presented is plainly and wholly different. The statute fixes a term of office, in accordance with many precedents. The first commissioners appointed are to continue in office for terms of three, four, five, six, and seven years, respectively, and their successors are to be appointed for terms of seven years -- any commissioner being subject to removal by the President for inefficiency, neglect of duty, or malfeasance in office. The words of the act are definite and unambiguous. The government says the phrase "continue in office" is of no legal significance, and, moreover, applies only to the first commissioners. We think it has significance. It may be that, literally, its application is restricted as suggested; but it nevertheless lends support to a view contrary to that of the government as to the meaning of the entire requirement in respect of tenure; for it is not easy to suppose that Congress intended to secure the first commissioners against removal except for the causes specified, and deny like security to their successors. Putting this phrase aside, however, the fixing of a definite term subject to removal for cause, unless there be some countervailing provision or circumstance indicating the contrary, which here we are unable to find, is enough to establish the legislative intent that the term is not to be curtailed in the absence of such cause. But if the intention of Page 295 U. S. 624 Congress that no removal should be made during the specified term except for one or more of the enumerated causes were not clear upon the face of the statute, as we think it is, it would be made clear by a consideration of the character of the commission and the legislative history which accompanied and preceded the passage of the act. The commission is to be nonpartisan, and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi -judicial and quasi -legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts "appointed by law and informed by experience." Illinois Central R. Co. v. Interstate Commerce Comm'n, 206 U. S. 441 , 206 U. S. 454 ; Standard Oil Co. v. United States, 283 U. S. 235 , 283 U. S. 238 -239. The legislative reports in both houses of Congress clearly reflect the view that a fixed term was necessary to the effective and fair administration of the law. In the report to the Senate (No. 597, 63d Cong., 2d Sess., pp. 10-11) the Senate Committee on Interstate Commerce, in support of the bill which afterwards became the act in question, after referring to the provision fixing the term of office at seven years, so arranged that the membership would not be subject to complete change at any one time, said: "The work of this commission will be of a most exacting and difficult character, demanding persons who have experience in the problems to be met -- that is, a proper knowledge of both the public requirements and the practical affairs of industry. It is manifestly desirable that the terms of the commissioners shall be long enough to give them an opportunity to acquire the expertness in dealing with these special questions concerning industry that comes from experience. " Page 295 U. S. 625 The report declares that one advantage which the commission possessed over the Bureau of Corporations (an executive subdivision in the Department of Commerce which was abolished by the act) lay in the fact of its independence, and that it was essential that the commission should not be open to the suspicion of partisan direction. The report quotes (p. 22) a statement to the committee by Senator Newlands, who reported the bill, that the tribunal should be of high character and "independent of any department of the government . . . a board or commission of dignity, permanence, and ability, independent of executive authority, except in its selection, and independent in character." The debates in both houses demonstrate that the prevailing view was that the commission was not to be "subject to anybody in the government, but . . . only to the people of the United States"; free from "political domination or control" or the "probability or possibility of such a thing"; to be "separate and apart from any existing department of the government -- not subject to the orders of the President." More to the same effect appears in the debates, which were long and thorough, and contain nothing to the contrary. While the general rule precludes the use of these debates to explain the meaning of the words of the statute, they may be considered as reflecting light upon its general purposes and the evils which it sought to remedy. Federal Trade Comm'n v. Raladam Co., 283 U. S. 643 , 283 U. S. 650 . Thus, the language of the act, the legislative reports, and the general purposes of the legislation as reflected by the debates all combine to demonstrate the Congressional intent to create a body of experts who shall gain experience by length of service -- a body which shall be independent of executive authority except in its selection, and free to exercise its judgment without the leave or hindrance Page 295 U. S. 626 of any other official or any department of the government. To the accomplishment of these purposes it is clear that Congress was of opinion that length and certainty of tenure would vitally contribute. And to hold that, nevertheless, the members of the commission continue in office at the mere will of the President might be to thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office. We conclude that the intent of the act is to limit the executive power of removal to the causes enumerated, the existence of none of which is claimed here, and we pass to the second question. Second. To support its contention that the removal provision of § 1, as we have just construed it, is an unconstitutional interference with the executive power of the President, the government's chief reliance is Myers v. United States, 272 U. S. 52 . That case has been so recently decided, and the prevailing and dissenting opinions so fully review the general subject of the power of executive removal, that further discussion would add little of value to the wealth of material there collected. These opinions examine at length the historical, legislative and judicial data bearing upon the question, beginning with what is called "the decision of 1789" in the first Congress and coming down almost to the day when the opinions were delivered. They occupy 243 pages of the volume in which they are printed. Nevertheless, the narrow point actually decided was only that the President had power to remove a postmaster of the first class without the advice and consent of the Senate as required by act of Congress. In the course of the opinion of the court, expressions occur which tend to sustain the government's contention, but these are beyond the point involved, and, therefore do not come within the rule of stare decisis. Insofar as they are out of harmony with the views here set forth, these expressions are disapproved. A like situation was Page 295 U. S. 627 presented in the case of Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 399 , in respect of certain general expressions in the opinion in Marbury v. Madison , 1 Cranch 137. Chief Justice Marshall, who delivered the opinion in the Marbury case, speaking again for the court in the Cohens case, said: "It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." And he added that these general expressions in the case of Marbury v. Madison were to be understood with the limitations put upon them by the opinion in the Cohens case. See also Carroll v. Lessee of Carroll , 16 How. 275, 57 U. S. 286 -287; O'Donoghue v. United States, 289 U. S. 516 , 289 U. S. 550 . The office of a postmaster is so essentially unlike the office now involved that the decision in the Myers case cannot be accepted as controlling our decision here. A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include Page 295 U. S. 628 all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department, and who exercises no part of the executive power vested by the Constitution in the President. The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control. In administering the provisions of the statute in respect of "unfair methods of competition" -- that is to say, in filling in and administering the details embodied by that general standard -- the commission acts in part quasi -legislatively and in part quasi -judicially. In making investigations and reports thereon for the information of Congress under 6, in aid of the legislative power, it acts as a legislative agency. Under § 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function -- as distinguished from executive power in the constitutional sense -- it does so in the discharge and effectuation of its quasi -legislative or quasi -judicial powers, or as an agency of the legislative or judicial departments of the government.* Page 295 U. S. 629 If Congress is without authority to prescribe causes for removal of members of the trade commission and limit executive power of removal accordingly, that power at once becomes practically all-inclusive in respect of civil officers with the exception of the judiciary provided for by the Constitution. The Solicitor General, at the bar, apparently recognizing this to be true, with commendable candor, agreed that his view in respect of the removability of members of the Federal Trade Commission necessitated a like view in respect of the Interstate Commerce Commission and the Court of Claims. We are thus confronted with the serious question whether not only the members of these quasi -legislative and quasi -judicial bodies, but the judges of the legislative Court of Claims, exercising judicial power ( Williams v. United States, 289 U. S. 553 , 289 U. S. 565 -567), continue in office only at the pleasure of the President. We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi -legislative or quasi -judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted, and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will. The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others has often been stressed, and is hardly open to serious question. So much is implied in Page 295 U. S. 630 the very fact of the separation of the powers of these departments by the Constitution, and in the rule which recognizes their essential coequality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the independence of each department required that its proceedings "should be free from the remotest influence, direct or indirect, of either of the other two powers." Andrews, The Works of James Wilson (1896), vol. 1, p. 367. And Mr. Justice Story, in the first volume of his work on the Constitution, 4th ed., § 530, citing No. 48 of the Federalist, said that neither of the departments in reference to each other "ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers." And see O'Donoghue v. United States, supra., at pp. 289 U. S. 530 -531. The power of removal here claimed for the President falls within this principle, since its coercive influence threatens the independence of a commission which is not only wholly disconnected from the executive department, but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and judicial powers, and as an agency of the legislative and judicial departments. In the light of the question now under consideration, we have reexamined the precedents referred to in the Myers case, and find nothing in them to justify a conclusion contrary to that which we have reached. The so-called "decision of 1789" had relation to a bill proposed by Mr. Madison to establish an executive Department of Foreign Affairs. The bill provided that the principal officer was "to be removable from office by the President of the United States." This clause was changed to read "whenever the principal officer shall be removed Page 295 U. S. 631 from office by the President of the United States," certain things should follow, thereby, in connection with the debates, recognizing and confirming, as the court thought in the Myers case, the sole power of the President in the matter. We shall not discuss the subject further, since it is so fully covered by the opinions in the Myers case, except to say that the office under consideration by Congress was not only purely executive, but the officer one who was responsible to the President, and to him alone, in a very definite sense. A reading of the debates shows that the President's illimitable power of removal was not considered in respect of other than executive officers. And it is pertinent to observe that, when, at a later time, the tenure of office for the Comptroller of the Treasury was under consideration, Mr. Madison quite evidently thought that, since the duties of that office were not purely of an executive nature, but partook of the judiciary quality as well, a different rule in respect of executive removal might well apply. 1 Annals of Congress, cols. 611-612. In Marbury v. Madison, supra, pp. 5 U. S. 162 , 5 U. S. 165 -166, it is made clear that Chief Justice Marshall was of opinion that a justice of the peace for the District of Columbia was not removable at the will of the President, and that there was a distinction between such an officer and officers appointed to aid the President in the performance of his constitutional duties. In the latter case, the distinction he saw was that "their acts are his acts," and his will, therefore, controls; and, by way of illustration, he adverted to the act establishing the Department of Foreign Affairs, which was the subject of the "decision of 1789." The result of what we now have said is this: whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office; the Myers decision, affirming the power of the President Page 295 U. S. 632 alone to make the removal, is confined to purely executive officers, and, as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed except for one or more of the causes named in the applicable statute. To the extent that, between the decision in the Myers case, which sustains the unrestrictable power of the President to remove purely executive officers, and our present decision that such power does not extend to an office such as that here involved, there shall remain a field of doubt, we leave such cases as may fall within it for future consideration and determination as they may arise. In accordance with the foregoing, the questions submitted are answered. Question No. 1, Yes. Question No. 2, Yes. * The docket title of this case is: Rathbun, Executor v. United States. * The provision of § 6(d) of the act which authorizes the President to direct an investigation and report by the commission in relation to alleged violations of the antitrust acts is so obviously collateral to the main design of the act as not to detract from the force of this general statement as to the character of that body.

In Humphrey's Executor v. United States (1935), the Supreme Court upheld the restriction on the President's power to remove members of the Federal Trade Commission (FTC), establishing a key precedent for independent regulatory agencies in the United States. The Court distinguished between executive officers, who could be removed at will by the President, and officers with quasi-legislative and quasi-judicial duties, like the FTC, whose removal should be restricted to the causes specified by Congress. This decision affirmed Congress's ability to create independent agencies with a degree of protection from presidential control, a significant development in the US system of checks and balances.

Separation of Powers

A.L.A. Schechter Poultry Corp. v. U.S.

https://supreme.justia.com/cases/federal/us/295/495/

U.S. Supreme Court A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) A. L. A. Schechter Poultry Corp. v. United States No. 854 Argued May 2, 3, 1935 Decided May 27, 1935 295 U.S. 495 ast|>* 295 U.S. 495 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power. P. 295 U. S. 528 . 2. Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested. Art. I, § 1; Art. I, § 8, par. 18. Panama Refining Co. v. Ryan, 293 U. S. 388 . P. 295 U. S. 529 . 3. Congress may leave to selected instrumentalities the making of subordinate rules within prescribed limits, and the determination of facts to which the policy, as declared by Congress, is to apply; but it must itself lay down the policies and establish standards. P. 295 U. S. 530 . 4. The delegation of legislative power sought to be made to the President by § 3 of the National Industrial Recovery Act of June 16, 1933, is unconstitutional (pp. 295 U. S. 529 et seq. ), and the Act is also unconstitutional, as applied in this case, because it exceeds the power of Congress to regulate interstate commerce and invades the power reserved exclusively to the States (pp. 295 U. S. 542 et seq. ). 5. Section 3 of the National Industrial Recovery Act provides that "codes of fair competition," which shall be the " standards of fair competition" for the trades and industries to which they relate, may be approved by the President upon application of representative associations of the trades or industries to be affected, or may be prescribed by him on his own motion. Their provisions Page 295 U. S. 496 are to be enforced by injunctions from the federal courts, and "any violation of any of their provisions in any transaction in or affecting interstate commerce" is to be deemed an unfair method of competition within the meaning of the Federal Trade Commission Act, and is to be punished as a crime against the United States. Before approving, the President is to make certain findings as to the character of the association presenting the code and absence of design to promote monopoly or oppress small enterprises, and must find that it will "tend to effectuate the policy of this title." Codes permitting monopolies or monopolistic practices are forbidden. The President may "impose such conditions (including requirements for the making of reports and the keeping of accounts) for the protection of consumers, competitors, employees and others, and in the furtherance of the public interest, and may provide such exceptions and exemptions from the provisions of such code," as he, in his discretion, deems necessary "to effectuate the policy herein declared." A code prescribed by him is to have the same effect as one approved on application. Held: (1) The statutory plan is not simply one of voluntary effort; the "codes of fair competition" are meant to be codes of laws. P. 295 U. S. 529 . (2) The meaning of the term "fair competition" (not expressly defined in the Act) is clearly not the mere antithesis of "unfair competition," as known to the common law, or of "unfair methods of competition" under the Federal Trade Commission Act. P. 295 U. S. 531 . (3) In authorizing the President to approve codes which "will tend to effectuate the policy of this title," § 3 of the Act refers to the Declaration of Policy in § 1. The purposes declared in § 1 are all directed to the rehabilitation of industry and the industrial recovery which was the major policy of Congress in adopting the Act. P. 295 U. S. 534 . (4) That this is the controlling purpose of the code now before the Court appears both from its repeated declarations to that effect and from the scope of its requirements. P. 295 U. S. 536 . (5) The authority sought to be conferred by § 3 was not merely to deal with "unfair competitive practices" which offend against existing law, or to create administrative machinery for the application of established principles of law to particular instances of violation. Rather, the purpose is clearly disclosed to authorize new and controlling prohibitions through codes of laws which would embrace what the formulators would propose, and what the President Page 295 U. S. 497 would approve or prescribe, as wise and beneficent measures for the government of trades and industries, in order to bring about their rehabilitation, correction and improvement, according to the general declaration of policy in § 1. Codes of laws of this sort are styled " codes of fair competition." P. 295 U. S. 535 . (6) A delegation of its legislative authority to trade or industrial associations, empowering them to enact laws for the rehabilitation and expansion of their trades or industries, would be utterly inconsistent with the constitutional prerogatives and duties of Congress. P. 295 U. S. 537 . (7) Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade and industry. P. 295 U. S. 537 . (8) The only limits set by the Act to the President's discretion are that he shall find, first, that the association or group proposing a code imposes no inequitable restrictions on admission to membership and is truly representative; second, that the code is not designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them, and third, that it "will tend to effectuate the policy of this title" -- this last being a mere statement of opinion. These are the only findings which Congress has made essential in order to put into operation a legislative code having the aims described in the "Declaration of Policy." P. 295 U. S. 538 . (9) Under the Act, the President, in approving a code, may impose his own conditions, adding to or taking from what is proposed, as "in his discretion" he thinks necessary "to effectuate the policy" declared by the Act. He has no less liberty when he prescribes a code on his own motion or on complaint, and he is free to prescribe one if a code has not been approved. P. 295 U. S. 538 . (10) The acts and reports of the administrative agencies which the President may create under the Act have no sanction beyond his will. Their recommendations and findings in no way limit the authority which § 3 undertakes to vest in him. And this authority relates to a host of different trades and industries, thus extending the President's discretion to all the varieties of laws which he may deem to be beneficial in dealing with the vast array of commercial activities throughout the country. P. 295 U. S. 539 . (11) Such a sweeping delegation of legislative power finds no support in decisions of this Court defining and sustaining the Page 295 U. S. 498 powers granted to the Interstate Commerce Commission, to the Radio Commission, and to the President when acting under the "flexible tariff" provisions of the Tariff Act of 1922. P. 295 U. S. 539 . (12) Section 3 of the Recovery Act is without precedent. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead, it authorizes the making of codes to prescribe them. For that legislative undertaking, it sets up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion found in § 1. In view of the broad scope of that declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. The code-making authority thus sought to be conferred is an unconstitutional delegation of legislative power. P. 295 U. S. 541 . 6. Defendants were engaged in the business of slaughtering chickens and selling them to retailers. They bought their fowls from commission men in a market where most of the supply was shipped in from other States, transported them to their slaugterhouses, and there held them for slaughter and local sale to retail dealers and butchers, who in turn sold directly to consumers. They were indicted for disobeying the requirements of a "Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York," approved by the President under § 3 of the National Industrial Recovery Act. The alleged violations were: failure to observe in their place of business provisions fixing minimum wages and maximum hours for employees; permitting customers to select individual chickens from particular coops and half-coops; sale of an unfit chicken; sales without compliance with municipal inspection regulations and to slaughterers and dealers not licensed under such regulations; making false reports, and failure to make reports relating to range of daily prices and volume of sales. Held: (1) When the poultry had reached the defendants' slaughterhouses, the interstate commerce had ended, and subsequent transactions in their business, including the matters charged in the indictment, were transactions in intrastate commerce. P. 295 U. S. 542 . (2) Decisions which deal with a stream of interstate commerce -- where goods come to rest within a State temporarily and are later to go forward in interstate commerce -- and with the regulation Page 295 U. S. 499 of transactions involved in that practical continuity of movement, are inapplicable in this case. P. 295 U. S. 543 . (3) The distinction between intrastate acts that directly affect interstate commerce, and therefore are subject to federal regulation, and those that affect it only indirectly, and therefore remain subject to the power of the States exclusively, is clear in principle, though the precise line can be drawn only as individual cases arise. Pp. 295 U.S. 544 , 295 U. S. 546 . (4) If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government. Indeed, on such a theory, even the development of the State's commercial facilities would be subject to federal control. P. 295 U. S. 546 . (5) The distinction between direct and indirect effects has long been clearly recognized in the application of the Anti-Trust Act. It is fundamental and essential to the maintenance of our constitutional system. P. 295 U. S. 547 . (6) The Federal Government cannot regulate the wages and hours of labor of persons employed in the internal commerce of a State. No justification for such regulation is to be found in the fact that wages and hours affect costs and prices, and so indirectly affect interstate commerce, nor in the fact that failure of some States to regulate wages and hours diverts commerce from the States that do regulate them. P. 295 U. S. 548 . (7) The provisions of the code which are alleged to have been violated in this case are not a valid exercise of federal power. P. 295 U. S. 550 . 76 F.2d 617, reversed in part; affirmed in part. CERTIORARI on the petition of defendants in a criminal case to review the judgment below insofar as it affirmed convictions on a number of the counts of an indictment and, on the petition of the Government, to review the same judgment insofar as it reversed convictions on other counts. The indictment charged violations of a "Live Poultry Code," and conspiracy to commit them. Page 295 U. S. 519 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. Petitioners in No. 854 were convicted in the District Court of the United States for the Eastern District of New York on eighteen count of an indictment charging violations of what is known a the "Live Poultry Code," [ Footnote 1 ] and on an additional count for conspiracy to commit such violations. [ Footnote 2 ] By demurrer to the indictment and appropriate motions on the trial, the defendants contended (1) that the Code had been adopted pursuant to an unconstitutional delegation by Congress of legislative power; (2) that it attempted to regulate intrastate transactions which lay outside the authority of Congress, and (3) that, in certain provisions, it was repugnant to the due process clause of the Fifth Amendment. Page 295 U. S. 520 The Circuit Court of Appeals sustained the conviction on the conspiracy count and on sixteen counts for violation of the Code, but reversed the conviction on two counts which charged violation of requirements as to minimum wages and maximum hours of labor, as these were not deemed to be within the congressional power of regulation. On the respective applications of the defendants (No. 854) and of the Government (No. 864), this Court granted writs of certiorari, April 15, 1935. New York City is the largest live poultry market in the United States. Ninety-six percent. of the live poultry there marketed comes from other States. Three-fourths of this amount arrives by rail and is consigned to commission men or receivers. Most of these freight shipments (about 75 percent) come in at the Manhattan Terminal of the New York Central Railroad, and the remainder at one of the four terminals in New Jersey serving New York City. The commission men transact by far the greater part of the business on a commission basis, representing the shippers as agents and remitting to them the proceeds of sale, less commissions, freight and handling charges. Otherwise, they buy for their own account. They sell to slaughterhouse operators, who are also called marketmen. The defendants are slaughterhouse operators of the latter class. A. L. A. Schechter Poultry Corporation and Schechter Live Poultry Market are corporations conducting wholesale poultry slaughterhouse markets in Brooklyn, New York City. Joseph Schechter operated the latter corporation and also guaranteed the credits of the former corporation which was operated by Martin, Alex and Aaron Schechter. Defendants ordinarily purchase their live poultry from commission men at the West Washington Market in New York City or at the railroad terminals serving the City, but occasionally they purchase from commission men in Philadelphia. They buy the Page 295 U. S. 521 poultry for slaughter and resale. After the poultry is trucked to their slaughterhouse markets in Brooklyn, it is there sold, usually within twenty-four hours, to retail poultry dealers and butchers who sell directly to consumers. The poultry purchased from defendants is immediately slaughtered, prior to delivery, by schochtim in defendants' employ. Defendants do not sell poultry in interstate commerce. The "Live Poultry Code" was promulgated under § 3 of the National Industrial Recovery Act. [ Footnote 3 ] That section -- the pertinent provisions of which are set forth in the margin [ Footnote 4 ] -- authorizes the President to approve "codes of Page 295 U. S. 522 fair competition." Such a code may be approved for a trade or industry, upon application by one or more trade or industrial associations or groups, if the President finds (1) that such associations or groups "impose no inequitable restrictions on admission to membership therein and are truly representative," and (2) that such codes are not designed "to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate Page 295 U. S. 523 against them, and will tend to effectuate the policy" of Title I of the Act. Such codes "shall not permit monopolies or monopolistic practices." As a condition of his approval, the President may "impose such conditions (including requirements for the making of reports and the keeping of accounts) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code, as the President in his discretion deems necessary to effectuate the policy herein declared." Where such a code has not been approved, the President may prescribe one, either on his own motion or on complaint. Violation of any provision of a code (so approved or prescribed) "in any transaction in or affecting interstate or foreign commerce" is made a misdemeanor punishable by a fine of not more than $500 for each offense, and each day the violation continues is to be deemed a separate offense. The "Live Poultry Code" was approved by the President on April 13, 1934. Its divisions indicate its nature and scope. The Code has eight articles entitled (1) purposes, (2) definitions, (3) hours, (4) wages, (5) general labor provisions, (6) administration, (7) trade practice provisions, and (8) general. The declared purpose is "To effect the policies of title I of the National Industrial Recovery Act." The Code is established as "a code of fair competition for the live poultry industry of the metropolitan area in and about the City of New York." That area is described as embracing the five boroughs of New York City, the counties of Rockland, Westchester, Nassau and Suffolk in the State of New York, the counties of Hudson and Bergen in the State of New Jersey, and the county of Fairfield in the State of Connecticut. The "industry" is defined as including "every person engaged in the business of selling, purchasing for resale, Page 295 U. S. 524 transporting, or handling and/or slaughtering live poultry, from the time such poultry comes into the New York metropolitan area to the time it is first sold in slaughtered form," and such " related branches " as may from time to time be included by amendment. Employers are styled "members of the industry," and the term employee is defined to embrace "any and all persons engaged in the industry, however compensated," except "members." The Code fixes the number of hours for workdays. It provides that no employee, with certain exceptions, shall be permitted to work in excess of forty (40) hours in any one week, and that no employee, save as stated, "shall be paid in any pay period less than at the rate of fifty (50) cents per hour." The article containing " general labor provisions" prohibits the employment of any person under sixteen years of age, and declares that employees shall have the right of "collective bargaining," and freedom of choice with respect to labor organizations, in the terms of § 7(a) of the Act. The minimum number of employees who shall be employed by slaughterhouse operators is fixed, the number being graduated according to the average volume of weekly sales. Provision is made for administration through an "industry advisory committee," to be selected by trade associations and members of the industry, and a "code supervisor," to be appointed, with the approval of the committee, by agreement between the Secretary of Agriculture and the Administrator for Industrial Recovery. The expenses of administration are to be borne by the members of the industry proportionately upon the basis of volume of business, or such other factors as the advisory committee may deem equitable, "subject to the disapproval of the Secretary and/or Administrator." The seventh article, containing "trade practice provisions," prohibits various practices which are said to constitute Page 295 U. S. 525 "unfair methods of competition." The final article provides for verified reports, such as the Secretary or Administrator may require, "(1) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and (2) for the determination by the Secretary or Administrator of the extent to which the declared policy of the act is being effectuated by this code." The members of the industry are also required to keep books and records which "will clearly reflect all financial transactions of their respective business and the financial condition thereof," and to submit weekly reports showing the range of daily prices and volume of sales for each kind of produce. The President approved the Code by an executive order in which he found that the application for his approval had been duly made in accordance with the provisions of Title I of the National Industrial Recovery Act, that there had been due notice and hearings, that the Code constituted "a code of fair competition" as contemplated by the Act, and complied with its pertinent provisions, including clauses (1) and (2) of subsection (a) of § 3 of Title I, and that the Code would tend "to effectuate the policy of Congress as declared in section 1 of Title I." [ Footnote 5 ] Page 295 U. S. 526 The executive order also recited that Secretary of Agriculture and the Administrator of the National Industrial Recovery Act had rendered separate reports as to the provisions within their respective jurisdictions. The Secretary of Agriculture reported that the provisions of the Code "establishing standards of fair competition (a) are regulations of transactions in or affecting the current of interstate and/or foreign commerce and (b) are reasonable, " Page 295 U. S. 527 and also that the Code would tend to effectuate the policy declared in Title I of the Act, as set forth in § 1. The report of the Administrator for Industrial Recovery dealt with wages, ours of labor and other labor provisions. [ Footnote 6 ] Of the eighteen counts of the indictment upon which the defendants were indicted, aside from the count for conspiracy, two counts charged violation of the minimum wage and maximum hour provisions of the Code, and ten counts were for violation of the requirement (found in the "trade practice provisions") of "straight killing." This requirement was really one of "straight" selling. The term "straight killing" was defined in the Code as "the practice of requiring persons purchasing poultry for resale to accept the run of any half coop, coop, or coops, as purchased by slaughterhouse operators, except for culls. [ Footnote 7 ]" The charges in the ten counts, respectively, were Page 295 U. S. 528 that the defendants, in selling to retail dealers and butchers, had permitted "selections of individual chickens taken from particular coops and half-coops." Of the other six counts, one charged the sale to a butcher of an unfit chicken; two counts charged the making of sales without having the poultry inspected or approved in accordance with regulations or ordinances of the City of New York; two counts charged the making of false reports or the failure to make report relating to the range of daily prices and volume of sales for certain periods, and the remaining count was for sales to slaughterers or dealers who were without licenses required by the ordinances and regulations of the City of New York. First. Two preliminary points are stressed by the Government with respect to the appropriate approach to the important questions presented. We are told that the provision of the statute authorizing the adoption of codes must be viewed in the light of the grave national crisis with which Congress was confronted. Undoubtedly, the conditions to which power is addressed are always to be considered when the exercise of power is challenged. Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power. [ Footnote 8 ] The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the Page 295 U. S. 529 imposed limits because they believe that more or different power is necessary. Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment -- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The further point is urged that the national crisis demanded a broad and intensive cooperative effort by those engaged in trade and industry, and that this necessary cooperation was sought to be fostered by permitting them to initiate the adoption of codes. But the statutory plan is not simply one for voluntary effort. It does not seek merely to endow voluntary trade or industrial associations or groups with privileges or immunities. It involves the coercive exercise of the lawmaking power. The codes of fair competition which the state attempts to authorize are codes of laws. If valid, they place all persons within their reach under the obligation of positive law, binding equally those who assent and those who do not assent. Violations of the provisions of the codes are punishable as crimes. Second. The question of the delegation of legislative power. We recently had occasion to review the pertinent decisions and the general principles which govern the determination of this question. Panama Refining Co. v. Ryan, 293 U. S. 388 . The Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Art I, § 1. And the Congress is authorized "To make all laws which shall be necessary and proper for carrying into execution" its general powers. Art. I, 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. We have repeatedly recognized the necessity of adapting Page 295 U. S. 530 legislation to complex conditions involving a host of details with which the national legislature cannot deal directly. We pointed out in the Panama Company case that the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality which will enable it to perform its function in laying down policies and establishing standards while leaving to selected instrumentalities the making of subordinate rules within prescribed limits, and the determination of facts to which the policy, as declared by the legislature, is to apply. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. Id., p. 298 U. S. 421 . Accordingly, we look to the statute to see whether Congress has overstepped these limitations -- whether Congress, in authorizing "codes of fair competition," has itself established the standards of legal obligation, thus performing its essential legislative function, or, by the failure to enact such standards, has attempted to transfer that function to others. The aspect in which the question is now presented is distinct from that which was before us in the case of the Panama Company. There, the subject of the statutory prohibition was defined. National Industrial Recovery Act, § 9(c). That subject was the transportation in interstate and foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by State authority. The question was with respect to the range of discretion given to the President in prohibiting that transportation. Id. pp. 293 U. S. 414 , 293 U. S. 415 , 293 U. S. 430 . As to the "codes of fair competition," under § 3 of the Act, the question is more fundamental. Page 295 U. S. 531 It is whether there is any adequate definition of the subject to which the codes are to be addressed. What is meant by "fair competition" as the term is used in the Act? Does it refer to a category established in the law, and is the authority to make codes limited accordingly? Or is it used as a convenient designation for whatever set of laws the formulators of a code for a particular trade or industry may propose and the President may approve (subject to certain restrictions), or the President may himself prescribe, as being wise and beneficent provisions for the government of the trade or industry in order to accomplish the broad purposes of rehabilitation, correction and expansion which are stated in the first section of Title I? [ Footnote 9 ] The Act does not define " fair competition." "Unfair competition," as known to the common law, is a limited concept. Primarily, and strictly, it relates to the palming off of one's goods as those of a rival trader. Goodyear Manufacturing Co. v. Goodyear Rubber Co., 128 U. S. 598 , Page 295 U. S. 532 128 U. S. 604 ; Howe Scale Co. v. Wyckoff, Seaman & Benedict, 198 U. S. 118 , 198 U. S. 140 ; Hanover Milling Co. v. Metcalf, 240 U. S. 403 , 240 U. S. 413 . In recent years, its scope has been extended. It has been held to apply to misappropriation as well as misrepresentation, to the selling of another's goods as one's own -- to misappropriation of what equitably belongs to a competitor. International News Service v. Associated Press, 248 U. S. 215 , 248 U. S. 241 , 248 U. S. 242 . Unfairness in competition has been predicated of acts which lie outside the ordinary course of business and are tainted by fraud, or coercion, or conduct otherwise prohibited by law. [ Footnote 10 ] Id., p. 248 U. S. 258 . But it is evident that, in its widest range, "unfair competition," as it has been understood in the law, does not reach the objectives of the codes which are authorized by the National Industrial Recovery Act. The codes may, indeed, cover conduct which existing law condemns, but they are not limited to conduct of that sort. The Government does not contend that the Act contemplates such a limitation. It would be opposed both to the declared purposes of the Act and to its administrative construction. The Federal Trade Commission Act (§ 5) [ Footnote 11 ] introduced the expression "unfair methods of competition," which were declared to be unlawful. That was an expression new in the law. Debate apparently convinced the sponsors of the legislation that the words "unfair competition," in the light of their meaning at common law, were too narrow. We have sad that the substituted phrase has a broader meaning, that it does not admit of precise definition, its scope being left to judicial determination as controversies arise. Federal Trade Comm'n v. Raladam Co., 283 U. S. 643 , 283 U. S. 648 , 283 U. S. 649 ; Federal Trade Comm'n v. Keppel & Bro., 291 U. S. 304 , 291 U. S. 310 -312. What are Page 295 U. S. 533 "unfair methods of competition" are thus to be determined in particular instances, upon evidence, in the light of particular competitive conditions and of what is found to be a specific and substantial public interest. Federal Trade Comm'n v. Beech-Nut Packing Co., 257 U. S. 441 , 257 U. S. 453 ; Federal Trade Comm'n v. Klesner, 280 U. S. 19 , 280 U. S. 27 , 280 U. S. 28 ; Federal Trade Comm'n v. Raladam Co., supra; Federal Trade Comm'n v. Keppel & Bro., supra; Federal Trade Comm'n v. Algoma Lumber Co., 291 U. S. 67 , 291 U. S. 73 . To make this possible, Congress set up a special procedure. A Commission, a quasi -judicial body, was created. Provision was made formal complaint, for notice and hearing, for appropriate findings of fact supported by adequate evidence, and for judicial review to give assurance that the action of the Commission is taken within its statutory authority. Federal Trade Comm'n v. Raladam Co., supra; Federal Trade Comm'n v. Klesner, supra. [ Footnote 12 ] In providing for codes, the National Industrial Recovery Act dispenses with this administrative procedure and with any administrative procedure of an analogous character. But the difference been the code plan of the Recovery Act and the scheme of the Federal Trade Commission Act lies not only in procedure, but in subject Page 295 U. S. 534 matter. We cannot regard the "fair competition" of the codes as antithetical to the "unfair methods of competition" of the Federal Trade Commission Act. The "fair competition" of the codes has a much broader range, and a new significance. The Recovery Act provides that it shall not be construed to impair the powers of the Federal Trade Commission, but, when a code is approved, its provisions are to be the "standards of fair competition" for the trade or industry concerned, and any violation of such standards in any transaction in or affecting interstate or foreign commerce is to be deemed "an unfair method of competition" within the meaning of the Federal Trade Commission Act. § 3(b). For a statement of the authorized objectives and content of the "codes of fair competition," we are referred repeatedly to the "Declaration of Policy" in section one of Title I of the Recovery Act. Thus, the approval of a code by the President is conditioned on his finding that it "will tend to effectuate the policy of this title." § 3(a). The President is authorized to impose such conditions "for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code as the President in his discretion deems necessary to effectuate the policy herein declared." Id. The "policy herein declared" is manifestly that set forth in section one. That declaration embraces a broad range of objectives. Among them we find the elimination of "unfair competitive practices." But even if this clause were to be taken to relate to practices which fall under the ban of existing law, either common law or statute, it is still only one of the authorized aims described in section one. It is there declared to be "the policy of Congress" -- "to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount Page 295 U. S. 535 thereof, and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources. [ Footnote 13 ]" Under § 3, whatever "may tend to effectuate" these general purposes may be included in the "codes of fair competition." We think the conclusion is inescapable that the authority sought to be conferred by § 3 was not merely to deal with "unfair competitive practices " which offend against existing law, and could be the subject of judicial condemnation without further legislation, or to create administrative machinery for the application of established principles of law to particular instances of violation. Rather, the purpose is clearly disclosed to authorize new and controlling prohibitions through codes of laws which would embrace what the formulators would propose, and what the President would approve, or prescribe, as wise and beneficient measures for the government of trades and industries in order to bring about their rehabilitation, correction and development, according to the general declaration of policy in section one. Codes of laws of this sort are styled "codes of fair competition." We find no real controversy upon this point, and we must determine the validity of the Code in question in this aspect. As the Government candidly says in its Page 295 U. S. 536 brief: "The words 'policy of this title' clearly refer to the 'policy' which Congress declared in the section entitled 'Declaration of Policy' -- § 1. All of the policies there set forth point toward a single goal -- the rehabilitation of industry and the industrial recovery which unquestionably was the major policy of Congress in adopting the National Industrial Recovery Act." And that this is the controlling purpose of the Code now before us appears both from its repeated declarations to that effect and from the scope of its requirements. It will be observed that its provisions as to the hours and wages of employees and its "general labor provisions" were placed in separate articles, and these were not included in the article on "trade practice provisions" declaring what should be deemed to constitute "unfair methods of competition." The Secretary of Agriculture thus stated the objectives of the Live Poultry Code in his report to the President, which was recited in the executive order of approval: "That said code will tend to effectuate the declared policy of title I of the National Industrial Recovery Act as set forth in section 1 of said act in that the terms and provisions of such code tend to: (a) remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; (b) to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups; (c) to eliminate unfair competitive practices; (d) to promote the fullest possible utilization of the present productive capacity of industries; (e) to avoid undue restriction of production (except a may be temporarily required); (f) to increase the consumption of industrial and agricultural products by increasing purchasing power, and (g) otherwise to rehabilitate industry, and to conserve natural resources. " Page 295 U. S. 537 The Government urges that the codes will "consist of rules of competition deemed fair for each industry by representative members of that industry -- by the persons most vitally concerned and most familiar with its problems." Instances are cited in which Congress has availed itself of such assistance; as, e.g., in the exercise of its authority over the public domain with respect to the recognition of local customs or rules of miners as to mining claims, [ Footnote 14 ] or, in matters of a more or less technical nature, as in designating the standard height of drawbar. [ Footnote 15 ] But would it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries? Could trade or industrial associations or groups be constituted legislative bodies for that purpose because such associations or groups are familiar with the problems of their enterprises? And, could an effort of that sort be made valid by such a preface of generalities as to permissible aims as we find in section 1 of title I? The answer is obvious. Such a delegation of legislative power is unknown to our law, and is utterly consistent with the constitutional prerogatives and duties of Congress. The question, then, turns upon the authority which § 3 of the Recovery Act vests in the President to approve or prescribe. If the codes have standing as penal statutes, this must be due to the effect of the executive action. But Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make Page 295 U. S. 538 whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry. See Panama Refining Co. v. Ryan, supra, and cases there reviewed. Accordingly, we turn to the Recovery Act to ascertain what limits have been set to the exercise of the President's discretion. First, the President, as a condition of approval, is required to find that the trade or industrial associations or groups which propose a code, "impose no inequitable restrictions on admission to membership," and are "truly representative." That condition, however, relates only to the status of the initiators of the new laws, and not to the permissible scope of such laws. Second, the President is required to find that the code is not "designed to promote monopolies or to eliminate or oppress small enterprises, and will not operate to discriminate against them." And to this is added a proviso that the code "shall not permit monopolies or monopolistic practices." But these restrictions leave virtually untouched the field of policy envisaged by section one, and, in that wide field of legislative possibilities, the proponents of a code, refraining from monopolistic designs, may roam at will, and the President may approve or disapprove their proposals as he may see fit. That is the precise effect of the further finding that the President is to make -- that the code " will tend to effectuate the policy of this title." While this is called a finding, it is really but a statement of an opinion as to the general effect upon the promotion of trade or industry of a scheme of laws. These are the only findings which Congress has made essential in order to put into operation a legislative code having the aims described in the "Declaration of Policy." Nor is the breadth of the President's discretion left to the necessary implication of this limited requirement as to his findings. As already noted, the President, in approving a code, may impose his own conditions, adding to Page 295 U. S. 539 or taking from what is proposed as, "in his discretion," he thinks necessary "to effectuate the policy" declared by the Act. Of course, he has no less liberty when he prescribes a code on his own motion or on complaint, and he is free to prescribe one if a code has not been approved. The Act provides for the creation by the President of administrative agencies to assist him, but the action or reports of such agencies, or of his other assistants -- their recommendations and findings in relation to the making of codes -- have no sanction beyond the will of the President, who may accept, modify, or reject them as he pleases. Such recommendations or findings in no way limit the authority which § 3 undertakes to vest in the President with no other conditions than those there specified. And this authority relates to a host of different trades and industries, thus extending the President's discretion to all the varieties of laws which he my deem to be beneficial in dealing with the vast array of commercial and industrial activities throughout the country. Such a sweeping delegation of legislative power finds no support in the decisions upon which the Government especially relies. By the Interstate Commerce Act, Congress has itself provided a code af laws regulating the activities of the common carriers subject to the Act in order to assure the performance of their services upon just and reasonable terms, with adequate facilities and without unjust discrimination. Congress, from time to time, has elaborated its requirements as needs have been disclosed. To facilitate the application of the standards prescribed by the Act, Congress has provided an expert body. That administrative agency, in dealing with particular cases, is required to act upon notice and hearing, and its orders must be supported by findings of fact which, in turn, are sustained by evidence. Interstate Commerce Comm'n v. Louisville & Nashville R. Co., 227 U. S. 88 ; Florida v. United States, 282 U. S. 194 ; United States Page 295 U. S. 540 v. Baltimore & Ohio R. Co., 293 U. S. 454 . When the Commission is authorized to issue, for the construction, extension or abandonment of lines, a certificate of "public convenience and necessity," or to permit the acquisition by one carrier of the control of another, if that is found to be "in the public interest," we have pointed out that these provisions are not left without standards to guide determination. The authority conferred has direct relation to the standards prescribed for the service of common carriers, and can be exercised only upon findings, based upon evidence, with respect to particular conditions of transportation. New York Central Securities Co. v. United States, 287 U. S. 12 , 287 U. S. 24 , 298 U. S. 25 ; Texas & Pacific Railway Co. v. Gulf, Colorado & Santa Fe Ry. Co., 270 U. S. 266 , 270 U. S. 273 ; Chesapeake & Ohio Ry. Co. v. United States, 283 U. S. 35 , 283 U. S. 42 . Similarly, we have held that the Radio Act of 1927 [ Footnote 16 ] established standards to govern radio communications, and, in view of the limited number of available broadcasting frequencies, Congress authorized allocation and licenses. The Federal Radio Commission was created as the licensing authority in order to secure a reasonable equality of opportunity in radio transmission and reception. The authority of the Commission to grant licenses "as public convenience, interest or necessity requires" was limited by the nature of radio communications and by the scope, character, and quality of the services to be rendered and the relative advantages to be derived through distribution of facilities. These standards established by Congress were to be enforced upon hearing, and evidence, by an administrative body acting under statutory restrictions adapted to the particular activity. Federal Radio Comm'n v. Nelson Brothers Co., 289 U. S. 266 . Page 295 U. S. 541 In Hampton & Co. v. United States, 276 U. S. 394 , the question related to the "flexible tariff provision" of the Tariff Act of 1922. [ Footnote 17 ] We held that Congress had described its plan "to secure by law the imposition of customs duties on articles of imported merchandise which should equal the difference between the cost of producing in a foreign country the articles in question and laying them down for sale in the United States, and the cost of producing and selling like or similar articles in the United States." As the differences cost might vary from time to time, provision was for the investigation and determination of these differences by the executive branch, so as to make "the adjustments necessary to conform the duties to the standard underlying that policy and plan." Id. pp. 276 U. S. 404 , 276 U. S. 405 . The Court found the same principle to be applicable in fixing customs duties as that which permitted Congress to exercise its ratemaking power in interstate commerce, "by declaring the rule which shall prevail in the legislative fixing of rates" and then remitting "the fixing of such rates" in accordance with its provisions "to a ratemaking body." Id., p. 276 U. S. 409 . The Court fully recognized the limitations upon the delegation of legislative power. Id. pp. 276 U. S. 408 -411. To summarize and conclude upon this point: Section 3 of the Recovery Act is without precedent. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, § 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion described in section one. In view of the scope of that broad declaration, and of the Page 295 U. S. 542 nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority this conferred is an unconstitutional delegation of legislative power. Third. The question of the application of the provisions of the Live Poultry Code to intrastate transactions. Although the validity of the codes (apart from the question of delegation) rests upon the commerce clause of the Constitution, § 3(a) is not, in terms, limited to interstate and foreign commerce. From the generality of its terms, and from the argument of the Government at the bar, it would appear that § 3(a) was designed to authorize codes without that limitation. But, under § 3(f), penalties are confined to violations of a code provision "in any transaction in or affecting interstate or foreign commerce." This aspect of the case presents the question whether the particular provisions of the Live Poultry Code, which the defendants were convicted for violating and for having conspired to violate, were within the regulating power of Congress. These provisions relate to the hours and wages of those employed by defendants in their slaughterhouses in Brooklyn, and to the sales there made to retail dealers and butchers. (1) Were these transactions " in " interstate commerce? Much is made of the fact that almost all the poultry coming to New York is sent there from other States. But the code provisions, as here applied, do not concern the transportation of the poultry from other States to New York, or the transactions of the commission men or others to whom it is consigned, or the sales made by such consignees to defendants. When defendants had made their purchases, whether at the West Washington Market in New York City or at the railroad Page 295 U. S. 543 terminals serving the City, or elsewhere, the poultry was trucked to their slaugterhouses in Brooklyn for local disposition. The interstate transactions in relation to that poultry then ended. Defendants held the poultry at their slaughterhouse markets for slaughter and local sale to retail dealers and butchers who, in turn, sold directly to consumers. Neither the slaughtering nor the sales by defendants were transactions in interstate commerce. Brown v. Houston, 114 U. S. 622 , 114 U. S. 632 , 114 U. S. 633 ; Public Utilities Comm'n v. Landon, 249 U. S. 236 , 249 U. S. 245 ; Industrial Association v. States, 268 U. S. 64 , 268 U. S. 78 , 268 U. S. 79 ; Atlantic Coast Line v. Standard Oil Co., 275 U. S. 257 , 275 U. S. 267 . The undisputed facts thus afford no warrant for the argument that the poultry handled by defendants at their slaughterhouse markets was in a " current " or " flow " of interstate commerce, and was thus subject to congressional regulation. The mere fact that there may be a constant flow of commodities into a State does not mean that the flow continues after the property has arrived, and has become commingled with the mass of property within the State, and is there held solely for local disposition and use. So far as the poultry here in question is concerned, the flow in interstate commerce had ceased. The poultry had come to a permanent rest within the State. It was not held, used, or sold by defendants in relation to any further transactions in interstate commerce, and was not destined for transportation to other States. Hence, decisions which deal with a stream of interstate commerce -- where goods come to rest within a State temporarily and are later to go forward in interstate commerce -- and with the regulations of transactions involved in that practical continuity of movement, are not applicable here. See Swift & Co. v. United States, 196 U. S. 375 , 387, 388 [argument of counsel omitted in electronic version]; Lemke v. Farmers Grain Co., 258 U. S. 50 , 258 U. S. 55 ; Stafford v. Wallace, 258 U. S. 495 , 258 U. S. 519 ; Chicago Page 295 U. S. 544 Board of Trade v. Olsen, 262 U.S. l, 262 U. S. 35 ; Tagg Bros. & Moorhead v. United States, 280 U. S. 420 , 280 U. S. 439 . (2) Did the defendants' transactions directly " affect " interstate commerce, so as to be subject to federal regulation? The power of Congress extends not only to the regulation of transactions which are part of interstate commerce, but to the protection of that commerce from injury. It matters not that the injury may be due to the conduct of those engaged in intrastate operations. Thus, Congress may protect the safety of those employed in interstate transportation "no matter what may be the source of the dangers which threaten it." Southern Ry. Co. v. United States, 222 U. S. 20 , 222 U. S. 27 . We said in Second Employers' Liability Cases, 223 U. S. 1 , 223 U. S. 51 , that it is the " effect upon interstate commerce," not "the source of the injury," which is "the criterion of congressional power." We have held that, in dealing with common carriers engaged in both interstate and intrastate commerce, the dominant authority of Congress necessarily embraces the right to control their intrastate operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to secure the freedom of that traffic from interference or unjust discrimination and to promote the efficiency of the interstate service. The Shreveport Case, 234 U. S. 342 , 234 U. S. 351 , 234 U. S. 352 ; Wisconsin Railroad Comm'n v. Chicago, B. & Q. R. Co., 257 U. S. 563 , 257 U. S. 588 . And combinations and conspiracies to restrain interstate commerce, or to monopolize any part of it, are nonetheless within the reach of the Anti-Trust Act because the conspirators seek to attain their end by means of intrastate activities. Coronado Coal Co. v. United Mine Workers, 268 U. S. 295 , 268 U. S. 310 ; Bedford Cut Stone Co. v. Stone Cutters Assn., 274 U. S. 37 , 274 U.S. 46 . We recently had occasion, in Local 677 v. United States, 291 U. S. 293 , to apply this principle in connection with Page 295 U. S. 545 the live poultry industry. That was a suit to enjoin a conspiracy to restrain and monopolize interstate commerce in violation of the Anti-Trust Act. It was shown that marketmen, teamsters and slaughterers ( shochtim ) had conspired to burden the free movement of live poultry into the metropolitan area in and about New York City. Marketmen had organized an association, had allocated retailers among themselves, and had agreed to increase prices. To accomplish their objects, large amounts of money were raised by levies upon poultry sold, men were hired to obstruct the business dealers who resisted, wholesalers and retailers were spied upon, and, by violence and other forms of intimidation, were prevented from freely purchasing live poultry. Teamsters refused to handle poultry for recalcitrant marketmen, and members of the shochtim union refused to slaughter. In view of the proof of that conspiracy, we said that it was unnecessary to decide when interstate commerce ended and when intrastate commerce began. We found that the proved interference by the conspirators "with the unloading, the transportation, the sales by marketmen to retailers, the prices charged, and the amount of profits exacted" operated "substantially and directly to restrain and burden the untrammeled shipment and movement of the poultry" while unquestionably it was in interstate commerce. The intrastate acts of the conspirators were included in the injunction because that was found to be necessary for the protection of interstate commerce against the attempted and illegal restraint. Id. pp. 291 U. S. 297 , 291 U. S. 299 , 291 U. S. 300 . The instant case is not of that sort. This is not a prosecution for a conspiracy to restrain or monopolize interstate commerce in violation of the Anti-Trust Act. Defendants have been convicted not upon direct charges of injury to interstate commerce or of interference with persons engaged in that commerce, but of violations of certain provisions of the Live Poultry Code and of conspiracy Page 295 U. S. 546 to commit these violations. Interstate commerce is brought in only upon the charge that violations of these provisions -- as to hours and wages of employees and local sales - " affected " interstate commerce. In determining how far the federal government may go in controlling intrastate transactions upon the ground that they "affect" interstate commerce, there is a necessary and well established distinction between direct and indirect effects. The precise line can be drawn only as individual cases arise, but the distinction is clear in principle. Direct effects are illustrated by the railroad cases we have cited, as, e.g., the effect of failure to use prescribed safety appliances on railroads which are the highways of both interstate and intrastate commerce, injury to an employee engaged in interstate transportation by the negligence of an employee engaged in an intrastate movement, the fixing of rates for intrastate transportation which unjustly discriminate against interstate commerce. But where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power. If the commerce clause were construed to reach all enterprise and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the federal government. Indeed, on such a theory, even the development of the State's commercial facilities would be subject to federal control. As we said in the Minnesota Rate Cases, 230 U. S. 352 , 230 U. S. 410 : "In the intimacy of commercial relations, much that is done in the superintendence of local matters may have an indirect bearing upon interstate commerce. The development of local resources and the extension of local facilities may have a very important effect upon communities less favored, and, to an appreciable degree, Page 295 U. S. 547 alter the course of trade. The freedom of local trade may stimulate interstate commerce, while restrictive measures within the police power of the State enacted exclusively with respect to internal business, as distinguished from interstate traffic, may, in their reflex or indirect influence, diminish the latter and reduce the volume of articles transported into or out of the State." See also Kidd v. Pearson, 128 U. S. 1 , 128 U. S. 21 ; Heisler v. Thomas Collier Co., 260 U. S. 245 , 260 U. S. 259 , 260 U. S. 260 . The distinction between direct and indirect effects has been clearly recognized in the application of the Anti-Trust Act. Where a combination or conspiracy is formed, with the intent to restrain interstate commerce or to monopolize any part of it, the violation of the statute is clear. Coronado Coal Co. v. United Mine Workers, 268 U. S. 295 , 268 U. S. 310 . But where that intent is absent, and the objectives are limited to intrastate activities, the fact that there may be an indirect effect upon interstate commerce does not subject the parties to the federal statute, notwithstanding its broad provisions. This principle has frequently been applied in litigation growing out of labor disputes. United Mine Workers v. Coronado Coal Co., 259 U. S. 344 , 259 U. S. 410 , 259 U. S. 411 ; United Leather Workers v. Herkert & Meisel Trunk Co., 265 U. S. 457 , 265 U. S. 464 -467; Industrial Association v. United States, 268 U. S. 64 , 268 U. S. 82 ; Levering & Garrigues Co. v. Morrin, 289 U. S. 103 , 289 U. S. 107 , 289 U. S. 108 . In the case last cited, we quoted with approval the rule that had been stated and applied in Industrial Association v. United States, supra, after review of the decisions, as follows: "The alleged conspiracy and the acts here complained of spent their intended and direct force upon a local situation -- for building is as essentially local as mining, manufacturing or growing crops -- and if, by a resulting diminution of the commercial demand, interstate trade was curtailed either generally or in specific instances, that was a fortuitous consequence so remote and indirect Page 295 U. S. 548 as plainly to cause it to fall outside the reach of the Sherman Act." While these decisions related to the application of the federal statute, and not to its constitutional validity, the distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. Otherwise, as we have said, there would be virtually no limit to the federal power, and, for all practical purposes, we should have a completely centralized government. We must consider the provisions here in question in the light of this distinction. The question of chief importance relates to the provisions of the Code as to the hours and wages of those employed in defendants' slaughterhouse markets. It is plain that these requirements are imposed in order to govern the details of defendants' management of their local business. The persons employed in slaughtering and selling in local trade are not employed in interstate commerce. Their hours and wages have no direct relation to interstate commerce. The question of how many hours these employees should work and what they should be paid differs in no essential respect from similar questions in other local businesses which handle commodities brought into a State and there dealt in as a part of its internal commerce. This appears from an examination of the considerations urged by the Government with respect to conditions in the poultry trade. Thus, the Government argues that hours and wages affect prices; that slaughterhouse men sell at a small margin above operating costs; that labor represents 50 to 60 percent of these costs; that a slaughterhouse operator paying lower wages or reducing his cost by exacting long hours of work translates his saving into lower prices; that this results in demands for a cheaper grade of goods, and that the cutting Page 295 U. S. 549 of prices brings about a demoralization of the price structure. Similar conditions may be adduced in relation to other businesses. The argument of the Government proves too much. If the federal government may determine the wages and hours of employees in the internal commerce of a State, because of their relation to cost and prices and their indirect effect upon interstate commerce, it would seem that a similar control might be exerted over other elements of cost also affecting prices, such as the number of employees, rents, advertising, methods of doing business, etc. All the processes of production and distribution that enter into cost could likewise be controlled. If the cost of doing an intrastate business is, in itself, the permitted object of federal control, the extent of the regulation of cost would be a question of discretion, and not of power. The Government also makes the point that efforts to enact state legislation establishing high labor standards have been impeded by the belief that, unless similar action is taken generally, commerce will be diverted from the States adopting such standards, and that this fear of diversion has led to demands for federal legislation on the subject of wages and hours. The apparent implication is that the federal authority under the commerce clause should be deemed to extend to the establishment of rules to govern wages and hours in intrastate trade and industry generally throughout the country, thus overriding the authority of the States to deal with domestic problems arising from labor conditions in their internal commerce. It is not the province of the Court to consider the economic advantages or disadvantage of such a centralized system. It is sufficient to say that the Federal Constitution does not provide for it. Our growth and development have called for wide use of the commerce power of the federal government in its control over the expanded activities of interstate commerce, and in protecting that Page 295 U. S. 550 commerce from burdens, interferences, and conspiracies to restrain and monopolize it. But the authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce "among the several States" and the internal concerns of a State. The same answer must be made to the contention that is based upon the serious economic situation which led to the passage of the Recovery Act -- the fall in prices, the decline in wages and employment, and the curtailment of the market for commodities. Stress is laid upon the great importance of maintaining wage distributions which would provide the necessary stimulus in starting "the cumulative forces making for expanding commercial activity." Without in any way disparaging this motive, it is enough to say that the recuperative efforts of the federal government must be made in a manner consistent with the authority granted by the Constitution. We are of the opinion that the attempt, through the provisions of the Code, to fix the hours and wages of employees of defendants in their intrastate business was not a valid exercise of federal power. The other violations for which defendants were convicted related to the making of local sales. Ten counts, for violation of the provision as to "straight killing" were for permitting customers to make " selections of individual chickens taken from particular coops and half coops." Whether or not this practice is good or bad for the local trade, its effect, if any, upon interstate commerce was only indirect. The same may be said of violations of the Code by intrastate transactions consisting of the sale "of an unfit chicken" and of sales which were not in accord with the ordinances of the City of New York. The requirement of report as to prices and volumes of defendants' sales was incident to the effort to control their intrastate business. Page 295 U. S. 551 In view of these conclusions, we find it unnecessary to discuss other questions which have been raised as to the validity of certain provisions of the Code under the due process clause of the Fifth Amendment. On both the grounds we have discussed, the attempted delegation of legislative power, and the attempted regulation of intrastate transaction which affect interstate commerce only indirectly, we hold he code provisions here in question to be invalid and that the judgment of conviction must be reversed. No. 864 -- reversed. No. 86 -- affirmed. * Together with No. 864, United States v. A. L. A. Schechter Poultry Corp. et al. Certiorari to the Circuit Court of Appeals for the Second Circuit. [ Footnote 1 ] The full title of the Code is "Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York." [ Footnote 2 ] The indictment contained 60 counts, of which 27 counts were dismissed by the trial court, and on 14 counts, the defendants were acquitted. [ Footnote 3 ] Act of June 16, 1933, c. 90, 48 Stat. 195, 196; 15 U.S.C. 703. [ Footnote 4 ] "CODES OF FAIR COMPETITION." "Sec. 3. (a) Upon the application to the President by one or more trade or industrial associations or groups, the President may approve a code or codes of fair competition for the trade or industry or subdivision thereof, represented by the applicant or applicants, if the President finds (1) that such associations or groups impose no inequitable restrictions on admission to membership therein and are truly representative of such trades or industries or subdivisions thereof, and (2) that such code or codes are not designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them, and will tend to effectuate the policy of this title: Provided, That such code or codes shall not permit monopolies or monopolistic practices: Provided further, That where such code or codes affect the services and welfare of persons engaged in other steps of the economic process, nothing in this section shall deprive such persons of the right to be heard prior to approval by the President of such code or codes. The President may, as a condition of his approval of any such code, impose such conditions (including requirements for the making of reports and the keeping of accounts) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code as the President in his discretion deems necessary to effectuate the policy herein declared." "(b) After the President shall have approved any such code, the provisions of such code shall be the standards of fair competition for such trade or industry or subdivision thereof. Any violation of such standards in any transaction in or affecting interstate or foreign commerce shall be deemed an unfair method of competition in commerce within the meaning of the Federal Trade Commission Act, as amended; but nothing in this title shall be construed to impair the powers of the Federal Trade Commission under such Act, as amended." "(c) The several district courts of the United States are hereby invested with jurisdiction to present and restrain violations of any code of fair competition approved under this title, and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations." "(d) Upon his own motion, or if complaint is made to the President that abuses inimical to the public interest and contrary to the policy herein declared are prevalent in any trade or industry or subdivision thereof, and if no code of fair competition therefor has theretofore been approved by the President, the President, after such public notice and hearing as he shall specify, may prescribe and approve a code of fair competition for such trade or industry or subdivision thereof, which shall have the same effect as a code of fair competition approved by the President under subsection (a) of this section." " * * * *" "(f) When a code of fair competition has been approved or prescribed by the President under this title, any violation of any provision thereof in any transaction in or affecting interstate or foreign commerce shall be a misdemeanor and upon conviction thereof an offender shall be fined not more than $500 for each offense, and each day such violation continues shall be deemed a separate offense." [ Footnote 5 ] The Executive Order is as follows: " EXECUTIVE ORDER" "Approval of Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York." " Whereas, the Secretary of Agriculture and the Administrator of the National Industrial Recovery Act having rendered their separate reports and recommendations and findings on the provisions of said code, coming within their respective jurisdictions, as set forth in the Executive Order No. 6182 of June 26, 1933, as supplemented by Executive Order No. 6207 of July 21, 1933, and Executive Order No. 6345 of October 20, 1933, as amended by Executive Order No. 6551 of January 8, 1934;" " Now, therefore, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do hereby find that:" "1. An application has been duly made, pursuant to and in full compliance with the provisions of title I of the National Industrial Recovery Act, approved June 16, 1933, for my approval of a code of fair competition for the live poultry industry in the metropolitan area in and about the City of New York; and" "2. Due notice and opportunity for hearings to interested parties have been given pursuant to the provisions of the act and regulations thereunder; and," "3. Hearings have been held upon said code, pursuant to such notice and pursuant to the pertinent provisions of the act and regulations thereunder; and" "4. Said code of fair competition constitutes a code of fair competition, as contemplated by the act, and complies in all respects with the pertinent provisions of the act, including clauses (1) and (2) of subsection (a) of section 3 of title I of the act; and" "5. It appears, after due consideration, that said code of fair competition will tend to effectuate the policy of Congress as declared in section 1 of title I of the act." " Now, therefore, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do hereby approve said Code of Fair Competition for the Live Poultry Industry in the Metropolitan Area in and about the City of New York." "FRANKLIN D. ROOSEVELT," " President of the United States " "The White House, " April 13, 1934. [ Footnote 6 ] The Administrator for Industrial Recovery stated in his report that the Code had been sponsored by trade associations representing about 350 wholesale firms, 150 retail shops, and 21 commission agencies; that these associations represented about 90 percent of the live poultry industry by numbers and volume of business, and that the industry, as defined in the Code, supplied the consuming public with practically all the live poultry coming into the metropolitan area from forty-one States, and transacted an aggregate annual business of approximately ninety million dollars. He further said that about 1610 employees were engaged in the industry; that it had suffered severely on account of the prevailing economic conditions and because of unfair methods of competition and the abuses that had developed as a result of the "uncontrolled methods of doing business," and that these conditions had reduced the number of employees by approximately 40 percent. He added that the report of the Research and Planning Division indicated that the Code would bring about an increase in wages of about 20 percent in this industry, and an increase in employment of 19.2 percent. [ Footnote 7 ] The prohibition in the Code (Art. VII, § 14) was as follows: " Straight Killing. -- The use, in the wholesale slaughtering of poultry, of any method of slaughtering other that 'straight killing,' or killing on the basis of official grade. Purchasers may, however, make selection of a half-coop, coop, or coops, but shall not have the right to make any selection of particular birds." [ Footnote 8 ] See Ex parte Milligan , 4 Wall. 2, 71 U. S. 120 , 71 U. S. 121 ; Home Building & Loan Assn v. Blaisdell, 290 U. S. 398 , 290 U. S. 426 . [ Footnote 9 ] That section, under the heading "Declaration of Policy," is as follows: "Section 1. A national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist. It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof, and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resource." [ Footnote 10 ] See case collected in Nims on Unfair Competition and Trade-Marks, Chap. I, § 4, p. 19, and Chap. XIX. [ Footnote 11 ] Act of September 26, 1914, c. 11, 38 Stat. 717, 719, 720. [ Footnote 12 ] The Tariff Act of 1930 (§ 337, 46 Stat. 703), like the Tariff Act of 1922 (§ 316, 42 Stat. 943), employs the expressions "unfair methods of competition" and "unfair acts" in the importation of articles into the United States, and in their sale, "the effect or tendency of which is to destroy or substantially injure an industry, efficiently and economically operated in the United States, or to prevent the establishment of such industry, or to restrain or monopolize trade and commerce in the United States." Provision is made for investigation and findings by the Tariff Commission, for appeals upon questions of law to the United States Court of Customs and Patent Appeals, and for ultimate action by the President when the existence of any " such unfair method or act" is established to his satisfaction. [ Footnote 13 ] See Note 9 [ Footnote 14 ] Act of July 26, 1866, c. 262, 14 Stat. 251; Jackson v. Roby, 109 U. S. 440 , 109 U. S. 441 ; Erhardt v. Boaro, 113 U. S. 527 , 113 U. S. 535 ; Butte City Water Co. v. Baker, 196 U. S. 119 , 196 U. S. 126 . [ Footnote 15 ] Act of March 2, 1893, c.196, 27 Stat. 531; St. Louis, I. M. & So. Ry. Co. v. Taylor, 210 U. S. 281 , 210 U. S. 286 . [ Footnote 16 ] Act of February 23, 1927, c. 169, 44 Stat. 1162, as amended by the Act of March 28, 1928, c. 263, 45 Stat. 373. [ Footnote 17 ] Act of September 21, 1922, c. 356, Title III, § 315, 42 Stat. 858, 941. MR. JUSTICE CARDOZO, concurring. The delegated power of legislation which has found expression in this code is not canalized within banks that keep it from overflowing. It is unconfined and vagrant, if I may borrow my own words in an earlier opinion. Panama Refining Co. v. Ryan, 293 U. S. 388 , 293 U. S. 440 . This court has held that delegation may be unlawful, though the act to be performed is definite and single, if the necessity, time and occasion of performance have been left in the end to the discretion of the delegate. Panama Refining Co. v. Ryan, supra. I thought that ruling went too far. I pointed out in an opinion that there had been "no grant to the Executive of any roving commission to inquire into evils and then, upon discovering them, do anything he pleases." 293 U.S. at p. 293 U. S. 435 . Choice, though within limits, had been given him "as to the occasion, but none whatever as to the means." Ibid. Here, in the case before us, is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here, in effect, is a roving commission to inquire into evils and, upon discovery, correct them. Page 295 U. S. 552 I have said that there is no standard, definite or even approximate, to which legislation must conform. Let me make my meaning more precise. If codes of fair competition are codes eliminating "unfair" methods of competition ascertained upon inquiry to prevail in one industry or another, there is no unlawful delegation of legislative functions when the President is directed to inquire into such practices and denounce them when discovered. For many years, a like power has been committed to the Federal Trade Commission with the approval of this court in a long series of decisions. Cf. Federal Trade Comm'n v. Keppel & Bro., 291 U. S. 304 , 291 U. S. 312 ; Federal Trade Comm'n v. Raladam Co., 283 U. S. 643 , 283 U. S. 648 ; Federal Trade Comm'n v. Gratz, 253 U. S. 421 . Delegation in such circumstances is born of the necessities of the occasion. The industries of the country are too many and diverse to make it possible for Congress, in respect of matters such as these, to legislate directly with adequate appreciation of varying conditions. Nor is the substance of the power changed because the President may act at the instance of trade or industrial associations having special knowledge of the facts. Their function is strictly advisory; it is the imprimatur of the President that begets the quality of law. Doty v. Love, ante p. 295 U. S. 64 . When the task that is set before one is that of cleaning house, it is prudent, as well as usual, to take counsel of the dwellers. But there is another conception of codes of fair competition, their significance and function, which leads to very different consequences, though it is one that is struggling now for recognition and acceptance. By this other conception, a code is not to be restricted to the elimination of business practices that would be characterized by general acceptation as oppressive or unfair. It is to include whatever ordinances may be desirable or helpful for the wellbeing or prosperity of the industry Page 295 U. S. 553 affected. In that view, the function of its adoption is not merely negative, but positive -- the planning of improvements as well as the extirpation of abuses. What is fair, as thus conceived, is not something to be contrasted with what is unfair or fraudulent or tricky. The extension becomes as wide as the field of industrial regulation. If that conception shall prevail, anything that Congress may do within the limits of the commerce clause for the betterment of business may be done by the President upon the recommendation of a trade association by calling it a code. This is delegation running riot. No such plenitude of power is susceptible of transfer. The statute, however, aims at nothing less, as one can learn both from its terms and from the administrative practice under it. Nothing less is aimed at by the code now submitted to our scrutiny. The code does not confine itself to the suppression of methods of competition that would be classified as unfair according to accepted business standards or accepted norm of ethics. It sets up a comprehensive body of rules to promote the welfare of the industry, if not the welfare of the nation, without reference to standards, ethical or commercial, that could be known or predicted in advance of its adoption. One of the new rules, the source of ten counts in the indictment, is aimed at an established practice, not unethical or oppressive, the practice of selective buying. Many others could be instanced as open to the same objection if the sections of the code were to be examined one by one. The process of dissection will not be traced in all its details. Enough at this time to state what it reveals. Even if the statute itself had fixed the meaning of fair competition by way of contrast with practices that are oppressive or unfair, the code outruns the bounds of the authority conferred. What is excessive is not sporadic or superficial. It is deep-seated and pervasive. Page 295 U. S. 554 The licit and illicit sections are so combined and welded as to be incapable of severance without destructive mutilation. But there is another objection, far-reaching and incurable, aside from any defect of unlawful delegation. If this code had been adopted by Congress itself, and not by the President, on the advice of an industrial association, it would even then be void unless authority to adopt it is included in the grant of power "to regulate commerce with foreign nations a among the several states." United States Constitution, Art. I, § 8, Clause 3. I find no authority in that grant for the regulation of wages and hours of labor in the intrastate transactions that make up the defendants' business. As to this feature of the case, little can be added to the opinion of the court. There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours "is an elastic medium which transmits all tremors throughout its territory; the only question is of their size." Per Learned Hand, J., in the court below. The law is not indifferent to considerations of degree. Activities local in their immediacy do not become interstate and national because of distant repercussions. What is near and what is distant may at times be uncertain. Cf. Chicago Board of Trade v. Olsen, 262 U. S. 1 . There is no penumbra of uncertainty obscuring judgment here. To find immediacy or directness here is to find it almost everywhere. If centripetal forces are to be isolated to the exclusion of the forces that oppose and counteract them, there will be an end to our federal system. To take from this code the provisions as to wages and the hours of labor is to destroy it altogether. If a trade or an industry is so predominantly local as to be exempt Page 295 U. S. 555 from regulation by the Congress in respect of matters such as these, there can be no "code" for it at all. This is clear from the provision of § 7a of the Act, with its explicit disclosure of the statutory scheme. Wages and the hours of labor are essential features of the plan, its very bone and sinew. There is no opportunity in such circumstances for the severance of the infected parts in the hope of saving the remainder. A code collapses utterly with bone and sinew gone. I am authorized to State that MR. JUSTICE STONE joins in this opinion.

In A.L.A. Schechter Poultry Corp. v. United States (1935), the Supreme Court held that Congress cannot delegate its legislative powers to other branches or entities and that the National Industrial Recovery Act of 1933 was an unconstitutional delegation of power to the President. Additionally, the Court found that the Act exceeded Congress's power to regulate interstate commerce and invaded powers reserved for states. The Court emphasized the distinction between national and local commerce, deeming the regulation of wages and hours of labor in intrastate transactions unconstitutional.

Separation of Powers

U.S. v. Curtiss-Wright Export Corp.

https://supreme.justia.com/cases/federal/us/299/304/

U.S. Supreme Court United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) United States v. Curtiss-Wright Export Corp. No. 98 Argued November 19, 20, 1936 Decided December 21, 1936 299 U.S. 304 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus 1. A Joint Resolution of May 28, 1934, provided: "That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and if, after consultation with the governments of other American Republics and with their cooperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limitations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed conflict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress." Violation was made punishable as a Page 310 U. S. 305 crime. The President issued two proclamations, one on the date of the Resolution, putting it into operation, the other on November 14, 1935, revoking the first proclamation. Held: (1) The Joint Resolution is not an unconstitutional delegation of legislative power to the Executive. Pp. 299 U. S. 314 , 299 U. S. 329 . (2) The powers of the Federal Government over foreign or external affairs differ in nature and origin from those over domestic or internal affairs. P. 299 U. S. 315 . (3) The broad statement that the Federal Government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the States such portions as it was thought desirable to vest in the Federal Government, leaving those not included in the enumeration still in the States. Id. (4) The States severally never possessed international powers. P. 299 U. S. 316 . (5) As a result of the separation from Great Britain by the Colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the Colonies severally, but to the Colonies in their collective and corporate capacity as the United States of America. Id. (6) The Constitution was ordained and established, among other things, to form "a more perfect Union." Prior to that event, the Union, declared by the Articles of Confederation to be "perpetual," was the sole possessor of external sovereignty, and in the Union it remained without change save insofar as the Constitution, in express terms, qualified its exercise. Though the States were several, their people, in respect of foreign affairs, were one. P. 299 U. S. 317 . (7) The investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. P. 299 U. S. 318 . (8) In the international field, the sovereignty of the United States is complete. Id. (9) In international relations, the President is the sole organ of the Federal Government. P. 299 U. S. 319 . (10) In view of the delicacy of foreign relations and of the power peculiar to the President in this regard, Congressional legislation which is to be made effective in the international field must Page 299 U. S. 306 often accord to him a degree of discretion and freedom which would not be admissible were domestic affairs alone involved. P. 299 U. S. 319 . (11) The marked difference between foreign and domestic affairs in this respect is recognized in the dealings of the houses of Congress with executive departments. P. 299 U. S. 321 . (12) Unbroken legislative practice from the inception almost of the national government supports the conclusion that the Joint Resolution, supra, is not an unconstitutional delegation of power. P. 299 U. S. 322 . (13) Findings of jurisdictional facts in the first proclamation, following the language of the Joint Resolution, were sufficient. P. 299 U. S. 330 . (14) The revocation of the first proclamation by the second did not have the effect of abrogating the Resolution or of precluding its enforcement by prosecution and punishment of offenses committed during the life of the first proclamation. P. 299 U. S. 331 . 2. Upon an appeal by the United States under the Criminal Appeals Act from a decision holding an indictment bad on demurrer, this Court has jurisdiction of questions involving the validity of the statute on which the indictment was founded which were decided by the District Court in favor of the United States. P. 299 U. S. 329 . 14 F. Supp. 230 , reversed. APPEAL, under the Criminal Appeals Act, from a judgment quashing an indictment for conspiracy. Page 299 U. S. 311 MR. JUSTICE SUTHERLAND delivered the opinion of the Court. On January 27, 1936, an indictment was returned in the court below, the first count of which charges that appellees, beginning with the 29th day of May, 1934, conspired to sell in the United States certain arms of war, namely fifteen machine guns, to Bolivia, a country then engaged in armed conflict in the Chaco, in violation of the Joint Resolution of Congress approved May 28, 1934, and the provisions of a proclamation issued on the same day by the President of the United States pursuant to authority conferred by § 1 of the resolution. In pursuance of the conspiracy, the commission of certain overt acts was alleged, details of which need not be stated. The Joint Resolution (c. 365, 48 Stat. 811) follows: Page 299 U. S. 312 " Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and if after consultation with the governments of other American Republics and with their cooperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limitations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed conflict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress." "Sec. 2. Whoever sells any arms or munitions of war in violation of section 1 shall, on conviction, be punished by a fine not exceeding $10,000 or by imprisonment not exceeding two years, or both." The President's proclamation (48 Stat. 1744), after reciting the terms of the Joint Resolution, declares: "Now, therefore, I, Franklin D. Roosevelt, President of the United States of America, acting under and by virtue of the authority conferred in me by the said joint resolution of Congress, do hereby declare and proclaim that I have found that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and that I have consulted with the governments of other American Republics and have been assured of the cooperation of such governments as I have deemed necessary as contemplated by the said joint resolution, and I do hereby admonish all citizens of the Page 299 U. S. 313 United States and every person to abstain from every violation of the provisions of the joint resolution above set forth, hereby made applicable to Bolivia and Paraguay, and I do hereby warn them that all violations of such provisions will be rigorously prosecuted." "And I do hereby enjoin upon all officers of the United States charged with the execution of the laws thereof the utmost diligence in preventing violations of the said joint resolution and this my proclamation issued thereunder, and in bringing to trial and punishment any offenders against the same." "And I do hereby delegate to the Secretary of State the power of prescribing exceptions and limitations to the application of the said joint resolution of May 28, 1934, as made effective by this my proclamation issued thereunder." On November 14, 1935, this proclamation was revoked (49 Stat. 3480), in the following terms: "Now, therefore, I, Franklin D. Roosevelt, President of the United States of America, do hereby declare and proclaim that I have found that the prohibition of the sale of arms and munitions of war in the United States to Bolivia or Paraguay will no longer be necessary as a contribution to the reestablishment of peace between those countries, and the above-mentioned Proclamation of May 28, 1934, is hereby revoked as to the sale of arms and munitions of war to Bolivia or Paraguay from and after November 29, 1935, provided, however, that this action shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability incurred under the aforesaid Proclamation of May 28, 1934, or the Joint Resolution of Congress approved by the President on the same date, and that the said Proclamation and Joint Resolution shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. " Page 299 U. S. 314 Appellees severally demurred to the first count of the indictment on the grounds (1) that it did not charge facts sufficient to show the commission by appellees of any offense against any law of the United States; (2) that this count of the indictment charges a conspiracy to violate the joint resolution and the Presidential proclamation, both of which had expired according to the terms of the joint resolution by reason of the revocation contained in the Presidential proclamation of November 14, 1935, and were not in force at the time when the indictment was found. The points urged in support of the demurrers were, first, that the joint resolution effects an invalid delegation of legislative power to the executive; second, that the joint resolution never became effective, because of the failure of the President to find essential jurisdictional facts, and third, that the second proclamation operated to put an end to the alleged liability under the joint resolution. The court below sustained the demurrers upon the first point, but overruled them on the second and third points. 14 F. Supp. 230 . The government appealed to this court under the provisions of the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, as amended, U.S.C. Title 18, § 682. That act authorizes the United States to appeal from a district court direct to this court in criminal cases where, among other things, the decision sustaining a demurrer to the indictment or any count thereof is based upon the invalidity or construction of the statute upon which the indictment is founded. First. It is contended that, by the Joint Resolution, the going into effect and continued operation of the resolution was conditioned (a) upon the President's judgment as to its beneficial effect upon the reestablishment of peace between the countries engaged in armed conflict in the Chaco; (b) upon the making of a proclamation, Page 299 U. S. 315 which was left to his unfettered discretion, thus constituting an attempted substitution of the President's will for that of Congress; (c) upon the making of a proclamation putting an end to the operation of the resolution, which again was left to the President's unfettered discretion, and (d) further, that the extent of its operation in particular cases was subject to limitation and exception by the President, controlled by no standard. In each of these particulars, appellees urge that Congress abdicated its essential functions and delegated them to the Executive. Whether, if the Joint Resolution had related solely to internal affairs, it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive we find it unnecessary to determine. The whole aim of the resolution is to affect a situation entirely external to the United States and falling within the category of foreign affairs. The determination which we are called to make, therefore, is whether the Joint Resolution, as applied to that situation, is vulnerable to attack under the rule that forbids a delegation of the lawmaking power. In other words, assuming (but not deciding) that the challenged delegation, if it were confined to internal affairs, would be invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory? It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted. The two classes of powers are different both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except Page 299 U. S. 316 those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. Carter v. Carter Coal Co., 298 U. S. 238 , 298 U. S. 294 . That this doctrine applies only to powers which the states had is self-evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers, but obviously were transmitted to the United States from some other source. During the colonial period, those powers were possessed exclusively by, and were entirely under the control of, the Crown. By the Declaration of Independence, "the Representatives of the United States of America" declared the United [not the several] Colonies to be free and independent states, and, as such, to have "full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do." As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency -- namely the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. Rulers come and go; governments end, and forms of government change; but sovereignty survives. A political society cannot endure Page 299 U. S. 317 without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union. See Penhallow v. Doane , 3 Dall. 54, 80-81 [argument of counsel -- omitted]. That fact was given practical application almost at once. The treaty of peace, made on September 23, 1783, was concluded between his Brittanic Majesty and the "United States of America." 8 Stat. -- European Treaties -- 80. The Union existed before the Constitution, which was ordained and established, among other things, to form "a more perfect Union." Prior to that event, it is clear that the Union, declared by the Articles of Confederation to be "perpetual," was the sole possessor of external sovereignty, and in the Union it remained without change save insofar as the Constitution, in express terms, qualified its exercise. The Framers' Convention was called, and exerted its powers upon the irrefutable postulate that, though the states were several, their people, in respect of foreign affairs, were one. Compare The Chinese Exclusion Case, 130 U. S. 581 , 130 U. S. 604 , 130 U. S. 606 . In that convention, the entire absence of state power to deal with those affairs was thus forcefully stated by Rufus King: "The states were not 'sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty -- they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs or faculties of defence or offence, for they could not ,of themselves, raise troops, or equip vessels, for war." 5 Elliott's Debates 212. [ Footnote 1 ] Page 299 U. S. 318 It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens ( see American Banana Co. v. United Fruit Co., 213 U. S. 347 , 213 U. S. 356 ), and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign. The power to acquire territory by discovery and occupation ( Jones v. United States, 137 U. S. 202 , 137 U. S. 212 ), the power to expel undesirable aliens ( Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 705 et seq. ), the power to make such international agreements as do not constitute treaties in the constitutional sense ( Altman & Co. v. United States, 224 U. S. 583 , 224 U. S. 600 -601; Crandall, Treaties, Their Making and Enforcement,2d ed., p. 102 and note 1), none of which is expressly affirmed by the Constitution, nevertheless exist as inherently inseparable from the conception of nationality. This the court recognized, and, in each of the cases cited, found the warrant for its conclusions not in the provisions of the Constitution, but in the law of nations. In Burnet v. Brooks, 288 U. S. 378 , 288 U. S. 396 , we said, "As a nation with all the attributes of sovereignty, the United States is vested with all the powers of government necessary to maintain an effective control of international relations." Cf. Carter v. Carter Coal Co., supra, p. 298 U. S. 295 . Page 299 U. S. 319 Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations, at a very early day in our history (February 15, 1816), reported to the Senate, among other things, as follows: "The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations, and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct, he is responsible to the Constitution. The committee consider this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility, and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch." U.S. Senate, Reports, Committee on Foreign Relations, vol. 8, p 24. It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an Page 299 U. S. 320 exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps serious embarrassment -- is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty -- a refusal the wisdom of which was recognized by the House itself, and has never since been doubted. In his reply to the request, President Washington said: "The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely Page 299 U. S. 321 impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent." 1 Messages and Papers of the Presidents, p. 194. The marked difference between foreign affairs and domestic affairs in this respect is recognized by both houses of Congress in the very form of their requisitions for information from the executive departments. In the case of every department except the Department of State, the resolution directs the official to furnish the information. In the case of the State Department, dealing with foreign affairs, the President is requested to furnish the information "if not incompatible with the public interest." A statement that to furnish the information is not compatible with the public interest rarely, if ever, is questioned. When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action or, indeed, whether he shall act at all -- may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field Page 299 U. S. 322 of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U. S. 299 , 239 U. S. 311 , "As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality, it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers. " (Italics supplied.) In the light of the foregoing observations, it is evident that this court should not be in haste to apply a general rule which will have the effect of condemning legislation like that under review as constituting an unlawful delegation of legislative power. The principles which justify such legislation find overwhelming support in the unbroken legislative practice which has prevailed almost from the inception of the national government to the present day. Let us examine, in chronological order, the acts of legislation which warrant this conclusion: The Act of June 4, 1794, authorized the President to lay, regulate and revoke embargoes. He was "authorized," "whenever, in his opinion, the public safety shall so require," to lay the embargo upon all ships and vessels in the ports of the United States, including those of foreign nations "under such regulations as the circumstances of the case may require, and to continue or revoke the same, whenever he shall think proper." C. 41, 1 Stat. 372. A prior joint resolution of May 7, 1794 (1 Stat. 401), had conferred unqualified power on the President to grant clearances, notwithstanding an existing embargo, to ships or vessels belonging to citizens of the United States bound to any port beyond the Cape of Good Hope. The Act of March 3, 1795 (c. 53, 1 Stat. 444), gave the President authority to permit the exportation of arms, cannon and military stores, the law prohibiting such exports Page 299 U. S. 323 to the contrary notwithstanding, the only prescribed guide for his action being that such exports should be in "cases connected with the security of the commercial interest of the United States, and for public purposes only." By the Act of June 13, 1798 (c. 53, § 5, 1 Stat. 566), it was provided that, if the government of France "shall clearly disavow, and shall be found to refrain from the aggressions, depredations and hostilities" theretofore maintained against vessels and property of the citizens of the United States "in violation of the faith of treaties, and the laws of nations, and shall thereby acknowledge the just claims of the United States to be considered as in all respects neutral, . . . it shall be lawful for the President of the United States, being well ascertained of the premises, to remit and discontinue the prohibitions and restraints hereby enacted and declared, and he shall be, and is hereby, authorized to make proclamation thereof accordingly." By § 4 of the Act of February 9, 1799 (c. 2, 1 Stat. 615), it was made "lawful" for the President, "if he shall deem it expedient and consistent with the interest of the United States," by order to remit certain restraints and prohibitions imposed by the act with respect to the French Republic, and also to revoke any such order "whenever, in his opinion, the interest of the United States shall require." Similar authority, qualified in the same way, was conferred by § 6 of the Act of February 7, 1800, c. 10, 2 Stat. 9. Section 5 of the Act of March 3, 1805 (c. 41, 2 Stat. 341), made it lawful for the President, whenever an armed vessel entering the harbors or waters within the jurisdiction of the United States and required to depart therefrom should fail to do so, not only to employ the land and naval forces to compel obedience, but, "if he Page 299 U. S. 324 shall think it proper, it shall be lawful for him to forbid, by proclamation, all intercourse with such vessel, and with every armed vessel of the same nation, and the officers and crew thereof; to prohibit all supplies and aid from being furnished them" and to do various other things connected therewith. Violation of the President's proclamation was penalized. On February 28, 1806, an act was passed (c. 9, 2 Stat. 351) to suspend commercial intercourse between the United States and certain parts of the Island of St. Domingo. A penalty was prescribed for its violation. Notwithstanding the positive provisions of the act, it was, by § 5, made "lawful" for the President to remit and discontinue the restraints and prohibitions imposed by the act at any time "if he shall deem it expedient and consistent with the interests of the United States" to do so. Likewise in respect of the Non-intercourse Act of March 1, 1809, (c. 24, 2 Stat. 528), the President was "authorized" (§ 11, p. 530), in case either of the countries affected should so revoke or modify her edicts "as that they shall cease to violate the neutral commerce of the United States," to proclaim the fact, after which the suspended trade might be renewed with the nation so doing. Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing action by the President in respect of subjects affecting foreign relations, which either leave the exercise of the power to his unrestricted judgment or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs. Many, though not all, of these acts are designated in the footnote. [ Footnote 2 ] Page 299 U. S. 325 It well may be assumed that these legislative precedents were in mind when Congress passed the joint resolutions of April 22, 1898, 30 Stat. 739; March 14, 1912, 37 Stat. 630, and January 31, 1922, 42 Stat. 361, to prohibit the export of coal or other war material. The resolution of 1898 authorized the President "in his discretion, and with such limitations and exceptions as shall seem to him expedient" to prohibit such exportations. The striking identity of language found in the second resolution mentioned above and in the one now under review will be Page 299 U. S. 326 seen upon comparison. The resolution of March 14, 1912, provides: "That whenever the President shall find that, in any American country, conditions of domestic violence exist which are promoted by the use of arms or munitions of war procured from the United States, and shall make proclamation thereof, it shall be unlawful to export except under such limitations and exceptions as the President Page 299 U. S. 327 shall prescribe any arms or munitions of war from any place in the United States to such country until otherwise ordered by the President or by Congress." "SEC. 2. That any shipment of material hereby declared unlawful after such a proclamation shall be punishable by fine not exceeding ten thousand dollars, or imprisonment not exceeding two years, or both." The third resolution is in substantially the same terms, but extends to any country in which the United States exercises extraterritorial jurisdiction, and provides for the President's action not only when conditions of domestic violence exist which are promoted, but also when such conditions may be promoted by the use of such arms or munitions of war. We had occasion to review these embargo and kindred acts in connection with an exhaustive discussion of the general subject of delegation of legislative power in a recent case, Panama Refining Co. v. Ryan, 293 U. S. 388 , 293 U. S. 421 -422, and, in justifying such acts, pointed out that they confided to the President "an authority which was cognate to the conduct by him of the foreign relations of the government." The result of holding that the joint resolution here under attack is void and unenforceable as constituting an unlawful delegation of legislative power would be to stamp this multitude of comparable acts and resolutions as likewise invalid. And while this court may not, and should not, hesitate to declare acts of Congress, however many times repeated, to be unconstitutional if beyond all rational doubt it finds them to be so, an impressive array of legislation such as we have just set forth, enacted by nearly every Congress from the beginning of our national existence to the present day, must be given unusual weight in the process of reaching a correct determination of the problem. A legislative practice such as we have here, evidenced not by only occasional instances Page 299 U. S. 328 but marked by the movement of a steady stream for a century and a half of time, goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice, to be found in the origin and history of the power involved, or in its nature, or in both combined. In The Laura, 114 U. S. 411 , 114 U. S. 416 , this court answered a challenge to the constitutionality of a statute authorizing the Secretary of the Treasury to remit or mitigate fines and penalties in certain cases, by repeating the language of a very early case ( Stuart v. Laird , 1 Cranch 299, 5 U. S. 309 ) that the long practice and acquiescence under the statute was a "practical exposition . . . too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed." In Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 , 111 U. S. 57 , the constitutionality of R.S. § 4952, conferring upon the author, inventor, designer or proprietor of a photograph certain rights, was involved. Mr. Justice Miller, speaking for the court, disposed of the point by saying: "The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is, of itself, entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive." In Field v. Clark, 143 U. S. 649 , 143 U. S. 691 , this court declared that ". . . the practical construction of the Constitution, as given by so many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land." The rule is one which has been stated and applied many times by this court. As examples, see Page 299 U. S. 329 Ames v. Kansas, 111 U. S. 449 , 111 U. S. 469 ; McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 401 ; Downes v. Bidwell, 182 U. S. 244 , 182 U. S. 286 . The uniform, long-continued and undisputed legislative practice just disclosed rests upon an admissible view of the Constitution which, even if the practice found far less support in principle than we think it does, we should not feel at liberty at this late day to disturb. We deem it unnecessary to consider seriatim the several clauses which are said to evidence the unconstitutionality of the Joint Resolution as involving an unlawful delegation of legislative power. It is enough to summarize by saying that, both upon principle and in accordance with precedent, we conclude there is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect upon the reestablishment of peace in the affected countries; whether he shall make proclamation to bring the resolution into operation; whether and when the resolution shall cease to operate and to make proclamation accordingly, and to prescribe limitations and exceptions to which the enforcement of the resolution shall be subject. Second. The second point raised by the demurrer was that the Joint Resolution never became effective because the President failed to find essential jurisdictional facts, and the third point was that the second proclamation of the President operated to put an end to the alleged liability of appellees under the Joint Resolution. In respect of both points, the court below overruled the demurrer, and thus far sustained the government. The government contends that, upon an appeal by the United States under the Criminal Appeals Act from a decision holding an indictment bad, the jurisdiction of the court does not extend to questions decided in favor of the United States, but that such questions may only be reviewed Page 299 U. S. 330 in the usual way, after conviction. We find nothing in the words of the statute or in its purposes which justifies this conclusion. The demurrer in the present case challenges the validity of the statute upon three separate and distinct grounds. If the court below had sustained the demurrer without more, an appeal by the government necessarily would have brought here for our determination all of these grounds, since, in that case, the record would not have disclosed whether the court considered the statute invalid upon one particular ground or upon all of the grounds alleged. The judgment of the lower court is that the statute is invalid. Having held that this judgment cannot be sustained upon the particular ground which that court assigned, it is now open to this court to inquire whether or not the judgment can be sustained upon the rejected grounds which also challenge the validity of the statute, and, therefore, constitute a proper subject of review by this court under the Criminal Appeals Act. United States v. Hastings, 296 U. S. 188 , 296 U. S. 192 . In Langnes v. Green, 282 U. S. 531 , where the decree of a district court had been assailed upon two grounds and the circuit court of appeals had sustained the attack upon one of such grounds only, we held that a respondent in certiorari might nevertheless urge in this court in support of the decree the ground which the intermediate appellate court had rejected. That principle is applicable here. We proceed, then, to a consideration of the second and third grounds of the demurrers which, as we have said, the court below rejected. 1. The Executive proclamation recites, "I have found that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, Page 299 U. S. 331 and that I have consulted with the governments of other American Republics and have been assured of the cooperation of such governments as I have deemed necessary as contemplated by the said joint resolution. " This finding satisfies every requirement of the Joint Resolution. There is no suggestion that the resolution is fatally uncertain or indefinite, and a finding which follows its language, as this finding does, cannot well be challenged as insufficient. But appellees, referring to the words which we have italicized above, contend that the finding is insufficient because the President does not declare that the cooperation of such governments as he deemed necessary included any American republic, and, therefore, the recital contains no affirmative showing of compliance in this respect with the Joint Resolution. The criticism seems to us wholly wanting in substance. The President recites that he has consulted with the governments of other American republics, and that he has been assured of the cooperation of such governments as he deemed necessary as contemplated by the joint resolution. These recitals, construed together, fairly include within their meaning American republics. 2. The second proclamation of the President, revoking the first proclamation, it is urged, had the effect of putting an end to the Joint Resolution, and, in accordance with a well settled rule, no penalty could be enforced or punishment inflicted thereafter for an offense committed during the life of the Joint Resolution in the absence of a provision in the resolution to that effect. There is no doubt as to the general rule or as to the absence of a saving clause in the Joint Resolution. But is the case presented one which makes the rule applicable? It was not within the power of the President to repeal the Joint Resolution, and his second proclamation did not Page 299 U. S. 332 purport to do so. It "revoked" the first proclamation, and the question is, did the revocation of the proclamation have the effect of abrogating the resolution, or of precluding its enforcement insofar as that involved the prosecution and punishment of offenses committed during the life of the first proclamation? We are of opinion that it did not. Prior to the first proclamation, the Joint Resolution was an existing law, but dormant, awaiting the creation of a particular situation to render it active. No action or lack of action on the part of the President could destroy its potentiality. Congress alone could do that. The happening of the designated events -- namely, the finding of certain conditions and the proclamation by the President -- did not call the law into being. It created the occasion for it to function. The second proclamation did not put an end to the law, or affect what had been done in violation of the law. The effect of the proclamation was simply to remove, for the future, a condition of affairs which admitted of its exercise. We should have had a different case if the Joint Resolution had expired by its own terms upon the issue of the second proclamation. Its operative force, it is true, was limited to the period of time covered by the first proclamation. And, when the second proclamation was issued, the resolution ceased to be a rule for the future. It did not cease to be the law for the antecedent period of time. The distinction is clearly pointed out by the Superior Court of Judicature of New Hampshire in Stevens v. Dimond, 6 N.H. 330, 332, 333. There, a town by law provided that, if certain animals should be found going at large between the first day of April and the last day of October, etc., the owner would incur a prescribed penalty. The trial court directed the jury that the bylaw, being in force for a year only, had expired, so that the defendant could not be called upon to answer for a violation which Page 299 U. S. 333 occurred during the designated period. The state appellate court reversed, saying that, when laws "expire by their own limitation, or are repealed, they cease to be the law in relation to the past, as well as the future, and can no longer be enforced in any case. No case is, however, to be found in which it was ever held before that they thus ceased to be law, unless they expired by express limitation in themselves or were repealed. It has never been decided that they cease to be law merely because the time they were intended to regulate had expired. . . . A very little consideration of the subject will convince anyone that a limitation of the time to which a statute is to apply is a very different thing from the limitation of the time a statute is to continue in force." The first proclamation of the President was in force from the 28th day of May, 1934, to the 14th day of November, 1935. If the Joint Resolution had in no way depended upon Presidential action, but had provided explicitly that, at any time between May 28, 1934, and November 14, 1935, it should be unlawful to sell arms or munitions of war to the countries engaged in armed conflict in the Chaco, it certainly could not be successfully contended that the law would expire with the passing of the time fixed in respect of offenses committed during the period. The judgment of the court below must be reversed, and the cause remanded for further proceedings in accordance with the foregoing opinion. Reversed. MR. JUSTICE McREYNOLDS does not agree. He is of opinion that the court below reached the right conclusion, and its judgment ought to be affirmed. MR. JUSTICE STONE took no part in the consideration or decision of this case. [ Footnote 1 ] In general confirmation of the foregoing views, see 1 Story on the Constitution, 4th ed., §§ 198-217, and especially §§ 210, 211, 213, 214, 215 (p. 153), 216. [ Footnote 2 ] Thus, the President has been broadly "authorized" to suspend embargo acts passed by Congress, "if in his judgment the public interest should require it" (Act of December 19, 1806, c. 1, § 3, 2 Stat. 411) or if, "in the judgment of the President," there has been such suspension of hostilities abroad as may render commerce of the United States sufficiently safe. Act of April 22, 1808, c. 52, 2 Stat. 490. See also Act of March 3, 1817, c. 39, § 2, 3 Stat. 361. Compare, but as to reviving an embargo act, the Act of May 1, 1810, c. 39, § 4, 2 Stat. 605. Likewise, Congress has passed numerous acts laying tonnage and other duties on foreign ships in retaliation for duties enforced on United States vessels, but providing that if the President should be satisfied that the countervailing duties were repealed or abolished, then he might, by proclamation, suspend the duties as to vessels of the nation so acting. Thus, the President has been "authorized" to proclaim the suspension. Act of January 7, 1824, c. 4, § 4, 4 Stat. 3; Act of May 24, 1828, c. 111, 4 Stat. 308; Act of July 24, 1897, c. 13, 30 Stat. 214. Or it has been provided that the suspension should take effect whenever the President "shall be satisfied" that the discriminating duties have been abolished. Act of March 3, 1815, c. 77, 3 Stat. 224; Act of May 31, 1830, c. 219, § 2, 4 Stat. 425. Or that the President "may direct" that the tonnage duty shall cease to be levied in such circumstances. Act of July 13, 1832, c. 207, § 3, 4 Stat. 578. And compare Act of June 26, 1884, c. 121, § 14, 23 Stat. 53, 57. Other acts, for retaliation against discriminations as to United States commerce, have placed broad powers in the hands of the President, "authorizing" even the total exclusion of vessels of any foreign country so offending (Act of June 19, 1886, c. 421, § 17, 24 Stat. 79, 83), or the increase of duties on its goods or their total exclusion from the United States (Act of June 17, 1930, c. 497, § 388, 46 Stat. 590, 704), or the exclusion of its goods or the detention, in certain circumstances, of its vessels, or the exclusion of its vessels or nationals from privileges similar to those which it has denied to citizens of the United States (Act of September 8, 1916, c. 463, §§ 804-806, 39 Stat. 756, 799-800). As to discriminations by particular countries, it has been made lawful for the President, by proclamation, which he "may in his discretion, apply . . . to any part or all" of the subjects named, to exclude certain goods of the offending country, or its vessels. Act of March 3, 1887, c. 339, 24 Stat. 475. And compare Act of July 26, 1892, c. 248, 27 Stat. 267. Compare also authority given the Postmaster General to reduce or enlarge rates of foreign postage, among other things, for the purpose of counteracting any adverse measures affecting our postal intercourse with foreign countries. Act of March 3, 1851, c. 20, § 2, 9 Stat. 587, 589. The President has been "authorized" to suspend an act providing for the exercise of judicial functions by ministers, consuls and other officers of the United States in the Ottoman dominions and Egypt whenever he "shall receive satisfactory information" that the governments concerned have organized tribunals likely to secure to United States citizens the same impartial justice enjoyed under the judicial functions exercised by the United States officials. Act of March 23, 1874, c. 62, 18 Stat. 23. Congress has also passed acts for the enforcement of treaties or conventions, to be effective only upon proclamation of the President. Some of them may be noted which "authorize" the President to make proclamation when he shall be "satisfied" or shall receive "satisfactory evidence" that the other nation has complied: Act of August 5, 1854, c. 269, §§ 1, 2, 10 Stat. 587; Act of March 1, 1873, c. 213, §§ 1, 2, 17 Stat. 482; Act of August 15, 1876, c. 290, 19 Stat. 200; Act of December 17, 1903, c. 1, § 1, 33 Stat. 3. Cf. Act of June 11, 1864, c. 116, § 1, 13 Stat. 121; Act of February 21, 1893, c. 150, 27 Stat. 472. Where appropriate, Congress has provided that violation of the President's proclamations authorized by the foregoing acts shall be penalized. See, e.g., Act of June 19, 1886; Act of March 3, 1887; Act of September 8, 1916; Act of June 17, 1930 -- all supra.

The case United States v. Curtiss-Wright Export Corp. (1936) concerned the constitutionality of a Joint Resolution passed by Congress that gave the President the power to prohibit the sale of arms and munitions to countries engaged in the Chaco War. The Supreme Court upheld the Joint Resolution, finding that it was not an unconstitutional delegation of legislative power to the Executive branch. The Court distinguished between the federal government's powers over domestic and foreign affairs, emphasizing that the federal government's external affairs powers are distinct from those specifically enumerated in the Constitution. The Court also highlighted that the states never possessed international powers, and that the powers of external sovereignty passed from the British Crown to the United States as a collective entity. The Court further noted that Congress has historically passed acts and resolutions that grant the President significant authority in the realm of foreign relations and international trade, including the power to suspend laws, enforce treaties, and take retaliatory actions against foreign countries.

Search & Seizure

Carpenter v. U.S.

https://supreme.justia.com/cases/federal/us/585/16-402/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 16–402 _________________ TIMOTHY IVORY CARPENTER, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the sixth circuit [June 22, 2018] Chief Justice Roberts delivered the opinion of the Court. This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements. I A There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors. Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas. Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue here. While carriers have long retained CSLI for the start and end of incoming calls, in recent years phone companies have also collected location information from the transmission of text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI. B In 2011, police officers arrested four men suspected of robbing a series of Radio Shack and (ironically enough) T-Mobile stores in Detroit. One of the men confessed that, over the previous four months, the group (along with a rotating cast of getaway drivers and lookouts) had robbed nine different stores in Michigan and Ohio. The suspect identified 15 accomplices who had participated in the heists and gave the FBI some of their cell phone numbers; the FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies. Based on that information, the prosecutors applied for court orders under the Stored Communications Act to obtain cell phone records for petitioner Timothy Carpenter and several other suspects. That statute, as amended in 1994, permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §2703(d). Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers—MetroPCS and Sprint—to disclose “cell/site sector [information] for [Carpenter’s] telephone[ ] at call origination and at call termination for incoming and outgoing calls” during the four-month period when the string of robberies occurred. App. to Pet. for Cert. 60a, 72a. The first order sought 152 days of cell-site records from MetroPCS, which produced records spanning 127 days. The second order requested seven days of CSLI from Sprint, which produced two days of records covering the period when Carpenter’s phone was “roaming” in northeastern Ohio. Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day. Carpenter was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence. See 18 U. S. C. §§924(c), 1951(a). Prior to trial, Carpenter moved to suppress the cell-site data provided by the wireless carriers. He argued that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause. The District Court denied the motion. App. to Pet. for Cert. 38a–39a. At trial, seven of Carpenter’s confederates pegged him as the leader of the operation. In addition, FBI agent Christopher Hess offered expert testimony about the cell-site data. Hess explained that each time a cell phone taps into the wireless network, the carrier logs a time-stamped record of the cell site and particular sector that were used. With this information, Hess produced maps that placed Carpenter’s phone near four of the charged robberies. In the Government’s view, the location records clinched the case: They confirmed that Carpenter was “right where the . . . robbery was at the exact time of the robbery.” App. 131 (closing argument). Carpenter was convicted on all but one of the firearm counts and sentenced to more than 100 years in prison. The Court of Appeals for the Sixth Circuit affirmed. 819 F. 3d 880 (2016). The court held that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers. Given that cell phone users voluntarily convey cell-site data to their carriers as “a means of establishing communication,” the court concluded that the resulting business records are not entitled to Fourth Amendment protection. Id., at 888 (quoting Smith v. Maryland , 442 U. S. 735, 741 (1979)). We granted certiorari. 582 U. S. ___ (2017). II A The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The “basic purpose of this Amendment,” our cases have recognized, “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court of City and County of San Francisco , 387 U. S. 523, 528 (1967). The Founding generation crafted the Fourth Amendment as a “response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Riley v. California , 573 U. S. ___, ___ (2014) (slip op., at 27). In fact, as John Adams recalled, the patriot James Otis’s 1761 speech condemning writs of assistance was “the first act of opposition to the arbitrary claims of Great Britain” and helped spark the Revolution itself. Id., at ___–___ (slip op., at 27–28) (quoting 10 Works of John Adams 248 (C. Adams ed. 1856)). For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” United States v. Jones , 565 U. S. 400, 405, 406, n. 3 (2012). More recently, the Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” Soldal v. Cook County , 506 U. S. 56, 64 (1992). In Katz v. United States , 389 U. S. 347, 351 (1967), we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well. When an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. Smith , 442 U. S., at 740 (internal quotation marks and alterations omitted). Although no single rubric definitively resolves which expectations of privacy are entitled to protection,[ 1 ] the analysis is informed by historical understandings “of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.” Carroll v. United States , 267 U. S. 132, 149 (1925). On this score, our cases have recognized some basic guideposts. First, that the Amendment seeks to secure “the privacies of life” against “arbitrary power.” Boyd v. United States , 116 U. S. 616, 630 (1886). Second, and relatedly, that a central aim of the Framers was “to place obstacles in the way of a too permeating police surveillance.” United States v. Di Re , 332 U. S. 581, 595 (1948). We have kept this attention to Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States , 533 U. S. 27, 34 (2001). For that reason, we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search. Id., at 35. Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize on such new sense-enhancing technology to explore what was happening within the home. Ibid. Likewise in Riley , the Court recognized the “immense storage capacity” of modern cell phones in holding that police officers must generally obtain a warrant before searching the contents of a phone. 573 U. S., at ___ (slip op., at 17). We explained that while the general rule allowing warrantless searches incident to arrest “strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to” the vast store of sensitive information on a cell phone. Id. , at ___ (slip op., at 9). B The case before us involves the Government’s acquisition of wireless carrier cell-site records revealing the location of Carpenter’s cell phone whenever it made or received calls. This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake. The first set of cases addresses a person’s expectation of privacy in his physical location and movements. In United States v. Knotts , 460 U. S. 276 (1983), we considered the Government’s use of a “beeper” to aid in tracking a vehicle through traffic. Police officers in that case planted a beeper in a container of chloroform before it was purchased by one of Knotts’s co-conspirators. The officers (with intermittent aerial assistance) then followed the automobile carrying the container from Minneapolis to Knotts’s cabin in Wisconsin, relying on the beeper’s signal to help keep the vehicle in view. The Court concluded that the “augment[ed]” visual surveillance did not constitute a search because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id., at 281, 282. Since the movements of the vehicle and its final destination had been “voluntarily conveyed to anyone who wanted to look,” Knotts could not assert a privacy interest in the information obtained. Id., at 281. This Court in Knotts , however, was careful to distinguish between the rudimentary tracking facilitated by the beeper and more sweeping modes of surveillance. The Court emphasized the “limited use which the government made of the signals from this particular beeper” during a discrete “automotive journey.” Id., at 284, 285. Significantly, the Court reserved the question whether “different constitutional principles may be applicable” if “twenty-four hour surveillance of any citizen of this country [were] possible.” Id., at 283–284. Three decades later, the Court considered more sophisticated surveillance of the sort envisioned in Knotts and found that different principles did indeed apply. In United States v. Jones , FBI agents installed a GPS tracking device on Jones’s vehicle and remotely monitored the vehicle’s movements for 28 days. The Court decided the case based on the Government’s physical trespass of the vehicle. 565 U. S., at 404–405. At the same time, five Justices agreed that related privacy concerns would be raised by, for example, “surreptitiously activating a stolen vehicle detection system” in Jones’s car to track Jones himself, or conducting GPS tracking of his cell phone. Id. , at 426, 428 (Alito, J., concurring in judgment); id., at 415 (Sotomayor, J., concurring). Since GPS monitoring of a vehicle tracks “every movement” a person makes in that vehicle, the concurring Justices concluded that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy”—regardless whether those movements were disclosed to the public at large. Id., at 430 (opinion of Alito, J.); id., at 415 (opinion of Sotomayor, J.).[ 2 ] In a second set of decisions, the Court has drawn a line between what a person keeps to himself and what he shares with others. We have previously held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U. S., at 743–744. That remains true “even if the information is revealed on the assumption that it will be used only for a limited purpose.” United States v. Miller , 425 U. S. 435, 443 (1976). As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections. This third-party doctrine largely traces its roots to Miller . While investigating Miller for tax evasion, the Government subpoenaed his banks, seeking several months of canceled checks, deposit slips, and monthly statements. The Court rejected a Fourth Amendment challenge to the records collection. For one, Miller could “assert neither ownership nor possession” of the documents; they were “business records of the banks.” Id., at 440. For another, the nature of those records confirmed Miller’s limited expectation of privacy, because the checks were “not confidential communications but negotiable instruments to be used in commercial transactions,” and the bank statements contained information “exposed to [bank] employees in the ordinary course of business.” Id., at 442. The Court thus concluded that Miller had “take[n] the risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government.” Id., at 443. Three years later, Smith applied the same principles in the context of information conveyed to a telephone com- pany. The Court ruled that the Government’s use of a pen register—a device that recorded the outgoing phone numbers dialed on a landline telephone—was not a search. Noting the pen register’s “limited capabilities,” the Court “doubt[ed] that people in general entertain any actual expectation of privacy in the numbers they dial.” 442 U. S., at 742. Telephone subscribers know, after all, that the numbers are used by the telephone company “for a variety of legitimate business purposes,” including routing calls. Id., at 743. And at any rate, the Court explained, such an expectation “is not one that society is prepared to recognize as reasonable.” Ibid. (internal quotation marks omitted). When Smith placed a call, he “voluntarily conveyed” the dialed numbers to the phone company by “expos[ing] that information to its equipment in the ordinary course of business.” Id., at 744 (internal quotation marks omitted). Once again, we held that the defendant “assumed the risk” that the company’s records “would be divulged to police.” Id., at 745. III The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals. Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones . Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled. At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller . But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements. We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.[ 3 ] A A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz , 389 U. S., at 351–352. A majority of this Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Jones , 565 U. S., at 430 (Alito, J., concurring in judgment); id., at 415 (Sotomayor, J., concurring). Prior to the digital age, law enforcement might have pursued a suspect for a brief stretch, but doing so “for any extended period of time was difficult and costly and therefore rarely undertaken.” Id., at 429 (opinion of Alito, J.). For that reason, “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Id. , at 430. Allowing government access to cell-site records contravenes that expectation. Although such records are generated for commercial purposes, that distinction does not negate Carpenter’s anticipation of privacy in his physical location. Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.” Id., at 415 (opinion of Sotomayor, J.). These location records “hold for many Americans the ‘privacies of life.’ ” Riley , 573 U. S., at ___ (slip op., at 28) (quoting Boyd , 116 U. S., at 630). And like GPS monitoring, cell phone tracking is remarkably easy, cheap, and efficient compared to traditional investigative tools. With just the click of a button, the Government can access each carrier’s deep repository of historical location information at practically no expense. In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones . Unlike the bugged container in Knotts or the car in Jones , a cell phone—almost a “feature of human anatomy,” Riley , 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. See id. , at ___ (slip op., at 19) (noting that “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower”); contrast Cardwell v. Lewis , 417 U. S. 583, 590 (1974) (plurality opinion) (“A car has little capacity for escaping public scrutiny.”). Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user. Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. In the past, attempts to reconstruct a person’s movements were limited by a dearth of records and the frailties of recollection. With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years. Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation—this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones , police need not even know in advance whether they want to follow a particular individual, or when. Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment. Only the few with- out cell phones could escape this tireless and absolute surveillance. The Government and Justice Kennedy contend, however, that the collection of CSLI should be permitted because the data is less precise than GPS information. Not to worry, they maintain, because the location records did “not on their own suffice to place [Carpenter] at the crime scene”; they placed him within a wedge-shaped sector ranging from one-eighth to four square miles. Brief for United States 24; see post, at 18–19. Yet the Court has already rejected the proposition that “inference insulates a search.” Kyllo , 533 U. S., at 36. From the 127 days of location data it received, the Government could, in combination with other information, deduce a detailed log of Carpenter’s movements, including when he was at the site of the robberies. And the Government thought the CSLI accurate enough to highlight it during the closing argument of his trial. App. 131. At any rate, the rule the Court adopts “must take account of more sophisticated systems that are already in use or in development.” Kyllo , 533 U. S., at 36. While the records in this case reflect the state of technology at the start of the decade, the accuracy of CSLI is rapidly approaching GPS-level precision. As the number of cell sites has proliferated, the geographic area covered by each cell sector has shrunk, particularly in urban areas. In addition, with new technology measuring the time and angle of signals hitting their towers, wireless carriers already have the capability to pinpoint a phone’s location within 50 meters. Brief for Electronic Frontier Foundation et al. as Amici Curiae 12 (describing triangulation methods that estimate a device’s location inside a given cell sector). Accordingly, when the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reason- able expectation of privacy in the whole of his physical movements. B The Government’s primary contention to the contrary is that the third-party doctrine governs this case. In its view, cell-site records are fair game because they are “business records” created and maintained by the wireless carriers. The Government (along with Justice Kennedy) recognizes that this case features new technology, but asserts that the legal question nonetheless turns on a garden-variety request for information from a third-party witness. Brief for United States 32–34; post, at 12–14. The Government’s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today. The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information. The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. But the fact of “diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.” Riley , 573 U. S., at ___ (slip op., at 16). Smith and Miller , after all, did not rely solely on the act of sharing. Instead, they considered “the nature of the particular documents sought” to determine whether “there is a legitimate ‘expectation of privacy’ concerning their contents.” Miller , 425 U. S., at 442. Smith pointed out the limited capabilities of a pen register; as explained in Riley , telephone call logs reveal little in the way of “identifying information.” Smith , 442 U. S., at 742; Riley , 573 U. S., at ___ (slip op., at 24). Miller likewise noted that checks were “not confidential communications but negotiable instruments to be used in commercial transactions.” 425 U. S., at 442. In mechanically applying the third-party doctrine to this case, the Government fails to appreciate that there are no comparable limitations on the revealing nature of CSLI. The Court has in fact already shown special solicitude for location information in the third-party context. In Knotts , the Court relied on Smith to hold that an individual has no reasonable expectation of privacy in public movements that he “voluntarily conveyed to anyone who wanted to look.” Knotts , 460 U. S., at 281; see id. , at 283 (discussing Smith ). But when confronted with more pervasive tracking, five Justices agreed that longer term GPS monitoring of even a vehicle traveling on public streets constitutes a search. Jones , 565 U. S., at 430 (Alito, J., concurring in judgment); id. , at 415 (Sotomayor, J., concurring). Justice Gorsuch wonders why “someone’s location when using a phone” is sensitive, post, at 3, and Justice Kennedy assumes that a person’s discrete movements “are not particularly private,” post, at 17. Yet this case is not about “using a phone” or a person’s movement at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years. Such a chronicle implicates privacy concerns far beyond those considered in Smith and Miller . Neither does the second rationale underlying the third-party doctrine—voluntary exposure—hold up when it comes to CSLI. Cell phone location information is not truly “shared” as one normally understands the term. In the first place, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society. Riley , 573 U. S., at ___ (slip op., at 9). Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates CSLI, including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily “assume[ ] the risk” of turning over a comprehensive dossier of his physical movements. Smith , 442 U. S., at 745. We therefore decline to extend Smith and Miller to the collection of CSLI. Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection. The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment. *  *  * Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.” Northwest Airlines, Inc. v. Minnesota , 322 U. S. 292, 300 (1944).[ 4 ] IV Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records. Although the “ultimate measure of the constitutionality of a governmental search is ‘reasonableness,’ ” our cases establish that warrantless searches are typically unreasonable where “a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.” Vernonia School Dist. 47J v. Acton , 515 U. S. 646, 652–653 (1995). Thus, “[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Riley , 573 U. S., at ___ (slip op., at 5). The Government acquired the cell-site records pursuant to a court order issued under the Stored Communications Act, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U. S. C. §2703(d). That showing falls well short of the probable cause required for a warrant. The Court usually requires “some quantum of individualized suspicion” before a search or seizure may take place. United States v. Martinez-Fuerte , 428 U. S. 543, 560–561 (1976). Under the standard in the Stored Communications Act, however, law enforcement need only show that the cell-site evidence might be pertinent to an ongoing investigation—a “gigantic” departure from the probable cause rule, as the Government explained below. App. 34. Consequently, an order issued under Section 2703(d) of the Act is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant. Justice Alito contends that the warrant requirement simply does not apply when the Government acquires records using compulsory process. Unlike an actual search, he says, subpoenas for documents do not involve the direct taking of evidence; they are at most a “constructive search” conducted by the target of the subpoena. Post, at 12. Given this lesser intrusion on personal privacy, Justice Alito argues that the compulsory production of records is not held to the same probable cause standard. In his view, this Court’s precedents set forth a categorical rule—separate and distinct from the third-party doctrine—subjecting subpoenas to lenient scrutiny without regard to the suspect’s expectation of privacy in the records. Post, at 8–19. But this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy. Almost all of the examples Justice Alito cites, see post, at 14–15, contemplated requests for evidence implicating diminished pri- vacy interests or for a corporation’s own books.[ 5 ] The lone exception, of course, is Miller , where the Court’s analysis of the third-party subpoena merged with the application of the third-party doctrine. 425 U. S., at 444 (concluding that Miller lacked the necessary privacy interest to contest the issuance of a subpoena to his bank). Justice Alito overlooks the critical issue. At some point, the dissent should recognize that CSLI is an entirely different species of business record—something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers. When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents. See Riley , 573 U. S., at ___ (slip op., at 10) (“A search of the information on a cell phone bears little resemblance to the type of brief physical search considered [in prior precedents].”). If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement. Under Justice Alito’s view, private letters, digital contents of a cell phone—any personal information reduced to document form, in fact—may be collected by subpoena for no reason other than “official curiosity.” United States v. Morton Salt Co. , 338 U. S. 632, 652 (1950). Justice Kennedy declines to adopt the radical implications of this theory, leaving open the question whether the warrant requirement applies “when the Government obtains the modern-day equivalents of an individual’s own ‘papers’ or ‘effects,’ even when those papers or effects are held by a third party. ” Post, at 13 (citing United States v. Warshak , 631 F. 3d 266, 283–288 (CA6 2010)). That would be a sensible exception, because it would prevent the subpoena doctrine from overcoming any reasonable expectation of privacy. If the third-party doctrine does not apply to the “modern-day equivalents of an individual’s own ‘papers’ or ‘effects,’ ” then the clear implication is that the documents should receive full Fourth Amendment protection. We simply think that such protection should extend as well to a detailed log of a person’s movements over several years. This is certainly not to say that all orders compelling the production of documents will require a showing of probable cause. The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations. We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party. Further, even though the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances. “One well-recognized exception applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’ ” Kentucky v. King , 563 U. S. 452, 460 (2011) (quoting Mincey v. Arizona , 437 U. S. 385, 394 (1978)). Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence. 563 U. S., at 460, and n. 3. As a result, if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to bomb threats, active shootings, and child abductions. Our decision today does not call into doubt warrantless access to CSLI in such circumstances. While police must get a warrant when collecting CSLI to assist in the mine-run criminal investigation, the rule we set forth does not limit their ability to respond to an ongoing emergency. *  *  * As Justice Brandeis explained in his famous dissent, the Court is obligated—as “[s]ubtler and more far-reaching means of invading privacy have become available to the Government”—to ensure that the “progress of science” does not erode Fourth Amendment protections. Olmstead v. United States , 277 U. S. 438, 473–474 (1928). Here the progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers, “after consulting the lessons of history,” drafted the Fourth Amendment to prevent. Di Re , 332 U. S., at 595. We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Justice Kennedy believes that there is such a rubric—the “property-based concepts” that Katz purported to move beyond. Post, at 3 (dissenting opinion). But while property rights are often informative, our cases by no means suggest that such an interest is “fundamental” or “dispositive” in determining which expectations of privacy are legitimate. Post, at 8–9. Justice Thomas (and to a large extent Justice Gorsuch) would have us abandon Katz and return to an exclusively property-based approach. Post, at 1–2, 17–21 (Thomas J., dissenting); post, at 6–9 (Gorsuch, J., dissenting). Katz of course “discredited” the “premise that property interests control,” 389 U. S., at 353, and we have repeatedly emphasized that privacy interests do not rise or fall with property rights, see, e.g., United States v. Jones , 565 U. S. 400, 411 (2012) (refusing to “make trespass the exclusive test”); Kyllo v. United States , 533 U. S. 27, 32 (2001) (“We have since decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property.”). Neither party has asked the Court to reconsider Katz in this case. 2 Justice Kennedy argues that this case is in a different category from Jones and the dragnet-type practices posited in Knotts because the disclosure of the cell-site records was subject to “judicial authorization.” Post , at 14–16. That line of argument conflates the threshold question whether a “search” has occurred with the separate matter of whether the search was reasonable. The subpoena process set forth in the Stored Communications Act does not determine a target’s expectation of privacy. And in any event, neither Jones nor Knotts purported to resolve the question of what authorization may be required to conduct such electronic surveillance techniques. But see Jones , 565 U. S., at 430 (Alito, J., concurring in judgment) (indicating that longer term GPS tracking may require a warrant). 3 The parties suggest as an alternative to their primary submissions that the acquisition of CSLI becomes a search only if it extends beyond a limited period. See Reply Brief 12 (proposing a 24-hour cutoff); Brief for United States 55–56 (suggesting a seven-day cutoff). As part of its argument, the Government treats the seven days of CSLI requested from Sprint as the pertinent period, even though Sprint produced only two days of records. Brief for United States 56. Contrary to Justice Kennedy’s assertion, post, at 19, we need not decide whether there is a limited period for which the Government may obtain an individual’s historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search. 4 Justice Gorsuch faults us for not promulgating a complete code addressing the manifold situations that may be presented by this new technology—under a constitutional provision turning on what is “reasonable,” no less. Post, at 10–12. Like Justice Gorsuch, we “do not begin to claim all the answers today,” post, at 13, and therefore decide no more than the case before us. 5 See United States v. Dionisio , 410 U. S. 1, 14 (1973) (“No person can have a reasonable expectation that others will not know the sound of his voice”); Donovan v. Lone Steer, Inc. , 464 U. S. 408, 411, 415 (1984) (payroll and sales records); California Bankers Assn. v. Shultz , 416 U. S. 21, 67 (1974) (Bank Secrecy Act reporting requirements); See v. Seattle , 387 U. S. 541, 544 (1967) (financial books and records); United States v. Powell , 379 U. S. 48, 49, 57 (1964) (corporate tax records); McPhaul v. United States , 364 U. S. 372, 374, 382 (1960) (books and records of an organization); United States v. Morton Salt Co. , 338 U. S. 632, 634, 651–653 (1950) (Federal Trade Commission reporting requirement); Oklahoma Press Publishing Co. v. Walling , 327 U. S. 186, 189, 204–208 (1946) (payroll records); Hale v. Henkel , 201 U. S. 43, 45, 75 (1906) (corporate books and papers). SUPREME COURT OF THE UNITED STATES _________________ No. 16–402 _________________ TIMOTHY IVORY CARPENTER, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the sixth circuit [June 22, 2018] Justice Kennedy, with whom Justice Thomas and Justice Alito join, dissenting. This case involves new technology, but the Court’s stark departure from relevant Fourth Amendment precedents and principles is, in my submission, unnecessary and incorrect, requiring this respectful dissent. The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation. Adherence to this Court’s longstanding precedents and analytic framework would have been the proper and prudent way to resolve this case. The Court has twice held that individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party. United States v. Miller , 425 U. S. 435 (1976); Smith v. Maryland , 442 U. S. 735 (1979). This is true even when the records contain personal and sensitive information. So when the Government uses a subpoena to obtain, for example, bank records, telephone records, and credit card statements from the businesses that create and keep these records, the Government does not engage in a search of the business’s customers within the meaning of the Fourth Amendment. In this case petitioner challenges the Government’s right to use compulsory process to obtain a now-common kind of business record: cell-site records held by cell phone service providers. The Government acquired the records through an investigative process enacted by Congress. Upon approval by a neutral magistrate, and based on the Government’s duty to show reasonable necessity, it authorizes the disclosure of records and information that are under the control and ownership of the cell phone service provider, not its customer. Petitioner acknowledges that the Government may obtain a wide variety of business records using compulsory process, and he does not ask the Court to revisit its precedents. Yet he argues that, under those same precedents, the Government searched his records when it used court-approved compulsory process to obtain the cell-site information at issue here. Cell-site records, however, are no different from the many other kinds of business records the Government has a lawful right to obtain by compulsory process. Customers like petitioner do not own, possess, control, or use the records, and for that reason have no reasonable expectation that they cannot be disclosed pursuant to lawful compulsory process. The Court today disagrees. It holds for the first time that by using compulsory process to obtain records of a business entity, the Government has not just engaged in an impermissible action, but has conducted a search of the business’s customer. The Court further concludes that the search in this case was unreasonable and the Government needed to get a warrant to obtain more than six days of cell-site records. In concluding that the Government engaged in a search, the Court unhinges Fourth Amendment doctrine from the property-based concepts that have long grounded the analytic framework that pertains in these cases. In doing so it draws an unprincipled and unworkable line between cell-site records on the one hand and financial and telephonic records on the other. According to today’s majority opinion, the Government can acquire a record of every credit card purchase and phone call a person makes over months or years without upsetting a legitimate expectation of privacy. But, in the Court’s view, the Government crosses a constitutional line when it obtains a court’s approval to issue a subpoena for more than six days of cell-site records in order to determine whether a person was within several hundred city blocks of a crime scene. That distinction is illogical and will frustrate principled application of the Fourth Amendment in many routine yet vital law enforcement operations. It is true that the Cyber Age has vast potential both to expand and restrict individual freedoms in dimensions not contemplated in earlier times. See Packingham v. North Carolina , 582 U. S. ___, ___–___ (2017) (slip op., at 4–6). For the reasons that follow, however, there is simply no basis here for concluding that the Government interfered with information that the cell phone customer, either from a legal or commonsense standpoint, should have thought the law would deem owned or controlled by him. I Before evaluating the question presented it is helpful to understand the nature of cell-site records, how they are commonly used by cell phone service providers, and their proper use by law enforcement. When a cell phone user makes a call, sends a text message or e-mail, or gains access to the Internet, the cell phone establishes a radio connection to an antenna at a nearby cell site. The typical cell site covers a more-or-less circular geographic area around the site. It has three (or sometimes six) separate antennas pointing in different directions. Each provides cell service for a different 120-degree (or 60-degree) sector of the cell site’s circular coverage area. So a cell phone activated on the north side of a cell site will connect to a different antenna than a cell phone on the south side. Cell phone service providers create records each time a cell phone connects to an antenna at a cell site. For a phone call, for example, the provider records the date, time, and duration of the call; the phone numbers making and receiving the call; and, most relevant here, the cell site used to make the call, as well as the specific antenna that made the connection. The cell-site and antenna data points, together with the date and time of connection, are known as cell-site location information, or cell-site records. By linking an individual’s cell phone to a particular 120- or 60-degree sector of a cell site’s coverage area at a particular time, cell-site records reveal the general location of the cell phone user. The location information revealed by cell-site records is imprecise, because an individual cell-site sector usually covers a large geographic area. The FBI agent who offered expert testimony about the cell-site records at issue here testified that a cell site in a city reaches between a half mile and two miles in all directions. That means a 60-degree sector covers between approximately one-eighth and two square miles (and a 120-degree sector twice that area). To put that in perspective, in urban areas cell-site records often would reveal the location of a cell phone user within an area covering between around a dozen and several hundred city blocks. In rural areas cell-site records can be up to 40 times more imprecise. By contrast, a Global Positioning System (GPS) can reveal an individ- ual’s location within around 15 feet. Major cell phone service providers keep cell-site records for long periods of time. There is no law requiring them to do so. Instead, providers contract with their customers to collect and keep these records because they are valuable to the providers. Among other things, providers aggregate the records and sell them to third parties along with other information gleaned from cell phone usage. This data can be used, for example, to help a department store determine which of various prospective store locations is likely to get more foot traffic from middle-aged women who live in affluent zip codes. The market for cell phone data is now estimated to be in the billions of dollars. See Brief for Technology Experts as Amici Curiae 23. Cell-site records also can serve an important investigative function, as the facts of this case demonstrate. Petitioner, Timothy Carpenter, along with a rotating group of accomplices, robbed at least six RadioShack and T-Mobile stores at gunpoint over a 2-year period. Five of those robberies occurred in the Detroit area, each crime at least four miles from the last. The sixth took place in Warren, Ohio, over 200 miles from Detroit. The Government, of course, did not know all of these details in 2011 when it began investigating Carpenter. In April of that year police arrested four of Carpenter’s co-conspirators. One of them confessed to committing nine robberies in Michigan and Ohio between December 2010 and March 2011. He identified 15 accomplices who had participated in at least one of those robberies; named Carpenter as one of the accomplices; and provided Carpenter’s cell phone number to the authorities. The suspect also warned that the other members of the conspiracy planned to commit more armed robberies in the immediate future. The Government at this point faced a daunting task. Even if it could identify and apprehend the suspects, still it had to link each suspect in this changing criminal gang to specific robberies in order to bring charges and convict. And, of course, it was urgent that the Government take all necessary steps to stop the ongoing and dangerous crime spree. Cell-site records were uniquely suited to this task. The geographic dispersion of the robberies meant that, if Carpenter’s cell phone were within even a dozen to several hundred city blocks of one or more of the stores when the different robberies occurred, there would be powerful circumstantial evidence of his participation; and this would be especially so if his cell phone usually was not located in the sectors near the stores except during the robbery times. To obtain these records, the Government applied to federal magistrate judges for disclosure orders pursuant to §2703(d) of the Stored Communications Act. That Act authorizes a magistrate judge to issue an order requiring disclosure of cell-site records if the Government demonstrates “specific and articulable facts showing that there are reasonable grounds to believe” the records “are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §§2703(d), 2711(3). The full statutory provision is set out in the Appendix, infra . From Carpenter’s primary service provider, MetroPCS, the Government obtained records from between December 2010 and April 2011, based on its understanding that nine robberies had occurred in that timeframe. The Government also requested seven days of cell-site records from Sprint, spanning the time around the robbery in Warren, Ohio. It obtained two days of records. These records confirmed that Carpenter’s cell phone was in the general vicinity of four of the nine robberies, including the one in Ohio, at the times those robberies occurred. II The first Clause of the Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The customary beginning point in any Fourth Amendment search case is whether the Government’s actions constitute a “search” of the defendant’s person, house, papers, or effects, within the meaning of the constitutional provision. If so, the next question is whether that search was reasonable. Here the only question necessary to decide is whether the Government searched anything of Carpenter’s when it used compulsory process to obtain cell-site records from Carpenter’s cell phone service providers. This Court’s decisions in Miller and Smith dictate that the answer is no, as every Court of Appeals to have considered the question has recognized. See United States v. Thompson , 866 F. 3d 1149 (CA10 2017); United States v. Graham , 824 F. 3d 421 (CA4 2016) (en banc); Carpenter v. United States , 819 F. 3d 880 (CA6 2016); United States v. Davis , 785 F. 3d 498 (CA11 2015) (en banc); In re Application of U. S. for Historical Cell Site Data , 724 F. 3d 600 (CA5 2013). A Miller and Smith hold that individuals lack any protected Fourth Amendment interests in records that are possessed, owned, and controlled only by a third party. In Miller federal law enforcement officers obtained four months of the defendant’s banking records. 425 U. S., at 437–438. And in Smith state police obtained records of the phone numbers dialed from the defendant’s home phone. 442 U. S., at 737. The Court held in both cases that the officers did not search anything belonging to the defendants within the meaning of the Fourth Amendment. The defendants could “assert neither ownership nor possession” of the records because the records were created, owned, and controlled by the companies. Miller , supra , at 440; see Smith , supra , at 741. And the defendants had no reasonable expectation of privacy in information they “voluntarily conveyed to the [companies] and exposed to their employees in the ordinary course of business.” Miller , supra , at 442; see Smith , 442 U. S., at 744. Rather, the defendants “assumed the risk that the information would be divulged to police.” Id. , at 745. Miller and Smith have been criticized as being based on too narrow a view of reasonable expectations of privacy. See, e.g., Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1313–1316 (1981). Those criticisms, however, are unwarranted. The principle established in Miller and Smith is correct for two reasons, the first relating to a defendant’s attenuated interest in property owned by another, and the second relating to the safeguards inherent in the use of compulsory process. First, Miller and Smith placed necessary limits on the ability of individuals to assert Fourth Amendment interests in property to which they lack a “requisite connection.” Minnesota v. Carter , 525 U. S. 83, 99 (1998) (Kennedy, J., concurring). Fourth Amendment rights, after all, are personal. The Amendment protects “[t]he right of the people to be secure in their . . . persons, houses, papers, and effects”—not the persons, houses, papers, and effects of others. (Emphasis added.) The concept of reasonable expectations of privacy, first announced in Katz v. United States , 389 U. S. 347 (1967), sought to look beyond the “arcane distinctions developed in property and tort law” in evaluating whether a person has a sufficient connection to the thing or place searched to assert Fourth Amendment interests in it. Rakas v. Illinois , 439 U. S. 128, 143 (1978). Yet “property concepts” are, nonetheless, fundamental “in determining the presence or absence of the privacy interests protected by that Amendment.” Id., at 143–144, n. 12. This is so for at least two reasons. First, as a matter of settled expectations from the law of property, individuals often have greater expectations of privacy in things and places that belong to them, not to others. And second, the Fourth Amendment’s protections must remain tethered to the text of that Amendment, which, again, protects only a person’s own “persons, houses, papers, and effects.” Katz did not abandon reliance on property-based concepts. The Court in Katz analogized the phone booth used in that case to a friend’s apartment, a taxicab, and a hotel room. 389 U. S., at 352, 359. So when the defendant “shu[t] the door behind him” and “pa[id] the toll,” id., at 352, he had a temporary interest in the space and a legitimate expectation that others would not intrude, much like the interest a hotel guest has in a hotel room, Stoner v. California , 376 U. S. 483 (1964), or an overnight guest has in a host’s home, Minnesota v. Olson , 495 U. S. 91 (1990). The Government intruded on that space when it attached a listening device to the phone booth. Katz , 389 U. S., at 348. (And even so, the Court made it clear that the Government’s search could have been reasonable had there been judicial approval on a case-specific basis, which, of course, did occur here. Id ., at 357–359.) Miller and Smith set forth an important and necessary limitation on the Katz framework. They rest upon the commonsense principle that the absence of property law analogues can be dispositive of privacy expectations. The defendants in those cases could expect that the third-party businesses could use the records the companies collected, stored, and classified as their own for any number of business and commercial purposes. The businesses were not bailees or custodians of the records, with a duty to hold the records for the defendants’ use. The defendants could make no argument that the records were their own papers or effects. See Miller , supra , at 440 (“the documents subpoenaed here are not respondent’s ‘private papers’ ”); Smith , supra , at 741 (“petitioner obviously cannot claim that his ‘property’ was invaded”). The records were the business entities’ records, plain and simple. The defendants had no reason to believe the records were owned or controlled by them and so could not assert a reasonable expectation of privacy in the records. The second principle supporting Miller and Smith is the longstanding rule that the Government may use compulsory process to compel persons to disclose documents and other evidence within their possession and control. See United States v. Nixon , 418 U. S. 683, 709 (1974) (it is an “ancient proposition of law” that “the public has a right to every man’s evidence” (internal quotation marks and alterations omitted)). A subpoena is different from a warrant in its force and intrusive power. While a warrant allows the Government to enter and seize and make the examination itself, a subpoena simply requires the person to whom it is directed to make the disclosure. A subpoena, moreover, provides the recipient the “opportunity to present objections” before complying, which further mitigates the intrusion. Oklahoma Press Publishing Co. v. Walling , 327 U. S. 186, 195 (1946). For those reasons this Court has held that a subpoena for records, although a “constructive” search subject to Fourth Amendment constraints, need not comply with the procedures applicable to warrants—even when challenged by the person to whom the records belong. Id., at 202, 208. Rather, a subpoena complies with the Fourth Amendment’s reasonableness requirement so long as it is “ ‘sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.’ ” Donovan v. Lone Steer, Inc. , 464 U. S. 408, 415 (1984). Persons with no meaningful interests in the records sought by a subpoena, like the defendants in Miller and Smith , have no rights to object to the records’ disclosure—much less to assert that the Government must obtain a warrant to compel disclosure of the records. See Miller , 425 U. S., at 444–446; SEC v. Jerry T. O’Brien, Inc. , 467 U. S. 735, 742–743 (1984). Based on Miller and Smith and the principles underlying those cases, it is well established that subpoenas may be used to obtain a wide variety of records held by businesses, even when the records contain private information. See 2 W. LaFave, Search and Seizure §4.13 (5th ed. 2012). Credit cards are a prime example. State and federal law enforcement, for instance, often subpoena credit card statements to develop probable cause to prosecute crimes ranging from drug trafficking and distribution to healthcare fraud to tax evasion. See United States v. Phibbs , 999 F. 2d 1053 (CA6 1993) (drug distribution); McCune v. DOJ , 592 Fed. Appx. 287 (CA5 2014) (healthcare fraud); United States v. Green , 305 F. 3d 422 (CA6 2002) (drug trafficking and tax evasion); see also 12 U. S. C. §§3402(4), 3407 (allowing the Government to subpoena financial records if “there is reason to believe that the records sought are relevant to a legitimate law enforcement inquiry”). Subpoenas also may be used to obtain vehicle registration records, hotel records, employment records, and records of utility usage, to name just a few other examples. See 1 LaFave, supra , §2.7(c). And law enforcement officers are not alone in their reliance on subpoenas to obtain business records for legitimate investigations. Subpoenas also are used for investigatory purposes by state and federal grand juries, see United States v. Dionisio , 410 U. S. 1 (1973), state and federal administrative agencies, see Oklahoma Press , supra , and state and federal legislative bodies, see McPhaul v. United States , 364 U. S. 372 (1960). B Carpenter does not question these traditional investigative practices. And he does not ask the Court to reconsider Miller and Smith . Carpenter argues only that, under Miller and Smith , the Government may not use compulsory process to acquire cell-site records from cell phone service providers. There is no merit in this argument. Cell-site records, like all the examples just discussed, are created, kept, classified, owned, and controlled by cell phone service providers, which aggregate and sell this information to third parties. As in Miller , Carpenter can “assert neither ownership nor possession” of the records and has no control over them. 425 U. S., at 440. Carpenter argues that he has Fourth Amendment interests in the cell-site records because they are in essence his personal papers by operation of 47 U. S. C. §222. That statute imposes certain restrictions on how providers may use “customer proprietary network information”—a term that encompasses cell-site records. §§222(c), (h)(1)(A). The statute in general prohibits providers from disclosing personally identifiable cell-site records to private third parties. §222(c)(1). And it allows customers to request cell-site records from the provider. §222(c)(2). Carpenter’s argument is unpersuasive, however, for §222 does not grant cell phone customers any meaningful interest in cell-site records. The statute’s confidentiality protections may be overridden by the interests of the providers or the Government. The providers may disclose the records “to protect the[ir] rights or property” or to “initiate, render, bill, and collect for telecommunications services.” §§222(d)(1), (2). They also may disclose the records “as required by law”—which, of course, is how they were disclosed in this case. §222(c)(1). Nor does the statute provide customers any practical control over the records. Customers do not create the records; they have no say in whether or for how long the records are stored; and they cannot require the records to be modified or destroyed. Even their right to request access to the records is limited, for the statute “does not preclude a carrier from being reimbursed by the customers . . . for the costs associated with making such disclosures.” H. R. Rep. No. 104–204, pt. 1, p. 90 (1995). So in every legal and practical sense the “network information” regulated by §222 is, under that statute, “proprietary” to the service providers, not Carpenter. The Court does not argue otherwise. Because Carpenter lacks a requisite connection to the cell-site records, he also may not claim a reasonable expectation of privacy in them. He could expect that a third party—the cell phone service provider—could use the information it collected, stored, and classified as its own for a variety of business and commercial purposes. All this is not to say that Miller and Smith are without limits. Miller and Smith may not apply when the Government obtains the modern-day equivalents of an individual’s own “papers” or “effects,” even when those papers or effects are held by a third party. See Ex parte Jackson , 96 U. S. 727, 733 (1878) (letters held by mail carrier); United States v. Warshak , 631 F. 3d 266, 283–288 (CA6 2010) (e-mails held by Internet service provider). As already discussed, however, this case does not involve property or a bailment of that sort. Here the Government’s acquisition of cell-site records falls within the heartland of Miller and Smith . In fact, Carpenter’s Fourth Amendment objection is even weaker than those of the defendants in Miller and Smith . Here the Government did not use a mere sub- poena to obtain the cell-site records. It acquired the records only after it proved to a Magistrate Judge reasonable grounds to believe that the records were relevant and material to an ongoing criminal investigation. See 18 U. S. C. §2703(d). So even if §222 gave Carpenter some attenuated interest in the records, the Government’s conduct here would be reasonable under the standards governing subpoenas. See Donovan , 464 U. S., at 415. Under Miller and Smith , then, a search of the sort that requires a warrant simply did not occur when the Government used court-approved compulsory process, based on a finding of reasonable necessity, to compel a cell phone service provider, as owner, to disclose cell-site records. III The Court rejects a straightforward application of Miller and Smith . It concludes instead that applying those cases to cell-site records would work a “significant extension” of the principles underlying them, ante, at 15, and holds that the acquisition of more than six days of cell-site records constitutes a search, ante, at 11, n. 3. In my respectful view the majority opinion misreads this Court’s precedents, old and recent, and transforms Miller and Smith into an unprincipled and unworkable doctrine. The Court’s newly conceived constitutional standard will cause confusion; will undermine traditional and important law enforcement practices; and will allow the cell phone to become a protected medium that dangerous persons will use to commit serious crimes. A The Court errs at the outset by attempting to sidestep Miller and Smith . The Court frames this case as following instead from United States v. Knotts , 460 U. S. 276 (1983), and United States v. Jones , 565 U. S. 400 (2012). Those cases, the Court suggests, establish that “individuals have a reasonable expectation of privacy in the whole of their physical movements.” Ante , at 7–9, 12. Knotts held just the opposite: “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U. S., at 281. True, the Court in Knotts also suggested that “different constitutional principles may be applicable” to “dragnet-type law enforcement practices.” Id., at 284. But by dragnet practices the Court was referring to “ ‘twenty-four hour surveillance of any citizen of this country . . . without judicial knowledge or supervision.’ ” Id., at 283. Those “different constitutional principles” mentioned in Knotts , whatever they may be, do not apply in this case. Here the Stored Communications Act requires a neutral judicial officer to confirm in each case that the Government has “reasonable grounds to believe” the cell-site records “are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §2703(d). This judicial check mitigates the Court’s concerns about “ ‘a too permeating police surveillance.’ ” Ante , at 6 (quoting United States v. Di Re , 332 U. S. 581, 595 (1948)). Here, even more so than in Knotts , “reality hardly suggests abuse.” 460 U. S., at 284. The Court’s reliance on Jones fares no better. In Jones the Government installed a GPS tracking device on the defendant’s automobile. The Court held the Government searched the automobile because it “physically occupied private property [of the defendant] for the purpose of obtaining information.” 565 U. S., at 404. So in Jones it was “not necessary to inquire about the target’s expectation of privacy in his vehicle’s movements.” Grady v. North Carolina , 575 U. S. ___, ___ (2015) ( per curiam ) (slip op., at 3). Despite that clear delineation of the Court’s holding in Jones , the Court today declares that Jones applied the “ ‘different constitutional principles’ ” alluded to in Knotts to establish that an individual has an expectation of pri- vacy in the sum of his whereabouts. Ante , at 8, 12. For that proposition the majority relies on the two concurring opinions in Jones , one of which stated that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” 565 U. S., at 430 (Alito, J., concurring). But Jones involved direct governmental surveillance of a defendant’s automobile without judicial authorization—specifically, GPS surveillance accurate within 50 to 100 feet. Id. , at 402–403. Even assuming that the different constitutional principles mentioned in Knotts would apply in a case like Jones —a proposition the Court was careful not to announce in Jones , supra , at 412–413—those principles are inapplicable here. Cases like this one, where the Government uses court-approved compulsory process to obtain records owned and controlled by a third party, are governed by the two majority opinions in Miller and Smith . B The Court continues its analysis by misinterpreting Miller and Smith , and then it reaches the wrong outcome on these facts even under its flawed standard. The Court appears, in my respectful view, to read Miller and Smith to establish a balancing test. For each “qualitatively different category” of information, the Court suggests, the privacy interests at stake must be weighed against the fact that the information has been disclosed to a third party. See ante , at 11, 15–17. When the privacy interests are weighty enough to “overcome” the third-party disclosure, the Fourth Amendment’s protections apply. See ante , at 17. That is an untenable reading of Miller and Smith . As already discussed, the fact that information was relinquished to a third party was the entire basis for concluding that the defendants in those cases lacked a reasonable expectation of privacy. Miller and Smith do not establish the kind of category-by-category balancing the Court today prescribes. But suppose the Court were correct to say that Miller and Smith rest on so imprecise a foundation. Still the Court errs, in my submission, when it concludes that cell-site records implicate greater privacy interests—and thus deserve greater Fourth Amendment protection—than financial records and telephone records. Indeed, the opposite is true. A person’s movements are not particularly private. As the Court recognized in Knotts , when the defendant there “traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination.” 460 U. S., at 281–282. Today expectations of privacy in one’s location are, if anything, even less reasonable than when the Court decided Knotts over 30 years ago. Millions of Americans choose to share their location on a daily basis, whether by using a variety of location-based services on their phones, or by sharing their location with friends and the public at large via social media. And cell-site records, as already discussed, disclose a person’s location only in a general area. The records at issue here, for example, revealed Carpenter’s location within an area covering between around a dozen and several hundred city blocks. “Areas of this scale might encompass bridal stores and Bass Pro Shops, gay bars and straight ones, a Methodist church and the local mosque.” 819 F. 3d 880, 889 (CA6 2016). These records could not reveal where Carpenter lives and works, much less his “ ‘familial, political, professional, religious, and sexual associations.’ ” Ante , at 12 (quoting Jones , supra , at 415 (Sotomayor, J., concurring)). By contrast, financial records and telephone records do “ ‘revea[l] . . . personal affairs, opinions, habits and associations.’ ” Miller , 425 U. S., at 451 (Brennan, J., dissenting); see Smith , 442 U. S., at 751 (Marshall, J., dissenting). What persons purchase and to whom they talk might disclose how much money they make; the political and religious organizations to which they donate; whether they have visited a psychiatrist, plastic surgeon, abortion clinic, or AIDS treatment center; whether they go to gay bars or straight ones; and who are their closest friends and family members. The troves of intimate information the Government can and does obtain using financial records and telephone records dwarfs what can be gathered from cell-site records. Still, the Court maintains, cell-site records are “unique” because they are “comprehensive” in their reach; allow for retrospective collection; are “easy, cheap, and efficient compared to traditional investigative tools”; and are not exposed to cell phone service providers in a meaningfully voluntary manner. Ante , at 11–13, 17, 22. But many other kinds of business records can be so described. Financial records are of vast scope. Banks and credit card companies keep a comprehensive account of almost every transaction an individual makes on a daily basis. “With just the click of a button, the Government can access each [company’s] deep repository of historical [financial] information at practically no expense.” Ante , at 12–13. And the decision whether to transact with banks and credit card companies is no more or less voluntary than the decision whether to use a cell phone. Today, just as when Miller was decided, “ ‘it is impossible to participate in the economic life of contemporary society without maintaining a bank account.’ ” 425 U. S., at 451 (Brennan, J., dissenting). But this Court, nevertheless, has held that individ- uals do not have a reasonable expectation of privacy in financial records. Perhaps recognizing the difficulty of drawing the constitutional line between cell-site records and financial and telephonic records, the Court posits that the accuracy of cell-site records “is rapidly approaching GPS-level precision.” Ante , at 14. That is certainly plausible in the era of cyber technology, yet the privacy interests associated with location information, which is often disclosed to the public at large, still would not outweigh the privacy interests implicated by financial and telephonic records. Perhaps more important, those future developments are no basis upon which to resolve this case. In general, the Court “risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” Ontario v. Quon , 560 U. S. 746, 759 (2010). That judicial caution, prudent in most cases, is imperative in this one. Technological changes involving cell phones have complex effects on crime and law enforcement. Cell phones make crimes easier to coordinate and conceal, while also providing the Government with new investigative tools that may have the potential to upset traditional privacy expectations. See Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev 476, 512–517 (2011). How those competing effects balance against each other, and how property norms and expectations of privacy form around new technology, often will be difficult to determine during periods of rapid technological change. In those instances, and where the governing legal standard is one of reasonableness, it is wise to defer to legislative judgments like the one embodied in §2703(d) of the Stored Communications Act. See Jones , 565 U. S., at 430 (Alito, J., concurring). In §2703(d) Congress weighed the privacy interests at stake and imposed a judicial check to prevent executive overreach. The Court should be wary of upsetting that legislative balance and erecting constitutional barriers that foreclose further legislative instructions. See Quon , supra , at 759. The last thing the Court should do is incorporate an arbitrary and outside limit—in this case six days’ worth of cell-site records—and use it as the foundation for a new constitutional framework. The Court’s decision runs roughshod over the mechanism Congress put in place to govern the acquisition of cell-site records and closes off further legislative debate on these issues. C The Court says its decision is a “narrow one.” Ante, at 17. But its reinterpretation of Miller and Smith will have dramatic consequences for law enforcement, courts, and society as a whole. Most immediately, the Court’s holding that the Government must get a warrant to obtain more than six days of cell-site records limits the effectiveness of an important investigative tool for solving serious crimes. As this case demonstrates, cell-site records are uniquely suited to help the Government develop probable cause to apprehend some of the Nation’s most dangerous criminals: serial killers, rapists, arsonists, robbers, and so forth. See also, e.g. , Davis , 785 F. 3d, at 500–501 (armed robbers); Brief for Alabama et al. as Amici Curiae 21–22 (serial killer). These records often are indispensable at the initial stages of investigations when the Government lacks the evidence necessary to obtain a warrant. See United States v. Pembrook , 876 F.3d 812, 816–819 (CA6 2017). And the long-term nature of many serious crimes, including serial crimes and terrorism offenses, can necessitate the use of significantly more than six days of cell-site records. The Court’s arbitrary 6-day cutoff has the perverse effect of nullifying Congress’ reasonable framework for obtain- ing cell-site records in some of the most serious criminal investigations. The Court’s decision also will have ramifications that extend beyond cell-site records to other kinds of information held by third parties, yet the Court fails “to provide clear guidance to law enforcement” and courts on key issues raised by its reinterpretation of Miller and Smith . Riley v. California , 573 U. S. ___, ___ (2014) (slip op., at 22). First , the Court’s holding is premised on cell-site records being a “distinct category of information” from other business records. Ante , at 15. But the Court does not explain what makes something a distinct category of information. Whether credit card records are distinct from bank records; whether payment records from digital wallet applications are distinct from either; whether the electronic bank records available today are distinct from the paper and microfilm records at issue in Miller ; or whether cell-phone call records are distinct from the home-phone call records at issue in Smith , are just a few of the difficult questions that require answers under the Court’s novel conception of Miller and Smith . Second , the majority opinion gives courts and law enforcement officers no indication how to determine whether any particular category of information falls on the financial-records side or the cell-site-records side of its newly conceived constitutional line. The Court’s multifactor analysis—considering intimacy, comprehensiveness, expense, retrospectivity, and voluntariness—puts the law on a new and unstable foundation. Third , even if a distinct category of information is deemed to be more like cell-site records than financial records, courts and law enforcement officers will have to guess how much of that information can be requested before a warrant is required. The Court suggests that less than seven days of location information may not require a warrant. See ante, at 11, n. 3; see also ante, at 17–18 (expressing no opinion on “real-time CSLI,” tower dumps, and security-camera footage). But the Court does not explain why that is so, and nothing in its opinion even alludes to the considerations that should determine whether greater or lesser thresholds should apply to information like IP addresses or website browsing history. Fourth , by invalidating the Government’s use of court-approved compulsory process in this case, the Court calls into question the subpoena practices of federal and state grand juries, legislatures, and other investigative bodies, as Justice Alito’s opinion explains. See post, at 2–19 (dissenting opinion). Yet the Court fails even to mention the serious consequences this will have for the proper administration of justice. In short, the Court’s new and uncharted course will inhibit law enforcement and “keep defendants and judges guessing for years to come.” Riley , 573 U. S., at ___ (slip op., at 25) (internal quotation marks omitted). *  *  * This case should be resolved by interpreting accepted property principles as the baseline for reasonable expectations of privacy. Here the Government did not search anything over which Carpenter could assert ownership or control. Instead, it issued a court-authorized subpoena to a third party to disclose information it alone owned and controlled. That should suffice to resolve this case. Having concluded, however, that the Government searched Carpenter when it obtained cell-site records from his cell phone service providers, the proper resolution of this case should have been to remand for the Court of Appeals to determine in the first instance whether the search was reasonable. Most courts of appeals, believing themselves bound by Miller and Smith , have not grappled with this question. And the Court’s reflexive imposition of the warrant requirement obscures important and difficult issues, such as the scope of Congress’ power to authorize the Government to collect new forms of information using processes that deviate from traditional warrant procedures, and how the Fourth Amendment’s reasonableness requirement should apply when the Government uses compulsory process instead of engaging in an actual, physical search. These reasons all lead to this respectful dissent. APPENDIX “ §2703. Required disclosure of customer communications or records “(d) Requirements for Court Order.—A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.” SUPREME COURT OF THE UNITED STATES _________________ No. 16–402 _________________ TIMOTHY IVORY CARPENTER, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the sixth circuit [June 22, 2018] Justice Thomas, dissenting. This case should not turn on “whether” a search occurred. Ante, at 1. It should turn, instead, on whose property was searched. The Fourth Amendment guarantees individuals the right to be secure from unreasonable searches of “ their persons, houses, papers, and effects.” (Emphasis added.) In other words, “ each person has the right to be secure against unreasonable searches . . . in his own person, house, papers, and effects.” Minnesota v. Carter , 525 U. S. 83, 92 (1998) (Scalia, J., concurring). By obtaining the cell-site records of MetroPCS and Sprint, the Government did not search Carpenter’s property. He did not create the records, he does not maintain them, he cannot control them, and he cannot destroy them. Neither the terms of his contracts nor any provision of law makes the records his. The records belong to MetroPCS and Sprint. The Court concludes that, although the records are not Carpenter’s, the Government must get a warrant because Carpenter had a reasonable “expectation of privacy” in the location information that they reveal. Ante, at 11. I agree with Justice Kennedy, Justice Alito, Justice Gorsuch, and every Court of Appeals to consider the question that this is not the best reading of our precedents. The more fundamental problem with the Court’s opinion, however, is its use of the “reasonable expectation of privacy” test, which was first articulated by Justice Harlan in Katz v. United States , 389 U. S. 347, 360–361 (1967) (concurring opinion). The Katz test has no basis in the text or history of the Fourth Amendment. And, it invites courts to make judgments about policy, not law. Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence. I respectfully dissent. I Katz was the culmination of a series of decisions applying the Fourth Amendment to electronic eavesdropping. The first such decision was Olmstead v. United States , 277 U. S. 438 (1928), where federal officers had intercepted the defendants’ conversations by tapping telephone lines near their homes. Id., at 456–457. In an opinion by Chief Justice Taft, the Court concluded that this wiretap did not violate the Fourth Amendment. No “search” occurred, according to the Court, because the officers did not physically enter the defendants’ homes. Id., at 464–466. And neither the telephone lines nor the defendants’ intangible conversations qualified as “persons, houses, papers, [or] effects” within the meaning of the Fourth Amendment. Ibid. [ 1 ] In the ensuing decades, this Court adhered to Olmstead and rejected Fourth Amendment challenges to various methods of electronic surveillance. See On Lee v. United States , 343 U. S. 747, 749–753 (1952) (use of microphone to overhear conversations with confidential informant); Goldman v. United States , 316 U. S. 129, 131–132, 135–136 (1942) (use of detectaphone to hear conversations in office next door). In the 1960’s, however, the Court began to retreat from Olmstead . In Silverman v. United States , 365 U. S. 505 (1961), for example, federal officers had eavesdropped on the defendants by driving a “spike mike” several inches into the house they were occupying. Id., at 506–507. This was a “search,” the Court held, because the “unauthorized physical penetration into the premises” was an “actual intrusion into a constitutionally protected area.” Id., at 509, 512. The Court did not mention Olmstead ’s other holding that intangible conversations are not “persons, houses, papers, [or] effects.” That omission was significant. The Court confirmed two years later that “[i]t follows from [ Silverman ] that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of ‘papers and effects.’ ” Wong Sun v. United States , 371 U. S. 471, 485 (1963); accord, Berger v. New York , 388 U. S. 41, 51 (1967). In Katz , the Court rejected Olmstead ’s remaining holding—that eavesdropping is not a search absent a physical intrusion into a constitutionally protected area. The federal officers in Katz had intercepted the defendant’s conversations by attaching an electronic device to the outside of a public telephone booth. 389 U. S., at 348. The Court concluded that this was a “search” because the officers “violated the privacy upon which [the defendant] justifiably relied while using the telephone booth.” Id., at 353. Although the device did not physically penetrate the booth, the Court overruled Olmstead and held that “the reach of [the Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion.” 389 U. S., at 353. The Court did not explain what should replace Olmstead ’s physical-intrusion requirement. It simply asserted that “the Fourth Amendment protects people, not places” and “what [a person] seeks to preserve as private . . . may be constitutionally protected.” 389 U. S., at 351. Justice Harlan’s concurrence in Katz attempted to articulate the standard that was missing from the majority opinion. While Justice Harlan agreed that “ ‘the Fourth Amendment protects people, not places,’ ” he stressed that “[t]he question . . . is what protection it affords to those people,” and “the answer . . . requires reference to a ‘place.’ ” Id., at 361. Justice Harlan identified a “twofold requirement” to determine when the protections of the Fourth Amendment apply: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Ibid. Justice Harlan did not cite anything for this “expectation of privacy” test, and the parties did not discuss it in their briefs. The test appears to have been presented for the first time at oral argument by one of the defendant’s lawyers. See Winn, Katz and the Origins of the “Reason- able Expectation of Privacy” Test, 40 McGeorge L. Rev. 1, 9–10 (2009). The lawyer, a recent law-school graduate, apparently had an “[e]piphany” while preparing for oral argument. Schneider, Katz v. United States : The Untold Story, 40 McGeorge L. Rev. 13, 18 (2009). He conjectured that, like the “reasonable person” test from his Torts class, the Fourth Amendment should turn on “whether a reasonable person . . . could have expected his communication to be private.” Id., at 19. The lawyer presented his new theory to the Court at oral argument. See, e.g., Tr. of Oral Arg. in Katz v. United States , O. T. 1967, No. 35, p. 5 (proposing a test of “whether or not, objectively speaking, the communication was intended to be private”); id., at 11 (“We propose a test using a way that’s not too dissimilar from the tort ‘reasonable man’ test”). After some questioning from the Justices, the lawyer conceded that his test should also require individuals to subjectively expect privacy. See id., at 12. With that modification, Justice Harlan seemed to accept the lawyer’s test almost verbatim in his concurrence. Although the majority opinion in Katz had little practical significance after Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968, Justice Harlan’s concurrence profoundly changed our Fourth Amendment jurisprudence. It took only one year for the full Court to adopt his two-pronged test. See Terry v. Ohio , 392 U. S. 1, 10 (1968). And by 1979, the Court was describing Justice Harlan’s test as the “lodestar” for determining whether a “search” had occurred. Smith v. Maryland , 442 U. S. 735, 739 (1979). Over time, the Court minimized the subjective prong of Justice Harlan’s test. See Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations, 82 U. Chi. L. Rev. 113 (2015). That left the objective prong—the “reasonable expectation of privacy” test that the Court still applies today. See ante, at 5; United States v. Jones , 565 U. S. 400, 406 (2012). II Under the Katz test, a “search” occurs whenever “government officers violate a person’s ‘reasonable expectation of privacy.’ ” Jones , supra, at 406. The most glaring problem with this test is that it has “no plausible foundation in the text of the Fourth Amendment.” Carter , 525 U. S., at 97 (opinion of Scalia, J.). The Fourth Amendment, as relevant here, protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” By defining “search” to mean “any violation of a reasonable expectation of pri- vacy,” the Katz test misconstrues virtually every one of these words. A The Katz test distorts the original meaning of “searc[h]”—the word in the Fourth Amendment that it purports to define, see ante , at 5; Smith , supra . Under the Katz test, the government conducts a search anytime it violates someone’s “reasonable expectation of privacy.” That is not a normal definition of the word “search.” At the founding, “search” did not mean a violation of someone’s reasonable expectation of privacy. The word was probably not a term of art, as it does not appear in legal dictionaries from the era. And its ordinary meaning was the same as it is today: “ ‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.’ ” Kyllo v. United States , 533 U. S. 27, 32, n. 1 (2001) (quoting N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)); accord, 2 S. Johnson, A Dictionary of the English Language (5th ed. 1773) (“Inquiry by looking into every suspected place”); N. Bailey, An Universal Etymological English Dictionary (22d ed. 1770) (“a seeking after, a looking for, &c.”); 2 J. Ash, The New and Complete Dictionary of the English Language (2d ed. 1795) (“An enquiry, an examination, the act of seeking, an enquiry by looking into every suspected place; a quest; a pursuit”); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (similar). The word “search” was not associated with “reasonable expectation of privacy” until Justice Harlan coined that phrase in 1967. The phrase “expectation(s) of privacy” does not appear in the pre- Katz federal or state case reporters, the papers of prominent Founders,[ 2 ] early congressional documents and debates,[ 3 ] collections of early American English texts,[ 4 ] or early American newspapers.[ 5 ] B The Katz test strays even further from the text by focusing on the concept of “privacy.” The word “privacy” does not appear in the Fourth Amendment (or anywhere else in the Constitution for that matter). Instead, the Fourth Amendment references “[t]he right of the people to be secure.” It then qualifies that right by limiting it to “persons” and three specific types of property: “houses, papers, and effects.” By connecting the right to be secure to these four specific objects, “[t]he text of the Fourth Amendment reflects its close connection to property.” Jones , supra , at 405. “[P]rivacy,” by contrast, “was not part of the political vocabulary of the [founding]. Instead, liberty and privacy rights were understood largely in terms of property rights.” Cloud, Property Is Privacy: Locke and Brandeis in the Twenty-First Century, 55 Am. Crim. L. Rev. 37, 42 (2018). Those who ratified the Fourth Amendment were quite familiar with the notion of security in property. Security in property was a prominent concept in English law. See, e.g., 3 W. Blackstone, Commentaries on the Laws of Eng- land 288 (1768) (“[E]very man’s house is looked upon by the law to be his castle”); 3 E. Coke, Institutes of Laws of England 162 (6th ed. 1680) (“[F]or a man[’]s house is his Castle, & domus sua cuique est tutissimum refugium [each man’s home is his safest refuge]”). The political philosophy of John Locke, moreover, “permeated the 18th-century political scene in America.” Obergefell v. Hodges , 576 U. S. ___, ___ (2015) (Thomas, J., dissenting) (slip op., at 8). For Locke, every individual had a property right “in his own person” and in anything he “removed from the common state [of] Nature” and “mixed his labour with.” Second Treatise of Civil Government §27 (1690). Because property is “very unsecure” in the state of nature, §123, individuals form governments to obtain “a secure enjoyment of their properties.” §95. Once a government is formed, however, it cannot be given “a power to destroy that which every one designs to secure”; it cannot legitimately “endeavour to take away, and destroy the property of the people,” or exercise “an absolute power over [their] lives, liberties, and estates.” §222. The concept of security in property recognized by Locke and the English legal tradition appeared throughout the materials that inspired the Fourth Amendment. In Entick v. Carrington , 19 How. St. Tr. 1029 (C. P. 1765)—a heralded decision that the founding generation considered “the true and ultimate expression of constitutional law,” Boyd v. United States , 116 U. S. 616, 626 (1886)—Lord Camden explained that “[t]he great end, for which men entered into society, was to secure their property.” 19 How. St. Tr., at 1066. The American colonists echoed this reasoning in their “widespread hostility” to the Crown’s writs of assistance[ 6 ]—a practice that inspired the Revolution and became “[t]he driving force behind the adoption of the [Fourth] Amendment.” United States v. Verdugo-Urquidez , 494 U. S. 259, 266 (1990). Prominent colonists decried the writs as destroying “ ‘domestic security’ ” by permitting broad searches of homes. M. Smith, The Writs of Assistance Case 475 (1978) (quoting a 1772 Boston town meeting); see also id., at 562 (complaining that “ ‘every householder in this province, will necessarily become less secure than he was before this writ’ ” (quoting a 1762 article in the Boston Gazette)); id., at 493 (complaining that the writs were “ ‘expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security’ ” (quoting a 1768 letter from John Dickinson)). John Otis, who argued the famous Writs of Assistance case, contended that the writs violated “ ‘the fundamental Principl[e] of Law’ ” that “ ‘[a] Man who is quiet, is as secure in his House, as a Prince in his Castle.’ ” Id., at 339 (quoting John Adam’s notes). John Adams attended Otis’ argument and later drafted Article XIV of the Massachusetts Constitution,[ 7 ] which served as a model for the Fourth Amendment. See Clancy, The Framers’ Intent: John Adams, His Era, and the Fourth Amendment, 86 Ind. L. J. 979, 982 (2011); Donahue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1269 (2016) (Donahue). Adams agreed that “[p]roperty must be secured, or liberty cannot exist.” Discourse on Davila, in 6 The Works of John Adams 280 (C. Adams ed. 1851). Of course, the founding generation understood that, by securing their property, the Fourth Amendment would often protect their privacy as well. See, e.g., Boyd , supra , at 630 (explaining that searches of houses invade “the privacies of life”); Wilkes v. Wood , 19 How. St. Tr. 1153, 1154 (C. P. 1763) (argument of counsel contending that seizures of papers implicate “our most private concerns”). But the Fourth Amendment’s attendant protection of privacy does not justify Katz ’s elevation of privacy as the sine qua non of the Amendment. See T. Clancy, The Fourth Amendment: Its History and Interpretation §3.4.4, p. 78 (2008) (“[The Katz test] confuse[s] the reasons for exercising the protected right with the right itself. A purpose of exercising one’s Fourth Amendment rights might be the desire for privacy, but the individual’s motivation is not the right protected”); cf. United States v. Gonzalez- Lopez , 548 U. S. 140, 145 (2006) (rejecting “a line of reasoning that ‘abstracts from the right to its purposes, and then eliminates the right’ ”). As the majority opinion in Katz recognized, the Fourth Amendment “cannot be translated into a general constitutional ‘right to privacy,’ ” as its protections “often have nothing to do with privacy at all.” 389 U. S., at 350. Justice Harlan’s focus on privacy in his concurrence—an opinion that was issued between Griswold v. Connecticut , 381 U. S. 479 (1965), and Roe v. Wade , 410 U. S. 113 (1973)—reflects privacy’s status as the organizing constitutional idea of the 1960’s and 1970’s. The organizing constitutional idea of the founding era, by contrast, was property. C In shifting the focus of the Fourth Amendment from property to privacy, the Katz test also reads the words “persons, houses, papers, and effects” out of the text. At its broadest formulation, the Katz test would find a search “ wherever an individual may harbor a reasonable ‘expectation of privacy.’ ” Terry , 392 U. S., at 9 (emphasis added). The Court today, for example, does not ask whether cell-site location records are “persons, houses, papers, [or] effects” within the meaning of the Fourth Amendment.[ 8 ] Yet “persons, houses, papers, and effects” cannot mean “anywhere” or “anything.” Katz ’s catchphrase that “the Fourth Amendment protects people, not places,” is not a serious attempt to reconcile the constitutional text. See Carter , 525 U. S., at 98, n. 3 (opinion of Scalia, J.). The Fourth Amendment obviously protects people; “[t]he question . . . is what protection it affords to those people.” Katz , 389 U. S., at 361 (Harlan, J., concurring). The Founders decided to protect the people from unreasonable searches and seizures of four specific things—persons, houses, papers, and effects. They identified those four categories as “the objects of privacy protection to which the Constitution would extend, leaving further expansion to the good judgment . . . of the people through their representatives in the legislature.” Carter , supra , at 97–98 (opinion of Scalia, J.). This limiting language was important to the founders. Madison’s first draft of the Fourth Amendment used a different phrase: “their persons, their houses, their papers, and their other property .” 1 Annals of Cong. 452 (1789) (emphasis added). In one of the few changes made to Madison’s draft, the House Committee of Eleven changed “other property” to “effects.” See House Committee of Eleven Report (July 28, 1789), in N. Cogan, The Complete Bill of Rights 334 (2d ed. 2015). This change might have narrowed the Fourth Amendment by clarifying that it does not protect real property (other than houses). See Oliver v. United States , 466 U. S. 170, 177, and n. 7 (1984); Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 709–714 (1999) (Davies). Or the change might have broadened the Fourth Amendment by clarifying that it protects commercial goods, not just personal possessions. See Donahue 1301. Or it might have done both. Whatever its ultimate effect, the change reveals that the Founders understood the phrase “persons, houses, papers, and effects” to be an important measure of the Fourth Amendment’s overall scope. See Davies 710. The Katz test, however, displaces and renders that phrase entirely “superfluous.” Jones , 565 U. S., at 405. D “[P]ersons, houses, papers, and effects” are not the only words that the Katz test reads out of the Fourth Amendment. The Fourth Amendment specifies that the people have a right to be secure from unreasonable searches of “their” persons, houses, papers, and effects. Although phrased in the plural, “[t]he obvious meaning of [‘their’] is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.” Carter , supra , at 92 (opinion of Sca- lia, J.); see also District of Columbia v. Heller , 554 U. S. 570, 579 (2008) (explaining that the Constitution uses the plural phrase “the people” to “refer to individual rights, not ‘collective’ rights”). Stated differently, the word “their” means, at the very least, that individuals do not have Fourth Amendment rights in someone else’s property. See Carter , supra , at 92–94 (opinion of Scalia, J.). Yet, under the Katz test, individuals can have a reasonable expectation of privacy in another person’s property. See, e.g., Carter , 525 U. S., at 89 (majority opinion) (“[A] person may have a legitimate expectation of privacy in the house of someone else”). Until today, our precedents have not acknowledged that individuals can claim a reasonable expectation of privacy in someone else’s business records. See ante, at 2 (Kennedy, J., dissenting). But the Court erases that line in this case, at least for cell-site location records. In doing so, it confirms that the Katz test does not necessarily require an individual to prove that the government searched his person, house, paper, or effect. Carpenter attempts to argue that the cell-site records are, in fact, his “papers,” see Brief for Petitioner 32–35; Reply Brief 14–15, but his arguments are unpersuasive, see ante, at 12–13 (opinion of Kennedy, J.); post, at 20–23 (Alito, J., dissenting). Carpenter stipulated below that the cell-site records are the business records of Sprint and MetroPCS. See App. 51. He cites no property law in his briefs to this Court, and he does not explain how he has a property right in the companies’ records under the law of any jurisdiction at any point in American history. If someone stole these records from Sprint or MetroPCS, Carpenter does not argue that he could recover in a traditional tort action. Nor do his contracts with Sprint and MetroPCS make the records his, even though such provisions could exist in the marketplace. Cf., e.g., Google Terms of Service, https://policies.google.com/terms (“Some of our Services allow you to upload, submit, store, send or receive content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours”). Instead of property, tort, or contract law, Carpenter relies on the federal Telecommunications Act of 1996 to demonstrate that the cell site records are his papers. The Telecommunications Act generally bars cell-phone companies from disclosing customers’ cell site location information to the public. See 47 U. S. C. §222(c). This is sufficient to make the records his, Carpenter argues, because the Fourth Amendment merely requires him to identify a source of “positive law” that “protects against access by the public without consent.” Brief for Petitioner 32–33 (citing Baude & Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1821, 1825–1826 (2016); emphasis deleted). Carpenter is mistaken. To come within the text of the Fourth Amendment, Carpenter must prove that the cell-site records are his ; positive law is potentially relevant only insofar as it answers that question. The text of the Fourth Amendment cannot plausibly be read to mean “any violation of positive law” any more than it can plausibly be read to mean “any violation of a reasonable expectation of privacy.” Thus, the Telecommunications Act is insufficient because it does not give Carpenter a property right in the cell-site records. Section 222, titled “Privacy of customer information,” protects customers’ privacy by preventing cell-phone companies from disclosing sensitive information about them. The statute creates a “duty to protect the confidentiality” of information relating to customers, §222(a), and creates “[p]rivacy requirements” that limit the disclosure of that information, §222(c)(1). Nothing in the text pre-empts state property law or gives customers a property interest in the companies’ business records (assuming Congress even has that authority).[ 9 ] Although §222 “protects the interests of individuals against wrongful uses or disclosures of personal data, the rationale for these legal protections has not historically been grounded on a perception that people have property rights in personal data as such.” Samuelson, Privacy as Intellectual Property? 52 Stan. L. Rev. 1125, 1130–1131 (2000) (footnote omitted). Any property rights remain with the companies. E The Katz test comes closer to the text of the Fourth Amendment when it asks whether an expectation of pri- vacy is “reasonable,” but it ultimately distorts that term as well. The Fourth Amendment forbids “unreasonable searches.” In other words, reasonableness determines the legality of a search, not “whether a search . . . within the meaning of the Constitution has occurred .” Carter , 525 U. S., at 97 (opinion of Scalia, J.) (internal quotation marks omitted). Moreover, the Katz test invokes the concept of reason- ableness in a way that would be foreign to the ratifiers of the Fourth Amendment. Originally, the word “unreason- able” in the Fourth Amendment likely meant “against reason”—as in “against the reason of the common law.” See Donahue 1270–1275; Davies 686–693; California v. Acevedo , 500 U. S. 565, 583 (1991) (Scalia, J., concurring in judgment). At the founding, searches and seizures were regulated by a robust body of common-law rules. See generally W. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791 (2009); e.g., Wilson v. Arkansas , 514 U. S. 927, 931–936 (1995) (discussing the common-law knock-and-announce rule). The search-and-seizure practices that the Founders feared most—such as general warrants—were already illegal under the common law, and jurists such as Lord Coke described violations of the common law as “against reason.” See Donahue 1270–1271, and n. 513. Locke, Blackstone, Adams, and other influential figures shortened the phrase “against reason” to “unreasonable.” See id., at 1270–1275. Thus, by prohibiting “unreasonable” searches and seizures in the Fourth Amendment, the Founders ensured that the newly created Congress could not use legislation to abolish the established common-law rules of search and seizure. See T. Cooley, Constitutional Limitations *303 (2d ed. 1871); 3 J. Story, Commentaries on the Constitution of the United States §1895, p. 748 (1833). Although the Court today maintains that its decision is based on “Founding-era understandings,” ante, at 6, the Founders would be puzzled by the Court’s conclusion as well as its reasoning. The Court holds that the Government unreasonably searched Carpenter by subpoenaing the cell-site records of Sprint and MetroPCS without a warrant. But the Founders would not recognize the Court’s “warrant requirement.” Ante, at 21. The common law required warrants for some types of searches and seizures, but not for many others. The relevant rule depended on context. See Acevedo , supra , at 583–584 (opinion of Scalia, J.); Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 763–770 (1994); Davies 738–739. In cases like this one, a subpoena for third-party documents was not a “search” to begin with, and the common law did not limit the government’s authority to subpoena third parties. See post, at 2–12 (Alito, J., dissenting). Suffice it to say, the Founders would be confused by this Court’s transformation of their common-law protection of property into a “warrant requirement” and a vague inquiry into “reasonable expectations of privacy.” III That the Katz test departs so far from the text of the Fourth Amendment is reason enough to reject it. But the Katz test also has proved unworkable in practice. Jurists and commentators tasked with deciphering our jurisprudence have described the Katz regime as “an unpredictable jumble,” “a mass of contradictions and obscurities,” “all over the map,” “riddled with inconsistency and incoherence,” “a series of inconsistent and bizarre results that [the Court] has left entirely undefended,” “unstable,” “chameleon-like,” “ ‘notoriously unhelpful,’ ” “a conclusion rather than a starting point for analysis,” “distressingly unmanageable,” “a dismal failure,” “flawed to the core,” “unadorned fiat,” and “inspired by the kind of logic that produced Rube Goldberg’s bizarre contraptions.”[ 10 ] Even Justice Harlan, four years after penning his concurrence in Katz , confessed that the test encouraged “the substitution of words for analysis.” United States v. White , 401 U. S. 745, 786 (1971) (dissenting opinion). After 50 years, it is still unclear what question the Katz test is even asking. This Court has steadfastly declined to elaborate the relevant considerations or identify any meaningful constraints. See, e.g., ante, at 5 (“[N]o single rubric definitively resolves which expectations of privacy are entitled to protection”); O’Connor v. Ortega , 480 U. S. 709, 715 (1987) (plurality opinion) (“We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable”); Oliver , 466 U. S., at 177 (“No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion”). Justice Harlan’s original formulation of the Katz test appears to ask a descriptive question: Whether a given expectation of privacy is “one that society is prepared to recognize as ‘reasonable.’ ” 389 U. S., at 361. As written, the Katz test turns on society’s actual, current views about the reasonableness of various expectations of privacy. But this descriptive understanding presents several problems. For starters, it is easily circumvented. If, for example, “the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry,” individuals could not realistically expect privacy in their homes. Smith , 442 U. S., at 740, n. 5; see also Chemerinsky, Rediscovering Brandeis’s Right to Privacy, 45 Brandeis L. J. 643, 650 (2007) (“[Under Katz, t]he government seemingly can deny privacy just by letting people know in advance not to expect any”). A purely descriptive understanding of the Katz test also risks “circular[ity].” Kyllo , 533 U. S., at 34. While this Court is supposed to base its decisions on society’s expectations of privacy, society’s expectations of privacy are, in turn, shaped by this Court’s decisions. See Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S. Ct. Rev. 173, 188 (“[W]hether [a person] will or will not have [a reasonable] expectation [of privacy] will depend on what the legal rule is”). To address this circularity problem, the Court has insisted that expectations of privacy must come from outside its Fourth Amendment precedents, “either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois , 439 U. S. 128, 144, n. 12 (1978). But the Court’s supposed reliance on “real or personal property law” rings hollow. The whole point of Katz was to “ ‘discredi[t]’ ” the relationship between the Fourth Amendment and property law, 389 U. S., at 353, and this Court has repeatedly downplayed the importance of property law under the Katz test, see, e.g., United States v. Salvucci , 448 U. S. 83, 91 (1980) (“[P]roperty rights are neither the beginning nor the end of this Court’s inquiry [under Katz ]”); Rawlings v. Kentucky , 448 U. S. 98, 105 (1980) (“[This Court has] emphatically rejected the notion that ‘arcane’ concepts of property law ought to control the ability to claim the protections of the Fourth Amendment”). Today, for example, the Court makes no mention of property law, except to reject its relevance. See ante, at 5, and n. 1. As for “understandings that are recognized or permitted in society,” this Court has never answered even the most basic questions about what this means. See Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 504–505 (2007). For example, our precedents do not explain who is included in “society,” how we know what they “recogniz[e] or permi[t],” and how much of society must agree before something constitutes an “understanding.” Here, for example, society might prefer a balanced regime that prohibits the Government from obtaining cell-site location information unless it can persuade a neutral magistrate that the information bears on an ongoing criminal investigation. That is precisely the regime Congress created under the Stored Communications Act and Telecommunications Act. See 47 U. S. C. §222(c)(1); 18 U. S. C. §§2703(c)(1)(B), (d). With no sense of irony, the Court invalidates this regime today—the one that society actually created “in the form of its elected representatives in Congress.” 819 F. 3d 880, 890 (2016). Truth be told, this Court does not treat the Katz test as a descriptive inquiry. Although the Katz test is phrased in descriptive terms about society’s views, this Court treats it like a normative question—whether a particular practice should be considered a search under the Fourth Amendment. Justice Harlan thought this was the best way to understand his test. See White , 401 U. S., at 786 (dissenting opinion) (explaining that courts must assess the “desirability” of privacy expectations and ask whether courts “should” recognize them by “balanc[ing]” the “impact on the individual’s sense of security . . . against the utility of the conduct as a technique of law enforcement”). And a normative understanding is the only way to make sense of this Court’s precedents, which bear the hallmarks of subjective policymaking instead of neutral legal decisionmaking. “[T]he only thing the past three decades have established about the Katz test” is that society’s expectations of privacy “bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable.” Carter , 525 U. S., at 97 (opinion of Scalia, J.). Yet, “[t]hough we know ourselves to be eminently reasonable, self-awareness of eminent reasonableness is not really a substitute for democratic election.” Sosa v. Alvarez-Machain , 542 U. S. 692, 750 (2004) (Scalia, J., concurring in part and concurring in judgment). *  *  * In several recent decisions, this Court has declined to apply the Katz test because it threatened to narrow the original scope of the Fourth Amendment. See Grady v. North Carolina , 575 U. S. ___, ___ (2015) ( per curiam ) (slip op., at 3); Florida v. Jardines , 569 U. S. 1, 5 (2013); Jones , 565 U. S., at 406–407. But as today’s decision demonstrates, Katz can also be invoked to expand the Fourth Amendment beyond its original scope. This Court should not tolerate errors in either direction. “The People, through ratification, have already weighed the policy tradeoffs that constitutional rights entail.” Luis v. United States , 578 U. S. ___, ___ (2016) (Thomas, J., concurring in judgment) (slip op., at 10). Whether the rights they ratified are too broad or too narrow by modern lights, this Court has no authority to unilaterally alter the document they approved. Because the Katz test is a failed experiment, this Court is dutybound to reconsider it. Until it does, I agree with my dissenting colleagues’ reading of our precedents. Accordingly, I respectfully dissent. Notes 1 Justice Brandeis authored the principal dissent in Olmstead . He consulted the “underlying purpose,” rather than “the words of the [Fourth] Amendment,” to conclude that the wiretap was a search. 277 U. S., at 476. In Justice Brandeis’ view, the Framers “recognized the significance of man’s spiritual nature, of his feelings and of his intellect” and “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.” Id., at 478. Thus, “every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed,” should constitute an unreasonable search under the Fourth Amendment. Ibid. 2 National Archives, Library of Congress, Founders Online, https://founders.archives.gov (all Internet materials as last visited June 18, 2018). 3 A Century of Lawmaking For A New Nation, U. S. Congressional Documents and Debates, 1774–1875 (May 1, 2003), https://memory.loc.gov/ammem/amlaw/lawhome.html. 4 Corpus of Historical American English, https://corpus.byu.edu/coha; Google Books (American), https://googlebooks.byu.edu/x.asp; Corpus of Founding Era American English, https://lawncl.byu.edu/cofea. 5 Readex, America’s Historical Newspapers (2018), https://www.readex.com/content/americas-historical-newspapers. 6 Writs of assistance were “general warrants” that gave “customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws.” Stanford v. Texas , 379 U. S. 476, 481 (1965). 7 “Every subject has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the person or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.” Mass. Const., pt. I, Art. XIV (1780). 8 The answer to that question is not obvious. Cell-site location records are business records that mechanically collect the interactions between a person’s cell phone and the company’s towers; they are not private papers and do not reveal the contents of any communications. Cf. Schnapper, Unreasonable Searches and Seizures of Papers, 71 Va. L. Rev. 869, 923–924 (1985) (explaining that business records that do not reveal “personal or speech-related confidences” might not satisfy the original meaning of “papers”). 9 Carpenter relies on an order from the Federal Communications Commission (FCC), which weakly states that “ ‘ [t]o the extent [a customer’s location information] is property, . . . it is better understood as belonging to the customer, not the carrier.’ ” Brief for Petitioner 34, and n. 23 (quoting 13 FCC Rcd. 8061, 8093 ¶43 (1998); emphasis added). But this order was vacated by the Court of Appeals for the Tenth Circuit. U. S. West, Inc. v. FCC , 182 F. 3d 1224, 1240 (1999). Notably, the carrier in that case argued that the FCC’s regulation of customer information was a taking of its property. See id., at 1230. Although the panel majority had no occasion to address this argument, see id., at 1239, n. 14, the dissent concluded that the carrier had failed to prove the information was “property” at all, see id., at 1247–1248 (opinion of Briscoe, J.). 10 Kugler & Strahilevitz, Actual Expectations of Privacy, Fourth Amendment Doctrine, and the Mosaic Theory, 2015 S. Ct. Rev. 205, 261; Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468 (1985); Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 505 (2007); Solove, Fourth Amendment Pragmatism, 51 Boston College L. Rev. 1511 (2010); Wasserstom & Seidman, The Fourth Amendment as Constitutional Theory, 77 Geo. L. J. 19, 29 (1988); Colb, What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy, 55 Stan. L. Rev. 119, 122 (2002); Clancy, The Fourth Amendment: Its History and Interpretation §3.3.4, p. 65 (2008); Minnesota v. Carter , 525 U. S. 83, 97 (1998) (Scalia, J., dissenting); State v. Campbell , 306 Ore. 157, 164, 759 P.2d 1040 , 1044 (1988); Wilkins, Defining the “Reasonable Expectation of Privacy”: an Emerging Tripartite Analysis, 40 Vand. L. Rev. 1077, 1107 (1987); Yeager, Search, Seizure and the Positive Law: Expectations of Privacy Outside the Fourth Amendment, 84 J. Crim. L. & C. 249, 251 (1993); Thomas, Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment, 80 Notre Dame L. Rev. 1451, 1500 (2005); Rakas v. Illinois , 439 U. S. 128, 165 (1978) (White, J., dissenting); Cloud, Rube Goldberg Meets the Constitution: The Supreme Court, Technology, and the Fourth Amendment, 72 Miss. L. J. 5, 7 (2002). SUPREME COURT OF THE UNITED STATES _________________ No. 16–402 _________________ TIMOTHY IVORY CARPENTER, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the sixth circuit [June 22, 2018] Justice Alito, with whom Justice Thomas joins, dissenting. I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely. First, the Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and produce specified documents. The former, which intrudes on personal privacy far more deeply, requires probable cause; the latter does not. Treating an order to produce like an actual search, as today’s decision does, is revolutionary. It violates both the original understanding of the Fourth Amendment and more than a century of Supreme Court precedent. Unless it is somehow restricted to the particular situation in the present case, the Court’s move will cause upheaval. Must every grand jury subpoena duces tecum be supported by probable cause? If so, investigations of terrorism, political corruption, white-collar crime, and many other offenses will be stymied. And what about subpoenas and other document-production orders issued by administrative agencies? See, e.g. , 15 U. S. C. §57b–1(c) (Federal Trade Commission); §§77s(c), 78u(a)–(b) (Securities and Exchange Commission); 29 U. S. C. §657(b) (Occupational Safety and Health Administration); 29 CFR §1601.16(a)(2) (2017) (Equal Employment Opportunity Commission). Second, the Court allows a defendant to object to the search of a third party’s property. This also is revolutionary. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects” (emphasis added), not the persons, houses, papers, and effects of others. Until today, we have been careful to heed this fundamental feature of the Amendment’s text. This was true when the Fourth Amendment was tied to property law, and it remained true after Katz v. United States , 389 U. S. 347 (1967), broadened the Amendment’s reach. By departing dramatically from these fundamental principles, the Court destabilizes long-established Fourth Amendment doctrine. We will be making repairs—or picking up the pieces—for a long time to come. I Today the majority holds that a court order requiring the production of cell-site records may be issued only after the Government demonstrates probable cause. See ante , at 18. That is a serious and consequential mistake. The Court’s holding is based on the premise that the order issued in this case was an actual “search” within the meaning of the Fourth Amendment, but that premise is inconsistent with the original meaning of the Fourth Amendment and with more than a century of precedent. A The order in this case was the functional equivalent of a subpoena for documents, and there is no evidence that these writs were regarded as “searches” at the time of the founding. Subpoenas duces tecum and other forms of compulsory document production were well known to the founding generation. Blackstone dated the first writ of subpoena to the reign of King Richard II in the late 14th century, and by the end of the 15th century, the use of such writs had “become the daily practice of the [Chancery] court.” 3 W. Blackstone, Commentaries on the Laws of England 53 (G. Tucker ed. 1803) (Blackstone). Over the next 200 years, subpoenas would grow in prominence and power in tandem with the Court of Chancery, and by the end of Charles II’s reign in 1685, two important innovations had occurred. First, the Court of Chancery developed a new species of subpoena. Until this point, subpoenas had been used largely to compel attendance and oral testimony from witnesses; these subpoenas correspond to today’s subpoenas ad testificandum . But the Court of Chancery also improvised a new version of the writ that tacked onto a regular subpoena an order compelling the witness to bring certain items with him. By issuing these so-called subpoenas duces tecum , the Court of Chancery could compel the production of papers, books, and other forms of physical evidence, whether from the parties to the case or from third parties. Such subpoenas were sufficiently commonplace by 1623 that a leading treatise on the practice of law could refer in passing to the fee for a “ Sub pœna of Ducas tecum ” (seven shillings and two pence) without needing to elaborate further. T. Powell, The Attourneys Academy 79 (1623). Subpoenas duces tecum would swell in use over the next century as the rules for their application became ever more developed and definite. See, e.g. , 1 G. Jacob, The Compleat Chancery-Practiser 290 (1730) (“The Subpoena duces tecum is awarded when the Defendant has confessed by his Answer that he hath such Writings in his Hands as are prayed by the Bill to be discovered or brought into Court”). Second, although this new species of subpoena had its origins in the Court of Chancery, it soon made an appearance in the work of the common-law courts as well. One court later reported that “[t]he Courts of Common law . . . employed the same or similar means . . . from the time of Charles the Second at least.” Amey v. Long , 9 East. 473, 484, 103 Eng. Rep. 653, 658 (K. B. 1808). By the time Blackstone published his Commentaries on the Laws of England in the 1760’s, the use of subpoenas duces tecum had bled over substantially from the courts of equity to the common-law courts. Admittedly, the transition was still incomplete: In the context of jury trials, for example, Blackstone complained about “the want of a compulsive power for the production of books and papers belonging to the parties.” Blackstone 381; see also, e.g. , Entick v. Carrington , 19 State Trials 1029, 1073 (K. B. 1765) (“I wish some cases had been shewn, where the law forceth evidence out of the owner’s custody by process. [But] where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action”). But Blackstone found some comfort in the fact that at least those documents “[i]n the hands of third persons . . . can generally be obtained by rule of court, or by adding a clause of requisition to the writ of subpoena , which is then called a subpoena duces tecum .” Blackstone 381; see also, e.g. , Leeds v. Cook , 4 Esp. 256, 257, 170 Eng. Rep. 711 (N. P. 1803) (third-party subpoena duces tecum ); Rex v. Babb , 3 T. R. 579, 580, 100 Eng. Rep. 743, 744 (K. B. 1790) (third-party document production). One of the primary questions outstanding, then, was whether common-law courts would remedy the “defect[s]” identified by the Commentaries, and allow parties to use subpoenas duces tecum not only with respect to third parties but also with respect to each other. Blackstone 381. That question soon found an affirmative answer on both sides of the Atlantic. In the United States, the First Congress established the federal court system in the Judiciary Act of 1789. As part of that Act, Congress authorized “all the said courts of the United States . . . in the trial of actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery.” §15, 1Stat. 82. From that point forward, federal courts in the United States could compel the production of documents regardless of whether those documents were held by parties to the case or by third parties. In Great Britain, too, it was soon definitively established that common-law courts, like their counterparts in equity, could subpoena documents held either by parties to the case or by third parties. After proceeding in fits and starts, the King’s Bench eventually held in Amey v. Long that the “writ of subpœna duces tecum [is] a writ of compulsory obligation and effect in the law.” 9 East., at 486, 103 Eng. Rep., at 658. Writing for a unanimous court, Lord Chief Justice Ellenborough explained that “[t]he right to resort to means competent to compel the production of written, as well as oral, testimony seems essential to the very existence and constitution of a Court of Common Law.” Id., at 484, 103 Eng. Rep., at 658. Without the power to issue subpoenas duces tecum , the Lord Chief Justice observed, common-law courts “could not possibly proceed with due effect.” Ibid. The prevalence of subpoenas duces tecum at the time of the founding was not limited to the civil context. In criminal cases, courts and prosecutors were also using the writ to compel the production of necessary documents. In Rex v. Dixon , 3 Burr. 1687, 97 Eng. Rep. 1047 (K. B. 1765), for example, the King’s Bench considered the propriety of a subpoena duces tecum served on an attorney named Samuel Dixon. Dixon had been called “to give evidence before the grand jury of the county of Northampton” and specifically “to produce three vouchers . . . in order to found a prosecution by way of indictment against [his client] Peach . . . for forgery.” Id., at 1687, 97 Eng. Rep., at 1047–1048. Although the court ultimately held that Dixon had not needed to produce the vouchers on account of attorney-client privilege, none of the justices expressed the slightest doubt about the general propriety of subpoenas duces tecum in the criminal context. See id., at 1688, 97 Eng. Rep., at 1048. As Lord Chief Justice Ellenborough later explained, “[i]n that case no objection was taken to the writ, but to the special circumstances under which the party possessed the papers; so that the Court may be considered as recognizing the general obligation to obey writs of that description in other cases.” Amey , supra , at 485, 103 Eng. Rep., at 658; see also 4 J. Chitty, Practical Treatise on the Criminal Law 185 (1816) (template for criminal subpoena duces tecum ). As Dixon shows, subpoenas duces tecum were routine in part because of their close association with grand juries. Early American colonists imported the grand jury, like so many other common-law traditions, and they quickly flourished. See United States v. Calandra , 414 U. S. 338, 342–343 (1974). Grand juries were empaneled by the federal courts almost as soon as the latter were established, and both they and their state counterparts actively exercised their wide-ranging common-law authority. See R. Younger, The People’s Panel 47–55 (1963). Indeed, “the Founders thought the grand jury so essential . . . that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by ‘a presentment or indictment of a Grand Jury.’ ” Calandra , supra , at 343. Given the popularity and prevalence of grand juries at the time, the Founders must have been intimately familiar with the tools they used—including compulsory process—to accomplish their work. As a matter of tradition, grand juries were “accorded wide latitude to inquire into violations of criminal law,” including the power to “compel the production of evidence or the testimony of witnesses as [they] conside[r] appropriate.” Ibid. Long before national independence was achieved, grand juries were already using their broad inquisitorial powers not only to present and indict criminal suspects but also to inspect public buildings, to levy taxes, to supervise the administration of the laws, to advance municipal reforms such as street repair and bridge maintenance, and in some cases even to propose legislation. Younger, supra , at 5–26. Of course, such work depended entirely on grand juries’ ability to access any relevant documents. Grand juries continued to exercise these broad inquisitorial powers up through the time of the founding. See Blair v. United States , 250 U. S. 273, 280 (1919) (“At the foundation of our Federal Government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power”). In a series of lectures delivered in the early 1790’s, Justice James Wilson crowed that grand juries were “the peculiar boast of the common law” thanks in part to their wide-ranging authority: “All the operations of government, and of its ministers and officers, are within the compass of their view and research.” 2 J. Wilson, The Works of James Wilson 534, 537 (R. McCloskey ed. 1967). That reflected the broader insight that “[t]he grand jury’s investigative power must be broad if its public responsibility is adequately to be discharged.” Calandra , supra , at 344. Compulsory process was also familiar to the founding generation in part because it reflected “the ancient proposition of law” that “ ‘ “the public . . . has a right to every man’s evidence.” ’ ” United States v. Nixon , 418 U. S. 683, 709 (1974); see also ante , at 10 (Kennedy, J., dissenting). As early as 1612, “Lord Bacon is reported to have declared that ‘all subjects, without distinction of degrees, owe to the King tribute and service, not only of their deed and hand, but of their knowledge and discovery.’ ” Blair , supra , at 279–280. That duty could be “onerous at times,” yet the Founders considered it “necessary to the administration of justice according to the forms and modes established in our system of government.” Id., at 281; see also Calandra , supra , at 345. B Talk of kings and common-law writs may seem out of place in a case about cell-site records and the protections afforded by the Fourth Amendment in the modern age. But this history matters, not least because it tells us what was on the minds of those who ratified the Fourth Amendment and how they understood its scope. That history makes it abundantly clear that the Fourth Amendment, as originally understood, did not apply to the compulsory production of documents at all. The Fourth Amendment does not regulate all methods by which the Government obtains documents. Rather, it prohibits only those “searches and seizures” of “persons, houses, papers, and effects” that are “unreasonable.” Consistent with that language, “at least until the latter half of the 20th century” “our Fourth Amendment jurisprudence was tied to common-law trespass.” United States v. Jones , 565 U. S. 400, 405 (2012). So by its terms, the Fourth Amendment does not apply to the compulsory production of documents, a practice that involves neither any physical intrusion into private space nor any taking of property by agents of the state. Even Justice Brandeis—a stalwart proponent of construing the Fourth Amendment liberally—acknowledged that “under any ordinary construction of language,” “there is no ‘search’ or ‘seizure’ when a defendant is required to produce a document in the orderly process of a court’s procedure.” Olmstead v. United States , 277 U. S. 438, 476 (1928) (dissenting opinion).[ 1 ] Nor is there any reason to believe that the Founders intended the Fourth Amendment to regulate courts’ use of compulsory process. American colonists rebelled against the Crown’s physical invasions of their persons and their property, not against its acquisition of information by any and all means. As Justice Black once put it, “[t]he Fourth Amendment was aimed directly at the abhorred practice of breaking in, ransacking and searching homes and other buildings and seizing people’s personal belongings without warrants issued by magistrates.” Katz , 389 U. S., at 367 (dissenting opinion). More recently, we have acknowledged that “the Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Riley v. California , 573 U. S. ___, ___ (2014) (slip op., at 27). General warrants and writs of assistance were noxious not because they allowed the Government to acquire evidence in criminal investigations, but because of the means by which they permitted the Government to acquire that evidence. Then, as today, searches could be quite invasive. Searches generally begin with officers “mak[ing] nonconsensual entries into areas not open to the public.” Donovan v. Lone Steer, Inc. , 464 U. S. 408, 414 (1984). Once there, officers are necessarily in a position to observe private spaces generally shielded from the public and discernible only with the owner’s consent. Private area after private area becomes exposed to the officers’ eyes as they rummage through the owner’s property in their hunt for the object or objects of the search. If they are searching for documents, officers may additionally have to rifle through many other papers—potentially filled with the most intimate details of a person’s thoughts and life—before they find the specific information they are seeking. See Andresen v. Maryland , 427 U. S. 463, 482, n. 11 (1976). If anything sufficiently incriminating comes into view, officers seize it. Horton v. California , 496 U. S. 128, 136–137 (1990). Physical destruction always lurks as an underlying possibility; “officers executing search warrants on occasion must damage property in order to perform their duty.” Dalia v. United States , 441 U. S. 238, 258 (1979); see, e.g. , United States v. Ramirez , 523 U. S. 65, 71–72 (1998) (breaking garage window); United States v. Ross , 456 U. S. 798, 817–818 (1982) (ripping open car upholstery); Brown v. Battle Creek Police Dept. , 844 F. 3d 556, 572 (CA6 2016) (shooting and killing two pet dogs); Lawmaster v. Ward , 125 F. 3d 1341, 1350, n. 3 (CA10 1997) (breaking locks). Compliance with a subpoena duces tecum requires none of that. A subpoena duces tecum permits a subpoenaed individual to conduct the search for the relevant documents himself, without law enforcement officers entering his home or rooting through his papers and effects. As a result, subpoenas avoid the many incidental invasions of privacy that necessarily accompany any actual search. And it was those invasions of privacy—which, although incidental, could often be extremely intrusive and damaging—that led to the adoption of the Fourth Amendment. Neither this Court nor any of the parties have offered the slightest bit of historical evidence to support the idea that the Fourth Amendment originally applied to subpoenas duces tecum and other forms of compulsory process. That is telling, for as I have explained, these forms of compulsory process were a feature of criminal (and civil) procedure well known to the Founders. The Founders would thus have understood that holding the compulsory production of documents to the same standard as actual searches and seizures would cripple the work of courts in civil and criminal cases alike. It would be remarkable to think that, despite that knowledge, the Founders would have gone ahead and sought to impose such a requirement. It would be even more incredible to believe that the Founders would have imposed that requirement through the inapt vehicle of an amendment directed at different concerns. But it would blink reality entirely to argue that this entire process happened without anyone saying the least thing about it —not during the drafting of the Bill of Rights, not during any of the subsequent ratification debates, and not for most of the century that followed. If the Founders thought the Fourth Amendment applied to the compulsory production of documents, one would imagine that there would be some founding-era evidence of the Fourth Amendment being applied to the compulsory production of documents. Cf. Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. 477, 505 (2010); Printz v. United States , 521 U. S. 898, 905 (1997). Yet none has been brought to our attention. C Of course, our jurisprudence has not stood still since 1791. We now evaluate subpoenas duces tecum and other forms of compulsory document production under the Fourth Amendment, although we employ a reasonableness standard that is less demanding than the requirements for a warrant. But the road to that doctrinal destination was anything but smooth, and our initial missteps—and the subsequent struggle to extricate ourselves from their consequences—should provide an object lesson for today’s majority about the dangers of holding compulsory process to the same standard as actual searches and seizures. For almost a century after the Fourth Amendment was enacted, this Court said and did nothing to indicate that it might regulate the compulsory production of documents. But that changed temporarily when the Court decided Boyd v. United States , 116 U. S. 616 (1886), the first—and, until today, the only—case in which this Court has ever held the compulsory production of documents to the same standard as actual searches and seizures. The Boyd Court held that a court order compelling a company to produce potentially incriminating business records violated both the Fourth and the Fifth Amendments. The Court acknowledged that “certain aggravating incidents of actual search and seizure, such as forcible entry into a man’s house and searching amongst his papers, are wanting” when the Government relies on compulsory process. Id. , at 622. But it nevertheless asserted that the Fourth Amendment ought to “be liberally construed,” id. , at 635, and further reasoned that compulsory process “effects the sole object and purpose of search and seizure” by “forcing from a party evidence against himself,” id. , at 622. “In this regard,” the Court concluded, “the Fourth and Fifth Amendments run almost into each other.” Id. , at 630. Having equated compulsory process with actual searches and seizures and having melded the Fourth Amendment with the Fifth, the Court then found the order at issue unconstitutional because it compelled the production of property to which the Government did not have superior title. See id. , at 622–630. In a concurrence joined by Chief Justice Waite, Justice Miller agreed that the order violated the Fifth Amendment, id. , at 639, but he strongly protested the majority’s invocation of the Fourth Amendment. He explained: “[T]here is no reason why this court should assume that the action of the court below, in requiring a party to produce certain papers . . . , authorizes an unreasonable search or seizure of the house, papers, or effects of that party. There is in fact no search and no seizure.” Ibid. “If the mere service of a notice to produce a paper . . . is a search,” Justice Miller concluded, “then a change has taken place in the meaning of words, which has not come within my reading, and which I think was unknown at the time the Constitution was made.” Id., at 641. Although Boyd was replete with stirring rhetoric, its reasoning was confused from start to finish in a way that ultimately made the decision unworkable. See 3 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §8.7(a) (4th ed. 2015). Over the next 50 years, the Court would gradually roll back Boyd ’s erroneous conflation of compulsory process with actual searches and seizures. That effort took its first significant stride in Hale v. Henkel , 201 U. S. 43 (1906), where the Court found it “quite clear” and “conclusive” that “the search and seizure clause of the Fourth Amendment was not intended to interfere with the power of courts to compel, through a subpœna duces tecum , the production, upon a trial in court, of documentary evidence.” Id., at 73. Without that writ, the Court recognized, “it would be ‘utterly impossible to carry on the administration of justice.’ ” Ibid. Hale , however, did not entirely liberate subpoenas duces tecum from Fourth Amendment constraints. While refusing to treat such subpoenas as the equivalent of actual searches, Hale concluded that they must not be unreasonable. And it held that the subpoena duces tecum at issue was “far too sweeping in its terms to be regarded as reasonable.” Id., at 76. The Hale Court thus left two critical questions unanswered: Under the Fourth Amendment, what makes the compulsory production of documents “reasonable,” and how does that standard differ from the one that governs actual searches and seizures? The Court answered both of those questions definitively in Oklahoma Press Publishing Co. v. Walling , 327 U. S. 186 (1946), where we held that the Fourth Amendment regulates the compelled production of documents, but less stringently than it does full-blown searches and seizures. Oklahoma Press began by admitting that the Court’s opinions on the subject had “perhaps too often . . . been generative of heat rather than light,” “mov[ing] with variant direction” and sometimes having “highly contrasting” “emphasis and tone.” Id., at 202. “The primary source of misconception concerning the Fourth Amendment’s function” in this context, the Court explained, “lies perhaps in the identification of cases involving so-called ‘figurative’ or ‘constructive’ search with cases of actual search and seizure.” Ibid. But the Court held that “the basic distinction” between the compulsory production of documents on the one hand, and actual searches and seizures on the other, meant that two different standards had to be applied. Id., at 204. Having reversed Boyd ’s conflation of the compelled production of documents with actual searches and seizures, the Court then set forth the relevant Fourth Amendment standard for the former. When it comes to “the production of corporate or other business records,” the Court held that the Fourth Amendment “at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be ‘particularly described,’ if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant.” Oklahoma Press , supra , at 208. Notably, the Court held that a showing of probable cause was not necessary so long as “the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry.” Id., at 209. Since Oklahoma Press , we have consistently hewed to that standard. See, e.g. , Lone Steer, Inc. , 464 U. S., at 414–415; United States v. Miller , 425 U. S. 435, 445–446 (1976); California Bankers Assn. v. Shultz , 416 U. S. 21, 67 (1974); United States v. Dionisio , 410 U. S. 1, 11–12 (1973); See v. Seattle , 387 U. S. 541, 544 (1967); United States v. Powell , 379 U. S. 48, 57–58 (1964); McPhaul v. United States , 364 U. S. 372, 382–383 (1960); United States v. Morton Salt Co. , 338 U. S. 632, 652–653 (1950); cf. McLane Co. v. EEOC , 581 U. S. ___, ___ (2017) (slip op., at 11). By applying Oklahoma Press and thereby respecting “the traditional distinction between a search warrant and a subpoena,” Miller , supra , at 446, this Court has reinforced “the basic compromise” between “the public interest” in every man’s evidence and the private interest “of men to be free from officious meddling.” Oklahoma Press , supra , at 213. D Today, however, the majority inexplicably ignores the settled rule of Oklahoma Press in favor of a resurrected version of Boyd . That is mystifying. This should have been an easy case regardless of whether the Court looked to the original understanding of the Fourth Amendment or to our modern doctrine. As a matter of original understanding, the Fourth Amendment does not regulate the compelled production of documents at all. Here the Government received the relevant cell-site records pursuant to a court order compelling Carpenter’s cell service provider to turn them over. That process is thus immune from challenge under the original understanding of the Fourth Amendment. As a matter of modern doctrine, this case is equally straightforward. As Justice Kennedy explains, no search or seizure of Carpenter or his property occurred in this case. Ante , at 6–22; see also Part II, infra . But even if the majority were right that the Government “searched” Carpenter, it would at most be a “figurative or constructive search” governed by the Oklahoma Press standard, not an “actual search” controlled by the Fourth Amendment’s warrant requirement. And there is no doubt that the Government met the Oklahoma Press standard here. Under Oklahoma Press , a court order must “ ‘be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.’ ” Lone Steer, Inc. , supra , at 415. Here, the type of order obtained by the Government almost necessarily satisfies that standard. The Stored Communications Act allows a court to issue the relevant type of order “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that . . . the records . . . sough[t] are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §2703(d). And the court “may quash or modify such order” if the provider objects that the “records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.” Ibid. No such objection was made in this case, and Carpenter does not suggest that the orders contravened the Oklahoma Press standard in any other way. That is what makes the majority’s opinion so puzzling. It decides that a “search” of Carpenter occurred within the meaning of the Fourth Amendment, but then it leaps straight to imposing requirements that—until this point—have governed only actual searches and seizures. See ante , at 18–19. Lost in its race to the finish is any real recognition of the century’s worth of precedent it jeopardizes. For the majority, this case is apparently no different from one in which Government agents raided Carpenter’s home and removed records associated with his cell phone. Against centuries of precedent and practice, all that the Court can muster is the observation that “this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy.” Ante , at 19. Frankly, I cannot imagine a concession more damning to the Court’s argument than that. As the Court well knows, the reason that we have never seen such a case is because—until today—defendants categorically had no “reasonable expectation of privacy” and no property interest in records belonging to third parties. See Part II, infra . By implying otherwise, the Court tries the nice trick of seeking shelter under the cover of precedents that it simultaneously perforates. Not only that, but even if the Fourth Amendment permitted someone to object to the subpoena of a third party’s records, the Court cannot explain why that individual should be entitled to greater Fourth Amendment protection than the party actually being subpoenaed. When parties are subpoenaed to turn over their records, after all, they will at most receive the protection afforded by Oklahoma Press even though they will own and have a reasonable expectation of privacy in the records at issue. Under the Court’s decision, however, the Fourth Amendment will extend greater protections to someone else who is not being subpoenaed and does not own the records. That outcome makes no sense, and the Court does not even attempt to defend it. We have set forth the relevant Fourth Amendment standard for subpoenaing business records many times over. Out of those dozens of cases, the majority cannot find even one that so much as suggests an exception to the Oklahoma Press standard for sufficiently personal information. Instead, we have always “described the constitutional requirements” for compulsory process as being “ ‘settled’ ” and as applying categorically to all “ ‘subpoenas [of] corporate books or records.’ ” Lone Steer, Inc. , 464 U. S., at 415 (internal quotation marks omitted). That standard, we have held, is “ the most ” protection the Fourth Amendment gives “to the production of corporate records and papers.” Oklahoma Press , 327 U. S. , at 208 (emphasis added).[ 2 ] Although the majority announces its holding in the context of the Stored Communications Act, nothing stops its logic from sweeping much further. The Court has offered no meaningful limiting principle, and none is apparent. Cf. Tr. of Oral Arg. 31 (Carpenter’s counsel admitting that “a grand jury subpoena . . . would be held to the same standard as any other subpoena or subpoena-like request for [cell-site] records”). Holding that subpoenas must meet the same standard as conventional searches will seriously damage, if not destroy, their utility. Even more so than at the founding, today the Government regularly uses subpoenas duces tecum and other forms of compulsory process to carry out its essential functions. See, e.g. , Dionisio , 410 U. S., at 11–12 (grand jury subpoenas); McPhaul , 364 U. S., at 382–383 (legislative subpoenas); Oklahoma Press , supra , at 208–209 (administrative subpoenas). Grand juries, for example, have long “compel[led] the production of evidence” in order to determine “ whether there is probable cause to believe a crime has been committed.” Calandra , 414 U. S., at 343 (emphasis added). Almost by definition, then, grand juries will be unable at first to demonstrate “the probable cause required for a warrant.” Ante , at 19 (majority opinion); see also Oklahoma Press , supra , at 213. If they are required to do so, the effects are as predictable as they are alarming: Many investigations will sputter out at the start, and a host of criminals will be able to evade law enforcement’s reach. “To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence.” Nixon , 418 U. S., at 709. For over a hundred years, we have understood that holding subpoenas to the same standard as actual searches and seizures “would stop much if not all of investigation in the public interest at the threshold of inquiry.” Oklahoma Press , supra , at 213. Today a skeptical majority decides to put that understanding to the test. II Compounding its initial error, the Court also holds that a defendant has the right under the Fourth Amendment to object to the search of a third party’s property. This holding flouts the clear text of the Fourth Amendment, and it cannot be defended under either a property-based interpretation of that Amendment or our decisions applying the reasonable-expectations-of-privacy test adopted in Katz , 389 U. S. 347. By allowing Carpenter to object to the search of a third party’s property, the Court threatens to revolutionize a second and independent line of Fourth Amendment doctrine. A It bears repeating that the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects.” (Emphasis added.) The Fourth Amendment does not confer rights with respect to the persons, houses, papers, and effects of others. Its language makes clear that “ Fourth Amendment rights are personal,” Rakas v. Illinois , 439 U. S. 128, 140 (1978), and as a result, this Court has long insisted that they “may not be asserted vicariously,” id. , at 133. It follows that a “person who is aggrieved . . . only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Id. , at 134. In this case, as Justice Kennedy cogently explains, the cell-site records obtained by the Government belong to Carpenter’s cell service providers, not to Carpenter. See ante , at 12–13. Carpenter did not create the cell-site records. Nor did he have possession of them; at all relevant times, they were kept by the providers. Once Carpenter subscribed to his provider’s service, he had no right to prevent the company from creating or keeping the information in its records. Carpenter also had no right to demand that the providers destroy the records, no right to prevent the providers from destroying the records, and, indeed, no right to modify the records in any way whatsoever (or to prevent the providers from modifying the records). Carpenter, in short, has no meaningful control over the cell-site records, which are created, maintained, altered, used, and eventually destroyed by his cell service providers. Carpenter responds by pointing to a provision of the Telecommunications Act that requires a provider to disclose cell-site records when a customer so requests. See 47 U. S. C. §222(c)(2). But a statutory disclosure requirement is hardly sufficient to give someone an ownership interest in the documents that must be copied and disclosed. Many statutes confer a right to obtain copies of documents without creating any property right.[ 3 ] Carpenter’s argument is particularly hard to swallow because nothing in the Telecommunications Act precludes cell service providers from charging customers a fee for accessing cell-site records. See ante , at 12–13 (Kennedy, J., dissenting). It would be very strange if the owner of records were required to pay in order to inspect his own property. Nor does the Telecommunications Act give Carpenter a property right in the cell-site records simply because they are subject to confidentiality restrictions. See 47 U. S. C. §222(c)(1) (without a customer’s permission, a cell service provider may generally “use, disclose, or permit access to individually identifiable [cell-site records]” only with respect to “its provision” of telecommunications services). Many federal statutes impose similar restrictions on private entities’ use or dissemination of information in their own records without conferring a property right on third parties.[ 4 ] It would be especially strange to hold that the Telecommunication Act’s confidentiality provision confers a property right when the Act creates an express exception for any disclosure of records that is “required by law.” 47 U. S. C. §222(c)(1). So not only does Carpenter lack “ ‘the most essential and beneficial’ ” of the “ ‘constituent elements’ ” of property, Dickman v. Commissioner , 465 U. S. 330, 336 (1984)— i.e. , the right to use the property to the exclusion of others—but he cannot even exclude the party he would most like to keep out, namely, the Government.[ 5 ] For all these reasons, there is no plausible ground for maintaining that the information at issue here represents Carpenter’s “papers” or “effects.”[ 6 ] B In the days when this Court followed an exclusively property-based approach to the Fourth Amendment, the distinction between an individual’s Fourth Amendment rights and those of a third party was clear cut. We first asked whether the object of the search—say, a house, papers, or effects—belonged to the defendant, and, if it did, whether the Government had committed a “trespass” in acquiring the evidence at issue. Jones , 565 U. S., at 411, n. 8. When the Court held in Katz that “property rights are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County , 506 U. S. 56, 64 (1992), the sharp boundary between personal and third-party rights was tested. Under Katz , a party may invoke the Fourth Amendment whenever law enforcement officers violate the party’s “justifiable” or “reasonable” expectation of privacy. See 389 U. S., at 353; see also id. , at 361 (Harlan, J., concurring) (applying the Fourth Amendment where “a person [has] exhibited an actual (subjective) expectation of privacy” and where that “expectation [is] one that society is prepared to recognize as ‘reasonable’ ”). Thus freed from the limitations imposed by property law, parties began to argue that they had a reasonable expectation of privacy in items owned by others. After all, if a trusted third party took care not to disclose information about the person in question, that person might well have a reasonable expectation that the information would not be revealed. Efforts to claim Fourth Amendment protection against searches of the papers and effects of others came to a head in Miller , 425 U. S. 435, where the defendant sought the suppression of two banks’ microfilm copies of his checks, deposit slips, and other records. The defendant did not claim that he owned these documents, but he nonetheless argued that “analysis of ownership, property rights and possessory interests in the determination of Fourth Amendment rights ha[d] been severely impeached” by Katz and other recent cases. See Brief for Respondent in United States v. Miller , O. T. 1975, No. 74–1179, p. 6. Turning to Katz , he then argued that he had a reasonable expectation of privacy in the banks’ records regarding his accounts. Brief for Respondent in No. 74–1179, at 6; see also Miller , supra , at 442–443. Acceptance of this argument would have flown in the face of the Fourth Amendment’s text, and the Court rejected that development. Because Miller gave up “dominion and control” of the relevant information to his bank, Rakas, 439 U. S., at 149, the Court ruled that he lost any protected Fourth Amendment interest in that information. See Miller , supra , at 442–443. Later, in Smith v. Maryland , 442 U. S. 735, 745 (1979), the Court reached a similar conclusion regarding a telephone company’s records of a customer’s calls. As Justice Kennedy concludes, Miller and Smith are thus best understood as placing “necessary limits on the ability of individuals to assert Fourth Amendment interests in property to which they lack a ‘requisite connection.’ ” Ante , at 8. The same is true here, where Carpenter indisputably lacks any meaningful property-based connection to the cell-site records owned by his provider. Because the records are not Carpenter’s in any sense, Carpenter may not seek to use the Fourth Amendment to exclude them. By holding otherwise, the Court effectively allows Carpenter to object to the “search” of a third party’s property, not recognizing the revolutionary nature of this change. The Court seems to think that Miller and Smith invented a new “doctrine”—“the third-party doctrine”—and the Court refuses to “extend” this product of the 1970’s to a new age of digital communications. Ante , at 11, 17. But the Court fundamentally misunderstands the role of Miller and Smith . Those decisions did not forge a new doctrine; instead, they rejected an argument that would have disregarded the clear text of the Fourth Amendment and a formidable body of precedent. In the end, the Court never explains how its decision can be squared with the fact that the Fourth Amendment protects only “[t]he right of the people to be secure in their persons, houses, papers, and effects.” (Emphasis added.) *  *  * Although the majority professes a desire not to “ ‘embarrass the future,’ ” ante , at 18, we can guess where today’s decision will lead. One possibility is that the broad principles that the Court seems to embrace will be applied across the board. All subpoenas duces tecum and all other orders compelling the production of documents will require a demonstration of probable cause, and individuals will be able to claim a protected Fourth Amendment interest in any sensitive personal information about them that is collected and owned by third parties. Those would be revolutionary developments indeed. The other possibility is that this Court will face the embarrassment of explaining in case after case that the principles on which today’s decision rests are subject to all sorts of qualifications and limitations that have not yet been discovered. If we take this latter course, we will inevitably end up “mak[ing] a crazy quilt of the Fourth Amendment.” Smith , supra , at 745. All of this is unnecessary. In the Stored Communications Act, Congress addressed the specific problem at issue in this case. The Act restricts the misuse of cell-site records by cell service providers, something that the Fourth Amendment cannot do. The Act also goes beyond current Fourth Amendment case law in restricting access by law enforcement. It permits law enforcement officers to acquire cell-site records only if they meet a heightened standard and obtain a court order. If the American people now think that the Act is inadequate or needs updating, they can turn to their elected representatives to adopt more protective provisions. Because the collection and storage of cell-site records affects nearly every American, it is unlikely that the question whether the current law requires strengthening will escape Congress’s notice. Legislation is much preferable to the development of an entirely new body of Fourth Amendment caselaw for many reasons, including the enormous complexity of the subject, the need to respond to rapidly changing technology, and the Fourth Amendment’s limited scope. The Fourth Amendment restricts the conduct of the Federal Government and the States; it does not apply to private actors. But today, some of the greatest threats to individual privacy may come from powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans. If today’s decision encourages the public to think that this Court can protect them from this looming threat to their privacy, the decision will mislead as well as disrupt. And if holding a provision of the Stored Communications Act to be unconstitutional dissuades Congress from further legislation in this field, the goal of protecting privacy will be greatly disserved. The desire to make a statement about privacy in the digital age does not justify the consequences that today’s decision is likely to produce. Notes 1 Any other interpretation of the Fourth Amendment’s text would run into insuperable problems because it would apply not only to subpoenas duces tecum but to all other forms of compulsory process as well. If the Fourth Amendment applies to the compelled production of documents, then it must also apply to the compelled production of testimony—an outcome that we have repeatedly rejected and which, if accepted, would send much of the field of criminal procedure into a tailspin. See, e.g. , United States v. Dionisio , 410 U. S. 1, 9 (1973) (“It is clear that a subpoena to appear before a grand jury is not a ‘seizure’ in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome”); United States v. Calandra , 414 U. S. 338, 354 (1974) (“Grand jury questions . . . involve no independent governmental invasion of one’s person, house, papers, or effects”). As a matter of original understanding, a subpoena duces tecum no more effects a “search” or “seizure” of papers within the meaning of the Fourth Amendment than a subpoena ad testificandum effects a “search” or “seizure” of a person. 2 All that the Court can say in response is that we have “been careful not to uncritically extend existing precedents” when confronting new technologies. Ante , at 20. But applying a categorical rule categorically does not “extend” precedent, so the Court’s statement ends up sounding a lot like a tacit admission that it is overruling our precedents. 3 See, e.g. , Freedom of Information Act, 5 U. S. C. §552(a) (“Each agency shall make available to the public information as follows . . .”); Privacy Act, 5 U. S. C. §552a(d)(1) (“Each agency that maintains a system of records shall . . . upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof . . .”); Fair Credit Reporting Act, 15 U. S. C. §1681j(a)(1)(A) (“All consumer reporting agencies . . . shall make all disclosures pursuant to section 1681g of this title once during any 12-month period upon request of the consumer and without charge to the consumer”); Right to Financial Privacy Act of 1978, 12 U. S. C. §3404(c) (“The customer has the right . . . to obtain a copy of the record which the financial institution shall keep of all instances in which the customer’s record is disclosed to a Government authority pursuant to this section, including the identity of the Government authority to which such disclosure is made”); Government in the Sunshine Act, 5 U. S. C. §552b(f )(2) (“Copies of such transcript, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription”); Cable Act, 47 U. S. C. §551(d) (“A cable subscriber shall be provided access to all personally identifiable information regarding that subscriber which is collected and maintained by a cable operator”); Family Educational Rights and Privacy Act of 1974, 20 U. S. C. §1232g(a)(1)(A) (“No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children. . . . Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made”). 4 See, e.g. , Family Educational Rights and Privacy Act, 20 U. S. C. §1232g(b)(1) (“No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information . . . ) of students without the written consent of their parents to any individual, agency, or organization . . .”); Video Privacy Protection Act, 18 U. S. C. §2710(b)(1) (“A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d)”); Driver Privacy Protection Act, 18 U. S. C. §2721(a)(1) (“A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity . . . personal information . . .”); Fair Credit Reporting Act, 15 U. S. C. §1681b(a) (“[A]ny consumer reporting agency may furnish a consumer report under the following circumstances and no other . . .”); Right to Financial Privacy Act, 12 U. S. C. §3403(a) (“No financial institution, or officer, employees, or agent of a financial institution, may provide to any Government authority access to or copies of, or the information contained in, the financial records of any customer except in accordance with the provisions of this chapter”); Patient Safety and Quality Improvement Act, 42 U. S. C. §299b–22(b) (“Notwithstanding any other provision of Federal, State, or local law, and subject to subsection (c) of this section, patient safety work product shall be confidential and shall not be disclosed”); Cable Act, 47 U. S. C. §551(c)(1) (“[A] cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator”). 5 Carpenter also cannot argue that he owns the cell-site records merely because they fall into the category of records referred to as “customer proprietary network information.” 47 U. S. C. §222(c). Even assuming labels alone can confer property rights, nothing in this particular label indicates whether the “information” is “proprietary” to the “customer” or to the provider of the “network.” At best, the phrase “customer proprietary network information” is ambiguous, and context makes clear that it refers to the provider ’s information. The Telecommunications Act defines the term to include all “information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship.” 47 U. S. C. §222(h)(1)(A). For Carpenter to be right, he must own not only the cell-site records in this case, but also records relating to, for example, the “technical configuration” of his subscribed service—records that presumably include such intensely personal and private information as transmission wavelengths, transport protocols, and link layer system configurations. 6 Thus, this is not a case in which someone has entrusted papers that he or she owns to the safekeeping of another, and it does not involve a bailment. Cf. post , at 14 (Gorsuch, J., dissenting). SUPREME COURT OF THE UNITED STATES _________________ No. 16–402 _________________ TIMOTHY IVORY CARPENTER, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the sixth circuit [June 22, 2018] Justice Gorsuch, dissenting. In the late 1960s this Court suggested for the first time that a search triggering the Fourth Amendment occurs when the government violates an “expectation of privacy” that “society is prepared to recognize as ‘reasonable.’ ” Katz v. United States , 389 U. S. 347, 361 (1967) (Harlan, J., concurring). Then, in a pair of decisions in the 1970s applying the Katz test, the Court held that a “reasonable expectation of privacy” doesn’t attach to information shared with “third parties.” See Smith v. Maryland , 442 U. S. 735, 743–744 (1979); United States v. Miller , 425 U. S. 435, 443 (1976). By these steps, the Court came to conclude, the Constitution does nothing to limit investigators from searching records you’ve entrusted to your bank, accountant, and maybe even your doctor. What’s left of the Fourth Amendment? Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers. Smith and Miller teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did. What to do? It seems to me we could respond in at least three ways. The first is to ignore the problem, maintain Smith and Miller , and live with the consequences. If the confluence of these decisions and modern technology means our Fourth Amendment rights are reduced to nearly nothing, so be it. The second choice is to set Smith and Miller aside and try again using the Katz “reasonable expectation of privacy” jurisprudence that produced them. The third is to look for answers elsewhere. * Start with the first option. Smith held that the government’s use of a pen register to record the numbers people dial on their phones doesn’t infringe a reasonable expectation of privacy because that information is freely disclosed to the third party phone company. 442 U. S., at 743–744. Miller held that a bank account holder enjoys no reason- able expectation of privacy in the bank’s records of his account activity. That’s true, the Court reasoned, “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” 425 U. S., at 443. Today the Court suggests that Smith and Miller distinguish between kinds of information disclosed to third parties and require courts to decide whether to “extend” those decisions to particular classes of information, depending on their sensitivity. See ante, at 10–18. But as the Sixth Circuit recognized and Justice Kennedy explains, no balancing test of this kind can be found in Smith and Miller . See ante , at 16 (dissenting opinion). Those cases announced a categorical rule: Once you disclose information to third parties, you forfeit any reason- able expectation of privacy you might have had in it. And even if Smith and Miller did permit courts to conduct a balancing contest of the kind the Court now suggests, it’s still hard to see how that would help the petitioner in this case. Why is someone’s location when using a phone so much more sensitive than who he was talking to ( Smith ) or what financial transactions he engaged in ( Miller )? I do not know and the Court does not say. The problem isn’t with the Sixth Circuit’s application of Smith and Miller but with the cases themselves. Can the government demand a copy of all your e-mails from Google or Microsoft without implicating your Fourth Amendment rights? Can it secure your DNA from 23andMe without a warrant or probable cause? Smith and Miller say yes it can—at least without running afoul of Katz . But that result strikes most lawyers and judges today—me in- cluded—as pretty unlikely. In the years since its adoption, countless scholars, too, have come to conclude that the “third-party doctrine is not only wrong, but horribly wrong.” Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561, 563, n. 5, 564 (2009) (collecting criticisms but defending the doctrine (footnotes omitted)). The reasons are obvious. “As an empirical statement about subjective expectations of privacy,” the doctrine is “quite dubious.” Baude & Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1821, 1872 (2016). People often do reasonably expect that information they entrust to third parties, especially information subject to confidentiality agreements, will be kept private. Meanwhile, if the third party doctrine is supposed to represent a normative assessment of when a person should expect privacy, the notion that the answer might be “never” seems a pretty unattractive societal prescription. Ibid. What, then, is the explanation for our third party doctrine? The truth is, the Court has never offered a persuasive justification. The Court has said that by conveying information to a third party you “ ‘assum[e] the risk’ ” it will be revealed to the police and therefore lack a reason- able expectation of privacy in it. Smith , supra, at 744. But assumption of risk doctrine developed in tort law. It generally applies when “by contract or otherwise [one] expressly agrees to accept a risk of harm” or impliedly does so by “manifest[ing] his willingness to accept” that risk and thereby “take[s] his chances as to harm which may result from it.” Restatement (Second) of Torts §§496B, 496C(1), and Comment b (1965); see also 1 D. Dobbs, P. Hayden, & E. Bublick, Law of Torts §§235–236, pp. 841–850 (2d ed. 2017). That rationale has little play in this context. Suppose I entrust a friend with a letter and he promises to keep it secret until he delivers it to an intended recipient. In what sense have I agreed to bear the risk that he will turn around, break his promise, and spill its contents to someone else? More confusing still, what have I done to “manifest my willingness to accept” the risk that the government will pry the document from my friend and read it without his consent? One possible answer concerns knowledge. I know that my friend might break his promise, or that the government might have some reason to search the papers in his possession. But knowing about a risk doesn’t mean you assume responsibility for it. Whenever you walk down the sidewalk you know a car may negligently or recklessly veer off and hit you, but that hardly means you accept the consequences and absolve the driver of any damage he may do to you. Epstein, Privacy and the Third Hand: Lessons From the Common Law of Reasonable Expectations, 24 Berkeley Tech. L. J. 1199, 1204 (2009); see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Law of Torts 490 (5th ed. 1984). Some have suggested the third party doctrine is better understood to rest on consent than assumption of risk. “So long as a person knows that they are disclosing information to a third party,” the argument goes, “their choice to do so is voluntary and the consent valid.” Kerr, supra, at 588. I confess I still don’t see it. Consenting to give a third party access to private papers that remain my property is not the same thing as consenting to a search of those papers by the government. Perhaps there are exceptions, like when the third party is an undercover government agent. See Murphy, The Case Against the Case Against the Third-Party Doctrine: A Response to Epstein and Kerr, 24 Berkeley Tech. L. J. 1239, 1252 (2009); cf. Hoffa v. United States , 385 U. S. 293 (1966). But otherwise this conception of consent appears to be just assumption of risk relabeled—you’ve “consented” to whatever risks are foreseeable. Another justification sometimes offered for third party doctrine is clarity. You (and the police) know exactly how much protection you have in information confided to others: none. As rules go, “the king always wins” is admi- rably clear. But the opposite rule would be clear too: Third party disclosures never diminish Fourth Amendment protection (call it “the king always loses”). So clarity alone cannot justify the third party doctrine. In the end, what do Smith and Miller add up to? A doubtful application of Katz that lets the government search almost whatever it wants whenever it wants. The Sixth Circuit had to follow that rule and faithfully did just that, but it’s not clear why we should. * There’s a second option. What if we dropped Smith and Miller ’s third party doctrine and retreated to the root Katz question whether there is a “reasonable expectation of privacy” in data held by third parties? Rather than solve the problem with the third party doctrine, I worry this option only risks returning us to its source: After all, it was Katz that produced Smith and Miller in the first place. Katz’s problems start with the text and original understanding of the Fourth Amendment, as Justice Thomas thoughtfully explains today. Ante, at 5–17 (dissenting opinion). The Amendment’s protections do not depend on the breach of some abstract “expectation of privacy” whose contours are left to the judicial imagination. Much more concretely, it protects your “person,” and your “houses, papers, and effects.” Nor does your right to bring a Fourth Amendment claim depend on whether a judge happens to agree that your subjective expectation to privacy is a “reasonable” one. Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period. History too holds problems for Katz . Little like it can be found in the law that led to the adoption of the Fourth Amendment or in this Court’s jurisprudence until the late 1960s. The Fourth Amendment came about in response to a trio of 18th century cases “well known to the men who wrote and ratified the Bill of Rights, [and] famous throughout the colonial population.” Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L. J. 393, 397 (1995). The first two were English cases invalidating the Crown’s use of general warrants to enter homes and search papers. Entick v. Carrington , 19 How. St. Tr. 1029 (K. B. 1765); Wilkes v. Wood , 19 How. St. Tr. 1153 (K. B. 1763); see W. Cuddihy, The Fourth Amendment: Origins and Original Meaning 439–487 (2009); Boyd v. United States , 116 U. S. 616, 625–630 (1886). The third was American: the Boston Writs of Assistance Case, which sparked colonial outrage at the use of writs permitting government agents to enter houses and business, breaking open doors and chests along the way, to conduct searches and seizures—and to force third parties to help them. Stuntz, supra, at 404–409; M. Smith, The Writs of Assistance Case (1978). No doubt the colonial outrage engendered by these cases rested in part on the government’s intrusion upon privacy. But the framers chose not to protect privacy in some ethereal way dependent on judicial intuitions. They chose instead to protect privacy in particular places and things—“persons, houses, papers, and effects”—and against particular threats—“unreasonable” governmental “searches and seizures.” See Entick , supra, at 1066 (“Papers are the owner’s goods and chattels; they are his dearest property; and so far from enduring a seizure, that they will hardly bear an inspection”); see also ante, at 1–21 (Thomas, J., dissenting). Even taken on its own terms, Katz has never been sufficiently justified. In fact, we still don’t even know what its “reasonable expectation of privacy” test is . Is it supposed to pose an empirical question (what privacy expectations do people actually have) or a normative one (what expectations should they have)? Either way brings problems. If the test is supposed to be an empirical one, it’s unclear why judges rather than legislators should conduct it. Legislators are responsive to their constituents and have institutional resources designed to help them discern and enact majoritarian preferences. Politically insulated judges come armed with only the attorneys’ briefs, a few law clerks, and their own idiosyncratic experiences. They are hardly the representative group you’d expect (or want) to be making empirical judgments for hundreds of millions of people. Unsurprisingly, too, judicial judgments often fail to reflect public views. See Slobogin & Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society,” 42 Duke L. J. 727, 732, 740–742 (1993). Consider just one example. Our cases insist that the seriousness of the offense being investigated does not reduce Fourth Amendment protection. Mincey v. Arizona , 437 U. S. 385, 393–394 (1978). Yet scholars suggest that most people are more tolerant of police intrusions when they investigate more serious crimes. See Blumenthal, Adya, & Mogle, The Multiple Dimensions of Privacy: Testing Lay “Expectations of Privacy,” 11 U. Pa. J. Const. L. 331, 352–353 (2009). And I very much doubt that this Court would be willing to adjust its Katz cases to reflect these findings even if it believed them. Maybe, then, the Katz test should be conceived as a normative question. But if that’s the case, why (again) do judges, rather than legislators, get to determine whether society should be prepared to recognize an expectation of privacy as legitimate? Deciding what privacy interests should be recognized often calls for a pure policy choice, many times between incommensurable goods—between the value of privacy in a particular setting and society’s interest in combating crime. Answering questions like that calls for the exercise of raw political will belonging to legislatures, not the legal judgment proper to courts. See The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton). When judges abandon legal judgment for political will we not only risk decisions where “reasonable expectations of privacy” come to bear “an uncanny resemblance to those expectations of privacy” shared by Members of this Court. Minnesota v. Carter , 525 U. S. 83, 97 (1998) (Scalia, J., concurring). We also risk undermining public confidence in the courts themselves. My concerns about Katz come with a caveat. Sometimes , I accept, judges may be able to discern and describe existing societal norms. See, e.g., Florida v. Jardines , 569 U. S. 1, 8 (2013) (inferring a license to enter on private property from the “ ‘habits of the country’ ” (quoting McKee v. Gratz , 260 U. S. 127, 136 (1922))); Sachs, Finding Law, 107 Cal. L. Rev. (forthcoming 2019), online at https://ssrn.com/ abstract=3064443 (as last visited June 19, 2018). That is particularly true when the judge looks to positive law rather than intuition for guidance on social norms. See Byrd v. United States, 584 U. S. ___, ___–___ (2018) (slip op., at 7–9) (“general property-based concept[s] guid[e] the resolution of this case”). So there may be some occasions where Katz is capable of principled application—though it may simply wind up approximating the more traditional option I will discuss in a moment. Sometimes it may also be possible to apply Katz by analogizing from precedent when the line between an existing case and a new fact pattern is short and direct. But so far this Court has declined to tie itself to any significant restraints like these. See ante, at 5, n. 1 (“[W]hile property rights are often informative, our cases by no means suggest that such an interest is ‘fundamental’ or ‘dispositive’ in determining which expectations of privacy are legitimate”). As a result, Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence. Smith and Miller are only two examples; there are many others. Take Florida v. Riley , 488 U. S. 445 (1989), which says that a police helicopter hovering 400 feet above a person’s property invades no reasonable expectation of privacy. Try that one out on your neighbors. Or California v. Greenwood , 486 U. S. 35 (1988), which holds that a person has no reasonable expectation of privacy in the garbage he puts out for collection. In that case, the Court said that the homeowners forfeited their privacy interests because “[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” Id. , at 40 (footnotes omitted). But the habits of raccoons don’t prove much about the habits of the country. I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager. Making the decision all the stranger, California state law expressly protected a homeowner’s property rights in discarded trash. Id. , at 43. Yet rather than defer to that as evidence of the people’s habits and reasonable expectations of privacy, the Court substituted its own curious judgment. Resorting to Katz in data privacy cases threatens more of the same. Just consider. The Court today says that judges should use Katz ’s reasonable expectation of privacy test to decide what Fourth Amendment rights people have in cell-site location information, explaining that “no single rubric definitively resolves which expectations of privacy are entitled to protection.” Ante, at 5. But then it offers a twist. Lower courts should be sure to add two special principles to their Katz calculus: the need to avoid “arbitrary power” and the importance of “plac[ing] obstacles in the way of a too permeating police surveillance.” Ante, at 6 (internal quotation marks omitted). While surely laudable, these principles don’t offer lower courts much guidance. The Court does not tell us, for example, how far to carry either principle or how to weigh them against the legitimate needs of law enforcement. At what point does access to electronic data amount to “arbitrary” authority? When does police surveillance become “too permeating”? And what sort of “obstacles” should judges “place” in law enforcement’s path when it does? We simply do not know. The Court’s application of these principles supplies little more direction. The Court declines to say whether there is any sufficiently limited period of time “for which the Government may obtain an individual’s historical [location information] free from Fourth Amendment scrutiny.” Ante, at 11, n. 3; see ante, at 11–15. But then it tells us that access to seven days’ worth of information does trigger Fourth Amendment scrutiny—even though here the carrier “produced only two days of records.” Ante, at 11, n. 3 . Why is the relevant fact the seven days of information the government asked for instead of the two days of information the government actually saw ? Why seven days instead of ten or three or one? And in what possible sense did the government “search” five days’ worth of location information it was never even sent? We do not know. Later still, the Court adds that it can’t say whether the Fourth Amendment is triggered when the government collects “real-time CSLI or ‘tower dumps’ (a download of information on all the devices that connected to a particular cell site during a particular interval).” Ante, at 17–18. But what distinguishes historical data from real-time data, or seven days of a single person’s data from a download of everyone ’s data over some indefinite period of time? Why isn’t a tower dump the paradigmatic example of “too permeating police surveillance” and a dangerous tool of “arbitrary” authority—the touchstones of the majority’s modified Katz analysis? On what possible basis could such mass data collection survive the Court’s test while collecting a single person’s data does not? Here again we are left to guess. At the same time, though, the Court offers some firm assurances. It tells us its decision does not “call into question conventional surveillance techniques and tools, such as security cameras.” Ibid. That, however, just raises more questions for lower courts to sort out about what techniques qualify as “conventional” and why those techniques would be okay even if they lead to “permeating police surveillance” or “arbitrary police power.” Nor is this the end of it. After finding a reasonable expectation of privacy, the Court says there’s still more work to do. Courts must determine whether to “extend” Smith and Miller to the circumstances before them. Ante, at 11, 15–17. So apparently Smith and Miller aren’t quite left for dead; they just no longer have the clear reach they once did. How do we measure their new reach? The Court says courts now must conduct a second Katz -like balancing inquiry, asking whether the fact of disclosure to a third party outweighs privacy interests in the “category of information” so disclosed. Ante, at 13, 15–16. But how are lower courts supposed to weigh these radically different interests? Or assign values to different categories of information? All we know is that historical cell-site location information (for seven days, anyway) escapes Smith and Miller ’s shorn grasp, while a lifetime of bank or phone records does not. As to any other kind of information, lower courts will have to stay tuned. In the end, our lower court colleagues are left with two amorphous balancing tests, a series of weighty and incommensurable principles to consider in them, and a few illustrative examples that seem little more than the product of judicial intuition. In the Court’s defense, though, we have arrived at this strange place not because the Court has misunderstood Katz . Far from it. We have arrived here because this is where Katz inevitably leads. * There is another way. From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s per- sonal sensibilities about the “reasonableness” of your expectations or privacy. It was tied to the law. Jardines , 569 U. S., at 11; United States v. Jones , 565 U. S. 400, 405 (2012). The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment. Though now often lost in Katz ’s shadow, this traditional understanding persists. Katz only “supplements, rather than displaces the traditional property-based understanding of the Fourth Amendment.” Byrd , 584 U. S., at ___ (slip op., at 7) (internal quotation marks omitted); Jardines , supra, at 11 (same); Soldal v. Cook County , 506 U. S. 56, 64 (1992) ( Katz did not “snuf[f ] out the previously recognized protection for property under the Fourth Amendment”). Beyond its provenance in the text and original understanding of the Amendment, this traditional approach comes with other advantages. Judges are supposed to decide cases based on “democratically legitimate sources of law”—like positive law or analogies to items protected by the enacted Constitution—rather than “their own biases or personal policy preferences.” Pettys, Judicial Discretion in Constitutional Cases, 26 J. L. & Pol. 123, 127 (2011). A Fourth Amendment model based on positive legal rights “carves out significant room for legislative participation in the Fourth Amendment context,” too, by asking judges to consult what the people’s representatives have to say about their rights. Baude & Stern, 129 Harv. L. Rev., at 1852. Nor is this approach hobbled by Smith and Miller , for those cases are just limitations on Katz , addressing only the question whether individuals have a reasonable expectation of privacy in materials they share with third parties. Under this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties. Given the prominence Katz has claimed in our doctrine, American courts are pretty rusty at applying the traditional approach to the Fourth Amendment. We know that if a house, paper, or effect is yours, you have a Fourth Amendment interest in its protection. But what kind of legal interest is sufficient to make something yours ? And what source of law determines that? Current positive law? The common law at 1791, extended by analogy to modern times? Both? See Byrd , supra , at ___–___ (slip op., at 1–2) (Thomas, J., concurring); cf. Re, The Positive Law Floor, 129 Harv. L. Rev. Forum 313 (2016). Much work is needed to revitalize this area and answer these questions. I do not begin to claim all the answers today, but (unlike with Katz ) at least I have a pretty good idea what the questions are . And it seems to me a few things can be said. First , the fact that a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them. Ever hand a private document to a friend to be returned? Toss your keys to a valet at a restaurant? Ask your neighbor to look after your dog while you travel? You would not expect the friend to share the document with others; the valet to lend your car to his buddy; or the neighbor to put Fido up for adoption. Entrusting your stuff to others is a bailment . A bailment is the “delivery of personal property by one person (the bailor ) to another (the bailee ) who holds the property for a certain purpose.” Black’s Law Dictionary 169 (10th ed. 2014); J. Story, Commentaries on the Law of Bailments §2, p. 2 (1832) (“a bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, expressed or implied, to conform to the object or purpose of the trust”). A bailee normally owes a legal duty to keep the item safe, according to the terms of the parties’ contract if they have one, and according to the “implication[s] from their conduct” if they don’t. 8 C. J. S., Bailments §36, pp. 468–469 (2017). A bailee who uses the item in a different way than he’s supposed to, or against the bailor’s instructions, is liable for conversion. Id. , §43, at 481; see Goad v. Harris , 207 Ala. 357, 92 So. 546, (1922); Knight v. Seney , 290 Ill. 11, 17, 124 N. E. 813, 815–816 (1919); Baxter v. Woodward , 191 Mich. 379, 385, 158 N. W. 137, 139 (1916). This approach is quite different from Smith and Miller ’s (counter)-intuitive approach to reasonable expectations of privacy; where those cases extinguish Fourth Amendment interests once records are given to a third party, property law may preserve them. Our Fourth Amendment jurisprudence already reflects this truth. In Ex parte Jackson , 96 U. S. 727 (1878), this Court held that sealed letters placed in the mail are “as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.” Id., at 733. The reason, drawn from the Fourth Amendment’s text, was that “[t]he constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers , thus closed against inspection, wherever they may be .” Ibid. (emphasis added). It did not matter that letters were bailed to a third party (the government, no less). The sender enjoyed the same Fourth Amendment protection as he does “when papers are subjected to search in one’s own household.” Ibid. These ancient principles may help us address modern data cases too. Just because you entrust your data—in some cases, your modern-day papers and effects—to a third party may not mean you lose any Fourth Amendment interest in its contents. Whatever may be left of Smith and Miller , few doubt that e-mail should be treated much like the traditional mail it has largely supplanted—as a bailment in which the owner retains a vital and protected legal interest. See ante, at 13 (Kennedy, J., dissenting) (noting that enhanced Fourth Amendment protection may apply when the “modern-day equivalents of an individual’s own ‘papers’ or ‘effects’ . . . are held by a third party” through “bailment”); ante, at 23, n. 6 (Alito, J., dissenting) (reserving the question whether Fourth Amendment protection may apply in the case of “bailment” or when “someone has entrusted papers he or she owns . . . to the safekeeping of another”); United States v. Warshak , 631 F. 3d 266, 285–286 (CA6 2010) (relying on an analogy to Jackson to extend Fourth Amendment protection to e-mail held by a third party service provider). Second , I doubt that complete ownership or exclusive control of property is always a necessary condition to the assertion of a Fourth Amendment right. Where houses are concerned, for example, individuals can enjoy Fourth Amendment protection without fee simple title. Both the text of the Amendment and the common law rule support that conclusion. “People call a house ‘their’ home when legal title is in the bank, when they rent it, and even when they merely occupy it rent free.” Carter , 525 U. S., at 95–96 (Scalia, J., concurring). That rule derives from the common law. Oystead v. Shed , 13 Mass. 520, 523 (1816) (explaining, citing “[t]he very learned judges, Foster , Hale , and Coke ,” that the law “would be as much disturbed by a forcible entry to arrest a boarder or a servant, who had acquired, by contract, express or implied, a right to enter the house at all times, and to remain in it as long as they please, as if the object were to arrest the master of the house or his children”). That is why tenants and resident family members—though they have no legal title—have standing to complain about searches of the houses in which they live. Chapman v. United States , 365 U. S. 610, 616–617 (1961), Bumper v. North Carolina , 391 U. S. 543, 548, n. 11 (1968). Another point seems equally true: just because you have to entrust a third party with your data doesn’t necessarily mean you should lose all Fourth Amendment protections in it. Not infrequently one person comes into possession of someone else’s property without the owner’s consent. Think of the finder of lost goods or the policeman who impounds a car. The law recognizes that the goods and the car still belong to their true owners, for “where a person comes into lawful possession of the personal property of another, even though there is no formal agreement between the property’s owner and its possessor, the possessor will become a constructive bailee when justice so requires.” Christensen v. Hoover , 643 P.2d 525 , 529 (Colo. 1982) (en banc); Laidlaw, Principles of Bailment, 16 Cornell L. Q. 286 (1931). At least some of this Court’s decisions have already suggested that use of technology is functionally compelled by the demands of modern life, and in that way the fact that we store data with third parties may amount to a sort of involuntary bailment too. See ante, at 12–13 (majority opinion); Riley v. California , 573 U. S. ___, ___ (2014) (slip op., at 9). Third , positive law may help provide detailed guidance on evolving technologies without resort to judicial intuition. State (or sometimes federal) law often creates rights in both tangible and intangible things. See Ruckelshaus v. Monsanto Co. , 467 U. S. 986, 1001 (1984). In the context of the Takings Clause we often ask whether those state-created rights are sufficient to make something someone’s property for constitutional purposes. See id., at 1001–1003; Louisville Joint Stock Land Bank v. Radford , 295 U. S. 555, 590–595 (1935). A similar inquiry may be appropriate for the Fourth Amendment. Both the States and federal government are actively legislating in the area of third party data storage and the rights users enjoy. See, e.g., Stored Communications Act, 18 U. S. C. §2701 et seq. ; Tex. Prop. Code Ann. §111.004(12) (West 2017) (defining “[p]roperty” to include “property held in any digital or electronic medium”). State courts are busy expounding common law property principles in this area as well. E.g., Ajemian v. Yahoo!, Inc. , 478 Mass. 169, 170, 84 N. E. 3d 766, 768 (2017) (e-mail account is a “form of property often referred to as a ‘digital asset’ ”); Eysoldt v. ProScan Imaging , 194 Ohio App. 3d 630, 638, 2011–Ohio–2359, 957 N. E. 2d 780, 786 (2011) (permitting action for conversion of web account as intangible property). If state legislators or state courts say that a digital record has the attributes that normally make something property, that may supply a sounder basis for judicial decisionmaking than judicial guesswork about societal expectations. Fourth , while positive law may help establish a person’s Fourth Amendment interest there may be some circumstances where positive law cannot be used to defeat it. Ex parte Jackson reflects that understanding. There this Court said that “[n]o law of Congress” could authorize letter carriers “to invade the secrecy of letters.” 96 U. S., at 733. So the post office couldn’t impose a regulation dictating that those mailing letters surrender all legal interests in them once they’re deposited in a mailbox. If that is right, Jackson suggests the existence of a constitutional floor below which Fourth Amendment rights may not descend. Legislatures cannot pass laws declaring your house or papers to be your property except to the extent the police wish to search them without cause. As the Court has previously explained, “we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” Jones , 565 U. S., at 406 (quoting Kyllo v. United States , 533 U. S. 27, 34 (2001)). Nor does this mean protecting only the specific rights known at the founding; it means protecting their modern analogues too. So, for example, while thermal imaging was unknown in 1791, this Court has recognized that using that technology to look inside a home constitutes a Fourth Amendment “search” of that “home” no less than a physical inspection might. Id., at 40. Fifth , this constitutional floor may, in some instances, bar efforts to circumvent the Fourth Amendment’s protection through the use of subpoenas. No one thinks the government can evade Jackson ’s prohibition on opening sealed letters without a warrant simply by issuing a subpoena to a postmaster for “all letters sent by John Smith” or, worse, “all letters sent by John Smith concerning a particular transaction.” So the question courts will confront will be this: What other kinds of records are sufficiently similar to letters in the mail that the same rule should apply? It may be that, as an original matter, a subpoena requiring the recipient to produce records wasn’t thought of as a “search or seizure” by the government implicating the Fourth Amendment, see ante, at 2–12 (opinion of Alito, J.), but instead as an act of compelled self-incrimination implicating the Fifth Amendment, see United States v. Hubbell , 530 U. S. 27, 49–55 (2000) (Thomas, J., dissenting); Nagareda, Compulsion “To Be a Witness” and the Resurrection of Boyd, 74 N. Y. U. L. Rev. 1575, 1619, and n. 172 (1999). But the common law of searches and seizures does not appear to have confronted a case where private documents equivalent to a mailed letter were entrusted to a bailee and then subpoenaed. As a result, “[t]he common-law rule regarding subpoenas for documents held by third parties entrusted with information from the target is . . . unknown and perhaps unknowable.” Dripps, Perspectives on The Fourth Amendment Forty Years Later: Toward the Realization of an Inclusive Regulatory Model, 100 Minn. L. Rev. 1885, 1922 (2016). Given that (perhaps insoluble) uncertainty, I am content to adhere to Jackson and its implications for now. To be sure, we must be wary of returning to the doctrine of Boyd v. United States , 116 U. S. 616. Boyd invoked the Fourth Amendment to restrict the use of subpoenas even for ordinary business records and, as Justice Alito notes, eventually proved unworkable. See ante, at 13 (dissenting opinion); 3 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §8.7(a), pp. 185–187 (4th ed. 2015). But if we were to overthrow Jackson too and deny Fourth Amendment protection to any subpoenaed materials, we would do well to reconsider the scope of the Fifth Amendment while we’re at it. Our precedents treat the right against self-incrimination as applicable only to testimony, not the production of incriminating evidence. See Fisher v. United States , 425 U. S. 391, 401 (1976). But there is substantial evidence that the privilege against self-incrimination was also originally understood to protect a person from being forced to turn over potentially incriminating evidence. Nagareda, supra, at 1605–1623; Rex v. Purnell , 96 Eng. Rep. 20 (K. B. 1748); Slobogin, Privacy at Risk 145 (2007). * What does all this mean for the case before us? To start, I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz -based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz -squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment. Our case offers a cautionary example. It seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law. Yes, the telephone carrier holds the information. But 47 U. S. C. §222 designates a customer’s cell-site location information as “customer proprietary network information” (CPNI), §222(h)(1)(A), and gives customers certain rights to control use of and access to CPNI about themselves. The statute generally forbids a carrier to “use, disclose, or permit access to individually identifiable” CPNI without the customer’s consent, except as needed to provide the customer’s telecommunications services. §222(c)(1). It also requires the carrier to disclose CPNI “upon affirmative written request by the customer, to any person designated by the customer.” §222(c)(2). Congress even afforded customers a private cause of action for damages against carriers who violate the Act’s terms. §207. Plainly, customers have substantial legal interests in this information, including at least some right to include, exclude, and control its use. Those interests might even rise to the level of a property right. The problem is that we do not know anything more. Before the district court and court of appeals, Mr. Carpenter pursued only a Katz “reasonable expectations” argument. He did not invoke the law of property or any analogies to the common law, either there or in his petition for certiorari. Even in his merits brief before this Court, Mr. Carpenter’s discussion of his positive law rights in cell-site data was cursory. He offered no analysis, for example, of what rights state law might provide him in addition to those supplied by §222. In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument. Unfortunately, too, this case marks the second time this Term that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them. See Byrd , 584 U. S., at ___ (slip op., at 7). Litigants have had fair notice since at least United States v. Jones (2012) and Florida v. Jardines (2013) that arguments like these may vindicate Fourth Amendment interests even where Katz arguments do not. Yet the arguments have gone unmade, leaving courts to the usual Katz hand- waving. These omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence.

The Supreme Court ruled that accessing historical cell phone records to track a person's past movements constitutes a search under the Fourth Amendment, requiring a warrant and probable cause. This decision highlights the importance of privacy in the digital age and sets a precedent for future cases involving location data and the Fourth Amendment.

Separation of Powers

Panama Refining Co. v. Ryan

https://supreme.justia.com/cases/federal/us/293/388/

U.S. Supreme Court Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) Panama Refining Co. v. Ryan Nos. 135 and 260 Argued December 10, 11, 1934 Decided January 7, 1935 293 U.S. 388 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus 1. Upon review of a decree affirming the validity of an executive regulation, and refusing to enjoin its enforcement, rendered in a suit begun and ended below after the regulation had been withdrawn, the question of validity does not cease to be moot because the regulation has since been reinstated and the Government has declared its intention to enforce it from the time of reinstatement. P. 293 U. S. 412 . 2. A suit to enjoin the enforcement of executive regulations is not made moot by amendments of the regulations, adopted pending the litigation, which continue in force the requirements complained of and present the same constitutional question as before. P. 293 U. S. 413 . 3. Section 9 (c) of the National Industrial Recovery Act, purporting to authorize the President to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amounts permitted by state authority, attaches criminal penalties to every violation of such an order, and persons who would thus become subject to repeated penalties in carrying on their business are entitled Page 293 U. S. 389 to invoke the equitable jurisdiction to restrain enforcement of the order if found unconstitutional. P. 293 U. S. 414 . 4. Assuming (not deciding) that Congress itself might have the power sought to be delegated to the President by § 9(c) of the National Industrial Recovery Act -- viz., the power to interdict the transportation in interstate and foreign commerce of petroleum and petroleum products produced or withdrawn from storage in excess of the amounts permitted by state authority -- the attempted delegation is plainly void, because the power sought to be delegated is legislative power, yet nowhere in the statute has Congress declared or indicated any policy or standard to guide or limit the President when acting under such delegation. Pp. 293 U. S. 414 et seq. The declarations of § 1 of Title I of this Act are simply an introduction in broad outline, leaving the legislative policy as to particular subjects to be declared and defined, if at all, by subsequent sections. The Court can find nothing in § 1 or elsewhere in the Act which limits or controls the authority sought to be conferred by § 9(c). The effort by ingenious and diligent construction to supply a criterion still permits such a breadth of authorized action as essentially to commit to the President the functions of a legislature, rather than those of an executive or administrative officer executing a declared legislative policy. 5. The question whether the delegation is permitted by the Constitution is not answered by the argument that it should be assumed that the President has acted, or will act, for what he believes to be the public good. The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute. P. 293 U. S. 420 . 6. If Congress can vest such legislative power in the President, it may vest it in any board or officer of its choice, and the power vested may concern not merely the transportation of oil or of oil produced in excess of what the States may allow; it may extend to transportation in interstate commerce of any commodity, with or without reference to state requirements; indeed, there would appear to be no ground for denying a similar prerogative of delegation with respect to other subjects of legislation. P. 293 U. S. 420 . 7. The principle forbidding Congress to abdicate, or to transfer to others, the essential legislative functions with which it is vested by Art. I, § 1, and Art. I, § 8, par. 18, of the Constitution has been recognized by the Court in every case in which the question has been raised . P. 293 U. S. 421 . Page 293 U. S. 390 8. Congress may lay down its policies and establish its standards and leave to selected instrumentalities the making of subordinate rules, within prescribed limits, and the determination of facts to which the policy, as declared by Congress, shall apply, but the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. P. 293 U. S. 421 . 9. The question is not as to the intrinsic importance of the particular statute involved, but of the constitutional processes of legislation which are an essential part of our system of Government. P. 293 U. S. 430 . 10. Both § 9(c) and the Executive Order made in pursuance of it are in notable contrast with historic practice (as shown by many statutes and proclamations) by which declarations of policy are made by the Congress, and delegations are within the framework of that policy and have relation to facts and conditions to be found and stated by the President in the appropriate exercise of the delegated authority. P. 293 U. S. 431 . 11. If from the extremely broad description contained in § 1 of the Act, and the widely different matters to which the section refers, it were possible to derive a statement of prerequisites to the President's action under § 9(c), it would still be necessary for the President to comply with those conditions and to show such compliance as the ground of his prohibition. P. 293 U. S. 431 . 12. If the citizen is to be punished for the crime of violating a legislative order of an executive officer, board or commission, due process of law requires that it shall appear that the order is within the authority of the officer, board or commission, and if that authority depends on determinations of fact, those determinations must be shown. P. 293 U. S. 432 . 13. When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation. P. 293 U. S. 433 . 71 F.2d 1, 8, reversed. Certiorari was granted in these two cases to review decrees of the court below which reversed decrees of the District Court enjoining federal officers in Texas from Page 293 U. S. 391 enforcing certain executive orders and regulations. 5 F. Supp. 639 . Both bills challenged the constitutionality of § 9(c) of the National Industrial Recovery Act and of orders made under it by the President and of regulations made under the President's orders by the Secretary of the Interior. In one of the cases, No. 260, part of a Petroleum Code was attacked and defendant in ignorance of the fact that it had been dropped when amendments of the Code were promulgated before the beginning of the suit. The bill in that case also challenged legislation and orders of the State curtailing the production of oil, and joined the State Railroad Commission, its members, and other state officials as defendants; but this part of the case was severed and decided adversely to the plaintiffs by a three-judge court. See 5 F. Supp. 633 , 634, 639. A detailed statement of both cases will be found in the opinion. Page 293 U. S. 405 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. On July 11, 1933, the President, by Executive Order, prohibited "the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly Page 293 U. S. 406 authorized agency of a State. [ Footnote 1 ]" This action was based on § 9(c) of title 1 of the National Industrial Recovery Act of June 16, 1933, 48 Stat. 195, 200, 15 U.S.C. Tit. 1, § 709(c). That section provides: "Sec. 9. . . ." "(c) The President is authorized to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State. Any violation of any order of the President issued under the provisions of this subsection shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both." On July 14, 1933, the President, by Executive Order, authorized the Secretary of the Interior to exercise all the powers vested in the President "for the purpose of enforcing Page 293 U. S. 407 Section 9(c) of said act and said order" of July 11, 1933, "including full authority to designate and appoint such agents and to set up such boards and agencies as he may see fit, and to promulgate such rules and regulations as he may deem necessary. [ Footnote 2 ]" That order was made under § 10(a) of the National Industrial Recovery Act, 48 Stat. 200, 15 U.S.C. § 710(a), authorizing the President "to prescribe such rules and regulations as may be necessary to carry out the purposes" of title 1 of the National Industrial Recovery Act and providing that "any violation of any such rule or regulation shall be punishable by fine of not to exceed $500, or imprisonment for not to exceed six months, or both." On July 15, 1933, the Secretary of the Interior issued regulations to carry out the President's orders of July 11 and 14, 1933. These regulations were amended by orders Page 293 U. S. 408 of July 25, 1933, and August 21, 1933, prior to the commencement of these suits. Regulation IV provided, in substance, that every producer of petroleum should file a monthly statement under oath, beginning August 15, 1933, with the Division of Investigations of the Department of the Interior giving information with respect to the residence and post office address of the producer, the location of his producing properties and wells, the allowable production as prescribed by state authority, the amount of daily production, all deliveries of petroleum, and declaring that no part of the petroleum or products produced and shipped had been produced or withdrawn from storage in excess of the amount permitted by state authority. Regulation V required every purchaser, shipper (other than a producer), and refiner of petroleum, including processors, similarly to file a monthly statement under oath, giving information as to residence and post office address, the place and date of receipt, the parties from whom and the amount of petroleum received and the amount held in storage, the disposition of the petroleum, particulars as to deliveries, and declaring, to the best of the affiant's information and belief, that none of the petroleum so handled had been produced or withdrawn from storage in excess of that allowed by state authority. Regulation VII provided that all persons embraced within the terms of § 9(c) of the act and the executive orders and regulations issued thereunder, should keep "available for inspection by the Division of Investigations of the Department of the Interior adequate books and records of all transactions involving the production and transportation of petroleum and the products thereof." On August 19, 1933, the President, by Executive Order No. 6256, stating that his action was taken under title 1 of the National Industrial Recovery Act, approved a "Code of Page 293 U. S. 409 Fair Competition for the Petroleum Industry." [ Footnote 3 ] By a further Executive Order of August 28, 1933, the President designated the Secretary of the Interior as Administrator, and the Department of the Interior as the federal agency, to exercise on behalf of the President all the powers vested in him under that act and code. Section 3(f) of title 1 of the National Industrial Recovery Act provides that, when a code of fair competition has been approved or prescribed by the President under that title, "any violation of any provision thereof in any transaction in or affecting interstate or foreign commerce shall Page 293 U. S. 410 be a misdemeanor and upon conviction thereof an offender shall be fined not more than $500 for each offense, and each day such violation continues shall be deemed a separate offense." This "Petroleum Code" (in its original form and as officially printed) provided in § 3 of article III relating to "Production" for estimates of "required production of crude oil to balance consumer demand for petroleum products" to be made at intervals by the federal agency. This "required production" was to be "equitably allocated" among the several states. These estimates and allocations, when approved by the President, were to be deemed to be "the net reasonable market demand," and the allocations were to be recommended "as the operating schedules for the producing States and for the industry." By § 4 of article III, the subdivision, with respect to producing properties, of the production allocated to each state, was to be made within the state. The second paragraph of that section further provided: "If any subdivision into quotas of production allocated to any State shall be made within a State any production by any person, as person is defined in Article I, Section 3 of this code in excess of any such quota assigned to him, shall be deemed an unfair trade practice and in violation of this code." By an Executive Order of September 13, 1933, No. 6284-a, modifying certain provisions of the Petroleum Code, this second paragraph of § 4 of article III was eliminated. It was reinstated by Executive Order of September 25, 1934, No. 6855. These suits were brought in October, 1933. In No. 135, the Panama Refining Company, as owner of an oil refining plant in Texas, and its co-plaintiff, a producer having oil and gas leases in Texas, sued to restrain the defendants, who were federal officials, from enforcing Regulations IV, V, and VII prescribed by the Secretary of the Interior under § 9(c) of the National Industrial Page 293 U. S. 411 Recovery Act. Plaintiffs attacked the validity of § 9(c) as an unconstitutional delegation to the President of legislative power and as transcending the authority of the Congress under the commerce clause. The regulations, and the attempts to enforce them by coming upon the properties of the plaintiffs, gauging their tanks, digging up pipelines, and otherwise, were also assailed under the Fourth and Fifth Amendments of the Constitution. In No. 260, the Amazon Petroleum Corporation and its co-plaintiffs, all being oil producers in Texas and owning separate properties, sued to enjoin the Railroad Commission of that state, its members and other state officers, and the other defendants who were federal officials, from enforcing the state and federal restrictions upon the production and disposition of oil. The bill alleged that the legislation of the state and the orders of its commission in curtailing production violated the Fourteenth Amendment of the Federal Constitution. As to the federal requirements, the bill not only attacked § 9(c) of the National Industrial Recovery Act, and the regulations of the Secretary of the Interior thereunder, upon substantially the same grounds as those set forth in the bill of the Panama Refining Company, but also challenged the validity of provisions of the Petroleum Code. While a number of these provisions were set out in the bill, the contest on the trial related to the limitation of production through the allocation of quotas pursuant to § 4 of article III of the Code. As the case involved the constitutional validity of orders of the state commission and an interlocutory injunction was sought, a court of three judges was convened under § 266 of the Judicial Code (28 U.S.C. § 380). That court decided that the cause of action against the federal officials was not one within § 266, but was for the consideration of the District Judge alone. The parties agreed that the causes of action should be severed and that each cause Page 293 U. S. 412 should be submitted to the tribunal having jurisdiction of it. Hearing was had both on the applications for interlocutory injunction and upon the merits. The court of three judges, sustaining the state orders, denied injunction, and dismissed the bill as against the state authorities. 5 F. Supp. 633 , 634, 639. In both cases against the federal officials, that of the Panama Refining Company and that of the Amazon Petroleum Corporation, heard by the District Judge, a permanent injunction was granted. 5 F. Supp. 639 . In the case of the Amazon Petroleum Corporation, the court specifically enjoined the defendants from enforcing § 4 of article III of the Petroleum Code, both plaintiffs and defendants and the court being unaware of the amendment of September 13, 1933. The Circuit Court of Appeals reversed the decrees against the federal officials and directed that the bills be dismissed. 71 F.2d 1, 8. The cases come here on writs of certiorari granted on October 8, 1934. First. The controversy with respect to the provision of § 4 of article III of the Petroleum Code was initiated and proceeded in the courts below upon a false assumption. That assumption was that this section still contained the paragraph (eliminated by the Executive Order of September 13, 1933) by which production in excess of assigned quotas was made an unfair practice and a violation of the Code. Whatever the cause of the failure to give appropriate public notice of the change in the section, with the result that the persons affected, the prosecuting authorities, and the courts, were alike ignorant of the alteration, the fact is that the attack in this respect was upon a provision which did not exist. The government's announcement that, by reason of the elimination of this paragraph, the government "cannot, and therefore it does not intend to, prosecute petitioners or other producers of oil in Texas, criminally or otherwise, Page 293 U. S. 413 for exceeding, at any time prior to September 25, 1934, the quotas of production assigned to them under the laws of Texas," but that, if "petitioners, or other producers, produce in excess of such quotas after September 25, 1934, the government intends to prosecute them," cannot avail to import into the present case the amended provision of that date. [ Footnote 4 ] The case is not one where a subsequent law is applicable to a pending suit and controls its disposition. [ Footnote 5 ] When this suit was brought and when it was heard, there was no cause of action for the injunction sought with respect to the provision of § 4 of article III of the Code; as to that, there was no basis for real controversy. See California v. San Pablo & T. R. Co., 149 U. S. 308 , 149 U. S. 314 ; United States v. Alaska Steamship Co., 253 U. S. 113 , 253 U. S. 116 ; Barker Co. v. Painters' Union, 281 U. S. 462 . If the government undertakes to enforce the new provision, the petitioners, as well as others, will have an opportunity to present their grievance, which can then be considered, as it should be, in the light of the facts as they will then appear. For this reason, we pass to the other questions presented, and we express no opinion as to the interpretation or validity of the provisions of the Petroleum Code. Second. Regulations IV, V, and VII, issued by the Secretary of the Interior prior to these suits, have since been amended. But the amended regulations continue substantially Page 293 U. S. 414 the earlier requirements and expand them. They present the same constitutional questions, and the cases as to these are not moot. Southern Pacific Company v. Interstate Commerce Comm'n, 219 U. S. 433 , 219 U. S. 452 ; Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U. S. 498 , 219 U. S. 514 -516; McGrain v. Daugherty, 273 U. S. 135 , 273 U. S. 181 -182. The original regulations of July 15, 1933, as amended July 25, 1933, and August 21, 1933, were issued to enforce the Executive Orders of July 11 and July 14, 1933. The Executive Order of July 11, 1933, was made under § 9(c) of the National Industrial Recovery Act, and the Executive Order of July 14, 1933, under § 10(a) of that act, authorizing the Secretary of the Interior to promulgate regulations, was for the purpose of enforcing § 9(c) and the Executive Order of July 11, 1933. The amended regulations have been issued for the same purpose. The fundamental question as to these regulations thus turns upon the validity of § 9(c) and the executive orders to carry it out. Third. The statute provides that any violation of any order of the President issued under § 9(c) shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both. We think that these penalties would attach to each violation, and, in this view, the plaintiffs were entitled to invoke the equitable jurisdiction to restrain enforcement, if the statute and the executive orders were found to be invalid. Philadelphia Company v. Stimson, 223 U. S. 605 , 223 U. S. 620 -621; Terrace v. Thompson, 263 U. S. 197 , 263 U. S. 214 -216; Hygrade Provision Company v. Sherman, 266 U. S. 497 , 266 U. S. 499 -500. Fourth. Section 9(c) is assailed upon the ground that it is an unconstitutional delegation of legislative power. The section purports to authorize the President to pass a prohibitory law. The subject to which this authority relates is defined. It is the transportation in interstate and Page 293 U. S. 415 foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by state authority. Assuming for the present purpose, without deciding, that the Congress has power to interdict the transportation of that excess in interstate and foreign commerce, the question whether that transportation shall be prohibited by law is obviously one of legislative policy. Accordingly, we look to the statute to see whether the Congress has declared a policy with respect to that subject; whether the Congress has set up a standard for the President's action; whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition. Section 9(c) is brief and unambiguous. It does not attempt to control the production of petroleum and petroleum products within a state. It does not seek to lay down rules for the guidance of state Legislatures or state officers. It leaves to the states and to their constituted authorities the determination of what production shall be permitted. It does not qualify the President's authority by reference to the basis or extent of the state's limitation of production. Section 9(c) does not state whether or in what circumstances or under what conditions the President is to prohibit the transportation of the amount of petroleum or petroleum products produced in excess of the state's permission. It establishes no criteria to govern the President's course. It does not require any finding by the President as a condition of his action. The Congress in § 9(c) thus declares no policy as to the transportation of the excess production. So far as this section is concerned, it gives to the President an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit. And disobedience to his order is made a crime punishable by fine and imprisonment. Page 293 U. S. 416 We examine the context to ascertain if it furnishes a declaration of policy or a standard of action, which can be deemed to relate to the subject of § 9(c), and thus to imply what is not there expressed. It is important to note that § 9 is headed "Oil Regulation" -- that is, § 9 is the part of the National Industrial Recovery Act which particularly deals with that subject matter. But the other provisions of § 9 afford no ground for implying a limitation of the broad grant of authority in § 9(c). Thus, § 9(a) authorizes the President to initiate before the Interstate Commerce Commission "proceedings necessary to prescribe regulations to control the operations of oil pipelines and to fix reasonable, compensatory rates for the transportation of petroleum and its products by pipelines," and the Interstate Commerce Commission is to grant preference "to the hearings and determination of such cases." Section 9(b) authorizes the President to institute proceedings "to divorce from any holding company any pipeline company controlled by such holding company which pipeline company by unfair practices or by exorbitant rates in the transportation of petroleum or its products tends to create a monopoly." It will be observed that each of these provisions contains restrictive clauses as to their respective subjects. Neither relates to the subject of § 9(c). We turn to the other provisions of title 1 of the act. The first section is a "declaration of policy." [ Footnote 6 ] It declares that a national emergency exists which is "productive Page 293 U. S. 417 of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people." It is declared to be the policy of Congress "to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof;" "to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups;" "to induce and maintain united action of labor and management under adequate governmental sanctions and supervision;" "to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources." This general outline of policy contains nothing as to the circumstances or conditions in which transportation of petroleum or petroleum products should be prohibited-nothing as to the policy of prohibiting or not prohibiting the transportation of production exceeding what the Page 293 U. S. 418 states allow. The general policy declared is "to remove obstructions to the free flow of interstate and foreign commerce." As to production, the section lays down no policy of limitation. It favors the fullest possible utilization of the present productive capacity of industries. It speaks, parenthetically, of a possible temporary restriction of production, but of what, or in what circumstances, it gives no suggestion. The section also speaks in general terms of the conservation of natural resources, but it prescribes no policy for the achievement of that end. It is manifest that this broad outline is simply an introduction of the act, leaving the legislative policy as to particular subjects to be declared and defined, if at all, by the subsequent sections. It is no answer to insist that deleterious consequences follow the transportation of "hot oil" -- oil exceeding state allowances. The Congress did not prohibit that transportation. The Congress did not undertake to say that the transportation of "hot oil" was injurious. The Congress did not say that transportation of that oil was "unfair competition." The Congress did not declare in what circumstances that transportation should be forbidden, or require the President to make any determination as to any facts or circumstances. Among the numerous and diverse objectives broadly stated, the President was not required to choose. The President was not required to ascertain and proclaim the conditions prevailing in the industry which made the prohibition necessary. The Congress left the matter to the President without standard or rule, to be dealt with as he pleased. The effort by ingenious and diligent construction to supply a criterion still permits such a breadth of authorized action as essentially to commit to the President the functions of a Legislature, rather than those of an executive or administrative Page 293 U. S. 419 officer executing a declared legislative policy. We find nothing in § 1 which limits or controls the authority conferred by § 9(c). We pass to the other sections of the act. Section 2 relates to administrative agencies which may be constituted. Section provides for the approval by the President of "codes" for trades or industries. These are to be codes of "fair competition," and the authority is based upon certain express conditions which require findings by the President. Action under § 9(c) is not made to depend on the formulation of a code under § 3. In fact, the President's action under § 9(c) was taken more than a month before a Petroleum Code was approved. Subdivision (e) of § 3 authorizes the President, on his own motion or upon complaint, as stated, in case any article is being imported into the United States "in substantial quantities or increasing ratio to domestic production of any competitive article," under such conditions as to endanger the maintenance of a code or agreement under title 1, to cause an immediate investigation by the Tariff Commission. The authority of the President to act, after such investigation, is conditioned upon a finding by him of the existence of the underlying facts, and he may permit entry of the articles concerned upon such conditions and with such limitations as he shall find it necessary to prescribe in order that the entry shall not tend to render the Code or agreement ineffective. Section 4 relates to agreements and licenses for the purposes stated. Section 5 refers to the application of the antitrust laws. Sections 6 and 7 impose limitations upon the application of Title I, bearing upon trade associations and other organizations and upon the relations between employers and employees. Section 8 contains provisions with respect to the application of the Agricultural Adjustment Act of May 12, 1933. Page 293 U. S. 420 None of these provisions can be deemed to prescribe any limitation of the grant of authority in § 9(c). Fifth. The question whether such a delegation of legislative power is permitted by the Constitution is not answered by the argument that it should be assumed that the President has acted, and will act, for what he believes to be the public good. The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute. While the present controversy relates to a delegation to the President, the basic question has a much wider application. If the Congress can make a grant of legislative authority of the sort attempted by § 9(c), we find nothing in the Constitution which restricts the Congress to the selection of the President as grantee. The Congress may vest the power in the officer of its choice or in a board or commission such as it may select or create for the purpose. Nor, with respect to such a delegation, is the question concerned merely with the transportation of oil, or of oil produced in excess of what the state may allow. If legislative power may thus be vested in the President or other grantee as to that excess of production, we see no reason to doubt that it may similarly be vested with respect to the transportation of oil without reference to the state's requirements. That reference simply defines the subject of the prohibition which the President is authorized to enact or not to enact as he pleases. And, if that legislative power may be given to the President or other grantee, it would seem to follow that such power may similarly be conferred with respect to the transportation of other commodities in interstate commerce with or without reference to state action, thus giving to the grantee of the power the determination of what is a wise policy as to that transportation, and authority to permit or prohibit it, as the person or board or commission so chosen may Page 293 U. S. 421 think desirable. In that view, there would appear to be no ground for denying a similar prerogative of delegation with respect to other subjects of legislation. The Constitution provides that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Article I, § 1. And the Congress is empowered "To make all Laws which shall be necessary and proper for carrying into Execution" its general powers. Article I, § 8, par. 18. The Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national Legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. Without capacity to give authorizations of that sort, we should have the anomaly of a legislative power which, in many circumstances calling for its exertion, would be but a futility. But the constant recognition of the necessity and validity of such provisions and the wide range of administrative authority which has been developed by means of them cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. The Court has had frequent occasion to refer to these limitations and to review the course of Congressional action. At the very outset, amid the disturbances due to war in Europe, when the national safety was imperiled Page 293 U. S. 422 and our neutrality was disregarded, the Congress passed a series of acts, as a part of which the President was authorized, in stated circumstances, to lay and revoke embargoes, to give permits for the exportation of arms and military stores, to remit and discontinue the restraints and prohibitions imposed by acts suspending commercial intercourse with certain countries, and to permit or interdict the entrance into waters of the United States of armed vessels belonging to foreign nations. [ Footnote 7 ] These early acts were not the subject of judicial decision, and, apart from that, they afford no adequate basis for a conclusion that the Congress assumed that it possessed an unqualified power of delegation. They were inspired by the vexations of American commerce through the hostile enterprises of the belligerent powers, [ Footnote 8 ] they were directed to the effective execution of policies repeatedly declared by the Congress, and they confided to the President, for the purposes and under the conditions stated, an authority which was cognate to the conduct by him of the foreign relations of the government. [ Footnote 9 ] Page 293 U. S. 423 The first case relating to an authorization of this description was that of The Aurora v. United States , 7 Cranch 382, 11 U. S. 388 . The cargo of that vessel had been condemned as having been imported from Great Britain in violation of the Nonintercourse Act of March 1, 1809. 2 Stat. 528. That act expired on May 1, 1810, [ Footnote 10 ] when Congress passed another Page 293 U. S. 424 act (2 Stat. 605, 606) providing that, in case either Great Britain or France, before March 3, 1811, "shall . . . so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation, and if the other nation shall not within three months thereafter so revoke or modify her edicts in like manner" (§ 4), then, with respect to that nation, as stated, the provisions of the act of 1809, after three months from that proclamation, "shall . . . be revived and have full force and effect." On November 2, 1810, the President issued his proclamation declaring that France had so revoked or modified her edicts, and it was contended that the provisions of the act of 1809, as to the cargo in question, had thus been revived. The Court said that it could see no sufficient reason why the Legislature should not exercise its discretion in reviving the Act of 1809, "either expressly or conditionally, as their judgment should direct." The provision of that act declaring "that it should continue in force to a certain time, and no longer," could not restrict the power of the Legislature to extend its operation "without limitation upon the occurrence of any subsequent combination of events." This was a decision, said the Court in Field v. Clark, 143 U. S. 649 , 143 U. S. 683 , "that it was competent for Congress to make the revival of an act depend upon the proclamation of the President, showing the ascertainment by him of the fact that the edicts of certain nations had been so revoked or modified that they did not violate the neutral commerce of the United States." In Field v. Clark, supra, the Court applied that ruling to the case of "the suspension of an act upon a contingency to be ascertained by the President, and made known by his proclamation." The Court was dealing with § 3 of the Act of October 1, 1890, 26 Stat. 567, 612. Page 293 U. S. 425 That section provided that, "with a view to secure reciprocal trade" with countries producing certain articles, "whenever, and so often as the President shall be satisfied" that the government of any country producing them imposed "duties or other exactions upon the agricultural or other products of the United States" which, in view of the free list established by the act, the President "may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty," to suspend the free introduction of those articles by proclamation to that effect, and that, during that suspension, the duties specified by the section should be levied. The validity of the provision was challenged as a delegation to the President of legislative power. The Court reviewed the early acts to which we have referred, as well as later statutes considered to be analogous. [ Footnote 11 ] While sustaining the provision, the Court emphatically declared that the principle that "Congress cannot delegate legislative power to the President" is "universally Page 293 U. S. 426 recognized as vital to the integrity and maintenance of the system of government ordained by the constitution." The Court found that the act before it was not inconsistent with that principle; that it did not, "in any real sense, invest the President with the power of legislation." As "the suspension was absolutely required when the President ascertained the existence of a particular fact," it could not be said "that in ascertaining that fact, and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws." "He was the mere agent of the lawmaking department to ascertain and declare the event upon which its expressed will was to take effect." Id., pp. 143 U. S. 692 , 143 U. S. 693 . The Court referred with approval to the distinction pointed out by the Supreme Court of Ohio in Cincinnati, W. & Z. R. Co. v. Commissioners, 1 Ohio St. 88, between "the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law." Applying that principle, authorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed have constantly been sustained. Moreover the Congress may not only give such authorizations to determine specific facts, but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy; that is, as Chief Justice Marshall expressed it, "to fill up the details" under the general provisions made by the Legislature. Wayman v. Southard , 10 Wheat. 1, 23 U. S. 43 . In Buttfield v. Stranahan, 192 U. S. 470 , 192 U. S. 496 , the Act of March 2, 1897 (29 Stat. 604, 605), was upheld, which authorized the Secretary of the Treasury, upon the recommendation of a board of experts, to "establish uniform standards of purity, quality, and fitness Page 293 U. S. 427 for consumption of all kinds of teas imported into the United States." The Court construed the statute as expressing "the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality." The Congress, the Court said, thus fixed "a primary standard," and committed to the Secretary of the Treasury "the mere executive duty to effectuate the legislative policy declared in the statute." "Congress legislated on the subject as far as was reasonably practicable, and, from the necessities of the case, was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute." See Red "C" Oil Co. v. North Carolina, 222 U. S. 380 , 222 U. S. 394 . Another notable illustration is that of the authority given to the Secretary of War to determine whether bridges and other structures constitute unreasonable obstructions to navigation, and to remove such obstructions. Act of March 3, 1899, § 18, 30 Stat. 1153, 1154. By that statute, the Congress declared "a general rule and imposed upon the Secretary of War the duty of ascertaining what particular cases came within the rule" as thus laid down. Union Bridge Co. v. United States, 204 U. S. 364 , 204 U. S. 386 ; Monongahela Bridge Co. v. United States, 216 U. S. 177 , 216 U. S. 193 ; Philadelphia Co. v. Stimson, 223 U. S. 605 , 223 U. S. 638 . Upon this principle rests the authority of the Interstate Commerce Commission, in the execution of the declared policy of the Congress in enforcing reasonable rates, in preventing undue preferences and unjust discriminations, in requiring suitable facilities for transportation in interstate commerce, and in exercising other powers held to have been validly conferred. St. Louis, I.M. & S. Ry. Co. v. Taylor, 210 U. S. 281 , 210 U. S. 287 ; Inter-Mountain Rate Cases, 234 U. S. 476 , 234 U. S. 486 ; Avent v. United States, 266 U. S. 127 , 266 U. S. 130 ; New York Central Securities Corporation Page 293 U. S. 428 v. United States, 287 U. S. 12 , 287 U. S. 24 -25. Upon a similar ground the authority given to the President, in appropriate relation to his functions as Commander-in-Chief, by the Trading with the Enemy Act, as amended by the Act of March 28, 1918 (40 Stat. 460), with respect to the disposition of enemy property, was sustained. "The determination," said the Court, "of the terms of sales of enemy properties in the light of facts and conditions from time to time arising in the progress of war was not the making of a law; it was the application of the general rule laid down by the act." United States v. Chemical Foundation, 272 U. S. 1 , 272 U. S. 12 . [ Footnote 12 ] The provisions of the Radio Act of 1927 (44 Stat. 1162, 1163), providing for assignments of frequencies or wave lengths to various stations, afford another instance. In granting licenses, the Radio Commission is required to act "as public convenience, interest, or necessity requires." In construing this provision, the Court found that the statute itself declared the policy as to "equality of radio broadcasting service, both of transmission and of reception," and that it conferred authority to make allocations and assignments in order to secure, according to stated criteria, an equitable adjustment in the distribution of facilities. [ Footnote 13 ] The standard set up was not so indefinite "as to confer an unlimited power." Federal Radio Commission v. Nelson Brothers Co., 289 U. S. 266 , 289 U. S. 279 , 289 U. S. 285 . So also, from the beginning of the government, the Congress has conferred upon executive officers the power to make regulations -- "not for the government of their departments, but for administering the laws which did govern." United States v. Grimaud, 220 U. S. 506 , 220 U. S. 517 . Such regulations become, indeed, binding rules of conduct, Page 293 U. S. 429 but they are valid only as subordinate rules and when found to be within the framework of the policy which the Legislature has sufficiently defined. In the case of Grimaud, supra, a regulation made by the Secretary of Agriculture requiring permits for grazing sheep on a forest reserve of lands belonging to the United States was involved. The Court referred to the various acts for the establishment and management of forest reservations and the authorization of rules which would "insure the objects of such reservations," that is, "to regulate their occupancy and use, and to preserve the forests thereon from destruction." The Court observed that "it was impracticable for Congress to provide general regulations for these various and varying details of management," and that, in authorizing the Secretary of Agriculture to meet local conditions, Congress "was merely conferring administrative functions upon an agent, and not delegating to him legislative power." Id., pp. 220 U. S. 515 -516. The Court quoted with approval the statement of the principle in Field v. Clark, supra, that the Congress cannot delegate legislative power, and upheld the regulation in question as an administrative rule for the appropriate execution of the policy laid down in the statute. See Wayman v. Southard, supra; Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194 , 224 U. S. 214 -215; Selective Draft Law Cases, 245 U. S. 366 , 245 U. S. 389 ; McKinley v. United States, 249 U. S. 397 . The applicable considerations were reviewed in Hampton & Co. v. United States, 276 U. S. 394 , where the Court dealt with the so-called "flexible tariff provision" of the Act of September 21, 1922 (42 Stat. 858, 941, 942), and with the authority which it conferred upon the President. The Court applied the same principle that permitted the Congress to exercise its ratemaking power in interstate commerce, and found that a similar provision was justified for the fixing of customs duties; that is, as the Court said: "If Congress shall lay down by Page 293 U. S. 430 legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under Congressional authority." The Court sustained the provision upon the authority of Field v. Clark, supra, repeating with approval what was there said, that "What the President was required to do was merely in execution of the act of Congress." Id., pp. 276 U. S. 409 -411. Thus, in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that § 9(c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited. If § 9(c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its lawmaking function. The reasoning of the many decisions we have reviewed would be made vacuous, and their distinctions nugatory. Instead of performing its lawmaking function, the Congress could, at will and as to such subjects as it chooses, transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government. Page 293 U. S. 431 Sixth. There is another objection to the validity of the prohibition laid down by the executive order under § 9(c). The executive order contains no finding, no statement of the grounds of the President's action in enacting the prohibition. Both § 9(c) and the executive order are in notable contrast with historic practice (as shown by many statutes and proclamations we have cited in the margin [ Footnote 14 ]) by which declarations of policy are made by the Congress and delegations are within the framework of that policy and have relation to facts and conditions to be found and stated by the President in the appropriate exercise of the delegated authority. If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern the exercise of the authority conferred, the President could not act validly without having regard to those circumstances and conditions. And findings by him as to the existence of the required basis of his action would be necessary to sustain that action, for otherwise the case would still be one of an unfettered discretion as the qualification of authority would be ineffectual. The point is pertinent in relation to the first section of the National Industrial Recovery Act. We have said that the first section is but a general introduction, that it declares no policy and defines no standard with respect to the transportation which is the subject of § 9(c). But if, from the extremely broad description contained in that section and the widely different matters to which the section refers, it were possible to derive a statement of prerequisites to the President's action under § 9(c), it would still be necessary for the President to comply with those conditions and to show that compliance as the ground of his prohibition. To hold Page 293 U. S. 432 that he is free to select as he chooses from the many and various objects generally described in the first section, and then to act without making any finding with respect to any object that he does select, and the circumstances properly related to that object, would be, in effect, to make the conditions inoperative and to invest him with an uncontrolled legislative power. We are not dealing with action which, appropriately belonging to the executive province, is not the subject of judicial review or with the presumptions attaching to executive action. [ Footnote 15 ] To repeat, we are concerned with the question of the delegation of legislative power. If the citizen is to be punished for the crime of violating a legislative order of an executive officer, or of a board or commission, due process of law requires that it shall appear that the order is within the authority of the officer, board, or commission, and, if that authority depends on determinations of fact, those determinations must be shown. As the Court said in Wichita Railroad & Light Co. v. Public Utilities Comm'n, 260 U. S. 48 , 260 U. S. 59 : "In creating such an administrative agency, the Legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined, and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective. Page 293 U. S. 433 It is pressed on us that the lack of an express finding may be supplied by implication and by reference to the averments of the petition invoking the action of the Commission. We cannot agree to this." Referring to the ruling in the Wichita Case, the Court said in Mahler v. Eby, 264 U. S. 32 , 264 U. S. 44 : "We held that the order in that case, made after a hearing and ordering a reduction, was void for lack of the express finding in the order. We put this conclusion not only on the language of the statute, but also on general principles of constitutional government." We cannot regard the President as immune from the application of these constitutional principles. When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation. We see no escape from the conclusion that the Executive Orders of July 11, 1933, and July 14, 1933, and the regulations issued by the Secretary of the Interior thereunder, are without constitutional authority. The decrees of the Circuit Court of Appeals are reversed, and the causes are remanded to the District Court, with direction to modify its decrees in conformity with this opinion so as to grant permanent injunctions, restraining the defendants from enforcing those orders and regulations. It is so ordered. [ Footnote 1 ] The full text of the Executive Order of July 11, 1933, is as follows: " Executive Order" " Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage. " "By virtue of the authority vested in me by the Act of Congress entitled 'An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' approved June 16, 1933 (Public No. 67, 73d Congress), the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State, is hereby prohibited." "FRANKLIN D. ROOSEVELT" "The White House," "July 11, 1933" [ Footnote 2 ] The Executive Order of July 14, 1933, is as follows: " Executive Order" " Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage. " "By virtue of the authority vested in me by the Act of Congress, entitled 'An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' approved June 16, 1933 (Public No. 67, 73d Congress), in order to effectuate the intent and purpose of the Congress as expressed in Section 9(c) thereof, and for the purpose of securing the enforcement of my order of July 11, 1933, issued pursuant to said act, I hereby authorize the Secretary of the Interior to exercise all the powers vested in me, for the purpose of enforcing Section 9(c) of said act and said order, including full authority to designate and appoint such agents and to set up such boards and agencies as he may see fit, and to promulgate such rules and regulations as he may deem necessary." "Franklin D. Roosevelt" "The White House," "July 14, 1933" [ Footnote 3 ] The Executive Order of August 19, 1933, is as follows: " Executive Order" " Code of Fair Competition for the Petroleum Industry " "An application having been duly made, pursuant to and in full compliance with the provisions of Title I of the National Industrial Recovery Act, approved June 16, 1933, for my approval of a Code of Fair Competition for the Petroleum Industry, and hearings having been held thereon and the Administrator having rendered his report together with his recommendations and findings with respect thereto, and the Administrator having found that the said Code of Fair Competition complies in all respects with the pertinent provisions of Title I of said Act and that the requirements of clauses (1) and (2) of subsection (a) of Section 3 of the said Act have been met:" "NOW, THEREFORE, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by Title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do adopt and approve the report, recommendations and findings of the Administrator, and do order that the said Code of Fair Competition be, and it is hereby, approved." "Franklin D. Roosevelt" "Approval Recommended:" "Hugh S. Johnson" " Administrator " "The White House" "August 19, 1933" [ Footnote 4 ] The government states that, although the second paragraph of section 4 of article III was a part of the Code for a short period prior to September 13, 1933, no legal basis exists for prosecution for production in Texas during that period. [ Footnote 5 ] See United States v. The Schooner Peggy , 1 Cranch, 103, 5 U. S. 109 -110; Dinsmore v. Southern Express Co., 183 U. S. 115 , 183 U. S. 120 ; Crozier v. Fried Krupp Aktiengesellschaft, 224 U. S. 290 , 224 U. S. 302 ; Gulf, Colorado & Santa Fe R. Co. v. Dennis, 224 U. S. 503 , 224 U. S. 507 ; Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9 , 248 U. S. 21 ; Duplex Printing Press Co. v. Deering, 254 U. S. 443 , 254 U. S. 464 ; American Steel Foundries v. Tri-City Council, 257 U. S. 184 , 257 U. S. 201 ; Texas Company v. Brown, 258 U. S. 466 , 258 U. S. 474 . [ Footnote 6 ] The text of section 1 is as follows: "Section 1. A national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist. It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources." [ Footnote 7 ] Acts of June 4, 1794, 1 Stat. 372; March 3, 1795, 1 Stat. 444; June 13, 1798, 1 Stat. 565, 566; February 9, 1799, 1 Stat. 613, 615; February 27, 1800, 2 Stat. 7, 9, 10; March 3, 1805, 2 Stat. 339, 341, 342; February 28, 1806, 2 Stat. 351, 352; April 22, 1808, 2 Stat. 490. [ Footnote 8 ] Marshall's Life of Washington, vol. 2, p. 319 et seq. [ Footnote 9 ] Thus, prior to the Act of June 4, 1794 (1 Stat. 372), the Congress had laid embargoes, for limited periods, upon vessels in ports of the United States bound to foreign ports. Resolutions of March 26, 1794, and April 18, 1794, 1 Stat. 400, 401. Fearing that the national safety might be endangered, the President, by the Act of June 4, 1794, was authorized to lay an embargo, with appropriate regulations, whenever he found that "the public safety shall so require," the authority not to be exercised while the Congress was in session and the embargo to be limited in any case to 15 days after the commencement of the next session. The Act of March 3, 1795 (1 Stat. 444), authorizing the President to permit the exportation of arms, etc., was "in cases connected with the security of the commercial interest of the United States, and for public purposes only." By the Act of June 13, 1798 (1 Stat. 565), commercial intercourse was suspended between the United States and France and its dependencies. The act was to continue only until the end of the next session of Congress, and it was provided (§ 5) that if, before the next session, the government of France "shall clearly disavow, and shall be found to refrain from the aggressions, depredations and hostilities" against the vessels and other property of citizens of the United States, and shall acknowledge the neutrality of the United States, "it shall be lawful for the President," "being well ascertained of the premises," to remit and discontinue the prohibitions and restraints imposed by the act, and to make proclamation accordingly. The Act of February 9, 1799 (1 Stat. 613), further suspended commercial intercourse between the United States and France and its dependencies until March 3, 1800, and gave a similar authority (§ 4) to the President to remit and discontinue the restraints and prohibitions of the act, "if he shall deem it expedient and consistent with the interest of the United States," either with respect to the French Republic or to any place belonging to that republic, "with which a commercial intercourse may safely be renewed," and to revoke such order if he found that the interest of the United States so required. The suspension of commercial intercourse was renewed by the Act of February 27, 1800 (2 Stat. 7) until March 3, 1801, with a similar provision as to the authority of the President. The Act of March 3, 1805 (2 Stat. 339), related to persons committing treason, felony, etc., within the jurisdiction of the United States and taking refuge in foreign armed vessels, and the authority to the President to permit or prevent the entry of such vessels into the waters of the United States (§ 4) was "in order to prevent insults to the authority of the laws, whereby the peace of the United States with foreign nations may be endangered." See also Act of April 22, 1808, 2 Stat. 490. See also Proclamations of President Adams, "Works of John Adams," vol. IX, pp. 176, 177. [ Footnote 10 ] See Act of June 28, 1809, 2 Stat. 550. [ Footnote 11 ] Acts of March 3, 1815, 3 Stat. 224; March 3, 1817, 3 Stat. 361; January 7, 1824, 4 Stat. 2; May 24, 1828, 4 Stat. 308; May 31, 1830, 4 Stat. 425; March 6, 1866, 14 Stat. 3; March 3, 1883, 22 Stat. 490; June 26, 1884, 23 Stat. 57; October 1, 1890, 26 Stat. 616; R.S. §§ 2493, 2494, 4219, 4228. Proclamations of Presidents: 3 Stat.App. 1; 4 Stat.App. 3, pp. 814-818; 9 Stat.App. 1001, 1004; 11 Stat.App. 795; 13 Stat.App. 739; 14 Stat.App. 818, 819; 16 Stat.App. 1127; 17 Stat.App. 954, 956, 957; 21 Stat. 800; 23 Stat. 841, 842, 844. For other analogous statutes, see Acts of December 17, 1813, 3 Stat. 88, 93; June 19, 1886, 24 Stat. 79, 82; March 3, 1887, 24 Stat. 475; August 30, 1890, 26 Stat. 414, 415; February 15, 1893, 27 Stat. 449, 452; March 2, 1895, 28 Stat. 727, 733; September 8, 1916, 39 Stat. 756, 799; June 15, 1917, 40 Stat. 217, 225; August 10, 1917, 40 Stat. 276; October 6, 1917, 40 Stat. 411, 422; March 4, 1919, 40 Stat. 1348, 1350; June 17, 1930, 46 Stat. 590, 704. Resolutions of March 14, 1912, 37 Stat. 630; January 31, 1922, 42 Stat. 361. Proclamations: 24 Stat. 1024, 1025, 1028, 1030; 27 Stat. 995, 1011; 38 Stat. 1960; 39 Stat. 1756; 40 Stat. 1683, 1689 et seq. [ Footnote 12 ] See also §§ 4(b) and 5(a) of the Trading with the Enemy Act, 40 Stat. 411, 414, 415. [ Footnote 13 ] Act of March 28, 1928, amending § 9 of the Radio Act of 1927, 45 Stat. 373. [ Footnote 14 ] See Acts and Proclamations cited in note 11 supra. [ Footnote 15 ] See Philadelphia & Trenton R. Co. v. Stimpson , 14 Pet. 448, 39 U. S. 458 ; Martin v. Mott , 12 Wheat. 19, 25 U. S. 30 , 25 U. S. 32 ; Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163 , 250 U. S. 182 , 250 U. S. 184 ; United States v. Chemical Foundation, 272 U. S. 1 , 272 U. S. 14 -15; Sterling v. Constantin, 287 U. S. 378 , 287 U. S. 399 . MR. JUSTICE CARDOZO, dissenting. With all that is said in the opinion of the court as to the Code of Fair Competition adopted by the President August 16, 1933, for the Governance of the Petroleum Industry, I am fully in accord. No question is before us at this time as to the power of Congress to regulate production. No question is here as to its competence to clothe the President with a delegated power whereby a code of fair competition may become invested with the force of Page 293 U. S. 434 law. The petitioners were never in jeopardy by force of such a code or of regulations made thereunder. They were not in jeopardy because there was neither statute nor regulation subjecting them to pains or penalties if they set the Code at naught. One must deplore the administrative methods that brought about uncertainty for a time as to the terms of executive orders intended to be law. Even so, the petitioners do not stand in need of an injunction to restrain the enforcement of a nonexistent mandate. I am unable to assent to the conclusion that § 9(c) of the National Recovery Act, a section delegating to the President a very different power from any that is involved in the regulation of production or in the promulgation of a code, is to be nullified upon the ground that his discretion is too broad or for any other reason. My point of difference with the majority of the court is narrow. I concede that, to uphold the delegation, there is need to discover in the terms of the act a standard reasonably clear whereby discretion must be governed. I deny that such a standard is lacking in respect of the prohibitions permitted by this section when the act, with all its reasonable implications, is considered as a whole. What the standard is becomes the pivotal inquiry. As to the nature of the act which the President is authorized to perform, there is no need for implication. That, at least, is definite beyond the possibility of challenge. He may prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted by any state law or valid regulation or order prescribed thereunder. He is not left to roam at will among all the possible subjects of interstate transportation, picking and choosing as he pleases. I am far from asserting now that delegation would be Page 293 U. S. 435 valid if accompanied by all that latitude of choice. In the laying of his interdict, he is to confine himself to a particular commodity, and to that commodity when produced or withdrawn from storage in contravention of the policy and statutes of the states. He has choice, though within limits, as to the occasion, but none whatever as to the means. The means have been prescribed by Congress. There has been no grant to the Executive of any roving commission to inquire into evils and then, upon discovering them, do anything he pleases. His act being thus defined, what else must he ascertain in order to regulate his discretion and bring the power into play? The answer is not given if we look to § 9(c) only, but it comes to us by implication from a view of other sections where the standards are defined. The prevailing opinion concedes that a standard will be as effective if imported into § 9(c) by reasonable implication as if put there in so many words. If we look to the whole structure of the statute, the test is plainly this, that the President is to forbid the transportation of the oil when he believes, in the light of the conditions of the industry as disclosed from time to time, that the prohibition will tend to effectuate the declared policies of the act -- not merely his own conception of its policies, undirected by any extrinsic guide, but the policies announced by § 1 in the forefront of the statute as an index to the meaning of everything that follows. [ Footnote 2/1 ] Page 293 U. S. 436 Oil produced or transported in excess of a statutory quota is known in the industry as "hot oil," and the record is replete with evidence as to the effect of such production and transportation upon the economic situation and upon national recovery. A declared policy of Congress in the adoption of the act is "to eliminate unfair competitive practices." Beyond question, an unfair competitive practice exists when "hot oil" is transported in interstate commerce with the result that law-abiding dealers must compete with lawbreakers. Here is one of the standards set up in the act to guide the President's discretion. Another declared policy of Congress is "to conserve natural resources." Beyond question, the disregard of statutory quotas is wasting the oil fields in Texas and other states and putting in jeopardy of exhaustion one of the treasures of the nation. All this is developed in the record and in the arguments of counsel for the government with a wealth of illustration. Here is a second standard. Another declared policy of Congress is to "promote the fullest possible utilization of the present productive capacity of industries," and "except as may be temporarily required" to "avoid undue restriction of production." Beyond question, prevailing conditions in the oil industry have brought about the need for temporary restriction in order to promote in the long run the fullest productive capacity of business, in all its many Page 293 U. S. 437 branches, for the effect of present practices is to diminish that capacity by demoralizing prices, and thus increasing unemployment. The ascertainment of these facts at any time or place was a task too intricate and special to be performed by Congress itself through a general enactment in advance of the event. All that Congress could safely do was to declare the act to be done and the policies to be promoted, leaving to the delegate of its power the ascertainment of the shifting facts that would determine the relation between the doing of the act and the attainment of the stated ends. That is what it did. It said to the President, in substance: you are to consider whether the transportation of oil in excess of the statutory quotas is offensive to one or more of the policies enumerated in § 1, whether the effect of such conduct is to promote unfair competition or to waste the natural resources or to demoralize prices or to increase unemployment or to reduce the purchasing power of the workers of the nation. If these standards or some of them have been flouted, with the result of a substantial obstruction to industrial recovery, you may then by a prohibitory order, eradicate the mischief. I am not unmindful of the argument that the President has the privilege of choice between one standard and another, acting or failing to act according to an estimate of values that is individual and personal. To describe his conduct thus is to ignore the essence of his function. What he does is to inquire into the industrial facts as they exist from time to time. Cf. Hampton & Co. v. United States, 276 U. S. 394 at p. 276 U. S. 409 ; Locke's Appeal, 72 Pa. 491, 498, quoted with approval in Field v. Clark, 143 U. S. 649 , at p. 143 U. S. 694 . These being ascertained, he is not to prefer one standard to another in any subjective attitude of mind, in any personal or willful way. He is to study the facts objectively, the violation of a standard Page 293 U. S. 438 impelling him to action or inaction according to its observed effect upon industrial recovery -- the ultimate end, as appears by the very heading of the title, to which all the other ends are tributary and mediate. Nor is there any essential conflict among the standards inter se, at all events when they are viewed in relation to § 9(c) and the power there conferred. In its immediacy, the exclusion of oil from the channels of transportation is a restriction of interstate commerce, not a removal of obstructions. This is self-evident, and, of course, was understood by Congress when the discretionary power of exclusion was given to its delegate. But what is restriction in its immediacy may in its ultimate and larger consequences be expansion and development. Congress was aware that, for the recovery of national wellbeing, there might be need of temporary restriction upon production in one industry or another. It said so in § 1. When it clothed the President with power to impose such a restriction -- to prohibit the flow of oil illegally produced -- it laid upon him a mandate to inquire and determine whether the conditions in that particular industry were such at any given time as to make restriction helpful to the declared objectives of the act and to the ultimate attainment of industrial recovery. If such a situation does not present an instance of lawful delegation in a typical and classic form ( Field v. Clark, 143 U. S. 649 ; United States v. Grimaud, 220 U. S. 506 ; Hampton & Co. v. United States, 276 U. S. 394 ), categories long established will have to be formulated anew. In what has been written, I have stated, but without developing the argument, that, by reasonable implication, the power conferred upon the President by § 9(c) is to be read as if coupled with the words that he shall exercise the power whenever satisfied that, by doing so, he will effectuate the policy of the statute as theretofore declared. Two canons of interpretation, each familiar to our law, Page 293 U. S. 439 leave no escape from that conclusion. One is that the meaning of a statute is to be looked for not in any single section, but in all the parts together, and in their relation to the end in view. Cherokee Intermarriage Cases, 203 U. S. 76 , 203 U. S. 89 ; McKee v. United States, 164 U. S. 287 ; Talbott v. Silver Bow County, 139 U. S. 438 , 139 U. S. 443 -444. The other is that, when a statute is reasonably susceptible of two interpretations, by one of which it is unconstitutional and by the other valid, the court prefers the meaning that preserves to the meaning that destroys. United States v. Delaware & Hudson Co., 213 U. S. 366 , 213 U. S. 407 ; Knights Templars' Indemnity Co. v. Jarman, 187 U. S. 197 , 187 U. S. 205 . Plainly, § 1, with its declaration of the will of Congress, is the chart that has been furnished to the President to enable him to shape his course among the reefs and shallows of this act. If there could be doubt as to this when § 1 is viewed alone, the doubt would be dispelled by the reiteration of the policy in the sections that come later. In § 2, which relates to administrative agencies, in § 3, which relates to codes of fair competition, in § 4, which relates to agreements and licenses, in § 6, which prescribes limitations upon the application of the statute, and in § 10, which permits the adoption of rules and regulations, authority is conferred upon the President to do one or more acts as the delegate of Congress when he is satisfied that thereby he will aid "in effectuating the policy of this title" or in carrying out its provisions. True, § 9, the one relating to petroleum, does not, by express words of reference, embody the same standard, yet nothing different can have been meant. What, indeed, is the alternative? Either the statute means that the President is to adhere to the declared policy of Congress or it means that he is to exercise a merely arbitrary will. The one construction invigorates the act; the other saps its life. A choice between them is not hard. Page 293 U. S. 440 I am persuaded that a reference, express or implied, to the policy of Congress as declared in § 1, is a sufficient definition of a standard to make the statute valid. Discretion is not unconfined and vagrant. It is canalized within banks that keep it from overflowing. Field v. Clark, 143 U. S. 649 , United States v. Grimaud, 220 U. S. 506 , and Hampton & Co. v. United States, 276 U. S. 394 , state the applicable principle. Under these decisions, the separation of powers between the Executive and Congress is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation, there must be elasticity of adjustment, in response to the practical necessities of government, which cannot foresee today the developments of tomorrow in their nearly infinite variety. The Interstate Commerce Commission, probing the economic situation of the railroads of the country, consolidating them into systems, shaping in numberless ways their capacities and duties, and even making or unmaking the prosperity of great communities ( Texas & Pacific Ry Co. v. United States, 289 U. S. 627 ), is a conspicuous illustration. See, e.g., 41 Stat. 479-482, c. 91, §§ 405, 406, 407, 408, 42 Stat. 27, c. 20, 49 U.S.C. §§ 3, 4, 5. Cf. Intermountain Rate Cases, 234 U. S. 476 ; N.Y. Central Securities Co. v. United States, 287 U. S. 12 , 287 U. S. 24 -25; Sharfman, The Interstate Commerce Commission, vol. 2, pp. 357, 365. There could surely be no question as to the validity of an act whereby carriers would be prohibited from transporting oil produced in contravention of a statute if in the judgment of the Commission the practice was demoralizing the market and bringing disorder and insecurity into the national economy. What may be delegated to a commission may be delegated to the President. "Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave Page 293 U. S. 441 the determination of such time to the decision of an executive." Hampton & Co. v. United States, supra, at p. 276 U. S. 407 . Only recently (1932), the whole subject was discussed with much enlightenment in the Report by the Committee on Ministers' Powers to the Lord Chancellor of Great Britain. See especially pages 23, 51. In the complex life of today, the business of government could not go on without the delegation, in greater or less degree, of the power to adapt the rule to the swiftly moving facts. A striking illustration of this need is found in the very industry affected by this section, the production of petroleum and its transportation between the states. At the passage of the National Recovery Act, no one could be certain how many of the states would adopt valid quota laws, or how generally the laws would be observed when adopted, or to what extent illegal practices would affect honest competitors or the stability of prices or the conservation of natural resources or the return of industrial prosperity. Much would depend upon conditions as they shaped themselves thereafter. Violations of the state laws might turn out to be so infrequent that the honest competitor would suffer little, if any, damage. The demand for oil might be so reduced that there would be no serious risk of waste, depleting or imperiling the resources of the nation. Apart from these possibilities, the business might become stabilized through voluntary cooperation or the adoption of a code or otherwise. Congress, not unnaturally, was unwilling to attach to the state laws a sanction so extreme as the cutting off of the privilege of interstate commerce unless the need for such action had unmistakably developed. What was left to the President was to ascertain the conditions prevailing in the industry, and prohibit or fail to prohibit according to the effect of those conditions upon the phases of the national policy relevant thereto. Page 293 U. S. 442 From a host of precedents available, both legislative and judicial, I cite a few as illustrations. By an act approved June 4, 1794, during the administration of Washington (1 Stat. 372; Field v. Clark, 143 U. S. 649 , 143 U. S. 683 ), Congress authorized the President, when Congress was not in session, and for a prescribed period "whenever, in his opinion, the public safety shall so require, to lay an embargo on all ships and vessels in the ports or the United States, or upon the ships and vessels of the United States, or the ships and vessels of any foreign nation, under such regulations as the circumstances of the case may require, and to continue or revoke the same whenever he shall think proper." By an act of 1799, February 9 (1 Stat. 613, 615), suspending commercial intercourse with France and its dependencies, "it shall be lawful for the President of the United States, if he shall deem it expedient and consistent with the interest of the United States, by his order, to remit, and discontinue, for the time being, the restraints and prohibitions aforesaid; . . . and also to revoke such order ( i.e., reestablish the restraints), whenever, in his opinion, the interest of the United States shall require." By an act of October 1, 1890 (26 Stat. 567, 612), sustained in Field v. Clark, supra, the President was authorized to suspend by proclamation the free introduction into this country of enumerated articles when satisfied that a country producing them imposes duties or other exactions upon the agricultural or other products of the United States which he may deem to be reciprocally unequal or unreasonable. By an act of September 21, 1922 (42 Stat. 858, 941, 945), sustained in Hampton & Co. v. United States, supra, the President was empowered to increase or decrease tariff duties so as to equalize the differences between the costs of production at home and abroad, and empowered, by the same means, to give redress for other acts of discrimination or unfairness "when he finds that the public interest will be Page 293 U. S. 443 served thereby." Delegation was not confined to an inquiry into the necessity or occasion for the change. It included the magnitude of the change, the delegate thus defining the act to be performed. By an act of June 4, 1897 (30 Stat. 11, 35), amended in 1905 (33 Stat. 628), regulating the forest reservations of the nation, the purpose of the reservations was declared to be "to improve and protect the forest within the reservation," and to secure "favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States." Without further guide or standard, the Secretary of Agriculture was empowered to "make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction." The validity of these provisions was upheld in United States v. Grimaud, supra, as against the claim by one who violated the rules that there had been an unlawful delegation. Many other precedents are cited in the margin. [ Footnote 2/2 ] They teach one lesson, and a clear one. There is no fear that the nation will drift from its ancient moorings as the result of the narrow delegation of power permitted by this section. What can be done under cover of that permission is closely and clearly circumscribed both as to subject matter and occasion. The statute was framed in the shadow of a national disaster. A host of unforeseen contingencies would have to be faced from day to day, and faced with a fullness of understanding Page 293 U. S. 444 unattainable by anyone except the man upon the scene. The President was chosen to meet the instant need. A subsidiary question remains as to the form of the executive order, which is copied in the margin. [ Footnote 2/3 ] The question is a subsidiary one, for, unless the statute is invalid, another order with fuller findings or recitals may correct the informalities of this one, if informalities there are. But the order, to my thinking, is valid as it stands. The President was not required either by the Constitution or by any statute to state the reasons that had induced him to exercise the granted power. It is enough that the grant of power had been made, and that, pursuant to that grant, he had signified the will to act. The will to act being declared, the law presumes that the declaration was preceded by due inquiry and that it was rooted in sufficient grounds. Such, for a hundred years and more, has been the doctrine of this court. The act of February 28, 1795 (1 Stat. 424) authorized the President "whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe," to call forth such number of the militia of the states as he shall deem necessary and to issue his Page 293 U. S. 445 orders to the appropriate officers for that purpose. Cf. Const. art. 1, cl. 15. When war threatened in the summer of 1812, President Madison, acting under the authority of that statute, directed Major General Dearborn to requisition from New York, Massachusetts, and Connecticut certain numbers of the states' militia. American State Papers, Military Affairs, vol. 1, pp. 322-325. No finding of "imminent danger of invasion" was made by the President in any express way, nor was such a finding made by the Secretary of War or any other official. The form of the requisitions to Massachusetts and Connecticut appears in the state papers of the government (American State Papers, supra ); the form of those to New York was almost certainly the same. Replevin was brought by a New York militia man who refused to obey the orders, and whose property had been taken in payment of a fine imposed by a court martial. The defendant, a deputy marshal, defended on the ground that the orders were valid, and the plaintiff demurred because there was no allegation that the President had adjudged that there was imminent danger of an invasion. The case came to this court. Martin v. Mott , 12 Wheat. 19, 25 U. S. 32 . In an opinion by Story, J., the court upheld the seizure. "The argument is [he wrote] that the power confided to the President is a limited power, and can be exercised only in the cases pointed out in the statute, and therefore, it is necessary to aver the facts which bring the exercise within the purview of the statute. In short, the same principles are sought to be applied to the delegation and exercise of this power intrusted to the executive of the nation for great political purposes as might be applied to the humblest officer in the government, acting upon the most narrow and special authority. It is the opinion of the Court that this objection cannot be maintained. When the President exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance Page 293 U. S. 446 of law. Every public officer is presumed to act in obedience to his duty until the contrary is shown, and, a fortiori, this presumption ought to be favor ably applied to the chief magistrate of the Union. It is not necessary to aver, that the act which he might rightfully do, was so done." A like presumption has been applied in other cases and in a great variety of circumstances. Philadelphia & Trenton R. Co. v. Stimpson , 14 Pet. 448, 39 U. S. 458 ,; Rankin v. Hoyt , 4 How. 327, 45 U. S. 335 ; Carpenter v. Rannels , 19 Wall. 138, 86 U. S. 146 ; The Confiscation Cases , 20 Wall. 92, 87 U. S. 109 ; Knox County v. Ninth National Bank, 147 U. S. 91 , 147 U. S. 97 ; United States v. Chemical Foundation, 272 U. S. 1 , 272 U. S. 14 -15. This does not mean that the individual is helpless in the face of usurpation. A court will not revise the discretion of the Executive, sitting in judgment on his order as if it were the verdict of a jury. Martin v. Mott, supra. On the other hand, we have said that his order may not stand if it is an act of mere oppression, an arbitrary fiat that overleaps the bounds of judgment. Sterling v. Constantin, 287 U. S. 378 , 287 U. S. 399 -401. The complainants and others in their position may show, if they can, that in no conceivable aspect was there anything in the conditions of the oil industry in July, 1933, to establish a connection between the prohibitory order and the declared policies of the Congress. This is merely to say that the standard must be such as to have at least a possible relation to the act to be performed under the delegated power. One can hardly suppose that a prohibitory order would survive a test in court if the Executive were to assert a relation between the transportation of petroleum and the maintenance of the gold standard or the preservation of peace in Europe or the Orient. On the other hand, there can be no challenge of such a mandate unless the possibility of a rational nexus is lacking altogether. Page 293 U. S. 447 Here, in the case at hand, the relation between the order and the standard is manifest upon the face of the transaction from facts so notorious as to be within the range of our judicial notice. There is significance in the fact that it is not challenged even now. The President, when acting in the exercise of a delegated power, is not a quasi -judicial officer, whose rulings are subject to review upon certiorari or appeal ( Chicago Junction Case, 264 U. S. 258 , 264 U. S. 265 ; cf. Givens v. Zerbst, 255 U. S. 11 , 255 U. S. 20 ), or an administrative agency supervised in the same way. Officers and bodies such as those may be required by reviewing courts to express their decision in formal and explicit findings to the end that review may be intelligent. Florida v. United States, 282 U. S. 194 , 282 U. S. 215 ; Beaumont, Sour Lake & Western Ry. Co. v. United States, 282 U. S. 74 , 282 U. S. 86 ; United States v. Baltimore & Ohio R. Co., post, p. 454. Cf. Public Service Commission of Wisconsin v. Wisconsin Telephone Co., 289 U. S. 67 . Such is not the position or duty of the President. He is the Chief Executive of the nation, exercising a power committed to him by Congress and subject, in respect of the formal qualities of his acts, to the restrictions, if any, accompanying the grant, but not to any others. One will not find such restrictions either in the statute itself or in the Constitution back of it. The Constitution of the United States is not a code of civil practice. The prevailing opinion cites Wichita Railroad & Light Co. v. Public Utilities Commission of Kansas, 260 U. S. 48 , and Mahler v. Eby, 264 U. S. 32 , 264 U. S. 44 . One dealt with a delegation to a public utilities commission of the power to reduce existing rates if they were found to be unreasonable; the other a delegation to the Secretary of Labor of the power to deport aliens found after notice and a hearing to be undesirable residents. In each, it was a Page 293 U. S. 448 specific requirement of the statute that the basic fact conditioning action by the administrative agency be stated in a finding and stated there expressly. If legislative power is delegated subject to a condition, it is a requirement of constitutional government that the condition be fulfilled. In default of such fulfillment, there is in truth no delegation, and hence no official action, but only the vain show of it. The analogy is remote between power so conditioned and that in controversy here. Discretionary action does not become subject to review because the discretion is legislative, rather than executive. If the reasons for the prohibition now in controversy had been stated in the order, the jurisdiction of the courts would have been no greater and no less. Investigation resulting in an order directed against a particular person after notice and a hearing is not to be confused with investigation preliminary and incidental to the formulation of a rule. An embargo under the act of 1794 would have been more than a nullity though there had been a failure to recite that what was done was essential to the public safety or to enumerate the reasons leading to that conclusion. If findings are necessary as a preamble to general regulations, the requirement must be looked for elsewhere than in the Constitution of the nation. There are other questions as to the validity of § 9(c) in matters unrelated to the delegation of power to the President, and also questions as to the regulations adopted in behalf of the President by the Secretary of the Interior. They are not considered in the prevailing opinion. However, they have been well reviewed and disposed of in the opinion of Sibley, J., writing for the court below. It is unnecessary at this time to dwell upon them further. The decree in each case should be affirmed. [ Footnote 2/1 ] "Section 1. . . . It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources." The act as a whole is entitled as one "To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes," and the heading of title I, which includes §§ 1 to 10, is "Industrial Recovery." [ Footnote 2/2 ] 2 Stat. 411, December 19, 1806; 3 Stat. 224, March 3, 1815; 23 Stat. 31, 32, May 29, 1884; 25 Stat. 659, February 9, 1889; 38 Stat. 717, September 26, 1914; 41 Stat. 593, May 10, 1920; Williams v. United States, 138 U. S. 514 ; Buttfield v. Stranahan, 192 U. S. 470 ; Intermountain Rate Cases, 234 U. S. 476 ; Mahler v. Eby, 264 U. S. 32 . Cf. Emergency Banking Act of March 9, 1933, 48 Stat. 1; Agricultural Adjustment Act of May 12, 1933, 48 Stat. 51, 53, § 43. [ Footnote 2/3 ] Executive Order. Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage. By virtue of the authority vested in me by the Act of Congress entitled "An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes," approved June 16, 1933 (Public No. 67, 73d Congress), the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State, is hereby prohibited. Franklin D. Roosevelt. The White House, July 11, 1933.

In Panama Refining Co. v. Ryan, the US Supreme Court reviewed the validity of an executive order issued by President Roosevelt under the National Industrial Recovery Act (NIRA). The order prohibited the interstate transportation of petroleum and related products produced or stored in excess of state-allowed amounts. The Court found that while Congress may have had the power to delegate such authority to the President, the NIRA failed to provide any policy or standard to guide the President's actions. The Court declared the delegation of legislative power to the President unconstitutional and affirmed the lower court's decision to enjoin the enforcement of the order.

Separation of Powers

INS v. Chadha

https://supreme.justia.com/cases/federal/us/462/919/

U.S. Supreme Court INS v. Chadha, 462 U.S. 919 (1983) INS v. Chadha No. 80-1832 Argued February 22, 1982 Reargued December 7, 1982 Decided June 23, 1983 462 U.S. 919 ast|>* 462 U.S. 919 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Section 244(c)(2) of the Immigration and Nationality Act (Act) authorizes either House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General, to allow a particular deportable alien to remain in the United States. Appellee-respondent Chadha, an alien who had been lawfully admitted to the United States on a nonimmigrant student visa, remained in the United States after his visa had expired and was ordered by the Immigration and Naturalization Service (INS) to show cause why he should not be deported. He then applied for suspension of the deportation, and, after a hearing, an Immigration Judge, acting pursuant to § 244(a)(1) of the Act, which authorizes the Attorney General, in his discretion, to suspend deportation, ordered the suspension, and reported the suspension to Congress as required by § 244(c)(1). Thereafter, the House of Representatives passed a resolution pursuant to § 244(c)(2) vetoing the suspension, and the Immigration Judge reopened the deportation proceedings. Chadha moved to terminate the proceedings on the ground that § 244(c)(2) is unconstitutional, but the judge held that he had no authority to rule on its constitutionality, and ordered Chadha deported pursuant to the House Resolution. Chadha's appeal to the Board of Immigration Appeals was dismissed, the Board also holding that it had no power to declare § 244(c)(2) unconstitutional. Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional. The Court of Appeals held that § 244(c)(2) violates the constitutional doctrine of separation of powers, and accordingly directed the Attorney General to cease taking any steps to deport Chadha based upon the House Resolution. Page 462 U. S. 920 Held: 1. This Court has jurisdiction to entertain the INS's appeal in No. 80-1832 under 28 U.S.C. § 1252, which provides that "[a]ny party" may appeal to the Supreme Court from a judgment of "any court of the United States" holding an Act of Congress unconstitutional in "any civil action, suit, or proceeding" to which the United States or any of its agencies is a party. A court of appeals is "a court of the United States" for purposes of § 1252, the proceeding below was a "civil action, suit, or proceeding," the INS is an agency of the United States and was a party to the proceeding below, and the judgment below held an Act of Congress unconstitutional. Moreover, for purposes of deciding whether the INS was "any party" within the grant of appellate jurisdiction in § 1252, the INS was sufficiently aggrieved by the Court of Appeals' decision prohibiting it from taking action it would otherwise take. An agency's status as an aggrieved party under § 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. Pp. 462 U. S. 929 -931. 2. Section 244(c)(2) is severable from the remainder of § 244. Section 406 of the Act provides that, if any particular provision of the Act is held invalid, the remainder of the Act shall not be affected. This gives rise to a presumption that Congress did not intend the validity of the Act as a whole, or any part thereof, to depend upon whether the veto clause of § 244(c)(2) was invalid. This presumption is supported by § 244's legislative history. Moreover, a provision is further presumed severable if what remains after severance is fully operative as a law. Here, § 244 can survive as a "fully operative" and workable administrative mechanism without the one-House veto. Pp. 462 U. S. 931 -935. 3. Chadha has standing to challenge the constitutionality of § 244(c)(2), since he has demonstrated "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 , 438 U. S. 79 . Pp. 462 U. S. 935 -936. 4. The fact that Chadha may have other statutory relief available to him does not preclude him from challenging the constitutionality of § 244(c)(2), especially where the other avenues of relief are at most speculative. Pp. 462 U. S. 936 -937. 5. The Court of Appeals had jurisdiction under § 106(a) of the Act, which provides that a petition for review in a court of appeals "shall be the sole and exclusive procedure for the judicial review of all final orders of deportation . . . made against aliens within the United States pursuant to administrative proceedings" under § 242(b) of the Act. Section 106(a) includes all matters on which the final deportation order is contingent, rather than only those determinations made at the deportation Page 462 U. S. 921 hearing. Here, Chadha's deportation stands or falls on the validity of the challenged veto, the final deportation order having been entered only to implement that veto. Pp. 462 U. S. 937 -939. 6. A case or controversy is presented by these cases. From the time of the House's formal intervention, there was concrete adverseness, and prior to such intervention, there was adequate Art. III adverseness even though the only parties were the INS and Chadha. The INS's agreement with Chadha's position does not alter the fact that the INS would have deported him absent the Court of Appeals' judgment. Moreover, Congress is the proper party to defend the validity of a statute when a Government agency, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is unconstitutional. Pp. 462 U. S. 939 -940. 7. These cases do not present a nonjusticiable political question on the asserted ground that Chadha is merely challenging Congress' authority under the Naturalization and Necessary and Proper Clauses of the Constitution. The presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by the courts simply because the issues have political implications. Pp. 462 U. S. 940 -943. 8. The congressional veto provision in § 244(c)(2) is unconstitutional. Pp. 462 U. S. 944 -959. (a) The prescription for legislative action in Art. I, § 1 -- requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives -- and § 7 -- requiring every bill passed by the House and Senate, before becoming law, to be presented to the President, and, if he disapproves, to be repassed by two-thirds of the Senate and House -- represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Pp. 462 U. S. 944 -951. (b) Here, the action taken by the House pursuant to § 244(c)(2) was essentially legislative in purpose and effect, and thus was subject to the procedural requirements of Art. I, § 7, for legislative action: passage by a majority of both Houses and presentation to the President. The one-House veto operated to overrule the Attorney General and mandate Chadha's deportation. The veto's legislative character is confirmed by the character of the congressional action it supplants; i.e., absent the veto provision of § 244(c)(2), neither the House nor the Senate, or both acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively Page 462 U. S. 922 delegated authority, had determined that the alien should remain in the United States. Without the veto provision, this could have been achieved only by legislation requiring deportation. A veto by one House under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. The nature of the decision implemented by the one-House veto further manifests its legislative character. Congress must abide by its delegation of authority to the Attorney General until that delegation is legislatively altered or revoked. Finally, the veto's legislative character is confirmed by the fact that, when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action in the Constitution. Pp. 462 U. S. 951 -959. 634 F.2d 408, affirmed. BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 462 U. S. 959 . WHITE, J., filed a dissenting opinion, post, p. 462 U. S. 967 . REHNQUIST, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 462 U. S. 1013 . Page 462 U. S. 923 CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration of the question of jurisdiction in No. 80-1832. Each presents a challenge to the constitutionality of the provision in § 244(c)(2) of the Immigration and Nationality Act, 66 Stat. 216, as amended, 8 U.S.C. § 1254(c)(2), authorizing one House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States. I Chadha is an East Indian who was born in Kenya and holds a British passport. He was lawfully admitted to the United States in 1966 on a nonimmigrant student visa. His visa expired on June 30, 1972. On October 11, 1973, the District Director of the Immigration and Naturalization Service ordered Chadha to show cause why he should not be deported for having "remained in the United States for a longer time than permitted." App. 6. Pursuant to § 242(b) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1252(b), a deportation hearing was held before an Immigration Judge on January 11, 1974. Chadha conceded that he was deportable for overstaying his visa, and the hearing was adjourned to enable him to file an application for suspension of deportation under § 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1). Section 244(a)(1), at the time in question, provided: "As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and -- " "(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United Page 462 U. S. 924 States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. [ Footnote 1 ]" After Chadha submitted his application for suspension of deportation, the deportation hearing was resumed on February 7, 1974. On the basis of evidence adduced at the hearing, affidavits submitted with the application, and the results of a character investigation conducted by the INS, the Immigration Judge, on June 25, 1974, ordered that Chadha's deportation be suspended. The Immigration Judge found that Chadha met the requirements of § 244(a)(1): he had resided continuously in the United States for over seven years, was of good moral character, and would suffer "extreme hardship" if deported. Pursuant to § 244(c)(1) of the Act, 8 U.S.C. § 1254(c)(1), the Immigration Judge suspended Chadha's deportation and a report of the suspension was transmitted to Congress. Section 244(c)(1) provides: "Upon application by any alien who is found by the Attorney General to meet the requirements of subsection (a) of this section the Attorney General may in his discretion suspend deportation of such alien. If the deportation of any alien is suspended under the provisions of this subsection, a complete and detailed statement of the Page 462 U. S. 925 facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. Such reports shall be submitted on the first day of each calendar month in which Congress is in session." Once the Attorney General's recommendation for suspension of Chadha's deportation was conveyed to Congress, Congress had the power under § 244(c)(2) of the Act, 8 U.S.C. § 1254(c)(2), to veto [ Footnote 2 ] the Attorney General's determination that Chadha should not be deported. Section 244(c)(2) provides: "(2) In the case of an alien specified in paragraph (1) of subsection (a) of this subsection -- " "if during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, either the Senate or the House of Representatives passes a resolution stating in substance that it does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien or authorize the alien's voluntary departure at his own expense under the order of deportation in the manner provided by law. If, within the time above specified, neither the Senate nor the House of Representatives shall pass such a resolution, the Attorney General shall cancel deportation proceedings. " Page 462 U. S. 926 The June 25, 1974, order of the Immigration Judge suspending Chadha's deportation remained outstanding as a valid order for a year and a half. For reasons not disclosed by the record, Congress did not exercise the veto authority reserved to it under § 244(c)(2) until the first session of the 94th Congress. This was the final session in which Congress, pursuant to § 244(c)(2), could act to veto the Attorney General's determination that Chadha should not be deported. The session ended on December 19, 1975. 121 Cong.Rec. 42014, 42277 (1975). Absent congressional action, Chadha's deportation proceedings would have been canceled after this date and his status adjusted to that of a permanent resident alien. See 8 U.S.C. § 1254(d). On December 12, 1975, Representative Eilberg, Chairman of the Judiciary Subcommittee on Immigration, Citizenship, and International Law, introduced a resolution opposing "the granting of permanent residence in the United States to [six] aliens," including Chadha. H.Res. 926, 94th Cong., 1st Sess.; 121 Cong Rec. 40247 (1975). The resolution was referred to the House Committee on the Judiciary. On December 16, 1975, the resolution was discharged from further consideration by the House Committee on the Judiciary and submitted to the House of Representatives for a vote. 121 Cong.Rec. 40800. The resolution had not been printed and was not made available to other Members of the House prior to or at the time it was voted on. Ibid. So far as the record before us shows, the House consideration of the resolution was based on Representative Eilberg's statement from the floor that "[i]t was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution [Chadha and five others] did not meet these statutory requirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended." Ibid. Page 462 U. S. 927 The resolution was passed without debate or recorded vote. [ Footnote 3 ] Since the House action was pursuant to § 244(c)(2), the resolution was not treated as an Art. I legislative act; it was not Page 462 U. S. 928 submitted to the Senate or presented to the President for his action. After the House veto of the Attorney General's decision to allow Chadha to remain in the United States, the Immigration Judge reopened the deportation proceedings to implement the House order deporting Chadha. Chadha moved to terminate the proceedings on the ground that § 244(c)(2) is unconstitutional. The Immigration Judge held that he had no authority to rule on the constitutional validity of § 244(c)(2). On November 8, 1976, Chadha was ordered deported pursuant to the House action. Chadha appealed the deportation order to the Board of Immigration Appeals, again contending that § 244(c)(2) is unconstitutional. The Board held that it had "no power to declare unconstitutional an act of Congress," and Chadha's appeal was dismissed. App. 55-56. Pursuant to § 106(a) of the Act, 8 U.S.C. § 1105a(a), Chadha filed a petition for review of the deportation order in the United States Court of Appeals for the Ninth Circuit. The Immigration and Naturalization Service agreed with Chadha's position before the Court of Appeals and joined him in arguing that § 244(c)(2) is unconstitutional. In light of the importance of the question, the Court of Appeals invited both the Senate and the House of Representatives to file briefs amici curiae. After full briefing and oral argument, the Court of Appeals held that the House was without constitutional authority to order Chadha's deportation; accordingly it directed the Attorney General "to cease and desist from taking any steps to deport this alien based upon the resolution enacted by the House of Representatives." 634 F.2d 408, 436 (1980). The essence of its holding was that § 244(c)(2) violates the constitutional doctrine of separation of powers. We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration of our jurisdiction over the appeal in No. 80-1832, 454 U.S. 812 (1981), and we now affirm. Page 462 U. S. 929 II Before we address the important question of the constitutionality of the one-House veto provision of § 244(c)(2), we first consider several challenges to the authority of this Court to resolve the issue raised. A Appellate Jurisdiction Both Houses of Congress [ Footnote 4 ] contend that we are without jurisdiction under 28 U.S.C. § 1252 to entertain the INS appeal in No. 80-1832. Section 1252 provides: "Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and any court of record of Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party." Parker v. Levy, 417 U. S. 733 , 417 U. S. 742 , n. 10 (1974), makes clear that a court of appeals is a "court of the United States" for purposes of § 1252. It is likewise clear that the proceeding below was a "civil action, suit, or proceeding," that the INS is an agency of the United States and was a party to the proceeding below, and that that proceeding held an Act of Congress -- namely, the one-House veto provision in § 244(c)(2) --unconstitutional. The express requisites for an appeal under § 1252, therefore, have been met. Page 462 U. S. 930 In motions to dismiss the INS appeal, the congressional parties [ Footnote 5 ] direct attention, however, to our statement that "[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it." Deposit Guaranty National Bank v. Roper, 445 U. S. 326 , 445 U. S. 333 (1980). Here, the INS sought the invalidation of § 244(c)(2), and the Court of Appeals granted that relief. Both Houses contend that the INS has already received what it sought from the Court of Appeals, is not an aggrieved party, and therefore cannot appeal from the decision of the Court of Appeals. We cannot agree. The INS was ordered by one House of Congress to deport Chadha. As we have set out more fully, supra, at 462 U. S. 928 , the INS concluded that it had no power to rule on the constitutionality of that order, and accordingly proceeded to implement it. Chadha's appeal challenged that decision, and the INS presented the Executive's views on the constitutionality of the House action to the Court of Appeals. But the INS brief to the Court of Appeals did not alter the agency's decision to comply with the House action ordering deportation of Chadha. The Court of Appeals set aside the deportation proceedings and ordered the Attorney General to cease and desist from taking any steps to deport Chadha, steps that the Attorney General would have taken were it not for that decision. At least for purposes of deciding whether the INS is "any party" within the grant of appellate jurisdiction in § 1252, we hold that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take. It is apparent that Congress intended that Page 462 U. S. 931 this Court take notice of cases that meet the technical prerequisites of § 1252; in other cases where an Act of Congress is held unconstitutional by a federal court, review in this Court is available only by writ of certiorari. When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal under § 1252. The agency's status as an aggrieved party under § 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. The appeal in No. 80-1832 is therefore properly before us. [ Footnote 6 ] B Severability Congress also contends that the provision for the one-House veto in § 244(c)(2) cannot be severed from § 244. Congress argues that, if the provision for the one-House veto is held unconstitutional, all of § 244 must fall. If § 244 in its entirety is violative of the Constitution, it follows that the Attorney General has no authority to suspend Chadha's deportation under § 244(a)(1), and Chadha would be deported. From this, Congress argues that Chadha lacks standing to challenge the constitutionality of the one-House veto provision, because he could receive no relief even if his constitutional challenge proves successful. [ Footnote 7 ] Only recently this Court reaffirmed that the invalid portions of a statute are to be severed "'[u]nless it is evident that Page 462 U. S. 932 the Legislature would not have enacted those provisions which are within its power, independently of that which is not.'" Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 108 (1976), quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U. S. 210 , 286 U. S. 234 (1932). Here, however, we need not embark on that elusive inquiry, since Congress itself has provided the answer to the question of severability in § 406 of the Immigration and Nationality Act, note following 8 U.S.C. § 1101, which provides: "If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby. " (Emphasis added.) This language is unambiguous, and gives rise to a presumption that Congress did not intend the validity of the Act as a whole, or of any part of the Act, to depend upon whether the veto clause of § 244(c)(2) was invalid. The one-House veto provision in § 244(c)(2) is clearly a "particular provision" of the Act as that language is used in the severability clause. Congress clearly intended "the remainder of the Act" to stand if "any particular provision" were held invalid. Congress could not have more plainly authorized the presumption that the provision for a one-House veto in § 244(c)(2) is severable from the remainder of § 244 and the Act of which it is a part. See Electric Bond & Share Co. v. SEC, 303 U. S. 419 , 303 U. S. 434 (1938). The presumption as to the severability of the one-House veto provision in § 244(c)(2) is supported by the legislative history of § 244. That section and its precursors supplanted the long-established pattern of dealing with deportations like Chadha's on a case-by-case basis through private bills. Although it may be that Congress was reluctant to delegate final authority over cancellation of deportations, such reluctance is not sufficient to overcome the presumption of severability raised by § 406. Page 462 U. S. 933 The Immigration Act of 1924, ch.190, § 14, 43 Stat. 162, required the Secretary of Labor to deport any alien who entered or remained in the United States unlawfully. The only means by which a deportable alien could lawfully remain in the United States was to have his status altered by a private bill enacted by both Houses and presented to the President pursuant to the procedures set out in Art. I, § 7, of the Constitution. These private bills were found intolerable by Congress. In the debate on a 1937 bill introduced by Representative Dies to authorize the Secretary to grant permanent residence in "meritorious" cases, Dies stated: "It was my original thought that the way to handle all these meritorious cases was through special bills. I am absolutely convinced as a result of what has occurred in this House that it is impossible to deal with this situation through special bills. We had a demonstration of that fact not long ago when 15 special bills were before this House. The House consumed 5 1/2 hours considering four bills, and made no disposition of any of the bills." 81 Cong.Rec. 5542 (1937). Representative Dies' bill passed the House, id. at 5574, but did not come to a vote in the Senate. 83 Cong.Rec. 8992-8996 (1938). Congress first authorized the Attorney General to suspend the deportation of certain aliens in the Alien Registration Act of 1940, ch. 439, § 20, 54 Stat. 671. That Act provided that an alien was to be deported, despite the Attorney General's decision to the contrary, if both Houses, by concurrent resolution, disapproved the suspension. In 1948, Congress amended the Act to broaden the category of aliens eligible for suspension of deportation. In addition, however, Congress limited the authority of the Attorney General to suspend deportations by providing that the Attorney General could not cancel a deportation unless both Houses affirmatively voted by concurrent resolution to approve the Attorney General's action. A ct of July 1, 1948, Page 462 U. S. 934 ch. 783, 62 Stat. 1206. The provision for approval by concurrent resolution in the 1948 Act proved almost as burdensome as private bills. Just one year later, the House Judiciary Committee, in support of the predecessor to § 244(c)(2), stated in a Report: "In the light of experience of the last several months, the committee came to the conclusion that the requirement of affirmative action by both Houses of the Congress in many thousands of individual cases which are submitted by the Attorney General every year is not workable, and places upon the Congress and particularly on the Committee on the Judiciary responsibilities which it cannot assume. The new responsibilities placed upon the Committee on the Judiciary [by the concurrent resolution mechanism] are of purely administrative nature, and they seriously interfere with the legislative work of the Committee on the Judiciary and would, in time, interfere with the legislative work of the House." H.R.Rep. No. 362, 81st Cong., 1st Sess., 2 (1949). The proposal to permit one House of Congress to veto the Attorney General's suspension of an alien's deportation was incorporated in the Immigration and Nationality Act of 1952, Pub.L. 414, § 244(a), 66 Stat. 214. Plainly, Congress' desire to retain a veto in this area cannot be considered in isolation, but must be viewed in the context of Congress' irritation with the burden of private immigration bills. This legislative history is not sufficient to rebut the presumption of severability raised by § 406, because there is insufficient evidence that Congress would have continued to subject itself to the onerous burdens of private bills had it known that § 244(c)(2) would be held unconstitutional. A provision is further presumed severable if what remains after severance "is fully operative as a law." Champlin Refining Co. v. Corporation Comm'n, supra, at 286 U. S. 234 . There can be no doubt that § 244 is "fully operative" and workable administrative machinery without the veto provision in § 244(c)(2). Entirely independent of the one-House veto, the Page 462 U. S. 935 administrative process enacted by Congress authorizes the Attorney General to suspend an alien's deportation under § 244(a). Congress' oversight of the exercise of this delegated authority is preserved, since all such suspensions will continue to be reported to it under § 244(c)(1). Absent the passage of a bill to the contrary, [ Footnote 8 ] deportation proceedings will be canceled when the period specified in § 244(c)(2) has expired. [ Footnote 9 ] Clearly, § 244 survives as a workable administrative mechanism without the one-House veto. C Standing We must also reject the contention that Chadha lacks standing because a consequence of his prevailing will advance Page 462 U. S. 936 the interests of the Executive Branch in a separation-of-powers dispute with Congress, rather than simply Chadha's private interests. Chadha has demonstrated "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. . . ." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 , 438 U. S. 79 (1978). If the veto provision violates the Constitution, and is severable, the deportation order against Chadha will be canceled. Chadha therefore has standing to challenge the order of the Executive mandated by the House veto. D Alternative Relief It is contended that the Court should decline to decide the constitutional question presented by these cases because Chadha may have other statutory relief available to him. It is argued that, since Chadha married a United States citizen on August 10, 1980, it is possible that other avenues of relief may be open under §§ 201(b), 204, and 245 of the Act, 8 U.S.C. §§ 1151(b), 1154, and 1255. It is true that Chadha may be eligible for classification as an "immediate relative" and, as such, could lawfully be accorded permanent residence. Moreover, in March 1980, just prior to the decision of the Court of Appeals in these cases, Congress enacted the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102, under which the Attorney General is authorized to grant asylum, and then permanent residence, to any alien who is unable to return to his country of nationality because of "a well-founded fear of persecution on account of race." It is urged that these two intervening factors constitute a prudential bar to our consideration of the constitutional question presented in these cases. See Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 346 (1936) (Brandeis, J., concurring). If we could perceive merit in this contention, we might well seek to avoid deciding the constitutional claim advanced. But, at most, Page 462 U. S. 937 these other avenues of relief are speculative. It is by means certain, for example, that Chadha's classification an immediate relative would result in the adjustment Chadha's status from nonimmigrant to permanent resident. See Menezes v. INS, 601 F.2d 1028 (CA9 1979). If Chadha is successful in his present challenge, he will not be deported, and will automatically become eligible to apply for citizenship. [ Footnote 10 ] A person threatened with deportation cannot be denied the right to challenge the constitutional validity of the process which led to his status merely on the basis of speculation over the availability of other forms of relief. E Jurisdiction It is contended that the Court of Appeals lacked jurisdiction under § 106(a) of the Act, 8 U.S.C. § 1105a(a). That section provides that a petition for review in the Court of Appeals "shall be the sole and exclusive procedure for the judicial review of all final orders of deportation . . . made against aliens within the United States pursuant to administrative proceedings under section 242(b) of this Act." Congress argues that the one-House veto authorized by § 244(c)(2) takes place outside the administrative proceedings conducted under § 242(b), and that the jurisdictional grant contained in § 106(a) does not encompass Chadha's constitutional challenge. In Cheng Fan Kwok v. INS, 392 U. S. 206 , 392 U. S. 216 (1968), this Court held that "§ 106(a) embrace[s] only those determinations Page 462 U. S. 938 made during a proceeding conducted under § 242(b), including those determinations made incident to a motion to reopen such proceedings." It is true that one court has read Cheng Fan Kwok to preclude appeals similar to Chadha's. See Dastmalchi v. INS, 660 F.2d 880 (CA3 1981). [ Footnote 11 ] However, we agree with the Court of Appeals in these cases that the term "final orders" in § 106(a) "includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." 634 F.2d at 412. Here, Chadha's deportation stands or falls on the validity of the challenged veto; the final order of deportation was entered against Chadha only to implement the action of the House of Representatives. Although the Attorney General was satisfied that the House action was invalid and that it should not have any effect on his decision to suspend deportation, he appropriately let the controversy take its course through the courts. This Court's decision in Cheng Fan Kwok, supra, does not bar Chadha's appeal. There, after an order of deportation had been entered, the affected alien requested the INS to stay the execution of that order. When that request was denied, the alien sought review in the Court of Appeals under § 106(a). This Court's holding that the Court of Appeals lacked jurisdiction was based on the fact that the alien "did not attack the deportation order itself, but instead [sought] relief not inconsistent with it.'" 392 U.S. at 392 U. S. 213 , quoting Page 462 U. S. 939 Mui v. Esperdy, 371 F.2d 772, 777 (CA2 1966). Here, in contrast, Chadha directly attacks the deportation order itself, and the relief he seeks -- cancellation of deportation -- is plainly inconsistent with the deportation order. Accordingly, the Court of Appeals had jurisdiction under § 106(a) to decide these cases. F Case or Controversy It is also contended that this is not a genuine controversy but "a friendly, nonadversary, proceeding," Ashwander v. TVA, 297 U.S. at 297 U. S. 346 (Brandeis, J., concurring), upon which the Court should not pass. This argument rests on the fact that Chadha and the INS take the same position on the constitutionality of the one-House veto. But it would be a curious result if, in the administration of justice, a person could be denied access to the courts because the Attorney General of the United States agreed with the legal arguments asserted by the individual. A case or controversy is presented by these cases. First, from the time of Congress' formal intervention, see n 5, supra, the concrete adverseness is beyond doubt. Congress is both a proper party to defend the constitutionality of § 244(c)(2) and a proper petitioner under 28 U.S.C. § 1254(1). Second, prior to Congress' intervention, there was adequate Art. III adverseness even though the only parties were the INS and Chadha. We have already held that the INS's agreement with the Court of Appeals' decision that § 244(c)(2) is unconstitutional does not affect that agency's "aggrieved" status for purposes of appealing that decision under 28 U.S.C. § 1252, see supra at 462 U. S. 929 -931. For similar reasons, the INS's agreement with Chadha's position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals' judgment. We agree with the Court of Appeals that "Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2), Page 462 U. S. 940 the INS will execute its order and deport him." 634 F.2d at 419. [ Footnote 12 ] Of course, there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of these cases in the absence of any participant supporting the validity of § 244(c)(2). The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress. We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional. See Cheng Fan Kwok v. INS, 392 U.S. at 392 U. S. 210 , n. 9; United States v. Lovett, 328 U. S. 303 (1946). G Political Question It is also argued that these cases present a nonjusticiable political question, because Chadha is merely challenging Congress' authority under the Naturalization Clause, U.S.Const., Art. I, § 8, cl. 4, and the Necessary and Proper Clause, U.S.Const., Art. I, § 8, cl. 18. It is argued that Congress' Art. I power "To establish an uniform Rule of Naturalization," combined with the Necessary and Proper Clause, grants it unreviewable authority over the regulation of aliens. The plenary authority of Congress over aliens under Art. I, § 8, cl. 4, is not open to question, but what is Page 462 U. S. 941 challenged here is whether Congress has chosen a constitutionally permissible means of implementing that power. As we made clear in Buckley v. Valeo, 424 U. S. 1 (1976): "Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, McCulloch v. Maryland , 4 Wheat. 316 (1819), so long as the exercise of that authority does not offend some other constitutional restriction." Id. at 424 U. S. 132 . A brief review of those factors which may indicate the presence of a nonjusticiable political question satisfies us that our assertion of jurisdiction over these cases does no violence to the political question doctrine. As identified in Baker v. Carr, 369 U. S. 186 , 369 U. S. 217 (1962), a political question may arise when any one of the following circumstances is present: "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Congress apparently directs its assertion of nonjusticiability to the first of the Baker factors by asserting that Chadha's claim is "an assault on the legislative authority to enact Section 244(c)(2)." Brief for Petitioner in No. 80-2170, p. 48. But if this turns the question into a political question, virtually every challenge to the constitutionality of a statute would be a political question. Chadha indeed argues that one House of Congress cannot constitutionally veto the Attorney General's decision to allow him to remain in this country. No policy underlying the political question doctrine Page 462 U. S. 942 suggests that Congress or the Executive, or both acting in concert and in compliance with Art. I, can decide the constitutionality of a statute; that is a decision for the courts. [ Footnote 13 ] Other Baker factors are likewise inapplicable to this case. As we discuss more fully below, Art. I provides the "judicially discoverable and manageable standards" of Baker for resolving the question presented by these cases. Those standards forestall reliance by this Court on nonjudicial "policy determinations" or any showing of disrespect for a coordinate branch. Similarly, if Chadha's arguments are accepted, § 244(c)(2) cannot stand, and, since the constitutionality of that statute is for this Court to resolve, there is no possibility of "multifarious pronouncements" on this question. It is correct that this controversy may, in a sense, be termed "political." But the presence of constitutional issues with significant political overtones does not automatically invoke Page 462 U. S. 943 the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by courts because the issues have political implications in the sense urged by Congress. Marbury v. Madison , 1 Cranch 137 (1803), was also a "political" case, involving as it did claims under a judicial commission alleged to have been duly signed by the President but not delivered. But "courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority." Baker v. Carr, supra, at 369 U. S. 217 . In Field v. Clark, 143 U. S. 649 (1892), this Court addressed and resolved the question whether "a bill signed by the Speaker of the House of Representatives and by the President of the Senate, presented to and approved by the President of the United States, and delivered by the latter to the Secretary of State, as an act passed by Congress, does not become a law of the United States if it had not in fact been passed by Congress. . . ." ". . . We recognize, on one hand, the duty of this court, from the performance of which it may not shrink, to give full effect to the provisions of the Constitution relating to the enactment of laws that are to operate wherever the authority and jurisdiction of the United States extend. On the other hand, we cannot be unmindful of the consequences that must result if this court should feel obliged, in fidelity to the Constitution, to declare that an enrolled bill, on which depend public and private interests of vast magnitude, and which has been . . . deposited in the public archives, as an act of Congress, . . . did not become a law." Id. at 143 U. S. 669 -670 (emphasis in original). H The contentions on standing and justiciability have been fully examined, and we are satisfied the parties are properly before us. The important issues have been fully briefed and Page 462 U. S. 944 twice argued, see 458 U.S. 1120 (1982). The Court's duty in these cases, as Chief Justice Marshall declared in Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 404 (1821), is clear: "Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty." III A We turn now to the question whether action of one House of Congress under § 244(c)(2) violates strictures of the Constitution. We begin, of course, with the presumption that the challenged statute is valid. Its wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained: "Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto." TVA v. Hill, 437 U. S. 153 , 437 U. S. 194 -195 (1978). By the same token, the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives -- or the hallmarks -- of democratic government, and our inquiry is sharpened, rather than blunted, by the fact that congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies: "Since 1932, when the first veto provision was enacted into law, 295 congressional veto-type procedures have been inserted in 196 different statutes as follows: from 1932 to 1939, five statutes were affected; from 1940-49, nineteen statutes; between 1950-59, thirty-four statutes; and from 1960-69, forty-nine. From the year 1970 through 1975, at least one hundred sixty-three such provisions Page 462 U. S. 945 were included in eighty-nine laws." Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 Ind.L.Rev. 323, 324 (1977). See also Appendix to JUSTICE WHITE's dissent, post at 462 U. S. 1003 . JUSTICE WHITE undertakes to make a case for the proposition that the one-House veto is a useful "political invention," post at 462 U. S. 972 , and we need not challenge that assertion. We can even concede this utilitarian argument, although the long-range political wisdom of this "invention" is arguable. It has been vigorously debated, and it is instructive to compare the views of the protagonists. See, e.g., Javits & Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U.L.Rev. 455 (1977), and Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253 (1982). But policy arguments supporting even useful "political inventions" are subject to the demands of the Constitution, which defines powers and, with respect to this subject, sets out just how those powers are to be exercised. Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process. Since the precise terms of those familiar provisions are critical to the resolution of these cases, we set them out verbatim. Article I provides: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Art. I, § 1. (Emphasis added.) "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States. . . ." Art. I, 7, cl. 2. (Emphasis added.) " Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) Page 462 U. S. 946 shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." Art. I, § 7, cl. 3. (Emphasis added.) These provisions of Art. I are integral parts of the constitutional design for the separation of powers. We have recently noted that "[t]he principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787." Buckley v. Valeo, 424 U.S. at 424 U. S. 124 . Just as we relied on the textual provision of Art. II, § 2, cl. 2, to vindicate the principle of separation of powers in Buckley, we see that the purposes underlying the Presentment Clauses, Art. I, § 7, cls. 2, 3, and the bicameral requirement of Art. I, § 1, and § 7, cl. 2, guide our resolution of the important question presented in these cases. The very structure of the Articles delegating and separating powers under Arts. I, II, and III exemplifies the concept of separation of powers, and we now turn to Art. I. B The Presentment Clauses The records of the Constitutional Convention reveal that the requirement that all legislation be presented to the President before becoming law was uniformly accepted by the Framers. [ Footnote 14 ] Presentment to the President and the Presidential Page 462 U. S. 947 veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented. During the final debate on Art. I, § 7, cl. 2, James Madison expressed concern that it might easily be evaded by the simple expedient of calling a proposed law a "resolution" or "vote," rather than a "bill." 2 Farrand 301-302. As a consequence, Art. I, § 7, cl. 3, supra at 462 U. S. 945 -946, was added. 2 Farrand 304-305. The decision to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed. It is beyond doubt that lawmaking was a power to be shared by both Houses and the President. In The Federalist No. 73 (H. Lodge ed. 1888), Hamilton focused on the President's role in making laws: "If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defence." Id. at 458. See also The Federalist No. 51. In his Commentaries on the Constitution, Joseph Story makes the same point. 1 J. Story, Commentaries on the Constitution of the United States 614-615 (3d ed. 1858). The President's role in the lawmaking process also reflects the Framers' careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvident, Page 462 U. S. 948 or ill-considered measures. The President's veto role in the legislative process was described later during public debate on ratification: "It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body." ". . . The primary inducement to conferring the power in question upon the Executive is to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design." The Federalist No. 73, supra, at 458 (A. Hamilton). See also The Pocket Veto Case, 279 U. S. 655 , 279 U. S. 678 (1929); Myers v. United States, 272 U. S. 52 , 272 U. S. 123 (1926). The Court also has observed that the Presentment Clauses serve the important purpose of assuring that a "national" perspective is grafted on the legislative process: "The President is a representative of the people just as the members of the Senate and of the House are, and it may be, at some times, on some subjects, that the President elected by all the people is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local and not countrywide. . . ." Myers v. United States, supra, at 272 U. S. 123 . C Bicameralism The bicameral requirement of Art. I, § § 1, 7, was of scarcely less concern to the Framers than was the Presidential veto, and indeed the two concepts are interdependent. By providing that no law could take effect without the concurrence of the prescribed majority of the Members of both Houses, the Framers reemphasized their belief, already remarked Page 462 U. S. 949 upon in connection with the Presentment Clauses, that legislation should not be enacted unless it has been carefully and fully considered by the Nation's elected officials. In the Constitutional Convention debates on the need for a bicameral legislature, James Wilson, later to become a Justice of this Court, commented: "Despotism comes on mankind in different shapes, sometimes in an Executive, sometimes in a military, one. Is there danger of a Legislative despotism? Theory & practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check but the inadequate one of the virtue & good sense of those who compose it." 1 Farrand 254. Hamilton argued that a Congress comprised of a single House was antithetical to the very purposes of the Constitution. Were the Nation to adopt a Constitution providing for only one legislative organ, he warned: "[W]e shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert." The Federalist No. 22, p. 135 (H. Lodge ed. 1888). This view was rooted in a general skepticism regarding the fallibility of human nature later commented on by Joseph Story: "Public bodies, like private persons, are occasionally under the dominion of strong passions and excitements; impatient, irritable, and impetuous. . . . If [a legislature] Page 462 U. S. 950 feels no check but its own will, it rarely has the firmness to insist upon holding a question long enough under its own view to see and mark it in all its bearings and relations on society." 1 Story, supra , at 383-384. These observations are consistent with what many of the Framers expressed, none more cogently than Madison in pointing up the need to divide and disperse power in order to protect liberty: "In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches, and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit." The Federalist No. 51, p. 324 (H. Lodge ed. 1888) (sometimes attributed to "Hamilton or Madison" but now generally attributed to Madison). See also The Federalist No. 62. However familiar, it is useful to recall that, apart from their fear that special interests could be favored at the expense of public needs, the Framers were also concerned, although not of one mind, over the apprehensions of the smaller states. Those states feared a commonality of interest among the larger states would work to their disadvantage; representatives of the larger states, on the other hand, were skeptical of a legislature that could pass laws favoring a minority of the people. See 1 Farrand 176-177, 484-491. It need hardly be repeated here that the Great Compromise, under which one House was viewed as representing the people and the other the states, allayed the fears of both the large and small states. [ Footnote 15 ] Page 462 U. S. 951 We see therefore that the Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions. The President's participation in the legislative process was to protect the Executive Branch from Congress and to protect the whole people from improvident laws. The division of the Congress into two distinctive bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings. The President's unilateral veto power, in turn, was limited by the power of two-thirds of both Houses of Congress to overrule a veto, thereby precluding final arbitrary action of one person. See id. at 99-104. It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7, represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure. IV The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted. Although not "hermetically" sealed from one another, Buckley v. Valeo, 424 U.S. at 424 U. S. 121 , the powers delegated to the three Branches are functionally identifiable. When any Branch acts, it is presumptively exercising the power the Constitution has delegated to it. See J. W. Hampton & Co. v. United States, 276 U. S. 394 , 276 U. S. 406 (1928). When the Executive acts, he presumptively acts in an executive or administrative capacity as defined in Art. II. And when, as here, Page 462 U. S. 952 one House of Congress purports to act, it is presumptively acting within its assigned sphere. Beginning with this presumption, we must nevertheless establish that the challenged action under § 244(c)(2) is of the kind to which the procedural requirements of Art. I, § 7, apply. Not every action taken by either House is subject to the bicameralism and presentment requirements of Art. I. See infra at 462 U. S. 955 , and nn. 20, 21. Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form, but upon "whether they contain matter which is properly to be regarded as legislative in its character and effect." S.Rep. No. 1335, 54th Cong., 2d Sess., 8 (1897). Examination of the action taken here by one House pursuant to § 244(c)(2) reveals that it was essentially legislative in purpose and effect. In purporting to exercise power defined in Art. I, § 8, cl. 4, to "establish an uniform Rule of Naturalization," the House took action that had the purpose and effect of altering the legal rights, duties, and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the Legislative Branch. Section 244(c)(2) purports to authorize one House of Congress to require the Attorney General to deport an individual alien whose deportation otherwise would be canceled under § 244. The one-House veto operated in these cases to overrule the Attorney General and mandate Chadha's deportation; absent the House action, Chadha would remain in the United States. Congress has acted, and its action has altered Chadha's status. The legislative character of the one-House veto in these cases is confirmed by the character of the congressional action it supplants. Neither the House of Representatives nor the Senate contends that, absent the veto provision in § 244(c)(2), either of them, or both of them acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively Page 462 U. S. 953 delegated authority, [ Footnote 16 ] had determined the alien should remain in the United States. Without the challenged provision in § 244(c)(2), this could have been achieved, if at all, only Page 462 U. S. 954 by legislation requiring deportation. [ Footnote 17 ] Similarly, a veto by one House of Congress under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. Amendment and repeal of statutes, no less than enactment, must conform with Art. I. [ Footnote 18 ] The nature of the decision implemented by the one-House veto in these cases further manifests its legislative character. After long experience with the clumsy, time-consuming private bill procedure, Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances. It is not disputed that this choice to delegate authority is precisely the kind of decision that can be implemented only in accordance with the procedures set out in Art. I. Disagreement with the Attorney General's decision on Chadha's deportation -- that is, Congress' decision to deport Chadha -- no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the Page 462 U. S. 955 President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked. [ Footnote 19 ] Finally, we see that, when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action. There are four provisions in the Constitution, [ Footnote 20 ] explicit and unambiguous, by which one House may act alone with the unreviewable force of law, not subject to the President's veto: (a) The House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 5; (b) The Senate alone was given the power to conduct trials following impeachment on charges initiated by the House, and to convict following trial. Art. I, § 3, cl. 6; (c) The Senate alone was given final unreviewable power to approve or to disapprove Presidential appointments. Art. II, § 2, cl. 2; (d) The Senate alone was given unreviewable power to ratify treaties negotiated by the President. Art. II, 2, cl. 2. Clearly, when the Draftsmen sought to confer special powers on one House, independent of the other House, or of the President, they did so in explicit, unambiguous terms. [ Footnote 21 ] Page 462 U. S. 956 These carefully defined exceptions from presentment and bicameralism underscore the difference between the legislative functions of Congress and other unilateral but important and binding one-House acts provided for in the Constitution. These exceptions are narrow, explicit, and separately justified; none of them authorize the action challenged here. On the contrary, they provide further support for the conclusion that congressional authority is not to be implied, and for the conclusion that the veto provided for in § 244(c)(2) is not authorized by the constitutional design of the powers of the Legislative Branch. Since it is clear that the action by the House under § 244(c)(2) was not within any of the express constitutional exceptions authorizing one House to act alone, and equally Page 462 U. S. 957 clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Art. I. [ Footnote 22 ] The bicameral requirement, the Presentment Clauses, the President's veto, and Congress' power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those Page 462 U. S. 958 checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President. [ Footnote 23 ] The veto authorized by § 244(c)(2) doubtless has been in many respects a convenient shortcut; the "sharing" with the Executive by Congress of its authority over aliens in this manner is, on its face, an appealing compromise. In purely practical terms, it is obviously easier for action to be taken by one House without submission to the President; but it is crystal Page 462 U. S. 959 clear from the records of the Convention, contemporaneous writings, and debates that the Framers ranked other values higher than efficiency. The records of the Convention and debates in the states preceding ratification underscore the common desire to define and limit the exercise of the newly created federal powers affecting the states and the people. There is unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process. The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided, either by the Congress or by the President. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution. V We hold that the congressional veto provision in § 244(c)(2) is severable from the Act, and that it is unconstitutional. Accordingly, the judgment of the Court of Appeals is Affirmed. * Together with No. 80-2170, United States House of Representatives v. Immigration and Naturalization Service et al., and No. 80-2171, United States Senate v. Immigration and Naturalization Service et al., on certiorari to the same court. [ Footnote 1 ] Congress delegated the major responsibilities for enforcement of the Immigration and Nationality Act to the Attorney General. 8 U.S.C. § 1103(a). The Attorney General discharges his responsibilities through the Immigration and Naturalization Service, a division of the Department of Justice. Ibid. [ Footnote 2 ] In constitutional terms, "veto" is used to describe the President's power under Art. I, 7, of the Constitution. See Black's Law Dictionary 1403 (5th ed.1979). It appears, however, that congressional devices of the type authorized by § 244(c)(2) have come to be commonly referred to as a "veto." See, e.g., Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253 (1982); Miller & Knapp, The Congressional Veto: Preserving the Constitutional Framework, 52 Ind.L.J. 367 (1977). We refer to the congressional "resolution" authorized by § 244(c)(2) as a "one-House veto" of the Attorney General's decision to allow a particular deportable alien to remain in the United States. [ Footnote 3 ] It is not at all clear whether the House generally, or Subcommittee Chairman Eilberg in particular, correctly understood the relationship between H.Res. 926 and the Attorney General's decision to suspend Chadha's deportation. Exactly one year previous to the House veto of the Attorney General's decision in this case, Representative Eilberg introduced a similar resolution disapproving the Attorney General's suspension of deportation in the case of six other aliens. H.Res. 1518, 93d Cong., 2d Sess. (1974). The following colloquy occurred on the floor of the House: "Mr. WYLIE. Mr. Speaker, further reserving the right to object, is this procedure to expedite the ongoing operations of the Department of Justice, as far as these people are concerned. Is it in any way contrary to whatever action the Attorney General has taken on the question of deportation; does the gentleman know?" "Mr. EILBERG. Mr. Speaker, the answer is no to the gentleman's final question. These aliens have been found to be deportable and the Special Inquiry Officer's decision denying suspension of deportation has been reversed by the Board of Immigration Appeals. We are complying with the law, since all of these decisions have been referred to us for approval or disapproval, and there are hundreds of cases in this category. In these six cases, however, we believe it would be grossly improper to allow these people to acquire the status of permanent resident aliens." "Mr. WYLIE. In other words, the gentleman has been working with the Attorney General's office?" "Mr. EILBERG. Yes." "Mr. WYLIE. This bill then is in fact a confirmation of what the Attorney General intends to do?" "Mr. EILBERG. The gentleman is correct insofar as it relates to the determination of deportability which has been made by the Department of Justice in each of these cases." "Mr. WYLIE. Mr. Speaker, I withdraw my reservation of objection." 120 Cong.Rec. 41412 (1974). Clearly, this was an obfuscation of the effect of a veto under § 244(c)(2). Such a veto in no way constitutes "a confirmation of what the Attorney General intends to do." To the contrary, such a resolution was meant to overrule and set aside, or "veto," the Attorney General's determination that, in a particular case, cancellation of deportation would be appropriate under the standards set forth in § 244(a)(1). [ Footnote 4 ] Nine Members of the House of Representatives disagree with the position taken in the briefs filed by the Senate and the House of Representatives, and have filed a brief amici curiae urging that the decision of the Court of Appeals be affirmed in this case. [ Footnote 5 ] The Senate and House authorized intervention in this case, S.Res. 40 and H.R.Res. 49, 97th Cong., 1st Sess. (1981), and, on February 3, 1981, filed motions to intervene and petitioned for rehearing. The Court of Appeals granted the motions to intervene. Both Houses are therefore proper "parties" within the meaning of that ter, in 28 U.S.C. § 1254(1). See Batterton v. Francis, 432 U. S. 416 , 432 U. S. 424 , n. 7 (1977). [ Footnote 6 ] In addition to meeting the statutory requisites of § 1252, of course, an appeal must present a justiciable case or controversy under Art. III. Such a controversy clearly exists in No. 80-1832, as in the other two cases, because of the presence of the two Houses of Congress as adverse parties. See infra at 462 U. S. 939 ; see also Director, OWCP v. Perini North River Associates, 459 U. S. 297 , 459 U. S. 302 -305 (1982). [ Footnote 7 ] In this case, we deem it appropriate to address questions of severability first. But see Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 108 -109 (1976); United States v. Jackson, 390 U. S. 570 , 390 U. S. 585 (1968). [ Footnote 8 ] Without the provision for one-House veto, Congress would presumably retain the power, during the time allotted in § 244(c)(2), to enact a law, in accordance with the requirements of Art. I of the Constitution, mandating a particular alien's deportation, unless, of course, other constitutional principles place substantive limitations on such action. Cf. Attorney General Jackson's attack on H.R. 9766, 76th Cong., 3d Sess. (1940), a bill to require the Attorney General to deport an individual alien. The Attorney General called the bill "an historical departure from an unbroken American practice and tradition. It would be the first time that an act of Congress singled out a named individual for deportation." S.Rep. No. 2031, 76th Cong., 3d Sess., pt. 1, p. 9 (1940) (reprinting Jackson's letter of June 18, 1940). See n 17, infra. [ Footnote 9 ] Without the one-House veto, § 244 resembles the "report and wait" provision approved by the Court in Sibbach v. Wilson & Co., 312 U. S. 1 (1941). The statute examined in Sibbach provided that the newly promulgated Federal Rules of Civil Procedure "shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session." Act of June 19, 1934, ch. 651, § 2, 48 Stat. 1064. This statute did not provide that Congress could unilaterally veto the Federal Rules. Rather, it gave Congress the opportunity to review the Rules before they became effective, and to pass legislation barring their effectiveness if the Rules were found objectionable. This technique was used by Congress when it acted in 1973 to stay, and ultimately to revise, the proposed Rules of Evidence. Compare Act of Mar. 30, 1973, Pub.L. 93-12, 87 Stat. 9, with Act of Jan. 2, 1975, Pub.L. 93-595, 88 Stat.1926. [ Footnote 10 ] Depending on how the INS interprets its statutory duty under § 244 apart from the challenged portion of § 244(c)(2), Chadha's status may be retroactively adjusted to that of a permanent resident as of December 19, 1975 -- the last session in which Congress could have attempted to stop the suspension of Chadha's deportation from ripening into cancellation of deportation. See 8 U.S.C. § 1254(d). In that event, Chadha's 5-year waiting period to become a citizen under § 316(a) of the Act, 8 U.S.C. § 1427(a), would have elapsed. [ Footnote 11 ] Under the Third Circuit's reasoning, judicial review under § 106(a) would not extend to the constitutionality of § 244(c)(2) because that issue could not have been tested during the administrative deportation proceedings conducted under § 242(b). The facts in Dastmalchi are distinguishable, however. In Dastmalchi, Iranian aliens who had entered the United States on nonimmigrant student visas challenged a regulation that required them to report to the District Director of the INS during the Iranian hostage crisis. The aliens reported and were ordered deported after a § 242(b) proceeding. The aliens in Dastmalchi could have been deported irrespective of the challenged regulation. Here, in contrast, Chadha's deportation would have been canceled but for § 244(c)(2). [ Footnote 12 ] A relevant parallel can be found in our recent decision in Bob Jones University v. United States, 461 U. S. 574 (1983). There, the United States agreed with Bob Jones University and Goldsboro Christian Schools that certain Revenue Rulings denying tax-exempt status to schools that discriminated on the basis of race were invalid. Despite its agreement with the schools, however, the United States was complying with a court order enjoining it from granting tax-exempt status to any school that discriminated on the basis of race. Even though the Government largely agreed with the opposing party on the merits of the controversy, we found an adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party. See id. at 461 U. S. 585 , n. 9. [ Footnote 13 ] The suggestion is made that 244(c)(2) is somehow immunized from constitutional scrutiny because the Act containing § 244(c)(2) was passed by Congress and approved by the President. Marbury v. Madison , 1 Cranch 137 (1803), resolved that question. The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review. See Smith v. Maryland, 442 U. S. 735 , 442 U. S. 740 , n. 5 (1979); National League of Cities v. Usery, 426 U. S. 833 , 426 U. S. 841 , n. 12 (1976); Buckley v. Valeo, 424 U. S. 1 (1976); Myers v. United States, 272 U. S. 52 (1926). See also n 22, infra. In any event, 11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional. See Henry, The Legislative Veto: In Search of Constitutional Limits, 16 Harv.J.Legis. 735, 737-738, n. 7 (1979) (collecting citations to Presidential statements). Perhaps the earliest Executive expression on the constitutionality of the congressional veto is found in Attorney General William D. Mitchell's opinion of January 24, 1933, to President Hoover. 37 Op.Atty.Gen. 56. Furthermore, it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds. For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's authorization to be terminated by concurrent resolution was unconstitutional. Jackson, A Presidential Legal Opinion, 66 Harv.L.Rev. 1353 (1953). [ Footnote 14 ] The widespread approval of the delegates was commented on by Joseph Story: "In the convention there does not seem to have been much diversity of opinion on the subject of the propriety of giving to the president a negative on the laws. The principal points of discussion seem to have been whether the negative should be absolute, or qualified; and if the latter, by what number of each house the bill should subsequently be passed in order to become a law; and whether the negative should in either case be exclusively vested in the president alone, or in him jointly with some other department of the government." 1 J. Story, Commentaries on the Constitution of the United States 611 (3d ed. 1858). See 1 M. Farrand, The Records of the Federal Convention of 1787, pp. 21, 97-104, 138-140 (1911) (hereinafter Farrand); id. at 73-80, 181, 298, 301-305. [ Footnote 15 ] The Great Compromise was considered so important by the Framers that they inserted a special provision to ensure that it could not be altered, even by constitutional amendment, except with the consent of the states affected. See U.S.Const., Art V. [ Footnote 16 ] Congress protests that affirming the Court of Appeals in these cases will sanction "lawmaking by the Attorney General. . . . Why is the Attorney General exempt from submitting his proposed changes in the law to the full bicameral process?" Brief for Petitioner in No. 80-2170, p. 40. To be sure, some administrative agency action -- rulemaking, for example -- may resemble "lawmaking." See 5 U.S.C. § 551(4), which defines an agency's "rule" as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. . . ." This Court has referred to agency activity as being "quasi-legislative" in character. Humphrey's Executor v. United States, 295 U. S. 602 , 295 U. S. 628 (1935). Clearly, however, "[i]n the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 587 (1952). See Buckley v. Valeo, 424 U.S. at 424 U. S. 123 . When the Attorney General performs his duties pursuant to § 244, he does not exercise "legislative" power. See Ernst & Ernst v. Hochfelder, 425 U. S. 185 , 425 U. S. 213 -214 (1976). The bicameral process is not necessary as a check on the Executive's administration of the laws, because his administrative activity cannot reach beyond the limits of the statute that created it -- a statute duly enacted pursuant to Art. I, §§ 1, 7. The constitutionality of the Attorney General's execution of the authority delegated to him by § 244 involves only a question of delegation doctrine. The courts, when a case or controversy arises, can always "ascertain whether the will of Congress has been obeyed," Yakus v. United States, 321 U. S. 414 , 321 U. S. 425 (1944), and can enforce adherence to statutory standards. See Youngstown Sheet & Tube Co. v. Sawyer, supra, at 343 U. S. 585 ; Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 440, 541 F.2d 1, 68 (en banc) (separate statement of Leventhal, J.), cert. denied, 426 U.S. 941 (1976); L. Jaffe, Judicial Control of Administrative Action 320 (1965). It is clear, therefore, that the Attorney General acts in his presumptively Art. II capacity when he administers the Immigration and Nationality Act. Executive action under legislatively delegated authority that might resemble "legislative" action in some respects is not subject to the approval of both Houses of Congress and the President for the reason that the Constitution does not so require. That kind of Executive action is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded, it is open to judicial review, as well as the power of Congress to modify or revoke the authority entirely. A one-House veto is clearly legislative in both character and effect, and is not so checked; the need for the check provided by Art. I, §§ 1, 7, is therefore clear. Congress' authority to delegate portions of its power to administrative agencies provides no support for the argument that Congress can constitutionally control administration of the laws by way of a congressional veto. [ Footnote 17 ] We express no opinion as to whether such legislation would violate any constitutional provision. See n 8, supra. [ Footnote 18 ] During the Convention of 1787, the application of the President's veto to repeals of statutes was addressed, and the Framers were apparently content with Madison's comment that, "[a]s to the difficulty of repeals, it was probable that, in doubtful cases, the policy would soon take place of limiting the duration of laws as to require renewal instead of repeal." 2 Farrand 587. See Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L.Rev. 569, 587599 (1953). There is no provision allowing Congress to repeal or amend laws by other than legislative means pursuant to Art. I. [ Footnote 19 ] This does not mean that Congress is required to capitulate to "the accretion of policy control by forces outside its chambers." Javits & Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U.L.Rev. 455, 462 (1977). The Constitution provides Congress with abundant means to oversee and control its administrative creatures. Beyond the obvious fact that Congress ultimately controls administrative agencies in the legislation that creates them, other means of control, such as durational limits on authorizations and formal reporting requirements, lie well within Congress' constitutional power. See id. at 460-461; Kaiser, Congressional Action to Overturn Agency Rules: Alternatives to the "Legislative Veto," 32 Ad.L.Rev. 667 (1980). See also n 9, supra. [ Footnote 20 ] See also U.S.Const., Art. 11; § 1, and Amdt. 12. [ Footnote 21 ] An exception from the Presentment Clauses was ratified in Hollingsworth v. Virginia , 3 Dall. 378 (1798). There the Court held Presidential approval was unnecessary for a proposed constitutional amendment which had passed both Houses of Congress by the requisite two-thirds majority. See U.S.Const., Art. V. One might also include another "exception" to the rule that congressional action having the force of law be subject to the bicameral requirement and the Presentment Clauses. Each House has the power to act alone in determining specified internal matters. Art. I, § 7, cls. 2, 3, and § 5, cl. 2. However, this "exception" only empowers Congress to bind itself, and is noteworthy only insofar as it further indicates the Framers' intent that Congress not act in any legally binding manner outside a closely circumscribed legislative arena, except in specific and enumerated instances. Although the bicameral check was not provided for in any of these provisions for independent congressional action, precautionary alternative checks are evident. For example, Art. II, § 2, requires that two-thirds of the Senators present concur in the Senate's consent to a treaty, rather than the simple majority required for passage of legislation. See The Federalist No. 64 (J. Jay); The Federalist No. 66 (A. Hamilton); The Federalist No. 75 (A. Hamilton). Similarly, the Framers adopted an alternative protection, in the stead of Presidential veto and bicameralism, by requiring the concurrence of two-thirds of the Senators present for a conviction of impeachment. Art. I, § 3. We also note that the Court's holding in Hollingsworth, supra, that a resolution proposing an amendment to the Constitution need not be presented to the President, is subject to two alternative protections. First, a constitutional amendment must command the votes of two-thirds of each House. Second, three-fourths of the states must ratify any amendment. [ Footnote 22 ] JUSTICE POWELL's position is that the one-House veto in this case is a judicial act, and therefore unconstitutional as beyond the authority vested in Congress by the Constitution. We agree that there is a sense in which one-House action pursuant to § 244(c)(2) has a judicial cast, since it purports to "review" Executive action. In this case, for example, the sponsor of the resolution vetoing the suspension of Chadha's deportation argued that Chadha "did not meet [the] statutory requirements" for suspension of deportation. Supra at 462 U. S. 926 . To be sure, it is normally up to the courts to decide whether an agency has complied with its statutory mandate. See n 16, supra. But the attempted analogy between judicial action and the one-House veto is less than perfect. Federal courts do not enjoy a roving mandate to correct alleged excesses of administrative agencies; we are limited by Art. III to hearing cases and controversies, and no justiciable case or controversy was presented by the Attorney General's decision to allow Chadha to remain in this country. We are aware of no decision, and JUSTICE POWELL has cited none, where a federal court has reviewed a decision of the Attorney General suspending deportation of an alien pursuant to the standards set out in § 244(a)(1). This is not surprising, given that no party to such action has either the motivation or the right to appeal from it. As JUSTICE WHITE correctly notes, post at 462 U. S. 1001 -1002, "the courts have not been given the authority to review whether an alien should be given permanent status; review is limited to whether the Attorney General has properly applied the statutory standards for" denying a request for suspension of deportation. Foti v. INS, 375 U. S. 217 (1963), relied on by JUSTICE POWELL, addressed only "whether a refusal by the Attorney General to grant a suspension of deportation is one of those 'final orders of deportation' of which direct review by Courts of Appeals is authorized under § 106(a) of the Act." Id. at 375 U. S. 221 . Thus, JUSTICE POWELL's statement that the one-House veto in this case is "clearly adjudicatory," post at 462 U. S. 964 , simply is not supported by his accompanying assertion that the House has "assumed a function ordinarily entrusted to the federal courts." Post at 462 U. S. 965 . We are satisfied that the one-House veto is legislative in purpose and effect, and subject to the procedures set out in Art. I. [ Footnote 23 ] Neither can we accept the suggestion that the one-House veto provision in § 244(c)(2) either removes or modifies the bicameralism and presentation requirements for the enactment of future legislation affecting aliens. See Atkins v. United States, 214 Ct.Cl. 186, 250-251, 556 F.2d 1028, 1063-1064 (1977), cert. denied, 434 U.S. 1009 (1978); Brief for Petitioner in No. 80-2170, p. 40. The explicit prescription for legislative action contained in Art. I cannot be amended by legislation. See n 13, supra. JUSTICE WHITE suggests that the Attorney General's action under § 244(c)(1) suspending deportation is equivalent to a proposal for legislation and that, because congressional approval is indicated "by the failure to veto, the one-House veto satisfies the requirement of bicameral approval." Post at 462 U. S. 997 . However, as the Court of Appeals noted, that approach "would analogize the effect of the one house disapproval to the failure of one house to vote affirmatively on a private bill." 634 F.2d 408, 435 (1980). Even if it were clear that Congress entertained such an arcane theory when it enacted § 244(c)(2), which JUSTICE WHITE does not suggest, this would amount to nothing less than an amending of Art. I. The legislative steps outlined in Art. I are not empty formalities; they were designed to assure that both Houses of Congress and the President participate in the exercise of lawmaking authority. This does not mean that legislation must always be preceded by debate; on the contrary, we have said that it is not necessary for a legislative body to "articulate its reasons for enacting a statute." United states Railroad Retirement Board v. Fritz, 449 U. S. 166 , 449 U. S. 179 (1980). But the steps required by Art. I, §§ 1, 7, make certain that there is an opportunity for deliberation and debate. To allow Congress to evade the strictures of the Constitution and in effect enact Executive proposals into law by mere silence cannot be squared with Art. I. JUSTICE POWELL, concurring in the judgment. The Court's decision, based on the Presentment Clauses, Art. I, 7, cls. 2 and 3, apparently will invalidate every use of the legislative veto. The breadth of this holding gives one pause. Congress has included the veto in literally hundreds Page 462 U. S. 960 of statutes, dating back to the 1930's. Congress clearly views this procedure as essential to controlling the delegation of power to administrative agencies. [ Footnote 2/1 ] One reasonably may disagree with Congress' assessment of the veto's utility, [ Footnote 2/2 ] but the respect due its judgment as a coordinate branch of Government cautions that our holding should be no more extensive than necessary to decide these cases. In my view, the cases may be decided on a narrower ground. When Congress finds that a particular person does not satisfy the statutory criteria for permanent residence in this country, it has assumed a judicial function in violation of the principle of separation of powers. Accordingly, I concur only in the judgment. I A The Framers perceived that "[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47, p. 324 (J. Cooke ed.1961) (J. Madison). Theirs was not a baseless fear. Under British rule, the Colonies suffered the abuses of unchecked executive power that were attributed, at least popularly, to a hereditary monarchy. See Levi, Some Aspects of Separation of Powers, 76 Colum.L.Rev. 369, 374 (1976); The Federalist No. 48. During the Confederation, Page 462 U. S. 961 the States reacted by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown. "The supremacy of legislatures came to be recognized as the supremacy of faction and the tyranny of shifting majorities. The legislatures confiscated property, erected paper money schemes, [and] suspended the ordinary means of collecting debts." Levi, supra, at 374-375. One abuse that was prevalent during the Confederation was the exercise of judicial power by the state legislatures. The Framers were well acquainted with the danger of subjecting the determination of the rights of one person to the "tyranny of shifting majorities." Jefferson observed that members of the General Assembly in his native Virginia had not been prevented from assuming judicial power, and " [t]hey have accordingly in many instances decided rights which should have been left to judiciary controversy. '" [ Footnote 2/3 ] The Federalist No. 48, supra, at 336 (emphasis in original) (quoting T. Jefferson, Notes on the State of Virginia 196 (London ed. 1787)). The same concern also was evident in the reports of the Council of the Censors, a body that was charged with determining whether the Pennsylvania Legislature had complied with the State Constitution. The Council found that, during this period, "[t]he constitutional trial by jury had been violated; and powers assumed, which had not been delegated by the Constitution. . . . [C]ases belonging Page 462 U. S. 962 to the judiciary department, frequently [had been] drawn within legislative cognizance and determination." The Federalist No. 48, at 336-337. It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial powers in separate branches. Their concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person was expressed not only in this general allocation of power, but also in more specific provisions, such as the Bill of Attainder Clause, Art. I, § 9, cl. 3. As the Court recognized in United States v. Brown, 381 U. S. 437 , 381 U. S. 442 (1965), "the Bill of Attainder Clause was intended not as a narrow, technical . . . prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply -- trial by legislature." This Clause, and the separation of powers doctrine generally, reflect the Framers' concern that trial by a legislature lacks the safeguards necessary to prevent the abuse of power. B The Constitution does not establish three branches with precisely defined boundaries. See Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 121 (1976) (per curiam). Rather, as Justice Jackson wrote: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 635 (1952) (concurring in judgment). The Court thus has been mindful that the boundaries between each branch should be fixed "according to common sense and the inherent necessities of the governmental coordination." J. W. Hampton & Co. v. United States, 276 U. S. 394 , 276 U. S. 406 (1928). But where one branch has impaired or sought to assume a power central to another branch, the Page 462 U. S. 963 Court has not hesitated to enforce the doctrine. See Buckley v. Valeo, supra, at 424 U. S. 123 . Functionally, the doctrine may be violated in two ways. One branch may interfere impermissibly with the other's performance of its constitutionally assigned function. See Nixon v. Administrator of General Services, 433 U. S. 425 , 433 U. S. 433 (1977); United States v. Nixon, 418 U. S. 683 (1974). Alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another. See Youngstown Sheet & Tube Co. v. Sawyer, supra, at 343 U. S. 587 ; Springer v. Philippine Islands, 277 U. S. 189 , 277 U. S. 203 (1928). These cases present the latter situation. [ Footnote 2/4 ] II Before considering whether Congress impermissibly assumed a judicial function, it is helpful to recount briefly Congress' actions. Jagdish Rai Chadha, a citizen of Kenya, stayed in this country after his student visa expired. Although he was scheduled to be deported, he requested the Immigration and Naturalization Service to suspend his deportation because he met the statutory criteria for permanent residence in this country. After a hearing, [ Footnote 2/5 ] the Service granted Chadha's request and sent -- as required by Page 462 U. S. 964 the reservation of the veto right -- a report of its action to Congress. In addition to the report on Chadha, Congress had before it the names of 339 other persons whose deportations also had been suspended by the Service. The House Committee on the Judiciary decided that six of these persons, including Chadha, should not be allowed to remain in this country. Accordingly, it submitted a resolution to the House which stated simply that "the House of Representatives does not approve the granting of permanent residence in the United States to the aliens hereinafter named." 121 Cong.Rec. 40800 (1975). The resolution was not distributed prior to the vote, [ Footnote 2/6 ] but the Chairman of the Judiciary Subcommittee on Immigration, Citizenship, and International Law explained to the House: "It was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution did not meet [the] statutory requirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended." Ibid. (remarks of Rep. Eilberg). Without further explanation and without a recorded vote, the House rejected the Service's determination that these six people met the statutory criteria. On its face, the House's action appears clearly adjudicatory. [ Footnote 2/7 ] The House did not enact a general rule; rather, it Page 462 U. S. 965 made its own determination that six specific persons did not comply with certain statutory criteria. It thus undertook the type of decision that traditionally has been left to other branches. Even if the House did not make a de novo determination, but simply reviewed the Immigration and Naturalization Service's findings, it still assumed a function ordinarily entrusted to the federal courts. [ Footnote 2/8 ] See 5 U.S.C. § 704 (providing generally for judicial review of final agency action); cf. Foti v. INS, 375 U. S. 217 (1963) (holding that courts of appeals have jurisdiction to review INS decisions denying suspension of deportation). Where, as here, Congress has exercised a power "that cannot possibly be regarded as merely in aid of the legislative function of Congress," Page 462 U. S. 966 Buckley v. Valeo, 424 U.S. at 424 U. S. 138 , the decisions of this Court have held that Congress impermissibly assumed a function that the Constitution entrusted to another branch, see id. at 424 U. S. 138 -141; cf. Springer v. Philippine Islands, 277 U.S. at 277 U. S. 202 . The impropriety of the House's assumption of this function is confirmed by the fact that its action raises the very danger the Framers sought to avoid -- the exercise of unchecked power. In deciding whether Chadha deserves to be deported, Congress is not subject to any internal constraints that prevent it from arbitrarily depriving him of the right to remain in this country. [ Footnote 2/9 ] Unlike the judiciary or an administrative agency, Congress is not bound by established substantive rules. Nor is it subject to the procedural safeguards, such as the right to counsel and a hearing before an impartial tribunal, that are present when a court or an agency [ Footnote 2/10 ] adjudicates individual rights. The only effective constraint on Congress' power is political, but Congress is most accountable politically when it prescribes rules of general applicability. When it decides rights of specific persons, those rights are subject to "the tyranny of a shifting majority." Page 462 U. S. 967 Chief Justice Marshall observed: "It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments." Fletcher v. Peck , 6 Cranch 87, 10 U. S. 136 (1810). In my view, when Congress undertook to apply its rules to Chadha, it exceeded the scope of its constitutionally prescribed authority. I would not reach the broader question whether legislative vetoes are invalid under the Presentment Clauses. [ Footnote 2/1 ] As JUSTICE WHITE'S dissenting opinion explains, the legislative veto has been included in a wide variety of statutes, ranging from bills for executive reorganization to the War Powers Resolution. See post at 462 U. S. 968 -972. Whether the veto complies with the Presentment Clauses may well turn on the particular context in which it is exercised, and I would be hesitant to conclude that every veto is unconstitutional on the basis of the unusual example presented by this litigation. [ Footnote 2/2 ] See Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253 (1982); Consumer Energy Council of America v. FERC, 218 U.S.App.D.C. 34, 84, 673 F.2d 425, 475 (1982). [ Footnote 2/3 ] Jefferson later questioned the degree to which the constitution insulates the judiciary. See D. Malone, Jefferson the President: Second Term, 1805-1809, pp. 304-305 (1974). In response to Chief Justice Marshall's rulings during Aaron Burr's trial, Jefferson stated that the judiciary had favored Burr -- whom Jefferson viewed as clearly guilty of treason -- at the expense of the country. He predicted that the people " will see then and amend the error in our Constitution, which makes any branch independent of the nation.'" Id. at 305 (quoting Jefferson's letter to William Giles). The very controversy that attended Burr's trial, however, demonstrates the wisdom in providing a neutral forum, removed from political pressure, for the determination of one person's rights. [ Footnote 2/4 ] The House and the Senate argue that the legislative veto does not prevent the executive from exercising its constitutionally assigned function. Even assuming this argument is correct, it does not address the concern that the Congress is exercising unchecked judicial power at the expense of individual liberties. It was precisely to prevent such arbitrary action that the Framers adopted the doctrine of separation of powers. See, e.g., Myers v. United States, 272 U. S. 52 , 272 U. S. 293 (1926) (Brandeis, J., dissenting). [ Footnote 2/5 ] The Immigration and Naturalization Service, a division of the Department of Justice, administers the Immigration and Nationality Act on behalf of the Attorney General, who has primary responsibility for the Act's enforcement. See 8 U.S.C. § 1103. The Act establishes a detailed administrative procedure for determining when a specific person is to be deported, see § 1252(b), and provides for judicial review of this decision, see § 1105a; Foti v. INS, 375 U. S. 217 (1963). [ Footnote 2/6 ] Normally the House would have distributed the resolution before acting on it, see 121 Cong.Rec. 40800 (1975), but the statute providing for the legislative veto limits the time in which Congress may veto the Service's determination that deportation should be suspended. See 8 U.S.C. § 1254(c)(2). In this case Congress had Chadha's report before it for approximately a year and a half, but failed to act on it until three days before the end of the limitations period. Accordingly, it was required to abandon its normal procedures for considering resolutions, thereby increasing the danger of arbitrary and ill-considered action. [ Footnote 2/7 ] The Court concludes that Congress' action was legislative in character because each branch "presumptively act[s] within its assigned sphere." Ante at 462 U. S. 952 . The Court's presumption provides a useful starting point, but does not conclude the inquiry. Nor does the fact that the House's action alters an individual's legal status indicate, as the Court reasons, see ante at 462 U. S. 952 -954, that the action is legislative, rather than adjudicative in nature. In determining whether one branch unconstitutionally has assumed a power central to another branch, the traditional characterization of the assumed power as legislative, executive, or judicial may provide some guidance. See Springer v. Philippine Islands, 277 U. S. 189 , 277 U. S. 203 (1928). But reasonable minds may disagree over the character of an act, and the more helpful inquiry, in my view, is whether the act in question raises the dangers the Framers sought to avoid. [ Footnote 2/8 ] The Court reasons in response to this argument that the one-House veto exercised in this case was not judicial in nature, because the decision of the Immigration and Naturalization Service did not present a justiciable issue that could have been reviewed by a court on appeal. See ante at 462 U. S. 957 , n. 22. The Court notes that, since the administrative agency decided the case in favor of Chadha, there was no aggrieved party who could appeal. Reliance by the Court on this fact misses the point. Even if review of the particular decision to suspend deportation is not committed to the courts, the House of Representatives assumed a function that generally is entrusted to an impartial tribunal. In my view, the Legislative Branch, in effect, acted as an appellate court by overruling the Service's application of established law to Chadha. And unlike a court or an administrative agency, it did not provide Chadha with the right to counsel or a hearing before acting. Although the parallel is not entirely complete, the effect on Chadha's personal rights would not have been different in principle had he been acquitted of a federal crime and thereafter found by one House of Congress to have been guilty. [ Footnote 2/9 ] When Congress grants particular individuals relief or benefits under its spending power, the danger of oppressive action that the separation of powers was designed to avoid is not implicated. Similarly, Congress may authorize the admission of individual aliens by special Acts, but it does not follow that Congress unilaterally may make a judgment that a particular alien has no legal right to remain in this country. See Memorandum Concerning H.R. 9766 Entitled "An Act to Direct the Deportation of Harry Renton Bridges," reprinted in S.Rep. No. 2031, 76th Cong., 3d Sess., pt. 1, p. 8 (1940). As Attorney General Robert Jackson remarked, such a practice "would be an historical departure from an unbroken American practice and tradition." Id. at 9. [ Footnote 2/10 ] We have recognized that independent regulatory agencies and departments of the Executive Branch often exercise authority that is "judicial in nature." Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 140 -141 (1976). This function, however, forms part of the agencies' execution of public law, and is subject to the procedural safeguards, including judicial review, provided by the Administrative Procedure Act, see 5 U.S.C. § 551 et seq. See also 462 U.S. 919 fn2/5|>n. 5, supra. JUSTICE WHITE, dissenting. Today the Court not only invalidates § 244(c)(2) of the Immigration and Nationality Act, but also sounds the death knell for nearly 200 other statutory provisions in which Congress has reserved a "legislative veto." For this reason, the Court's decision is of surpassing importance. And it is for this reason that the Court would have been well advised to decide the cases, if possible, on the narrower grounds of separation of powers, leaving for full consideration the constitutionality of other congressional review statutes operating on such varied matters as war powers and agency rulemaking, some of which concern the independent regulatory agencies. [ Footnote 3/1 ] The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central Page 462 U. S. 968 means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or, in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accordingly, over the past five decades, the legislative veto has been placed in nearly 200 statutes. [ Footnote 3/2 ] The device is known in every field of governmental concern: reorganization, budgets, foreign affairs, war powers, and regulation of trade, safety, energy, the environment, and the economy. The legislative veto developed initially in response to the problems of reorganizing the sprawling Government structure created in response to the Depression. The Reorganization Acts established the chief model for the legislative veto. When President Hoover requested authority to reorganize the Government in 1929, he coupled his request that the "Congress be willing to delegate its authority over the problem (subject to defined principles) to the Executive" with a proposal for legislative review. He proposed that the Executive "should act upon approval of a joint committee of Congress or with the reservation of power of revision by Congress within some limited period adequate for its consideration." Public Papers of the Presidents, Herbert Hoover, 1929, p. 432 (1974). Congress followed President Hoover's suggestion and authorized reorganization subject to legislative Page 462 U. S. 969 review. Act of June 30, 1932, § 407, 47 Stat. 414. Although the reorganization authority reenacted in 1933 did not contain a legislative veto provision, the provision returned during the Roosevelt administration, and has since been renewed numerous times. Over the years, the provision was used extensively. Presidents submitted 115 Reorganization Plans to Congress, of which 23 were disapproved by Congress pursuant to legislative veto provisions. See App. A to Brief for United States Senate on Reargument. Shortly after adoption of the Reorganization Act of 1939, 53 Stat. 561, Congress and the President applied the legislative veto procedure to resolve the delegation problem for national security and foreign affairs. World War II occasioned the need to transfer greater authority to the President in these areas. The legislative veto offered the means by which Congress could confer additional authority while preserving its own constitutional role. During World War II, Congress enacted over 30 statutes conferring powers on the Executive with legislative veto provisions. [ Footnote 3/3 ] President Roosevelt accepted the veto as the necessary price for obtaining exceptional authority. [ Footnote 3/4 ] Over the quarter century following World War II, Presidents continued to accept legislative vetoes by one or both Houses as constitutional, while regularly denouncing provisions by which congressional Committees reviewed Executive activity. [ Footnote 3/5 ] The legislative veto balanced delegations of Page 462 U. S. 970 statutory authority in new areas of governmental involvement: the space program, international agreements on nuclear energy, tariff arrangements, and adjustment of federal pay rates. [ Footnote 3/6 ] During the 1970's, the legislative veto was important in resolving a series of major constitutional disputes between the President and Congress over claims of the President to broad impoundment, war, and national emergency powers. The Page 462 U. S. 971 key provision of the War Powers Resolution, 50 U.S.C. § 1544(c), authorizes the termination by concurrent resolution of the use of armed forces in hostilities. A similar measure resolved the problem posed by Presidential claims of inherent power to impound appropriations. Congressional Budget and Impoundment Control Act of 1974, 31 U.S.C. § 1403. In conference, a compromise was achieved under which permanent impoundments, termed "rescissions," would require approval through enactment of legislation. In contrast, temporary impoundments, or "deferrals," would become effective unless disapproved by one House. This compromise provided the President with flexibility, while preserving ultimate congressional control over the budget. [ Footnote 3/7 ] Although the War Powers Resolution was enacted over President Nixon's veto, the Impoundment Control Act was enacted with the President's approval. These statutes were followed by others resolving similar problems: the National Emergencies Act, § 202, 90 Stat. 1255, 50 U.S.C. § 1622, resolving the longstanding problems with unchecked Executive emergency power; the International Security Assistance and Arms Export Control Act, § 211, 90 Stat. 740, 22 U.S.C. § 2776(b), resolving the problem of foreign arms sales; and the Nuclear Non-Proliferation Act of 1978, §§ 303(a), 304(a), 306, 307, 401, 92 Stat. 130, 134, 137, 138, 144-145, 42 U.S.C. §§ 2160(f), 2155(b), 2157(b), 2158, 2153(d) (1976 ed., Supp. V), resolving the problem of exports of nuclear technology. In the energy field, the legislative veto served to balance broad delegations in legislation emerging from the energy crisis of the 1970's. [ Footnote 3/8 ] In the educational field, it was found Page 462 U. S. 972 that fragmented and narrow grant programs "inevitably lead to Executive-Legislative confrontations" because they inaptly limited the Commissioner of Education's authority. S.Rep. No. 93-763, p. 69 (1974). The response was to grant the Commissioner of Education rulemaking authority, subject to a legislative veto. In the trade regulation area, the veto preserved congressional authority over the Federal Trade Commission's broad mandate to make rules to prevent businesses from engaging in "unfair or deceptive acts or practices in commerce." [ Footnote 3/9 ] Even this brief review suffices to demonstrate that the legislative veto is more than "efficient, convenient, and useful." Ante at 462 U. S. 944 . It is an important, if not indispensable, political invention that allows the President and Congress to resolve major constitutional and policy differences, assures the accountability of independent regulatory agencies, and preserves Page 462 U. S. 973 Congress' control over lawmaking. Perhaps there are other means of accommodation and accountability, but the increasing reliance of Congress upon the legislative veto suggests that the alternatives to which Congress must now turn are not entirely satisfactory. [ Footnote 3/10 ] Page 462 U. S. 974 The history of the legislative veto also makes clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches -- the concerns of Madison and Hamilton. Rather, the veto has been a means of defense, a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Art. I as the Nation's lawmaker. While the President has often objected to particular legislative vetoes, generally those left in the hands of congressional Committees, the Executive has more often agreed to legislative review as the price for a broad delegation of authority. To be sure, the President may have preferred unrestricted power, but that could be precisely why Congress thought it essential to retain a check on the exercise of delegated authority. II For all these reasons, the apparent sweep of the Court's decision today is regrettable. The Court's Art. I analysis appears to invalidate all legislative vetoes, irrespective of form or subject. Because the legislative veto is commonly found as a check upon rulemaking by administrative agencies and upon broad-based policy decisions of the Executive Branch, it is particularly unfortunate that the Court reaches its decision in cases involving the exercise of a veto over deportation decisions regarding particular individuals. Courts should always be wary of striking statutes as unconstitutional; to strike an entire class of statutes based on consideration of a somewhat atypical and more readily indictable exemplar of the class is irresponsible. It was for cases such as these that Justice Brandeis wrote: "The Court has frequently called attention to the 'great gravity and delicacy' of its function in passing upon the validity of an act of Congress. . . . " * * * * Page 462 U. S. 975 "The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, N.Y. & P. S.S. Co. v. Emigration Commissioners , [ 113 U.S. 33 , 113 U. S. 39 (1885)]." Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 345 , 297 U. S. 347 (1936) (concurring opinion). Unfortunately, today's holding is not so limited. [ Footnote 3/11 ] Page 462 U. S. 976 If the legislative veto were as plainly unconstitutional as the Court strives to suggest, its broad ruling today would be more comprehensible. But the constitutionality of the legislative veto is anything but clear-cut. The issue divides scholars, [ Footnote 3/12 ] courts, [ Footnote 3/13 ] Attorneys General, [ Footnote 3/14 ] and the two other Page 462 U. S. 977 branches of the National Government. If the veto devices so flagrantly disregarded the requirements of Art. I as the Court today suggests, I find it incomprehensible that Congress, whose Members are bound by oath to uphold the Constitution, would have placed these mechanisms in nearly 200 separate laws over a period of 50 years. The reality of the situation is that the constitutional question posed today is one of immense difficulty over which the Executive and Legislative Branches -- as well as scholars and judges -- have understandably disagreed. That disagreement stems from the silence of the Constitution on the precise question: the Constitution does not directly authorize or prohibit the legislative veto. Thus, our task should be to determine whether the legislative veto is consistent with the purposes of Art. I and the principles of separation of powers which are reflected in that Article and throughout the Constitution. [ Footnote 3/15 ] Page 462 U. S. 978 We should not find the lack of a specific constitutional authorization for the legislative veto surprising, and I would not infer disapproval of the mechanism from its absence. From the summer of 1787 to the present, the Government of the United States has become an endeavor far beyond the contemplation of the Framers. Only within the last half century has the complexity and size of the Federal Government's responsibilities grown so greatly that the Congress must rely on the legislative veto as the most effective, if not the only, means to insure its role as the Nation's lawmaker. But the wisdom of the Framers was to anticipate that the Nation would grow and new problems of governance would require different solutions. Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles. This was the spirit in which Justice Jackson penned his influential concurrence in the Steel Seizure Case: "The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 635 (1952). This is the perspective from which we should approach the novel constitutional questions presented by the legislative veto. In my view, neither Art. I of the Constitution nor the doctrine of separation of powers is violated by this mechanism Page 462 U. S. 979 by which our elected Representatives preserve their voice in the governance of the Nation. III The Court holds that the disapproval of a suspension of deportation by the resolution of one House of Congress is an exercise of legislative power without compliance with the prerequisites for lawmaking set forth in Art. I of the Constitution. Specifically, the Court maintains that the provisions of § 244(c)(2) are inconsistent with the requirement of bicameral approval, implicit in Art. I, § 1, and the requirement that all bills and resolutions that require the concurrence of both Houses be presented to the President, Art. I, § 7, cls. 2 and 3. [ Footnote 3/16 ] I do not dispute the Court's truismatic exposition of these Clauses. There is no question that a bill does not become a law until it is approved by both the House and the Senate, and presented to the President. Similarly, I would not hesitate to strike an action of Congress in the form of a concurrent resolution which constituted an exercise of original lawmaking authority. I agree with the Court that the President's Page 462 U. S. 980 qualified veto power is a critical element in the distribution of powers under the Constitution, widely endorsed among the Framers, and intended to serve the President as a defense against legislative encroachment and to check the "passing of bad laws, through haste, inadvertence, or design." The Federalist No. 73, p. 458 (H. Lodge ed. 1888) (A. Hamilton). The records of the Convention reveal that it is the first purpose which figured most prominently, but I acknowledge the vitality of the second. Id. at 443. I also agree that the bicameral approval required by Art. I, § 1, 7, "was of scarcely less concern to the Framers than was the Presidential veto," ante at 462 U. S. 948 , and that the need to divide and disperse legislative power figures significantly in our scheme of Government. All of this, 462 U. S. is entirely unexceptionable. It does not, however, answer the constitutional question before us. The power to exercise a legislative veto is not the power to write new law without bicameral approval or Presidential consideration. The veto must be authorized by statute, and may only negative what an Executive department or independent agency has proposed. On its face, the legislative veto no more allows one House of Congress to make law than does the Presidential veto confer such power upon the President. Accordingly, the Court properly recognizes that it "must nevertheless establish that the challenged action under § 244(c)(2) is of the kind to which the procedural requirements of Art. I, § 7, apply," and admits that "[n]ot every action taken by either House is subject to the bicameralism and presentation requirements of Art. I." Ante at 462 U. S. 952 . A The terms of the Presentment Clauses suggest only that bills and their equivalent are subject to the requirements of bicameral passage and presentment to the President. Article I, § 7, cl. 2, stipulates only that "Every Bill which shall have passed the House of Representatives and the Senate Page 462 U. S. 981 shall, before it becomes a law, be presented to the President" for approval or disapproval, his disapproval then subject to being overridden by a two-thirds vote of both Houses. Section 7, cl. 3, goes further: "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." Although the Clause does not specify the actions for which the concurrence of both Houses is "necessary," the proceedings at the Philadelphia Convention suggest its purpose was to prevent Congress from circumventing the presentation requirement in the making of new legislation. James Madison observed that, if the President's veto was confined to bills, it could be evaded by calling a proposed law a "resolution" or "vote," rather than a "bill." Accordingly, he proposed that "or resolve" should be added after "bill" in what is now Clause 2 of 7. 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 301-302 (1911). After a short discussion on the subject, the amendment was rejected. On the following day, however, Randolph renewed the proposal in the substantial form as it now appears, and the motion passed. Id. at 304-305; 5 J. Elliot, Debates on the Federal Constitution 431 (1845). The chosen language, Madison's comment, and the brevity of the Convention's consideration, all suggest a modest role was intended for the Clause, and no broad restraint on congressional authority was contemplated. See Stewart, Constitutionality of the Legislative Veto, 13 Harv.J.Legis. 593, 609-611 (1976). This reading is consistent with the historical background of the Presentment Clause itself, which reveals only that the Framers were concerned Page 462 U. S. 982 with limiting the methods for enacting new legislation. The Framers were aware of the experience in Pennsylvania, where the legislature had evaded the requirements attached to the passing of legislation by the use of "resolves," and the criticisms directed at this practice by the Council of Censors. [ Footnote 3/17 ] There is no record that the Convention contemplated, let alone intended, that these Art. I requirements would someday be invoked to restrain the scope of congressional authority pursuant to duly enacted law. [ Footnote 3/18 ] Page 462 U. S. 983 When the Convention did turn its attention to the scope of Congress' lawmaking power, the Framers were expansive. The Necessary and Proper Clause, Art. I, § 8, cl. 18, vests Page 462 U. S. 984 Congress with the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [the enumerated powers of § 8] and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." It is long settled that Congress may "exercise its best judgment in the selection of measures, to carry into execution the constitutional powers of the government," and "avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 415 -416, 17 U. S. 420 (1819). B The Court heeded this counsel in approving the modern administrative state. The Court's holding today that all legislative-type action must be enacted through the lawmaking process ignores that legislative authority is routinely delegated to the Executive Branch, to the independent regulatory agencies, and to private individuals and groups. "The rise of administrative bodies probably has been the most significant legal trend of the last century. . . . They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories. . . ." FTC v. Ruberoid Co., 343 U. S. 470 , 343 U. S. 487 (1952) (Jackson, J. dissenting). Page 462 U. S. 985 This Court's decisions sanctioning such delegations make clear that Art. I does not require all action with the effect of legislation to be passed as a law. Theoretically, agencies and officials were asked only to "fill up the details," and the rule was that "Congress cannot delegate any part of its legislative power except under the limitation of a prescribed standard." United States v. Chicago, M., St. P. & P. R. Co., 282 U. S. 311 , 282 U. S. 324 (1931). Chief Justice Taft elaborated the standard in J. W. Hampton & Co. v. United States, 276 U. S. 394 , 276 U. S. 409 (1928): "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." In practice, however, restrictions on the scope of the power that could be delegated diminished and all but disappeared. In only two instances did the Court find an unconstitutional delegation. Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). In other cases, the "intelligible principle" through which agencies have attained enormous control over the economic affairs of the country was held to include such formulations as "just and reasonable," Tagg Bros. & Moorhead v. United States, 280 U. S. 420 (1930); "public interest," New York Central Securities Corp. v. United States, 287 U. S. 12 (1932); "public convenience, interest, or necessity," Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 , 289 U. S. 285 (1933); and "unfair methods of competition." FTC v. Gratz, 253 U. S. 421 (1920). The wisdom and the constitutionality of these broad delegations are matters that still have not been put to rest. But for present purposes, these cases establish that, by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without the passage of new legislation. For some time, the sheer amount of law -- the substantive rules that regulate private conduct and direct the operation of government -- made by Page 462 U. S. 986 the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term. The Administrative Procedure Act, 5 U.S.C. § 551(4), provides that a "rule" is an agency statement "designed to implement, interpret, or prescribe law or policy." When agencies are authorized to prescribe law through substantive rulemaking, the administrator's regulation is not only due deference, but is accorded "legislative effect." See, e.g., Schweiker v. Gray Panthers, 453 U. S. 34 , 453 U. S. 43 -44 (1981); Batterton v. Francis, 432 U. S. 416 (1977). [ Footnote 3/19 ] These regulations bind courts and officers of the Federal Government, may preempt state law, see, e.g., Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141 (1982), and grant rights to and impose obligations on the public. In sum, they have the force of law. If Congress may delegate lawmaking power to independent and Executive agencies, it is most difficult to understand Art. I as prohibiting Congress from also reserving a check on legislative power for itself. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicameral Page 462 U. S. 987 approval and without the President's signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test. In both cases, it is enough that the initial statutory authorizations comply with the Art. I requirements. Nor are there strict limits on the agents that may receive such delegations of legislative authority so that it might be said that the Legislature can delegate authority to others, but not to itself. While most authority to issue rules and regulations is given to the Executive Branch and the independent regulatory agencies, statutory delegations to private persons have also passed this Court's scrutiny. In Currin v. Wallace, 306 U. S. 1 (1939), the statute provided that restrictions upon the production or marketing of agricultural commodities was to become effective only upon the favorable vote by a prescribed majority of the affected farmers. United States v. Rock Royal Co-operative, Inc., 307 U. S. 533 , 307 U. S. 577 (1939), upheld an Act which gave producers of specified commodities the right to veto marketing orders issued by the Secretary of Agriculture. Assuming Currin and Rock Royal Cooperative remain sound law, the Court's decision today suggests that Congress may place a "veto" power over suspensions of deportation in private hands or in the hands of an independent agency, but is forbidden to reserve such authority for itself. Perhaps this odd result could be justified on other constitutional grounds, such as the separation of powers, but certainly it cannot be defended as consistent with the Court's view of the Art. I presentment and bicameralism commands. [ Footnote 3/20 ] Page 462 U. S. 988 The Court's opinion in the present cases comes closest to facing the reality of administrative lawmaking in considering the contention that the Attorney General's action in suspending deportation under § 244 is itself a legislative act. The Court posits that the Attorney General is acting in an Art. II enforcement capacity under § 244. This characterization is at odds with Mahler v. Eby, 264 U. S. 32 , 264 U. S. 40 (1924), where the power conferred on the Executive to deport aliens was considered a delegation of legislative power. The Court suggests, however, that the Attorney General acts in an Art. II capacity because "[t]he courts, when a case or controversy arises, can always 'ascertain whether the will of Congress has been obeyed,' Yakus v. United States, 321 U. S. 414 , 321 U. S. 425 (1944), and can enforce adherence to statutory standards." Ante at 462 U. S. 953 , n. 16. This assumption is simply wrong, as the Court itself points out: "We are aware of no decision . . . where a federal court has reviewed a decision of the Attorney General suspending deportation of an alien pursuant to the standards set out in § 244(a)(1). This is not surprising, given that no party to such action has either the motivation or the right to appeal from it." Ante at 462 U. S. 957 , n. 22. It is perhaps on the erroneous premise that judicial review may check abuses of the § 244 power that the Court also submits that "[t]he bicameral process is not necessary as a check on the Executive's administration of the laws, because his administrative activity cannot reach beyond the limits of the statute that created it -- a statute duly enacted pursuant to Art. I, §§ 1, 7." Ante at 462 U. S. 953 , n. 16. On the other hand, the Court's reasoning does persuasively explain why a resolution of disapproval Page 462 U. S. 989 under § 244(c)(2) need not again be subject to the bicameral process. Because it serves only to check the Attorney General's exercise of the suspension authority granted by § 244, the disapproval resolution -- unlike the Attorney General's action -- "cannot reach beyond the limits of the statute that created it -- a statute duly enacted pursuant to Art. I." More fundamentally, even if the Court correctly characterizes the Attorney General's authority under § 244 as an Art. II Executive power, the Court concedes that certain administrative agency action, such as rulemaking, "may resemble lawmaking" and recognizes that "[t]his Court has referred to agency activity as being 'quasi-legislative' in character. Humphrey's Executor v. United States, 295 U. S. 602 , 295 U. S. 628 (1935)." Ante at 462 U. S. 953 , n. 16. Such rules and adjudications by the agencies meet the Court's own definition of legislative action for they "alte[r] the legal rights, duties, and relations of persons . . . outside the Legislative Branch," ante at 462 U. S. 952 , and involve "determinations of policy," ante at 462 U. S. 954 . Under the Court's analysis, the Executive Branch and the independent agencies may make rules with the effect of law while Congress, in whom the Framers confided the legislative power, Art. I, § 1, may not exercise a veto which precludes such rules from having operative force. If the effective functioning of a complex modern government requires the delegation of vast authority which, by virtue of its breadth, is legislative or "quasi-legislative" in character, I cannot accept that Art. I -- which is, after all, the source of the nondelegation doctrine -- should forbid Congress to qualify that grant with a legislative veto. [ Footnote 3/21 ] Page 462 U. S. 990 C The Court also takes no account of perhaps the most relevant consideration: however resolutions of disapproval under § 244(c)(2) are formally characterized, in reality, a departure from the status quo occurs only upon the concurrence of opinion among the House, Senate, and President. Reservations of legislative authority to be exercised by Congress should be upheld if the exercise of such reserved authority is consistent with the distribution of and limits upon legislative power that Art. I provides. 1 As its history reveals, § 244(c)(2) withstands this analysis. Until 1917, Congress had not broadly provided for the deportation of aliens. Act of Feb. 5, 1917, § 19, 39 Stat. 889. The Immigration Act of 1924 enlarged the categories of Page 462 U. S. 991 aliens subject to mandatory deportation, and substantially increased the likelihood of hardships to individuals by abolishing in most cases the previous time limitation of three years within which deportation proceedings had to be commenced. Immigration Act of 1924, ch.190, 43 Stat. 153. Thousands of persons, who either had entered the country in more lenient times or had been smuggled in as children, or had overstayed their permits, faced the prospect of deportation. Enforcement of the Act grew more rigorous over the years, with the deportation of thousands of aliens without regard to the mitigating circumstances of particular cases. See Mansfield, The Legislative Veto and the Deportation of Aliens, 1 Public Administration Review 281 (1941). Congress provided relief in certain cases through the passage of private bills. In 1933, when deportations reached their zenith, the Secretary of Labor temporarily suspended numerous deportations on grounds of hardship, 78 Cong.Rec. 11783 (1934), and proposed legislation to allow certain deportable aliens to remain in the country. H.R. 9725, 73d Cong., 2d Sess. (1934). The Labor Department bill was opposed, however, as "grant[ing] too much discretionary authority," 78 Cong.Rec. 11790 (1934) (remarks of Rep. Dirksen), and it failed decisively. Id. at 11791. The following year, the administration proposed bills to authorize an interdepartmental committee to grant permanent residence to deportable aliens who had lived in the United States for 10 years or who had close relatives here. S. 2969 and H.R. 8163, 74th Cong., 1st Sess. (1935). These bills were also attacked as an "abandonment of congressional control over the deportation of undesirable aliens," H.R.Rep. No. 1110, 74th Cong., 1st Sess., pt. 2, p. 2 (1935), and were not enacted. A similar fate awaited a bill introduced in the 75th Congress that would have authorized the Secretary to grant permanent residence to up to 8,000 deportable aliens. The measure passed the House, but did not come to a vote in the Senate. H.R. 6391, 75th Cong., 1st Sess., 83 Cong.Rec. 8992-8996 (1938). Page 462 U. S. 992 The succeeding Congress again attempted to find a legislative solution to the deportation problem. The initial House bill required congressional action to cancel individual deportations, 84 Cong.Rec. 10455 (1939), but the Senate amended the legislation to provide that deportable aliens should not be deported unless the Congress, by Act or resolution, rejected the recommendation of the Secretary. H.R. 5138, § 10, as reported with amendments by S.Rep. No. 1721, 76th Cong., 3d Sess., 2 (1940). The compromise solution, the immediate predecessor to § 244(c), allowed the Attorney General to suspend the deportation of qualified aliens. Their deportation would be canceled and permanent residence granted if the House and Senate did not adopt a concurrent resolution of disapproval. S.Rep. No. 1796, 76th Cong., 3d Sess., 5-6 (1940). The Executive Branch played a major role in fashioning this compromise, see 86 Cong.Rec. 8345 (1940), and President Roosevelt approved the legislation, which became the Alien Registration Act of 1940, ch. 439, 54 Stat. 670. In 1947, the Department of Justice requested legislation authorizing the Attorney General to cancel deportations without congressional review. H.R. 2933, 80th Cong., 1st Sess. (1947). The purpose of the proposal was to "save time and energy of everyone concerned. . . ." Regulating Powers of the Attorney General to Suspend Deportation of Aliens: Hearings on H.R. 245, H.R. 674, H.R. 1115, and H.R. 2933 before the Subcommittee on Immigration of the House Committee on the Judiciary, 80th Cong., 1st Sess., 34 (1947). The Senate Judiciary Committee objected, stating that "affirmative action by the Congress in all suspension cases should be required before deportation proceedings may be canceled." S.Rep. No. 1204, 80th Cong., 2d Sess., 4 (1948). See also H.R.Rep. No. 647, 80th Cong., 1st Sess., 2 (1947). Congress not only rejected the Department's request for final authority, but also amended the Immigration Act to require that cancellation of deportation be approved Page 462 U. S. 993 by a concurrent resolution of the Congress. President Truman signed the bill without objection. Act of July 1, 1948, ch. 783, 62 Stat. 1206. Practice over the ensuing several years convinced Congress that the requirement of affirmative approval was "not workable . . . and would, in time, interfere with the legislative work of the House." House Judiciary Committee, H.R.Rep. No. 362, 81st Cong., 1st Sess., 2 (1949). In preparing the comprehensive Immigration and Nationality Act of 1952, the Senate Judiciary Committee recommended that, for certain classes of aliens, the adjustment of status be subject to the disapproval of either House; but deportation of an alien "who is of the criminal, subversive, or immoral classes or who overstays his period of admission," would be canceled only upon a concurrent resolution disapproving the deportation. S.Rep. No. 1515, 81st Cong., 2d Sess., 610 (1950). Legislation reflecting this change was passed by both Houses, and enacted into law as part of the Immigration and Nationality Act of 1952 over President Truman's veto, which was not predicated on the presence of a legislative veto. Pub.L. 414, § 244(a), 66 Stat. 214. In subsequent years, the Congress refused further requests that the Attorney General be given final authority to grant discretionary relief for specified categories of aliens, and § 244 remained intact to the present. Section 244(a)(1) authorizes the Attorney General, in his discretion, to suspend the deportation of certain aliens who are otherwise deportable and, upon Congress' approval, to adjust their status to that of aliens lawfully admitted for permanent residence. In order to be eligible for this relief, an alien must have been physically present in the United States for a continuous period of not less than seven years, must prove he is of good moral character, and must prove that he or his immediate family would suffer "extreme hardship" if he is deported. Judicial review of a denial of relief may be sought. Thus, the suspension proceeding "has two phases: a Page 462 U. S. 994 determination whether the statutory conditions have been met, which generally involves a question of law, and a determination whether relief shall be granted, which [ultimately] is confided to the sound discretion of the Attorney General [and his delegates]." 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 7.9a(5), p. 7-134 (rev. ed.1983). There is also a third phase to the process. Under § 244(c)(1), the Attorney General must report all such suspensions, with a detailed statement of facts and reasons, to the Congress. Either House may then act, in that session or the next, to block the suspension of deportation by passing a resolution of disapproval. § 244(c)(2). Upon congressional approval of the suspension -- by its silence -- the alien's permanent status is adjusted to that of a lawful resident alien. The history of the Immigration and Nationality Act makes clear that § 244(c)(2) did not alter the division of actual authority between Congress and the Executive. At all times, whether through private bills, or through affirmative concurrent resolutions, or through the present one-House veto, a permanent change in a deportable alien's status could be accomplished only with the agreement of the Attorney General, the House, and the Senate. 2 The central concern of the presentment and bicameralism requirements of Art. I is that, when a departure from the legal status quo is undertaken, it is done with the approval of the President and both Houses of Congress -- or, in the event of a Presidential veto, a two-thirds majority in both Houses. This interest is fully satisfied by the operation of § 244(c)(2). The President's approval is found in the Attorney General's action in recommending to Congress that the deportation order for a given alien be suspended. The House and the Senate indicate their approval of the Executive's action by not passing a resolution of disapproval within the statutory period. Thus, a change in the legal status quo -- the deportability of the alien -- is consummated only with the approval Page 462 U. S. 995 of each of the three relevant actors. The disagreement of any one of the three maintains the alien's preexisting status: the Executive may choose not to recommend suspension; the House and Senate may each veto the recommendation. The effect on the rights and obligations of the affected individuals and upon the legislative system is precisely the same as if a private bill were introduced but failed to receive the necessary approval. "The President and the two Houses enjoy exactly the same say in what the law is to be as would have been true for each without the presence of the one-House veto, and nothing in the law is changed absent the concurrence of the President and a majority in each House." Atkins v. United States, 214 Ct.Cl. 186, 250, 556 F.2d 1028, 1064 (1977), cert. denied, 434 U.S. 1009 (1978). This very construction of the Presentment Clauses which the Executive Branch now rejects was the basis upon which the Executive Branch defended the constitutionality of the Reorganization Act, 5 U.S.C. § 906(a) (1982 ed.), which provides that the President's proposed reorganization plans take effect only if not vetoed by either House. When the Department of Justice advised the Senate on the constitutionality of congressional review in reorganization legislation in 1949, it stated: "In this procedure, there is no question involved of the Congress taking legislative action beyond its initial passage of the Reorganization Act." S.Rep. No. 232, 81st Cong., 1st Sess., 20 (1949) (Dept. of Justice Memorandum). This also represents the position of the Attorney General more recently. [ Footnote 3/22 ] Page 462 U. S. 996 Thus understood, § 244(c)(2) fully effectuates the purposes of the bicameralism and presentment requirements. I now briefly consider possible objections to the analysis. First, it may be asserted that Chadha's status before legislative disapproval is one of nondeportation, and that the exercise of the veto, unlike the failure of a private bill, works a change in the status quo. This position plainly ignores the statutory language. At no place in § 244 has Congress delegated to the Attorney General any final power to determine which aliens shall be allowed to remain in the United States. Congress has retained the ultimate power to pass on such changes in deportable status. By its own terms, § 244(a) states that whatever power the Attorney General has been delegated to suspend deportation and adjust status is to be exercisable only "[a]s hereinafter prescribed in this section." Subsection (c) is part of that section. A grant of "suspension" does not cancel the alien's deportation or adjust the alien's status to that of a permanent resident alien. A suspension order is merely a "deferment of deportation," McGrath v. Kristensen, 340 U. S. 162 , 340 U. S. 168 (1950), which can mature into a cancellation of deportation and adjustment of status only upon the approval of Congress -- by way of silence -- under § 244(c)(2). Only then does the statute authorize the Attorney General to "cancel deportation proceedings," § 244(c)(2), and "record the alien's lawful admission for permanent residence. . . ." § 244(d). The Immigration and Naturalization Service's action, on behalf of the Attorney General, "cannot become effective without ratification by Congress." 2 C. Gordon & H. Rosenfield, Immigration Law Page 462 U. S. 997 and Procedure 8.14, p. 8-121 (rev. ed.1983). Until that ratification occurs, the Executive's action is simply a recommendation that Congress finalize the suspension -- in itself, it works no legal change. Second, it may be said that this approach leads to the incongruity that the two-House veto is more suspect than its one-House brother. Although the idea may be initially counterintuitive, on close analysis, it is not at all unusual that the one-House veto is of more certain constitutionality than the two-House version. If the Attorney General's action is a proposal for legislation, then the disapproval of but a single House is all that is required to prevent its passage. Because approval is indicated by the failure to veto, the one-House veto satisfies the requirement of bicameral approval. The two-House version may present a different question. The concept that "neither branch of Congress, when acting separately, can lawfully exercise more power than is conferred by the Constitution on the whole body," Kilbourn v. Thompson, 103 U. S. 168 , 103 U. S. 182 (1881), is fully observed. [ Footnote 3/23 ] Third, it may be objected that Congress cannot indicate its approval of legislative change by inaction. In the Court of Appeals' view, inaction by Congress "could equally imply endorsement, acquiescence, passivity, indecision, or indifference," 634 F.2d 408, 435 (1980), and the Court appears to echo this concern, ante at 462 U. S. 958 , n. 23. This objection appears more properly directed at the wisdom of the legislative veto than its constitutionality. The Constitution does not and cannot guarantee that legislators will carefully scrutinize legislation and deliberate before acting. In a democracy, it is the electorate that holds the legislators accountable for the wisdom of their choices. It is hard to maintain that a private bill receives any greater individualized scrutiny than a resolution Page 462 U. S. 998 of disapproval under § 244(c)(2). Certainly the legislative veto is no more susceptible to this attack than the Court's increasingly common practice of according weight to the failure of Congress to disturb an Executive or independent agency's action. See 462 U.S. 919 fn3/11|>n. 11, supra. Earlier this Term, the Court found it important that Congress failed to act on bills proposed to overturn the Internal Revenue Service's interpretation of the requirements for tax-exempt status under § 501(c)(3) of the Internal Revenue Code. Bob Jones University v. United States, 461 U. S. 574 , 461 U. S. 600 -601 (1983). If Congress may be said to have ratified the Internal Revenue Service's interpretation without passing new legislation, Congress may also be said to approve a suspension of deportation by the Attorney General when it fails to exercise its veto authority. [ Footnote 3/24 ] The requirements of Art. I are not compromised by the congressional scheme. IV The Court of Appeals struck § 244(c)(2) as violative of the constitutional principle of separation of powers. It is true that the purpose of separating the authority of Government is to prevent unnecessary and dangerous concentration of power in one branch. For that reason, the Framers saw fit to divide and balance the powers of Government so that each branch would be checked by the others. Virtually every part of our constitutional system bears the mark of this judgment. Page 462 U. S. 999 But the history of the separation of powers doctrine is also a history of accommodation and practicality. Apprehensions of an overly powerful branch have not led to undue prophylactic measures that handicap the effective working of the National Government as a whole. The Constitution does not contemplate total separation of the three branches of Government. Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 121 (1976). "[A] hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively." Ibid. [ Footnote 3/25 ] Our decisions reflect this judgment. As already noted, the Court, recognizing that modern government must address a formidable agenda of complex policy issues, countenanced the delegation of extensive legislative authority to Executive and independent agencies. J. W. Hampton & Co. v. United States, 276 U. S. 394 , 276 U. S. 406 (1928). The separation-of-powers doctrine has heretofore led to the invalidation of Government action only when the challenged action violated some express provision in the Constitution. In Buckley v. Valeo, supra, at 424 U. S. 118 -124 (per curiam), and Myers v. United States, 272 U. S. 52 (1926), congressional action compromised the appointment power of the President. See also Springer v. Philippine Islands, 277 U. S. 189 , 277 U. S. 200 -201 (1928). In United States v. Klein , 13 Wall. 128 (1872), an Act of Congress was struck for encroaching upon judicial Page 462 U. S. 1000 power, but the Court found that the Act also impinged upon the Executive's exclusive pardon power. Art. II, § 2. Because we must have a workable efficient Government, this is as it should be. This is the teaching of Nixon v. Administrator of General Services, 433 U. S. 425 (1977), which, in rejecting a separation of powers objection to a law requiring that the Administrator take custody of certain Presidential papers, set forth a framework for evaluating such claims: "[I]n determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. United States v. Nixon, 418 U.S. at 418 U. S. 711 -712. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." Id. at 433 U. S. 443 . Section 244(c)(2) survives this test. The legislative veto provision does not "preven[t] the Executive Branch from accomplishing its constitutionally assigned functions." First, it is clear that the Executive Branch has no "constitutionally assigned" function of suspending the deportation of aliens. " [O]ver no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." Kleindienst v. Mandel, 408 U. S. 753 , 408 U. S. 766 (1972), quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320 , 214 U. S. 339 (1909). Nor can it be said that the inherent function of the Executive Branch in executing the law is involved. The Steel Seizure Case resolved that the Art. II mandate for the President to execute the law is a directive to enforce the law which Congress has written. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). "The duty of the President to see that the laws be executed is a Page 462 U. S. 1001 duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." Myers v. United States, 272 U.S. at 272 U. S. 177 (Holmes, J., dissenting); id. at 272 U. S. 247 (Brandeis, J., dissenting). Here, § 244 grants the Executive only a qualified suspension authority, and it is only that authority which the President is constitutionally authorized to execute. Moreover, the Court believes that the legislative veto we consider today is best characterized as an exercise of legislative or quasi-legislative authority. Under this characterization, the practice does not, even on the surface, constitute an infringement of executive or judicial prerogative. The Attorney General's suspension of deportation is equivalent to a proposal for legislation. The nature of the Attorney General's role as recommendatory is not altered because § 244 provides for congressional action through disapproval, rather than by ratification. In comparison to private bills, which must be initiated in the Congress and which allow a Presidential veto to be overriden by a two-thirds majority in both Houses of Congress, § 244 augments, rather than reduces, the Executive Branch's authority. So understood, congressional review does not undermine, as the Court of Appeals thought, the "weight and dignity" that attends the decisions of the Executive Branch. Nor does § 244 infringe on the judicial power, as JUSTICE POWELL would hold. Section 244 makes clear that Congress has reserved its own judgment as part of the statutory process. Congressional action does not substitute for judicial review of the Attorney General's decisions. The Act provides for judicial review of the refusal of the Attorney General to suspend a deportation and to transmit a recommendation to Congress. INS v. Jong Ha Wang, 450 U. S. 139 (1981) (per curiam). But the courts have not been given the authority to review whether an alien should be given permanent status; review is limited to whether the Attorney General has properly Page 462 U. S. 1002 applied the statutory standards for essentially denying the alien a recommendation that his deportable status be changed by the Congress. Moreover, there is no constitutional obligation to provide any judicial review whatever for a failure to suspend deportation. "The power of Congress, therefore, to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend." Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 713 -714 (1893). See also Tutun v. United States, 270 U. S. 568 , 270 U. S. 576 (1926); Ludecke v. Watkins, 335 U. S. 160 , 335 U. S. 171 -172 (1948); Harisiades v. Shaughnessy, 342 U. S. 580 , 342 U. S. 590 (1952). I do not suggest that all legislative vetoes are necessarily consistent with separation of powers principles. A legislative check on an inherently executive function, for example, that of initiating prosecutions, poses an entirely different question. But the legislative veto device here -- and in many other settings -- is far from an instance of legislative tyranny over the Executive. It is a necessary check on the unavoidably expanding power of the agencies, both Executive and independent, as they engage in exercising authority delegated by Congress. V I regret that I am in disagreement with my colleagues on the fundamental questions that these cases present. But even more I regret the destructive scope of the Court's holding. It reflects a profoundly different conception of the Constitution than that held by the courts which sanctioned the modern administrative state. Today's decision strikes down in one fell swoop provisions in more laws enacted by Congress than the Court has cumulatively invalidated in its history. I fear it will now be more difficult to "insur[e] that the fundamental policy decisions in our society will be made not Page 462 U. S. 1003 by an appointed official, but by the body immediately responsible to the people," Arizona v. California, 373 U. S. 546 , 373 U. S. 626 (1963) (Harlan, J., dissenting in part). I must dissent. | 462 U.S. 919 app| APPENDIX TO OPINION OF WHITE, J., DISSENTING STATUTES WITH PROVISIONS AUTHORIZING CONGRESSIONAL REVIEW This compilation, reprinted from the Brief for the United States Senate, identifies and describes briefly current statutory provisions for a legislative veto by one or both Houses of Congress. Statutory provisions for a veto by Committees of the Congress and provisions which require legislation ( i.e., passage of a joint resolution) are not included. The 55 statutes in the compilation (some of which contain more than one provision for legislative review) are divided into six broad categories: foreign affairs and national security, budget, international trade, energy, rulemaking and miscellaneous. " A" " FOREIGN AFFAIRS AND NATIONAL SECURITY" "1. Act for International Development of 1961, Pub.L. No. 87-195, § 617, 75 Stat. 424, 444, [as amended,] 22 U.S.C. § 2367 [(1976 ed., Supp. V)] (Funds made available for foreign assistance under the Act may be terminated by concurrent resolution)." "2. War Powers Resolution, Pub.L. No. 93-148, § 5, 87 Stat. 555, 556-557 (1973), [as amended,] 50 U.S.C. § 1544 [(1976 ed. and Supp. V)] (Absent declaration of war, President may be directed by concurrent resolution to remove United States armed forces engaged in foreign hostilities.)" "3. Department of Defense Appropriation Authorization Act, 1974, Pub.L. No. 93-155, § 807, 87 Stat. 605, 615 (1973), 50 U.S.C. § 1431 (National defense contracts obligating the United States for any amount in excess of $25,000,000 may be disapproved by resolution of either House). " Page 462 U. S. 1004 "4. Department of Defense Appropriation Authorization Act, 1975, Pub.L. No. 93-365, § 709(c), 88 Stat. 399, 408 (1974), [as amended,] 50 U.S.C. app. § 2403-1(c) [(1976 ed., Supp. V)] (Applications for export of defense goods, technology or techniques may be disapproved by concurrent resolution)." "5. H.R.J.Res. 683, Pub.L. No. 94-110, § 1, 89 Stat. 572 (1975), 22 U.S.C. § 2441 note (Assignment of civilian personnel to Sinai may be disapproved by concurrent resolution)." "6. International Development and Food Assistance Act of 1975, Pub.L. No. 94-161, § 310, 89 Stat. 849, 860, [as amended,] 22 U.S.C. § 215m [(1976 ed., Supp. V)] (Foreign assistance to countries not meeting human rights standards may be terminated by concurrent resolution)." "7. International Security Assistance and Arms [Export] Control Act of 1976, Pub.L. No. 94-329, §[211(a)], 90 Stat. 729, 743, [as amended,] 22 U.S.C. § 2776(b) [(1976 ed. and Supp. V)] (President's letter of offer to sell major defense equipment may be disapproved by concurrent resolution)." "8. National Emergencies Act, Pub.L. No. 94-412, § 202, 90 Stat. 1255 (1976), 50 U.S.C. § 1622 (Presidentially declared national emergency may be terminated by concurrent resolution)." "9. International Navigational Rules Act of 1977, Pub.L. No. 95-75, § 3(d), 91 Stat. 308, 33 U.S.C. § 1602(d) [(1976 ed., Supp. V)] (Presidential proclamation of International Regulations for Preventing Collisions at Sea may be disapproved by concurrent resolution)." "10. International Security Assistance Act of 1977, Pub.L. No. 95-92, § 16, 91 Stat. 614, 622, 22 U.S.C. § 2753(d)(2) (President's proposed transfer of arms to a third country may be disapproved by concurrent resolution)." "11. Act of December [28], 1977, Pub.L. No. 95-223, § [207(b)], 91 Stat. 1625, 1628, 50 U.S.C. § 1706(b) [(1976 ed., Supp. V)] (Presidentially declared national emergency and exercise of conditional powers may be terminated by concurrent resolution). " Page 462 U. S. 1005 "12. Nuclear Non-Proliferation Act of 1978, Pub.L. No. 95242, §§ [303(a), 304(a)], 306, 307, 401, 92 Stat. 120, 130, 134, 137-38, 139, 144, 42 U.S.C. §§ 2160(f), 2155(b), 2157(b), [2158] 2153(d) [(1976 ed., Supp. V)] (Cooperative agreements concerning storage and disposition of spent nuclear fuel, proposed export of nuclear facilities, materials or technology and proposed agreements for international cooperation in nuclear reactor development may be disapproved by concurrent resolution)." " B" " BUDGET" "13. Congressional Budget and Impoundment Control Act of 1974, Pub.L. No. 93-344, § 1013, 88 Stat. 297, 334-35, 31 U.S.C. § 1403 (The proposed deferral of budget authority provided for a specific project or purpose may be disapproved by an impoundment resolution by either House)." " C" " I NTERNATIONAL TRADE" "14. Trade Expansion Act of 1962, Pub.L. No. 87-794, § 351, 76 Stat. 872, 899, 19 U.S.C. § 1981(a) (Tariff or duty recommended by Tariff Commission may be imposed by concurrent resolution of approval)." "15. Trade Act of 1974, Pub.L. No. 93-618, §§ 203(c), 302(b), 402(d), 407, 88 Stat.1978, 2016, 2043, 2057-60, 2063-64, [as amended,] 19 U.S.C. §§ 2253(c), 2412(b), 2432, [2437 (1976 ed. and Supp. V)] (Proposed Presidential actions on import relief and actions concerning certain countries may be disapproved by concurrent resolution; various Presidential proposals for waiver extensions and for extension of nondiscriminatory treatment to products of foreign countries may be disapproved by simple (either House) or concurrent resolutions)." "16. Export-Import Bank Amendments of 1974, Pub.L. No. 93-646, § 8, 88 Stat. 2333, 2336, 12 U.S.C. § [635e(b)] (Presidentially proposed limitation for exports to USSR in Page 462 U. S. 1006 excess of $300,000,000 must be approved by concurrent resolution)." " D" " ENERGY" "17. Act of November 16, 1973, Pub.L. No. 93-153, § 101, 87 Stat. 576, 582, 30 U.S.C. § 185(u) (Continuation of oil exports being made pursuant to President's finding that such exports are in the national interest may be disapproved by concurrent resolution)." "18. Federal Nonnuclear Energy Research and Development Act of 1974, Pub.L. No. 93-577, § 12, 88 Stat. 1878, 1892-1893, 42 U.S.C. § 5911 (Rules or orders proposed by the President concerning allocation or acquisition of essential materials may be disapproved by resolution of either House)." "19. Energy Policy and Conservation Act, Pub.L. No. 94163, § 551, 89 Stat. 871, 965 (1975), 42 U.S.C. § 6421(c) (Certain Presidentially proposed 'energy actions' involving fuel economy and pricing may be disapproved by resolution of either House)." "20. Naval Petroleum Reserves Production Act of 1976, Pub.L. No. 94-258, § [201(3)], 90 Stat. 303, 309, 10 U.S.C. § 7422(c)(2)(C) (President's extension of production period for naval petroleum reserves may be disapproved by resolution of either House)." "22. Department of Energy Act of 1978 -- Civilian Applications, Pub.L. No. 95-238, §§ 107, 207(b), 92 Stat. 47, 55, 70, 22 U.S.C. § 3224a, 42 U.S.C. § 5919(m) [(1976 ed., Supp. V)] (International agreements and expenditures by Secretary of Energy of appropriations for foreign spent nuclear fuel storage must be approved by concurrent resolution, if not consented to by legislation) (plans for such use of appropriated funds may be disapproved by either House) (financing in excess of $50,000,000 for demonstration facilities must be approved by resolution in both Houses). " Page 462 U. S. 1007 "23. Outer Continental Shelf Lands Act Amendments of 1978, Pub.L. No. 95-372, §§ 205(a), 208, 92 Stat. 629, 641-668, 43 U.S.C. §§ 1337(a), 1354(c) [(1976 ed., Supp. V); (Establishment by Secretary of Energy of oil and gas lease bidding system may be disapproved by resolution of either House) (export of oil and gas may be disapproved by concurrent resolution).]" "24. Natural Gas Policy Act of 1978, Pub.L. No. 95-621, §§ 122(c)(1) and (2), 202(c), 206(d)(2), 507, 92 Stat. 3350, 3370 3371, 3372, 3380, 3406, 15 U.S.C. §§ 3332, 3342(c), 3346(d)(2), 3417 [(1976 ed., Supp. V)] (Presidential reimposition of natural gas price controls may be disapproved by concurrent resolution) (Congress may reimpose natural gas price controls by concurrent resolution) (Federal Energy Regulatory Commission (FERC) amendment to pass through incremental costs of natural gas, and exemptions therefrom, may be disapproved by resolution of either House) (procedure for congressional review established)." "25. Export Administration Act of 1979, Pub.L. No. 9672, §§ [7(d)(2)(B)] 7(g)(3), 93 Stat. 503, 518, 520, 50 U.S.C. app. §§2406(d)(2)(B), 2406(g)(3) [(1976 ed., Supp. V)] (President's proposal to [export] domestically produce[d] crude oil must be approved by concurrent resolution) (action by Secretary of Commerce to prohibit or curtail export of agricultural commodities may be disapproved by concurrent resolution)." "26. Energy Security Act, Pub.L. No. 96-294, §§ 104 (b)(3), 104(e), 126(d)(2), 126(d)(3), 128, 129, 132(a)(3), 133 (a)(3), 137(b)(5), 141(d), 179(a), 803, 94 Stat. 611, 618, 619, 620, 623-26, 628-29, 649, 650-52, 659, 660, 664, 666, 679, 776 (1980) 50 U.S.C. app. §§ 2091-93, 2095, 2096, 2097, 42 U.S.C. 8722, 8724, 8725, 8732, 8733, 8737, 8741, 8779, 6240 [(1976 ed., Supp. V)] (Loan guarantees by Departments of Defense, Energy and Commerce in excess of specified amounts may be disapproved by resolution of either House) (President's proposal to provide loans or guarantees in excess Page 462 U. S. 1008 of established amounts may be disapproved by resolution of either House) (proposed award by President of individual contracts for purchase of more than 75,000 barrels per day of crude oil may be disapproved by resolution of either House) (President's proposals to overcome energy shortage through synthetic fuels development, and individual contracts to purchase more than 75,000 barrels per day, including use of loans or guarantees, may be disapproved by resolution of either House) (procedures for either House to disapprove proposals made under Act are established) (request by Synthetic Fuels Corporation (SFC) for additional time to submit its comprehensive strategy may be disapproved by resolution of either House) (proposed amendment to comprehensive strategy by SFC Board of Directors may be disapproved by concurrent resolution of either House or by failure of both Houses to pass concurrent resolution of approval) (procedure for either House to disapprove certain proposed actions of SFC is established) (procedure for both Houses to approve by concurrent resolution or either House to reject concurrent resolution for proposed amendments to comprehensive strategy of SFC is established) (proposed loans and loan guarantees by SFC may be disapproved by resolution of either House) (acquisition by SFC of a synthetic fuels project which is receiving financial assistance may be disapproved by resolution of either House) (SFC contract renegotiations exceeding initial cost estimates by 175% may be disapproved by resolution of either House) (proposed financial assistance to synthetic fuel projects in Western Hemisphere outside United States may be disapproved by resolution of either House) (President's request to suspend provisions requiring build up of reserves and limiting sale or disposal of certain crude oil reserves must be approved by resolution of both Houses)." " E" " RULEMAKING" "27. Education Amendments of 1974, Pub.L. No. 93-380, § [509(a)], 88 Stat. 484, 567, 20 U.S.C. § 1232(d)(1) [(1976 ed., Page 462 U. S. 1009 Supp. V)] (Department of Education regulations may be disapproved by concurrent resolution)." "28. Federal Education Campaign Act Amendments of 1979, Pub.L. No. 96-187, § 109, 93 Stat. 1339, 1364, 2 U.S.C. � 438(d)(2) [(1976 ed., Supp. V)] (Proposed rules and regulations of the Federal Election Commission may be disapproved by resolution of either House)." "29. Act of January 2, 1975, Pub.L. No. 93-595, § [2(a)(1)], 88 Stat.1926, 1948, 28 U.S.C. § 2076 (Proposed amendments by Supreme Court of Federal Rules of Evidence may be disapproved by resolution of either House)." "30. Act of August 9, 1975, Pub.L. No. 94-88, § 208, 89 Stat. 433, 436-37, 42 U.S.C. § 602 note (Social Security standards proposed by Secretary of Health and Human Services may be disapproved by either House)." "31. Airline Deregulation Act of 1978, Pub.L. No. 95-504, § 43(f)(3), 92 Stat. 1705, 1752, 49 U.S.C. § 1552(f) [(1976 ed., Supp. V)] (Rules or regulations governing employee protection program may be disapproved by resolution of either House)." "32. Education Amendments of 1978, Pub.L. No. 95-561, §§ 1138, [212(b)], 1409, 92 Stat. 2143, 2327, 2341, 2369, 25 U.S.C. § 2018, 20 U.S.C. §§ [927], 1221-3(e) [(1976 ed., Supp. V)] (Rules and regulations proposed under the Act may be disapproved by concurrent resolution)." "33. Civil Rights of Institutionalized Persons Act, Pub.L. No. 96-247, § 7(b)(1), 94 Stat. 349, 352-353 (1980) 42 U.S.C. § 1997e [(1976 ed., Supp. V)] (Attorney General's proposed standards for resolution of grievances of adults confined in correctional facilities may be disapproved by resolution of either House)." "34. Federal Trade Commission Improvements Act of 1980, Pub.L. No. 96-252, § 21(a), 94 Stat. 374, 393, 15 U.S.C. § 57a-1 [(1976 ed., Supp. V)] (Federal Trade Commission rules may be disapproved by concurrent resolution)." "35 Department of Education Organization Act, Pub.L. No. 96-88, § 414(b), 93 Stat. 668, 685 (1979), 20 U.S.C. § 3474 Page 462 U. S. 1010 [(1976 ed., Supp. V)] (Rules and regulations promulgated with respect to the various functions, programs and responsibilities transferred by this Act, may be disapproved by concurrent resolution)." "36. Multiemployer Pension Plan Amendments Act of 1980, Pub.L. No. 96-364, § 102, 94 Stat. 1208, 1213, 29 U.S.C. § 1322a [(1976 ed., Supp. V)] (Schedules proposed by Pension Benefit Guaranty Corporation (PBGC) which requires an increase in premiums must be approved by concurrent resolution) (revised premium schedules for voluntary supplemental coverage proposed by PBGC may be disapproved by concurrent resolution)." "37. Farm Credit Act Amendments of 1980, Pub.L. No. 96-592, §508, 94 Stat. 3437, 3450, 12 U.S.C. § [2252 (1976 ed., Supp. V)] (Certain Farm Credit Administration regulations may be disapproved by concurrent resolution or delayed by resolution of either House.)" "38. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub.L. No. 96-510, § 305, 94 Stat. 2767, 2809, 42 U.S.C. § 9655 [(1976 ed., Supp. V)] (Environmental Protection Agency regulations concerning hazardous substances releases, liability and compensation may be disapproved by concurrent resolution or by the adoption of either House of a concurrent resolution which is not disapproved by the other House)." "39. National Historic Preservation Act Amendments of 1980, Pub.L. No. 96-515, § 501, 94 Stat. 2987, 3004, 16 U.S.C. § 470w-6 [(1976 ed., Supp. V)] (Regulation proposed by the Secretary of the Interior may be disapproved by concurrent resolution)." "40. Coastal Zone Management Improvement Act of 1980, Pub.L. No. 96-464, § 12, 94 Stat. 2060, 2067, 16 U.S.C. § 1463a [(1976 ed., Supp. V)] (Rules proposed by the Secretary of Commerce may be disapproved by concurrent resolution)." "41. Act of December 17, 1980, Pub.L. No. 96-539, § 4, 94 Stat. 3194, 3195, 7 U.S.C. § 136w [(1976 ed., Supp. V)] (Rules or regulations promulgated by the Administrator of the Environmental Page 462 U. S. 1011 Protection Agency under the Federal Insecticide, Fungicide and Rodenticide Act may be disapproved by concurrent resolution)." "42. Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, §§ § 533(a)(2), 1107(d), 1142, 1183(a)(2), 1207, 95 Stat. 357, 453, 626, 654, 659, 695, 718-20, 20 U.S.C. § 1089, 23 U.S.C. § 402(j), 45 U.S.C. §§ 761, 767, 564(c)(3), 15 U.S.C. §§ 2083, 1276, 1204 [(1976 ed., Supp. V)] (Secretary of Education's schedule of expected family contributions for Pell Grant recipients may be disapproved by resolution of either House) (rules promulgated by Secretary of Transportation for programs to reduce accidents, injuries and deaths may be disapproved by resolution of either House) (Secretary of Transportation's plan for the sale of government's common stock in rail system may be disapproved by concurrent resolution) (Secretary of Transportation's approval of freight transfer agreements may be disapproved by resolution of either House) (amendments to Amtrak's Route and Service Criteria may be disapproved by resolution of either House) (Consumer Product Safety Commission regulations may be disapproved by concurrent resolution of both Houses, or by concurrent resolution of disapproval by either House if such resolution is not disapproved by the other House)." " F" " MISCELLANEOUS" "43. Federal Civil Defense Act of 1950, Pub.L. No. 81920, § 201, 64 Stat. 1245, 1248, [as amended,] 50 app.U.S.C. § 2281(g) [(1976 ed., Supp. V)] (Interstate civil defense compacts may be disapproved by concurrent resolution)." "44. National Aeronautics and Space Act of 1958, Pub.L. No. 85-568, § [302(c)], 72 Stat. 426, 433, 42 U.S.C. § 2453 (President's transfer to National Air and Space Administration of functions of other departments and agencies may be disapproved by concurrent resolution). " Page 462 U. S. 1012 "45. Federal Pay Comparability Act of 1970, Pub.L. No. 91-656, § 3, 84 Stat.1946, 1949, 5 U.S.C. § 5305 (President's alternative pay plan may be disapproved by resolution of either House)." "46. Act of October 19, 1973, Pub.L. No. 93-134, § 5, 87 Stat. 466, 468, 25 U.S.C. § 1405 (Plan for use and distribution of funds paid in satisfaction of judgment of Indian Claims Commission or Court of Claims may be disapproved by resolution of either House)." "47. Menominee Restoration Act, Pub.L. No. 93-197, § 6, 87 Stat. 770, 773 (1973), 25 U.S.C. § 903d(b) (Plan by Secretary of the Interior for assumption of the assets [of] the Menominee Indian corporation may be disapproved by resolution of either House)." "48. District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, §§ 303, 602(c)(1) and (2), 87 Stat. 774, 784, 814 (1973) (District of Columbia Charter amendments ratified by electors must be approved by concurrent resolution) (acts of District of Columbia Council may be disapproved by concurrent resolution) (acts of District of Columbia Council under certain titles of D.C.Code may be disapproved by resolution of either House)." "49. Act of December 31, 1975, Pub.L. No. 94-200, § 102, 89 Stat. 1124, 12 U.S.C. §461 note (Federal Reserve System Board of Governors may not eliminate or reduce interest rate differentials between banks insured by Federal Deposit Insurance Corporation and associations insured by Federal Savings and Loan Insurance Corporations without concurrent resolution of approval)." "50. Veterans' Education and Employment Assistance Act of 1976, Pub.L. No. 94-502, § 408, 90 Stat. 2383, 2397-98, 38 U.S.C. § 1621 note (President's recommendation for continued enrollment period in Armed Forces educational assistance program may be disapproved by resolution of either House). " Page 462 U. S. 1013 "51. Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, §§ 203(c), 204(c)(1), 90 Stat. 2743, 2750, 2752, 43 U.S.C. §§ 1713(c), 1714 (Sale of public lands in excess of two thousand five hundred acres and withdrawal of public lands aggregating five thousand acres or more may be disapproved by concurrent resolution)." "52. Emergency Unemployment Compensation Extension Act of 1977, Pub.L. No. 95-19, § [401(a)] 91 Stat. 39, 45, 2 U.S.C. § 359 [(1976 ed., Supp. V)] (President's recommendations regarding rates of salary payment may be disapproved by resolution of either House)." "53. Civil Service Reform Act of 1978, Pub.L. No. 95-454, § 415, 92 Stat. 1111, 1179, 5 U.S.C. § 3131 note [(1976 ed., Supp. V)] (Continuation of Senior Executive Service may be disapproved by concurrent resolution)." "54. Full Employment and Balanced Growth Act of 1978, Pub.L. No. 95-523, § 304(b), 92 Stat. 1887, 1906, 31 U.S.C. § 1322 [(1976 ed., Supp. V)] (Presidential timetable for reducing unemployment may be superseded by concurrent resolution)." "55. District of Columbia Retirement Reform Act, Pub.L. No. 96-122, § 164, 93 Stat. 866, 891-92 (1979) (Required reports to Congress on the District of Columbia retirement program may be rejected by resolution of either House)." "56. Act of August 29, 1980, Pub.L. No. 96-332, § 2, 94 Stat. 1057, 1058, 16 U.S.C. § 1432 [(1976 ed., Supp. V)] (Designation of marine sanctuary by the Secretary of Commerce may be disapproved by concurrent resolution)." [ Footnote 3/1 ] As JUSTICE POWELL observes in his separate opinion, "the respect due [Congress'] judgment as a coordinate branch of Government cautions that our holding should be no more extensive than necessary to decide these cases." Ante at 462 U. S. 960 . The Court of Appeals for the Ninth Circuit also recognized that "we are not here faced with a situation in which the unforeseeability of future circumstances or the broad scope and complexity of the subject matter of an agency's rulemaking authority preclude the articulation of specific criteria in the governing statute itself. Such factors might present considerations different from those we find here, both as to the question of separation of powers and the legitimacy of the unicameral device." 634 F.2d 408, 433 (1980) (footnote omitted). [ Footnote 3/2 ] A selected list and brief description of these provisions is 462 U.S. 919 app|>appended to this opinion. [ Footnote 3/3 ] Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1089-1090 (1975) (listing statutes). [ Footnote 3/4 ] The Roosevelt administration submitted proposed legislation containing veto provisions and defended their constitutionality. See, e.g., General Counsel to the Office of Price Administration, Statement on Constitutionality of Concurrent Resolution Provision of Proposed Price Control Bill (H.R. 5479), reprinted in Price-Control Bill: Hearings on H.R. 5479 before the House Committee on Banking and Currency, 77th Cong., 1st Sess., pt. 1, p. 983 (1941). [ Footnote 3/5 ] Presidential objections to the veto, until the veto by President Nixon of the War Powers Resolution, principally concerned bills authorizing Committee vetoes. As the Senate Subcommittee on Separation of Powers found in 1969, "an accommodation was reached years ago on legislative vetoes exercised by the entire Congress or by one House, [while] disputes have continued to arise over the committee form of the veto." S.Rep. No. 91-549, p. 14 (1969). Presidents Kennedy and Johnson proposed enactment of statutes with legislative veto provisions. See National Wilderness Preservation Act: Hearings on S. 4 before the Senate Committee on Interior and Insular Affairs, 88th Cong., 1st Sess., 4 (1963) (President Kennedy's proposals for withdrawal of wilderness areas); President's Message to the Congress Transmitting the Budget for Fiscal Year 1970, 5 Weekly Comp.Pres.Doc. 70, 73 (1969) (President Johnson's proposals allowing legislative veto of tax surcharge). The administration of President Kennedy submitted a memorandum supporting the constitutionality of the legislative veto. See General Counsel of the Department of Agriculture, Constitutionality of Title I of H.R. 6400, 87th Cong., 1st Session (1961), reprinted in Legislative Policy of the Bureau of the Budget: Hearing before the Subcommittee on Conservation and Credit of the House Committee on Agriculture, 89th Cong., 2d Sess., 27, 31-32 (1966). During the administration of President Johnson, the Department of Justice again defended the constitutionality of the legislative veto provision of the Reorganization Act, as contrasted with provisions for a Committee veto. See Separation of Powers: Hearings before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 206 (1967) (testimony of Frank M. Wozencraft, Assistant Attorney General for the Office of Legal Counsel). [ Footnote 3/6 ] National Aeronautics and Space Act of 1958, Pub.L. 85-568, § 302, 72 Stat. 433 (space program); Atomic Energy Act Amendments of 1958, Pub.L. 85-479, § 4, 72 Stat. 277 (cooperative nuclear agreements); Trade Expansion Act of 1962, Pub.L. 87-794, § 351, 76 Stat. 899, 19 U.S.C. § 1981 (tariff recommended by International Trade Commission may be imposed by concurrent resolution of approval); Postal Revenue and Federal Salary Act of 1967, Pub.L. 90-206, § 255(i)(1), 81 Stat. 644. [ Footnote 3/7 ] The Impoundment Control Act's provision for legislative review has been used extensively. Presidents have submitted hundreds of proposed budget deferrals, of which 65 have been disapproved by resolutions of the House or Senate with no protest by the Executive. See App. B to Brief for United States Senate on Reargument. [ Footnote 3/8 ] The veto appears in a host of broad statutory delegations concerning energy rationing, contingency plans, strategic oil reserves, allocation of energy production materials, oil exports, and naval petroleum reserve production. Naval Petroleum Reserves Production Act of 1976, Pub.L. 94-258, § 201(3), 90 Stat. 309, 10 U.S.C. § 7422(c)(2)(C); Energy Policy and Conservation Act, Pub.L. 94-163, §§ 159, 201, 401(a), and 455, 89 Stat. 886, 890, 941, and 950, 42 U.S.C. §§ 6239 and 6261, 15 U.S.C. §§ 757 and 760a (strategic oil reserves, rationing and contingency plans, oil price controls and product allocation); Federal Nonnuclear Energy Research and Development Act of 1974, Pub.L. 93-577, § 12, 88 Stat. 1892-1893, 42 U.S.C. § 5911 (allocation of energy production materials); Act of Nov. 16, 1973, Pub.L. 93-153, § 101, 87 Stat. 582, 30 U.S.C. § 185(u) (oil exports). [ Footnote 3/9 ] Congress found that under the agency's "very broad authority to prohibit conduct which is 'unfair or deceptive' . . . the FTC can regulate virtually every aspect of America's commercial life. . . . The FTC's rules are not merely narrow interpretations of a tightly drawn statute; instead, they are broad policy pronouncements which Congress has an obligation to study and review." 124 Cong.Rec. 5012 (1978) (statement by Rep. Broyhill). A two-House legislative veto was added to constrain that broad delegation. Federal Trade Commission Improvements Act of 1980, § 21(a), 94 Stat. 393, 15 U.S.C. § 57a-1(a) (1976 ed., Supp. V). The constitutionality of that provision is presently pending before us. United States Senate v. Federal Trade Commission, No. 82-935; United States House of Representatives v. Federal Trade Commission, No. 82-1044. [ Footnote 3/10 ] While Congress could write certain statutes with greater specificity, it is unlikely that this is a realistic or even desirable substitute for the legislative veto. The controversial nature of many issues would prevent Congress from reaching agreement on many major problems if specificity were required in their enactments. Fuchs, Administrative Agencies and the Energy Problem, 47 Ind.L.J. 606, 608 (1972); Stewart, Reformation of American Administrative Law, 88 Harv.L.Rev. 1667, 1695-1696 (1975). For example, in the deportation context, the solution is not for Congress to create more refined categorizations of the deportable aliens whose status should be subject to change. In 1979, the Immigration and Naturalization Service proposed regulations setting forth factors to be considered in the exercise of discretion under numerous provisions of the Act, but not including § 244, to ensure "fair and uniform" adjudication "under appropriate discretionary criteria." 44 Fed.Reg. 36187 (1979). The proposed rule was canceled in 1981, because "[t]here is an inherent failure in any attempt to list those factors which should be considered in the exercise of discretion. It is impossible to list or foresee all of the adverse or favorable factors which may be present in a given set of circumstances." 46 Fed.Reg. 9119 (1981). Oversight hearings and congressional investigations have their purpose, but unless Congress is to be rendered a think tank or debating society, they are no substitute for the exercise of actual authority. The "delaying" procedure approved in Sibbach v. Wilson & Co., 312 U. S. 1 , 312 U. S. 15 (1941), while satisfactory for certain measures, has its own shortcomings. Because a new law must be passed to restrain administrative action, Congress must delegate authority without the certain ability of being able to check its exercise. Finally, the passage of corrective legislation after agency regulations take effect or Executive Branch officials have acted entails the drawbacks endemic to a retroactive response. " Post hoc substantive revision of legislation, the only available corrective mechanism in the absence of postenactment review, could have serious prejudicial consequences; if Congress retroactively tampered with a price control system after prices have been set, the economy could be damaged and private rights seriously impaired; if Congress rescinded the sale of arms to a foreign country, our relations with that country would be severely strained; and if Congress reshuffled the bureaucracy after a President's reorganization proposal had taken effect, the results could be chaotic." Javits & Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U.L.Rev. 455, 464 (1977) (footnote omitted). [ Footnote 3/11 ] Perhaps I am wrong and the Court remains open to consider whether certain forms of the legislative veto are reconcilable with the Art. I requirements. One possibility for the Court and Congress is to accept that a resolution of disapproval cannot be given legal effect in its own right, but may serve as a guide in the interpretation of a delegation of lawmaking authority. The exercise of the veto could be read as a manifestation of legislative intent, which, unless itself contrary to the authorizing statute, serves as the definitive construction of the statute. Therefore, an agency rule vetoed by Congress would not be enforced in the courts because the veto indicates that the agency action departs from the congressional intent. This limited role for a redefined legislative veto follows in the steps of the longstanding practice of giving some weight to subsequent legislative reaction to administrative rulemaking. The silence of Congress after consideration of a practice by the Executive may be equivalent to acquiescence and consent that the practice be continued until the power exercised be revoked. United States v. Midwest Oil Co., 236 U. S. 459 , 236 U. S. 472 -473 (1915). See also Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 11 -12 (1965) (relying on congressional failure to repeal administration interpretation); Haig v. Agee, 453 U. S. 280 (1981) (same); Bob Jones University v. United States, 461 U. S. 574 (1983) (same); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353 , 456 U. S. 384 (1982) (relying on failure to disturb judicial decision in later revision of law). Reliance on subsequent legislative reaction has been limited by the fear of overturning the intent of the original Congress and the unreliability of discerning the views of a subsequent Congress. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102 , 447 U. S. 117 -118 (1980); United States v. Price, 361 U. S. 304 , 361 U. S. 313 (1960). These concerns are not forceful when the original statute authorizes subsequent legislative review. The presence of the review provision constitutes an express authorization for a subsequent Congress to participate in defining the meaning of the law. Second, the disapproval resolution allows for a reliable determination of congressional intent. Without the review mechanism, uncertainty over the inferences to draw from subsequent congressional action is understandable. The refusal to pass an amendment, for example, may indicate opposition to that position, but could mean that Congress believes the amendment is redundant with the statute as written. By contrast, the exercise of a legislative veto is an unmistakable indication that the agency or Executive decision at issue is disfavored. This is not to suggest that the failure to pass a veto resolution should be given any weight whatever. [ Footnote 3/12 ] For commentary generally favorable to the legislative veto, see Abourezk, Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 Ind.L.J. 323 (1977); Cooper & Cooper, The Legislative Veto and the Constitution, 30 Geo.Wash.L.Rev. 467 (1962); Dry, The Congressional Veto and the Constitutional Separation of Powers, in The Presidency in the Constitutional Order 195 (J. Bessette & J. Tulis eds.1981); Javits & Klein, supra, 462 U.S. 919 fn3/10|>n. 10, at 455; Miller & Knapp, The Congressional Veto: Preserving the Constitutional Framework, 52 Ind. L.J. 367 (1977); Nathanson, Separation of Powers and Administrative Law: Delegation, the Legislative Veto, and the "Independent" Agencies, 75 Nw.U.L.Rev. 1064 (1981); Newman & Keaton, Congress and the Faithful Execution of Laws -- Should Legislators Supervise Administrators?, 41 Calif.L.Rev. 565 (1953); Pearson, Oversight: A Vital Yet Neglected Congressional Function, 23 Kan.L.Rev. 277 (1975); Rodino, Congressional Review of Executive Action, 5 Seton Hall L.Rev. 489 (1974); Schwartz, Legislative Veto and the Constitution -- A Reexamination, 46 Geo.Wash.L.Rev. 351 (1978); Schwartz, Legislative Control of Administrative Rules and Regulations: I. The American Experience, 30 N.Y.U.L.Rev. 1031 (1955); Stewart, Constitutionality of the Legislative Veto, 13 Harv.J.Legis. 593 (1976). For commentary generally unfavorable to the legislative veto, see J. Bolton, The Legislative Veto: Unseparating the Powers (1977); Bruff & Gellhorn, Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 Harv.L.Rev. 1369 (1977); Dixon, The Congressional Veto and Separation of Powers: The Executive On a Leash?, 56 N.C.L.Rev. 423 (1978); FitzGerald, Congressional Oversight or Congressional Foresight: Guidelines From the Founding Fathers, 28 Ad.L.Rev. 429 (1976); Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L.Rev. 569 (1953); Henry, The Legislative Veto: In Search of Constitutional Limits, 16 Harv.J.Legis. 735 (1979); Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253 (1982); Scalia, The Legislative Veto: A False Remedy For System Overload, 3 Regulation 19 (Nov.-Dec.1979); Watson, supra, 462 U.S. 919 fn3/3|>n. 3, at 983; Comment, Congressional Oversight of Administrative Discretion: Defining the Proper Role of the Legislative Veto, 26 Am.U.L.Rev. 1018 (1977); Note, Congressional Veto of Administrative Action: The Probable Response to a Constitutional Challenge, 1976 Duke L.J. 285; Recent Developments, The Legislative Veto in the Arms Export Control Act of 1976, 9 Law & Pol'y Int'l Bus. 1029 (1977). [ Footnote 3/13 ] Compare Atkins v. United States, 214 Ct.Cl. 186, 556 F.2d 1028 (1977) (upholding legislative veto provision in Federal Salary Act, 2 U.S.C. § 351 et seq. ), cert. denied, 434 U.S. 1009 (1978), with Consumer Energy Council of America v. FERC, 218 U.S.App.D.C. 34, 673 F.2d 425 (1982) (holding unconstitutional the legislative veto provision in the Natural Gas Policy Act of 1978, 15 U.S.C. §§ 3301-3342 (1976 ed., Supp. V)), appeals docketed, Nos. 81-2008, 81-2020, 81-2151, and 81-2171, and cert. pending, Nos. 82-177 and 82-209. [ Footnote 3/14 ] See, e.g., 6 Op.Atty.Gen. 680, 683 (1854); Dept. of Justice, Memorandum re Constitutionality of Provisions in Proposed Reorganization Bills Now Pending in Congress, reprinted in S.Rep. No. 232, 81st Cong., 1st Sess., 19-20 (1949); Jackson, A Presidential Legal Opinion, 66 Harv.L.Rev. 1353 (1953); 43 Op.Atty.Gen. No. 10, p. 2 (1977). [ Footnote 3/15 ] I limit my concern here to those legislative vetoes which require either one or both Houses of Congress to pass resolutions of approval or disapproval, and leave aside the questions arising from the exercise of such powers by Committees of Congress. [ Footnote 3/16 ] I agree with JUSTICE REHNQUIST that Congress did not intend the one-House veto provision of § 244(c)(2) to be severable. Although the general rule is that the presence of a saving clause creates a presumption of divisibility, Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U. S. 210 , 286 U. S. 235 (1932), I read the saving clause contained in § 406 of the Immigration and Nationality Act as primarily pertaining to the severability of major parts of the Act from one another, not the divisibility of different provisions within a single section. Surely, Congress would want the naturalization provisions of the Act to be severable from the deportation sections. But this does not support preserving § 244 without the legislative veto, any more than a saving provision would justify preserving immigration authority without quota limits. More relevant is the fact that, for 40 years, Congress has insisted on retaining a voice on individual suspension cases -- it has frequently rejected bills which would place final authority in the Executive Branch. It is clear that Congress believed its retention crucial. Given this history, the Court's rewriting of the Act flouts the will of Congress. [ Footnote 3/17 ] The Pennsylvania Constitution required that all "bills of [a] public nature" had to be printed after being introduced, and had to lie over until the following session of the legislature before adoption. Pa.Const., § 15 (1776). These printing and layover requirements applied only to "bills." At the time, measures could also be enacted as a resolve, which was allowed by the Constitution as "urgent temporary legislation," without such requirements. A. Nevins, The American States During and After the Revolution 152 (1969). Using this method, the Pennsylvania Legislature routinely evaded printing and layover requirements through adoption of resolves. Ibid. A 1784 report of a committee of the Council of Censors, a state body responsible for periodically reviewing the state government's adherence to its Constitution, charged that the procedures for enacting legislation had been evaded though the adoption of resolves, instead of bills. Report of the Committee of the Council of Censors 13 (1784). See Nevins, supra, at 190. When, three years later, the federal Constitutional Convention assembled in Philadelphia, the delegates were reminded, in the course of discussing the President's veto, of the dangers pointed out by the Council of Censors Report. 5 J. Elliot, Debates on the Federal Constitution 430 (1845). Furthermore, Madison, who made the motion that led to the Presentment Clause, knew of the Council of Censors Report, The Federalist No. 50, p. 319 (H. Lodge ed. 1888), and was aware of the Pennsylvania experience. See The Federalist No. 48, supra, at 311-312. We have previously recognized the relevance of the Council of Censors Report in interpreting the Constitution. See Powell v. McCormack, 395 U. S. 486 , 395 U. S. 529 -530 (1969). [ Footnote 3/18 ] Although the legislative veto was not a feature of congressional enactments until the 20th century, the practices of the first Congresses demonstrate that the constraints of Art. I were not envisioned as a constitutional straitjacket. The First Congress, for example, began the practice of arming its Committees with broad investigatory powers without the passage of legislation. See A. Josephy, On the Hill: A History of the American Congress 81-83 (1979). More directly pertinent is the First Congress' treatment of the Northwest Territories Ordinance of 1787. The Ordinance, initially drafted under the Articles of Confederation on July 13, 1787, was the document which governed the territory of the United States northwest of the Ohio River. The Ordinance authorized the Territories to adopt laws, subject to disapproval in Congress. "The governor and judges, or a majority of them, shall adopt and publish in the district, such laws of the original states, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress, from time to time; which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved of by Congress; but afterwards the legislature shall have authority to alter them as they shall think fit." (Emphasis added.) After the Constitution was ratified, the Ordinance was reenacted to conform to the requirements of the Constitution. Act of Aug. 7, 1789, ch. 8, 1 Stat. 50-51. Certain provisions, such as one relating to appointment of officials by Congress, were changed because of constitutional concerns, but the language allowing disapproval by Congress was retained. Subsequent provisions for territorial laws contained similar language. See, e.g., 48 U.S.C. § 1478. Although at times Congress disapproved of territorial actions by passing legislation, see, e.g., Act of Mar. 3, 1807, ch. 44, 2 Stat. 444, on at least two occasions one House of Congress passed resolutions to disapprove territorial laws, only to have the other House fail to pass the measure for reasons pertaining to the subject matter of the bills. First, on February 16, 1795, the House of Representatives passed a concurrent resolution disapproving in one sweep all but one of the laws that the Governors and judges of the Northwest Territory had passed at a legislative session on August 1, 1792. 4 Annals of Cong. 1227. The Senate, however, refused to concur. Id. at 830. See B. Bond, The Civilization of the Old Northwest 70-71 (1934). Second, on May 9, 1800, the House passed a resolution to disapprove of a Mississippi territorial law imposing a license fee on taverns. H.R.Jour., 6th Cong., 1st Sess., 706 (1826 ed.). The Senate unsuccessfully attempted to amend the resolution to strike down all laws of the Mississippi Territory enacted since June 30, 1799. 5 C. Carter, Territorial Papers of the United States -- Mississippi 94-95 (1937). The histories of the Territories, the correspondence of the era, and the congressional Reports contain no indication that such resolutions disapproving of territorial laws were to be presented to the President or that the authorization for such a "congressional veto" in the Act of Aug. 7, 1789, was of doubtful constitutionality. The practices of the First Congress are not so clear as to be dispositive of the constitutional question now before us. But it is surely significant that this body, largely composed of the same men who authored Art. I and secured ratification of the Constitution, did not view the Constitution as forbidding a precursor of the modern day legislative veto. See J. W. Hampton & Co. v. United States, 276 U. S. 394 , 276 U. S. 412 (1928) ("In this first Congress sat many members of the Constitutional Convention of 1787. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our government and framers of our Constitution were actively participating in public affairs, long acquiesced in, fixes the construction to be given its provisions"). [ Footnote 3/19 ] "Legislative, or substantive, regulations are 'issued by an agency pursuant to statutory authority and . . . implement the statute, as, for example, the proxy rules issued by the Securities and Exchange Commission. . . . Such rules have the force and effect of law.' U.S. Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 30, n. 3 (1947)." Batterton v. Francis, 432 U.S. at 432 U. S. 425 , n. 9. Substantive agency regulations are clearly exercises of lawmaking authority; agency interpretations of their statutes are only arguably so. But as Henry Monaghan has observed: "Judicial deference to agency interpretation' of law is simply one way of recognizing a delegation of lawmaking authority to an agency." Monaghan, Marbury and the Administrative State, 83 Colum.L.Rev. 1, 26 (1983) (emphasis deleted). See, e.g., NLRB v. Hearst Publications, Inc., 322 U. S. 111 (1944); NLRB v. Hendricks County Rural Electric Membership Corp., 454 U. S. 170 (1981). [ Footnote 3/20 ] As the Court acknowledges, the "provisions of Art. I are integral parts of the constitutional design for the separation of powers." Ante at 462 U. S. 946 . But these separation of powers concerns are that legislative power be exercised by Congress, executive power by the President, and judicial power by the Courts. A scheme which allows delegation of legislative power to the President and the departments under his control, but forbids a check on its exercise by Congress itself, obviously denigrates the separation-of-powers concerns underlying Art. I. To be sure, the doctrine of separation of powers is also concerned with checking each branch's exercise of its characteristic authority. Section 244(c)(2) is fully consistent with the need for checks upon congressional authority, infra at 462 U. S. 994 -996, and the legislative veto mechanism, more generally is an important check upon Executive authority, supra at 462 U. S. 967 -974. [ Footnote 3/21 ] The Court's other reasons for holding the legislative veto subject to the presentment and bicameral passage requirements require but brief discussion. First, the Court posits that the resolution of disapproval should be considered equivalent to new legislation because, absent the veto authority of § 244(c)(2), neither House could, short of legislation, effectively require the Attorney General to deport an alien once the Attorney General has determined that the alien should remain in the United States. Ante at 462 U. S. 952 -954. The statement is neither accurate nor meaningful. The Attorney General's power under the Act is only to "suspend" the order of deportation; the "suspension" does not cancel the deportation or adjust the alien's status to that of a permanent resident alien. Cancellation of deportation and adjustment of status must await favorable action by Congress. More important, the question is whether § 244(c)(2), as written, is constitutional, and no law is amended or repealed by the resolution of disapproval, which is, of course, expressly authorized by that section. The Court also argues that the legislative character of the challenged action of one House is confirmed by the fact that, "when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action." Ante at 462 U. S. 955 . Leaving aside again the above-refuted premise that all action with a legislative character requires passage in a law, the short answer is that all of these carefully defined exceptions to the presentment and bicameralism strictures do not involve action of the Congress pursuant to a duly enacted statute. Indeed, for the most part these powers -- those of impeachment, review of appointments, and treaty ratification -- are not legislative powers at all. The fact that it was essential for the Constitution to stipulate that Congress has the power to impeach and try the President hardly demonstrates a limit upon Congress' authority to reserve itself a legislative veto, through statutes, over subjects within its lawmaking authority. [ Footnote 3/22 ] In his opinion on the constitutionality of the legislative review provisions of the most recent reorganization statute, 5 U.S.C. § 906(a) (1982 ed.), Attorney General Bell stated that "the statement in Article I, § 7, of the procedural steps to be followed in the enactment of legislation does not exclude other forms of action by Congress. . . . The procedures prescribed in Article I § 7, for congressional action are not exclusive." 43 Op.Atty.Gen. No. 10, pp. 2-3 (1977). "[I]f the procedures provided in a given statute have no effect on the constitutional distribution of power between the legislature and the executive," then the statute is constitutional. Id. at 3. In the case of the reorganization statute, the power of the President to refuse to submit a plan, combined with the power of either House of Congress to reject a submitted plan, suffices under the standard to make the statute constitutional. Although the Attorney General sought to limit his opinion to the reorganization statute, and the Executive opposes the instant statute, I see no Art. I basis to distinguish between the two. [ Footnote 3/23 ] Of course, when the authorizing legislation requires approval to be expressed by a positive vote, then the two-House veto would clearly comply with the bicameralism requirement under any analysis. [ Footnote 3/24 ] The Court's doubts that Congress entertained this "arcane" theory when it enacted § 244(c)(2) disregards the fact that this is the historical basis upon which the legislative vetoes contained in the Reorganization Acts have been defended, 462 U.S. 919 fn3/22|>n. 22, supra, and that the Reorganization Acts then provided the precedent articulated in support of other legislative veto provisions. See, e.g., 87 Cong.Rec. 735 (1941) (Rep. Dirksen) (citing Reorganization Act in support of proposal to include a legislative veto in Lend-Lease Act); H.R.Rep. No. 93-658, p. 42 (1973) (citing Reorganization Act as "sufficient precedent" for legislative veto provision for Impoundment Control Act). [ Footnote 3/25 ] Madison emphasized that the principle of separation of powers is primarily violated "where the whole power of one department is exercised by the same hands which possess the whole power of another department." The Federalist No. 47, pp. 325-326 (J. Cooke ed.1961). Madison noted that the oracle of the separation doctrine, Montesquieu, in writing that the legislative, executive, and judicial powers should not be united "in the same person or body of magistrates," did not mean "that these departments ought to have no partial agency in, or control over the acts of each other." Id. at 325 (emphasis in original). Indeed, according to Montesquieu, the legislature is uniquely fit to exercise an additional function: "to examine in what manner the laws that it has made have been executed." W. Gwyn, The Meaning of Separation of Powers 102 (1965). JUSTICE REHNQUIST, with whom JUSTICE WHITE joins, dissenting. A severability clause creates a presumption that Congress intended the valid portion of the statute to remain in force when one part is found to be invalid. Carter v. Carter Coal Co., 298 U. S. 238 , 298 U. S. 312 (1936); Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U. S. 210 , 286 U. S. 235 Page 462 U. S. 1014 (1932). A severability clause does not, however, conclusively resolve the issue. "[T]he determination, in the end, is reached by" asking "[w]hat was the intent of the lawmakers," Carter, supra, at 298 U. S. 312 , and "will rarely turn on the presence or absence of such a clause." United States v. Jackson, 390 U. S. 570 , 390 U. S. 585 , n. 27 (1968). Because I believe that Congress did not intend the one-House veto provision of § 244(c)(2) to be severable, I dissent. Section 244(c)(2) is an exception to the general rule that an alien's deportation shall be suspended when the Attorney General finds that statutory criteria are met. It is severable only if Congress would have intended to permit the Attorney General to suspend deportations without it. This Court has held several times over the years that exceptions such as this are not severable because, "by rejecting the exceptions intended by the legislature . . . the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions." Spraigue v. Thompson, 118 U. S. 90 , 118 U. S. 95 (1886). By severing § 244(c)(2), the Court permits suspension of deportation in a class of cases where Congress never stated that suspension was appropriate. I do not believe we should expand the statute in this way without some clear indication that Congress intended such an expansion. As the Court said in Davis v. Wallace, 257 U. S. 478 , 257 U. S. 484 -485 (1922): "Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted and which was intended to qualify or restrain. The reasoning on which the decisions proceed is illustrated in State ex rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174. In dealing with a contention that a statute Page 462 U. S. 1015 containing an unconstitutional provision should be construed as if the remainder stood alone, the court there said:" "This would be to mutilate the section and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is 'stricken out.' For all the purposes of construction, it is to be regarded as part of the act. The meaning of the legislature must be gathered from all that they have said, as well from that which is ineffectual for want of power, as from that which is authorized by law." "Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legislature intended that the meaning of the other provisions should be taken as restricted accordingly. Only with that restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State; and no other authority is competent to give them a larger application." See also Frost v. Corporation Comm'n of Oklahoma, 278 U. S. 515 , 278 U. S. 525 (1929). The Court finds that the legislative history of § 244 shows that Congress intended § 244(C)(2) to be severable because Congress wanted to relieve itself of the burden of private bills. But the history elucidated by the Court shows that Congress was unwilling to give the Executive Branch permission to suspend deportation on its own. Over the years, Congress consistently rejected requests from the Executive for complete discretion in this area. Congress always insisted on retaining ultimate control, whether by concurrent resolution, as in the 1948 Act, or by one-House veto, as in the present Act. Congress has never indicated that it would be willing to permit suspensions of deportation unless it could retain some sort of veto. Page 462 U. S. 1016 It is doubtless true that Congress has the power to provide for suspensions of deportation without a one-House veto. But the Court has failed to identify any evidence that Congress intended to exercise that power. On the contrary, Congress' continued insistence on retaining control of the suspension process indicates that it has never been disposed to give the Executive Branch a free hand. By severing § 244(c)(2), the Court has " confounded'" Congress' "`intention'" to permit suspensions of deportation "`with their power to carry that intention into effect.'" Davis, supra, at 257 U. S. 484 , quoting State ex rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174 (1870). Because I do not believe that § 244(c)(2) is severable, I would reverse the judgment of the Court of Appeals.

In the case of INS v. Chadha, the Supreme Court of the United States held that a provision of the Immigration and Nationality Act that allowed one House of Congress to veto the decision of the Executive Branch to allow a deportable alien to remain in the country was unconstitutional as it violated the separation of powers doctrine. The Court also held that it had jurisdiction to hear the appeal and that the legislative history indicated that Congress intended to retain control over the suspension of deportation process.

Separation of Powers

Yakus v. U.S.

https://supreme.justia.com/cases/federal/us/321/414/

U.S. Supreme Court Yakus v. United States, 321 U.S. 414 (1944) Yakus v. United States No. 374 Argued January 7, 1944 Decided March 27, 1944 321 U.S. 414 ast|>* 321 U.S. 414 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT Syllabus 1. The Emergency Price Control Act of 1942, as amended, held not to involve an unconstitutional delegation to the Price Administrator of the legislative power of Congress to control commodity prices in time of war. P. 321 U. S. 423 . (a) The Act, the declared purpose of which is to prevent wartime inflation, provides for the establishment of an Office of Price Administration under the direction of a Price Administrator appointed by the President. The Administrator is authorized, after consultation with representative members of the industry so far as practicable, to promulgate regulations fixing prices of commodities which "in his judgment will be generally fair and equitable and will effectuate the purposes of this Act" when, in his judgment, their prices "have risen or threaten to rise to an extent or in a manner inconsistent with the purposes of this Act." The Administrator is directed in fixing prices to give due consideration, so far as practicable, to prices prevailing during a Page 321 U. S. 415 designated base period, and to make adjustments for relevant factors of general applicability. P. 321 U. S. 419 et seq. (b) The essentials of the legislative function are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective. It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework. P. 321 U. S. 424 . (c) Acting within its constitutional power to fix prices, it is for Congress to say whether the data on the basis of which prices are to be fixed are to be confined within a narrow or a broad range. P. 321 U. S. 425 . (d) Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers. P. 321 U. S. 425 . (e) The standards prescribed by the Act, with the aid of the "statement of considerations" required to be made by the Administrator, are sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the Administrator, in fixing the designated prices, has conformed to those standards. P. 321 U. S. 426 . 2. The procedure prescribed by §§ 203 and 204 of the Emergency Price Control Act for determining the validity of the Administrator's price regulations -- by protest to and hearing before the Administrator, whose determination may be reviewed on complaint to the Emergency Court of Appeals and by this Court on certiorari -- is exclusive, and precludes the defense of invalidity of the regulation in a criminal prosecution for its violation. Pp. 321 U. S. 427 , 321 U. S. 429 . 3. Petitioners, who have not resorted to the procedure prescribed by Congress, can excuse their failure to do so, and can show a denial of constitutional right, only by showing that that procedure is incapable of affording them the due process of law guaranteed by the Fifth Amendment. P. 321 U. S. 434 . 4. The provisions of the Emergency Price Control Act, construed to deprive petitioners of opportunity to attack the validity of a price regulation (establishing maximum prices for the sale of certain meats at wholesale) in a prosecution for its violation, held not Page 321 U. S. 416 on their face incapable of affording due process of law. P. 321 U.S. 435 . (a) Petitioners were not required by the Act, nor by any other rule of law, to continue selling at a loss. P. 321 U. S. 431 . (b) The sixty days' period allowed for protest to the Administrator was not unduly short in view of the power of the Administrator to extend the time for presentation of evidence, and the right given by the Act to apply to the Emergency Court of Appeals for leave to introduce any evidence "which could not reasonably" have been offered to the Administrator. P. 321 U.S. 435 . (c) Since the Administrator's regulations provide for a full oral hearing in appropriate cases, the Court does not consider, in the absence of any application to the Administrator for such a hearing, whether the denial or an oral hearing in any particular case would be a denial of due process. P. 321 U. S. 436 . (d) In the absence of any application to the Administrator, it cannot be assumed that he will deny due process to any applicant. And the Emergency Court of Appeals, and this Court upon certiorari, have full power to correct any denial of due process or other procedural error that may occur in a particular case. Pp. 321 U. S. 434 , 321 U. S. 437 . 5. Under the circumstances in which the Act was adopted and must be applied, its denial of any judicial stay pending determination of the validity of a regulation does not deny due process. P. 321 U. S. 437 . (a) The statute provides an expeditious means of testing the validity of a price regulation without necessarily incurring any of the penalties provided by the Act. P. 321 U. S. 438 . (b) The due process clause is not violated by a statutory denial of a right to a restraining order or interlocutory injunction to one who has failed to apply for available administrative relief, not shown to be inadequate, from the operation of an administrative regulation, pending determination of its validity. P. 321 U. S. 439 . (c) The award of an interlocutory injunction by courts of equity is not a matter of right, even though irreparable injury may otherwise result to the plaintiff. And the legislative formulation of what would otherwise be a rule of judicial discretion is not a denial of due process or a usurpation of judicial functions. Pp. 321 U. S. 440 , 321 U. S. 442 . (d) The public interest may justify legislative authorization of summary action subject to later judicial review of its validity. P. 321 U. S. 442 . 6. No principle of law or provision of the Constitution precludes Congress from making criminal the violation of an administrative regulation, Page 321 U. S. 417 by one who has failed to avail himself of an adequate separate procedure for the adjudication of its validity, or precludes the practice of splitting the trial for violations of an administrative regulation by committing the determination of the issue of its validity to the agency which created it, and the issue of violation to a court which is given jurisdiction to punish violations. P. 321 U. S. 444 . 7. The Court does not decide whether one charged with criminal violation of a duly promulgated price regulation may defend on the ground that the regulation is unconstitutional on its face, or whether one who is forced to trial and convicted of violation of a regulation, while diligently seeking determination of its validity by the statutory procedure, may thus be deprived of the defense that the regulation is invalid. P. 321 U. S. 446 . 8. The Seventh Amendment's guarantee of a jury trial is inapplicable to a proceeding within the equity jurisdiction of the Emergency Court of Appeals to test the validity of a price regulation. P. 321 U. S. 447 . 9. In the present criminal proceeding, there was no denial of the right of trial by jury, guaranteed by the Sixth Amendment, to a trial by a jury of the State and district where the crime was committed. The question whether petitioners had committed the crime charged in the indictment and defined by Congress, namely, whether they had violated the statute by willful disobedience of a price regulation promulgated by the Administrator, was properly submitted to the jury. P. 321 U. S. 447 . 137 F.2d 850, affirmed. CERTIORARI, 320 U.S. 730, to review the affirmance of convictions for violations of the Emergency Price Control Act. Page 321 U. S. 418 OPINION of the Court by MR. CHIEF JUSTICE STONE, announced by MR. JUSTICE ROBERTS. The questions for our decision are: (1) Whether the Emergency Price Control Act of January 30, 1942, 56 Stat. 23, 50 U.S.C.App. Supp. II, §§ 901 et seq., as amended by the Inflation Control Act of October 2, 1942, 66 Stat. 765, 50 U.S.C.App. Supp. II, §§ 961 et seq., involves an unconstitutional delegation to the Price Administrator of the legislative power of Congress to control prices; (2) whether § 204(d) of the Act was intended to preclude consideration by a district court of the validity of a maximum price regulation promulgated by the Administrator, as a defense to a criminal prosecution for its violation; (3) whether the exclusive statutory procedure set up by §§ 203 and 204 of the Act for administrative and judicial review of regulations, with the accompanying stay provisions, provide a sufficiently adequate means of determining the validity of a price regulation to meet the demands of due process, and (4) whether, in view of this available method of review, § 204(d) of the Act, if construed to preclude consideration of the validity of the regulation as a defense to a prosecution for violating it, contravenes the Sixth Amendment, or works an unconstitutional legislative interference with the judicial power. Petitioners in both of these cases were tried and convicted by the District Court for Massachusetts upon several counts of indictments charging violation of §§ 4(a) and 205(b) of the Act by the willful sale of wholesale cuts of beef at prices above the maximum prices prescribed by §§ 1364.451-1364.455 of Revised Maximum Price Regulation No. 169, 7 Fed.Reg. 10381 et seq. Petitioners have not availed themselves of the procedure set up by §§ 203 and 204 by which any person subject to a maximum price regulation may test its validity by protest to and hearing before the Administrator, whose determination may be Page 321 U. S. 419 reviewed on complaint to the Emergency Court of Appeals and by this Court on certiorari, see Lockerty v. Phillips, 319 U. S. 182 . When the indictments were found, the 60 days' period allowed by the statute for filing protests had expired. In the course of the trial the District Court overruled or denied offers of proof, motions and requests for rulings, raising various questions as to the validity of the Act and Regulation, including those presented by the petitions for certiorari. In particular petitioners offered evidence, which the District Court excluded as irrelevant, for the purpose of showing that the Regulation did not conform to the standards prescribed by the Act and that it deprived petitioners of property without the due process of law guaranteed by the Fifth Amendment. They specifically raised the question reserved in Lockerty v. Phillips, supra, whether the validity of a regulation may be challenged in defense of a prosecution for its violation although it had not been tested by the prescribed administrative procedure and complaint to the Emergency Court of Appeals. The District Court convicted petitioners upon verdicts of guilty. The Circuit Court of Appeals for the First Circuit affirmed, 137 F.2d 850, and we granted certiorari, 320 U.S. 730. I The Emergency Price Control Act provides for the establishment of the Office of Price Administration under the direction of a Price Administrator appointed by the President, and sets up a comprehensive scheme for the promulgation by the Administrator of regulations or orders fixing such maximum prices of commodities and rents as will effectuate the purposes of the Act and conform to the standards which it prescribes. The Act was adopted as a temporary wartime measure, and provides in § 1(b) for its termination on June 30, 1943, unless sooner Page 321 U. S. 420 terminated by Presidential proclamation or concurrent resolution of Congress. By the amendatory Act of October 2, 1942, it was extended to June 30, 1944. Section 1(a) declares that the Act is "in the interest of the national defense and security and necessary to the effective prosecution of the present war," and that its purposes are: "to stabilize prices and to prevent speculative, unwarranted, and abnormal increases in prices and rents; to eliminate and prevent profiteering, hoarding, manipulation, speculation, and other disruptive practices resulting from abnormal market conditions or scarcities caused by or contributing to the national emergency; to assure that defense appropriations are not dissipated by excessive prices; to protect persons with relatively fixed and limited incomes, consumers, wage earners, investors, and persons dependent on life insurance, annuities, and pensions, from undue impairment of their standard of living; to prevent hardships to persons engaged in business, . . . and to the Federal, State, and local governments, which would result from abnormal increases in prices; to assist in securing adequate production of commodities and facilities; to prevent a post-emergency collapse of values; . . ." The standards which are to guide the Administrator's exercise of his authority to fix prices, so far as now relevant, are prescribed by § 2(a) and by § 1 of the amendatory Act of October 2, 1942, and Executive Order 9250, promulgated under it. 7 Fed.Reg. 7871. By § 2(a), the Administrator is authorized, after consultation with representative members of the industry so far as practicable, to promulgate regulations fixing prices of commodities which "in his judgment will be generally fair and equitable and will effectuate the purposes of this Act" when, in his judgment, their prices "have risen or threaten to rise to an extent or in a manner inconsistent with the purposes of this Act." Page 321 U. S. 421 The section also directs that "So far as practicable, in establishing any maximum price, the Administrator shall ascertain and give due consideration to the prices prevailing between October 1 and October 15, 1941 (or if, in the case of any commodity, there are no prevailing prices between such dates, or the prevailing prices between such dates are not generally representative because of abnormal or seasonal market conditions or other cause, then to the prices prevailing during the nearest two-week period in which, in the judgment of the Administrator, the prices for such commodity are generally representative) . . . and shall make adjustments for such relevant factors as he may determine and deem to be of general applicability, including . . . [s]peculative fluctuations, general increases or decreases in costs of production, distribution, and transportation, and general increases or decreases in profits earned by sellers of the commodity or commodities, during and subsequent to the year ended October 1, 1941." By the Act of October 2, 1942, the President is directed to stabilize prices, wages and salaries "so far as practicable" on the basis of the levels which existed on September 15, 1942, except as otherwise provided in the Act. By Title I, § 4 of Executive Order No. 9250, he has directed "all departments and agencies of the Government" "to stabilize the cost of living in accordance with the Act of October 2, 1942." [ Footnote 1 ] Revised Maximum Price Regulation No. 169 was issued December 10, 1942, under authority of the Emergency Price Control Act as amended and Executive Order No. 9250. The Regulation established specific maximum Page 321 U. S. 422 prices for the sale at wholesale of specified cuts of beef and veal. As is required by § 2(a) of the Act, it was accompanied by a "statement of the considerations involved" in prescribing it. From the preamble to the Regulation and from the Statement of Considerations accompanying it, it appears that the prices fixed for sales at wholesale were slightly in excess of those prevailing between March 16 and March 28, 1942, [ Footnote 2 ] and approximated those prevailing on September 15, 1942. Findings that the Regulation was necessary, that the prices which it fixed were fair and equitable, and that it otherwise conformed to the standards prescribed by the Act, appear in the Statement of Considerations. That Congress has constitutional authority to prescribe commodity prices as a war emergency measure, and that the Act was adopted by Congress in the exercise of that power, are not questioned here, and need not now be considered save as they have a bearing on the procedural Page 321 U. S. 423 features of the Act later to be considered which are challenged on constitutional grounds. Congress enacted the Emergency Price Control Act in pursuance of a defined policy, and required that the prices fixed by the Administrator should further that policy and conform to standards prescribed by the Act. The boundaries of the field of the Administrator's permissible action are marked by the statute. It directs that the prices fixed shall effectuate the declared policy of the Act to stabilize commodity prices so as to prevent wartime inflation and its enumerated disruptive causes and effects. In addition, the prices established must be fair and equitable, and, in fixing them, the Administrator is directed to give due consideration, so far as practicable, to prevailing prices during the designated base period, with prescribed administrative adjustments to compensate for enumerated disturbing factors affecting prices. In short, the purposes of the Act specified in § 1 denote the objective to be sought by the Administrator in fixing prices -- the prevention of inflation and its enumerated consequences. The standards set out in § 2 define the boundaries within which prices having that purpose must be fixed. It is enough to satisfy the statutory requirements that the Administrator finds that the prices fixed will tend to achieve that objective and will conform to those standards, and that the courts, in an appropriate proceeding, can see that substantial basis for those findings is not wanting. The Act is thus an exercise by Congress of its legislative power. In it, Congress has stated the legislative objective, has prescribed the method of achieving that objective -- maximum price-fixing -- and has laid down standards to guide the administrative determination of both the occasions for the exercise of the price-fixing power, and the particular prices to be established. Compare Field v. Clark, 143 U. S. 649 ; Hampton & Co. v. United States , 276 Page 321 U. S. 424 U.S. 394; Currin v. Wallace, 306 U. S. 1 ; Mulford v. Smith, 307 U. S. 38 ; United States v. Rock Royal Co-op., 307 U. S. 533 ; Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381 ; Opp Cotton Mills v. Administrator, 312 U. S. 126 ; National Broadcasting Co. v. United States, 319 U. S. 190 ; Hirabayashi v. United States, 320 U. S. 81 . The Act is unlike the National Industrial Recovery Act of June 16, 1933, 48 Stat. 195, considered in Schechter Corp. v. United States, 295 U. S. 495 , which proclaimed in the broadest terms its purpose "to rehabilitate industry and to conserve natural resources." It prescribed no method of attaining that end save by the establishment of codes of fair competition, the nature of whose permissible provisions was left undefined. It provided no standards to which those codes were to conform. The function of formulating the codes was delegated not to a public official responsible to Congress or the Executive, but to private individuals engaged in the industries to be regulated. Compare Sunshine Coal Co. v. Adkins, supra, 310 U. S. 399 . The Constitution, as a continuously operative charter of government, does not demand the impossible or the impracticable. It does not require that Congress find for itself every fact upon which it desires to base legislative action, or that it make for itself detailed determinations which it has declared to be prerequisite to the application of the legislative policy to particular facts and circumstances impossible for Congress itself properly to investigate. The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct -- here, the rule, with penal sanctions, that prices shall not be greater than those fixed by maximum price regulations which conform to standards and will tend to further the policy which Congress has established. These essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, Page 321 U. S. 425 ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective. It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework. See Opp Cotton Mills v. Administrator, supra, 312 U. S. 145 -146, and cases cited. Nor does the doctrine of separation of powers deny to Congress power to direct that an administrative officer properly designated for that purpose have ample latitude within which he is to ascertain the conditions which Congress has made prerequisite to the operation of its legislative command. Acting within its constitutional power to fix prices, it is for Congress to say whether the data on the basis of which prices are to be fixed are to be confined within a narrow or a broad range. In either case, the only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find, but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will. As we have said, "The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality . . . to perform its function." Currin v. Wallace, supra, 306 U. S. 15 . Hence, it is irrelevant that Congress might itself have prescribed the maximum prices or have provided a more rigid standard by which they are to be fixed; for example, that all prices should be frozen at the levels obtaining during a certain period or on a certain date. See Union Bridge Co. v. United States, 204 U. S. 364 , 204 U. S. 386 . Congress is not confined Page 321 U. S. 426 to that method of executing its policy which involves the least possible delegation of discretion to administrative officers. Compare 17 U. S. Maryland, 4 Wheat. 316, 17 U. S. 413 et seq. It is free to avoid the rigidity of such a system, which might well result in serious hardship, and to choose instead the flexibility attainable by the use of less restrictive standards. Cf. Hampton & Co. v. United States, supra, 276 U. S. 408 , 276 U. S. 409 . Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose of preventing inflation. The standards prescribed by the present Act, with the aid of the "statement of considerations" required to be made by the Administrator, are sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the Administrator, in fixing the designated prices, has conformed to those standards. Compare Hirabayashi v. United States, supra, 320 U. S. 104 . Hence, we are unable to find in them an unauthorized delegation of legislative power. The authority to fix prices only when prices have risen or threaten to rise to an extent or in a manner inconsistent with the purpose of the Act to prevent inflation is no broader than the authority to fix maximum prices when deemed necessary to protect consumers against unreasonably high prices, sustained in Sunshine Anthracite Coal Co. v. Adkins, supra, or the authority to take possession of and operate telegraph lines whenever deemed necessary for the national security or defense, upheld in Dakota Central Tel. Co. v. South Dakota, 250 U. S. 163 ; or the authority to suspend tariff provisions upon findings that the duties imposed by a foreign state are "reciprocally unequal and unreasonable," held valid in Field v. Clark, supra. Page 321 U. S. 427 The directions that the prices fixed shall be fair and equitable, that, in addition, they shall tend to promote the purposes of the Act, and that, in promulgating them, consideration shall be given to prices prevailing in a stated base period, confer no greater reach for administrative determination than the power to fix just and reasonable rates, see Sunshine Coal Co. v. Adkins, supra, and cases cited; or the power to approve consolidations in the "public interest," sustained in New York Central Securities Corp. v. United States, 287 U. S. 12 , 287 U. S. 24 -25 ( compare United States v. Lowden, 308 U. S. 225 ); or the power to regulate radio stations engaged in chain broadcasting "as public interest, convenience or necessity requires," upheld in National Broadcasting Co. v. United States, supra, 319 U. S. 225 -226; or the power to prohibit "unfair methods of competition" not defined or forbidden by the common law, Federal Trade Commission v. Keppel & Bro., 291 U. S. 304 ; or the direction that, in allotting marketing quotas among states and producers, due consideration be given to a variety of economic factors, sustained in Mulford v. Smith, supra, 307 U. S. 49 ; or the similar direction that, in adjusting tariffs to meet differences in costs of production, the President "take into consideration" "insofar as he finds it practicable" a variety of economic matters, sustained in Hampton & Co. v. United States, supra; or the similar authority, in making classifications within an industry, to consider various named and unnamed "relevant factors" and determine the respective weights attributable to each, held valid in Opp Cotton Mills v. Administrator, supra. II We consider next the question whether the procedure which Congress has established for determining the validity of the Administrator's regulations is exclusive, so as to preclude the defense of invalidity of the Regulation in this criminal prosecution for its violation under §§ 4(a) and Page 321 U. S. 428 205(b). Section 203(a) sets up a procedure by which "any person subject to any provision of a regulation or order" may, within sixty days after it is issued, "file a protest specifically setting forth objections to any such provision and affidavits or other written evidence in support of such objections." He may similarly protest later, on grounds arising after the expiration of the original sixty days. The subsection directs that, within a reasonable time and in no event more than thirty days after the filing of a protest or ninety days after the issue of the regulation protested, whichever is later, "the Administrator shall either grant or deny such protest in whole or in part, notice such protest for hearing, or provide an opportunity to present further evidence in connection therewith. In the event that the Administrator denies any such protest in whole or in part, he shall inform the protestant of the grounds upon which such decision is based, and of any economic data and other facts of which the Administrator has taken official notice." Section 204(c) creates a court to be known as the Emergency Court of Appeals consisting of United States district or circuit judges designated by the Chief Justice of the United States. Section 204(a) authorizes any person aggrieved by the denial or partial denial of his protest to file a complaint with the Emergency Court of Appeals within thirty days after the denial, praying that the regulation, order or price schedule protested be enjoined or set aside in whole or in part. The court may issue such an injunction only if it finds that the regulation, order or price schedule "is not in accordance with law, or is arbitrary or capricious." (Subsection (b).) It is denied power to issue a temporary restraining order or interlocutory decree. (Subsection (c).) The effectiveness of any permanent injunction it may issue is postponed for thirty days, and, if review by this Court is sought upon writ of certiorari, as authorized by subsection (d), its effectiveness is further Page 321 U. S. 429 postponed until final disposition of the case by this Court by denial of certiorari or decision upon the merits. (Subsection (b).) Section 204(d) declares: "The Emergency Court of Appeals, and the Supreme Court upon review of judgments and orders of the Emergency Court of Appeals, shall have exclusive jurisdiction to determine the validity of any regulation or order issued under section 2, of any price schedule effective in accordance with the provisions of section 206, and of any provision of any such regulation, order, or price schedule. Except as provided in this section, no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay, restrain, enjoin, or set aside, in whole or in part, any provision of this Act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision." In Lockerty v. Phillips, supra, we held that these provisions conferred on the Emergency Court of Appeals, subject to review by this Court, exclusive equity jurisdiction to restrain enforcement of price regulations of the Administrator and that they withdrew such jurisdiction from all other courts. This was accomplished by the exercise of the constitutional power of Congress to prescribe the jurisdiction of inferior federal courts, and the jurisdiction of all state courts to determine federal questions, and to vest that jurisdiction in a single court, the Emergency Court of Appeals. The considerations which led us to that conclusion with respect to the equity jurisdiction of the district court, lead to the like conclusion as to its power to consider the validity of a price regulation as a defense to a criminal prosecution for its violation. The provisions of § 204(d), conferring Page 321 U. S. 430 upon the Emergency Court of Appeals and this Court "exclusive jurisdiction to determine the validity of any regulation or order," coupled with the provision that "no court, Federal, State or Territorial, shall have jurisdiction or power to consider the validity of any such regulation," are broad enough in terms to deprive the district court of power to consider the validity of the Administrator's regulation or order as a defense to a criminal prosecution for its violation. That such was the intention of Congress appears from the report of the Senate Committee on Banking and Currency, recommending the adoption of the bill which contained the provisions of § 204(d). After pointing out that the bill provided for exclusive jurisdiction of the Emergency Court and the Supreme Court to determine the validity of regulations or orders issued under § 2, the Committee said: "The courts in which criminal or civil enforcement proceedings are brought have jurisdiction, concurrently with the Emergency Court, to determine the constitutional validity of the statute itself." Sen.Rep. 931, 77th Cong., 2d Sess., p. 25. That the Committee, in making this statement, intended to distinguish between the validity of the statute and that of a regulation, and to permit consideration only of the former in defense to a criminal prosecution, is further borne out by the fact that the bill as introduced in the House had provided that the Emergency Court of Appeals should have exclusive jurisdiction to determine the validity of the provisions of the Act authorizing price regulations, as well as of the regulations themselves. H.R. 5479, 77th Cong., 1st Sess., printed in Hearings before Committee on Banking and Currency, House of Representatives, 77th Cong., 2d Sess., on H.R. 5479, pp. 4, 7-8. Congress, in thus authorizing consideration by the district court of the validity of the Act alone, gave clear indication that the validity of the Administrator's regulations Page 321 U. S. 431 or orders should not be subject to attack in criminal prosecutions for their violation, at least before their invalidity had been adjudicated by recourse to the protest procedure prescribed by the statute. Such, we conclude, is the correct construction of the Act. III We come to the question whether the provisions of the Act, so construed as to deprive petitioners of opportunity to attack the Regulation in a prosecution for its violation, deprive them of the due process of law guaranteed by the Fifth Amendment. At the trial, petitioners offered to prove that the Regulation would compel them to sell beef at such prices as would render it impossible for wholesalers such as they are, no matter how efficient, to conduct their business other than at a loss. Section 4(d) declares that "Nothing in this Act shall be construed to require any person to sell any commodity . . ." Petitioners were therefore not required by the Act, nor, so far as appears, by any other rule of law, to continue selling meat at wholesale if they could not do so without loss. But they argue that to impose on them the choice either of refraining from sales of beef at wholesale or of running the risk of numerous criminal prosecutions and suits for treble damages authorized by § 205(e), without the benefit of any temporary injunction or stay pending determination by the prescribed statutory procedure of the Regulation's validity, is so harsh in its application to them as to deny them due process of law. In addition, they urge the inadequacy of the administrative procedure, and particularly of the sixty days' period afforded by the Act within which to prepare and lodge a protest with the Administrator. In considering these asserted hardships, it is appropriate to take into account the purposes of the Act and the circumstances attending its enactment and application as a wartime emergency measure. The Act was adopted January Page 321 U. S. 432 30, 1942, shortly after our declaration of war against Germany and Japan, when it was common knowledge, as is emphasized by the legislative history of the Act, that there was grave danger of wartime inflation and the disorganization of our economy from excessive price rises. Congress was under pressing necessity of meeting this danger by a practicable and expeditious means which would operate with such promptness, regularity and consistency as would minimize the sudden development of commodity price disparities, accentuated by commodity shortages occasioned by the war. Inflation is accelerated and its consequences aggravated by price disparities not based on geographic or other relevant differentials. The harm resulting from delayed or unequal price control is beyond repair. And one of the problems involved in the prevention of inflation by establishment of a nationwide system of price control is the disorganization which would result if enforcement of price orders were delayed or sporadic, or were unequal or conflicting in different parts of the country. These evils might well arise if regulations with respect to which there was full opportunity for administrative revision were to be made ineffective by injunction or stay of their enforcement in advance of such revision or of final determination of their validity. Congress, in enacting the Emergency Price Control Act, was familiar with the consistent history of delay in utility rate cases. It had in mind the dangers to price control as a preventive of inflation if the validity and effectiveness of prescribed maximum prices were to be subject to the exigencies and delays of litigation originating in eighty-five district courts and continued by separate appeals through eleven separate courts of appeals to this Court, to say nothing of litigation conducted in state courts. See Sen.Rep. No. 931, 77th Cong., 2d Sess., pp. 23-25. Page 321 U. S. 433 Congress sought to avoid or minimize these difficulties by the establishment of a single procedure for review of the Administrator's regulations, beginning with an appeal to the Administrator's specialized knowledge and experience gained in the administration of the Act, and affording to him an opportunity to modify the regulations and orders complained of before resort to judicial determination of their validity. The organization of such an exclusive procedure especially adapted to the exigencies and requirements of a nationwide scheme of price regulation is, as we have seen, within the constitutional power of Congress to create inferior federal courts and prescribe their jurisdiction. The considerations which led to its creation are similar to, and certainly no weaker than, those which led this Court, in Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 , and the long line of cases following it, to require resort to the Interstate Commerce Commission and the special statutory method provided for review of its decisions in certain types of cases involving railway rates. As with the present statute, it was thought desirable to preface all judicial action by resort to expert administrative knowledge and experience, and thus minimize the confusion that would result from inconsistent decisions of district and circuit courts rendered without the aid of an administrative interpretation. In addition, the present Act seeks further to avoid that confusion by restricting judicial review of the administrative determination to a single court. Such a procedure, so long as it affords to those affected a reasonable opportunity to be heard and present evidence, does not offend against due process. Bradley v. Richmond, 227 U. S. 477 ; First National Bank v. Weld County, 264 U. S. 450 ; Anniston Mfg. Co. v. Davis, 301 U. S. 337 . Petitioners assert that they have been denied that opportunity because the sixty days' period allowed for filling a protest is insufficient for that purpose; because the procedure Page 321 U. S. 434 before the Administrator is inadequate to ensure due process; because the statute precludes any interlocutory injunction staying enforcement of a price regulation before final adjudication of its validity; because the trial of the issue of validity of a regulation is excluded from the criminal trial for its violation, and because, in any case, there is nothing in the statute to prevent their conviction for violation of a regulation before they could secure a ruling on its validity. A sufficient answer to all these contentions is that petitioners have failed to seek the administrative remedy and the statutory review which were open to them, and that they have not shown that, had they done so, any of the consequences which they apprehend would have ensued to any extent whatever, or, if they should, that the statute withholds judicial remedies adequate to protect petitioners' rights. For the purposes of this case, in passing upon the sufficiency of the procedure on protest to the Administrator and complaint to the Emergency Court, it is irrelevant to suggest that the Administrator or the Court has in the past or may in the future deny due process. Action taken by them is reviewable in this Court, and, if contrary to due process, will be corrected here. Hence, we have no occasion to pass upon determinations of the Administrator or the Emergency Court, said to violate due process, which have never been brought here for review, and obviously we cannot pass upon action which might have been taken on a protest by petitioners, who have never made a protest or in any way sought the remedy Congress has provided. In the absence of any proceeding before the Administrator, we cannot assume that he would fail in the performance of any duty imposed on him by the Constitution and laws of the United States, or that he would deny due process to petitioners by "loading the record against them" or denying such hearing as the Constitution prescribes. Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 , 232 U. S. 545 ; Hall Page 321 U. S. 435 v. Geiger-Jones Co., 242 U. S. 539 , 242 U. S. 554 ; Minnesota v. Probate Court, 309 U. S. 270 , 309 U. S. 277 , and cases cited. Only if we could say in advance of resort to the statutory procedure that it is incapable of affording due process to petitioners could we conclude that they have shown any legal excuse for their failure to resort to it or that their constitutional rights have been or will be infringed. Natural Gas Co. v. Slattery, 302 U. S. 300 , 302 U. S. 309 ; Anniston Mfg. Co. v. Davis, supra, 301 U. S. 356 -357; Minnesota v. Probate Court, supra, 309 U. S. 275 , 309 U. S. 277 . But, upon a full examination of the provisions of the statute, it is evident that the authorized procedure is not incapable of affording the protection to petitioners' rights required by due process. The regulations, which are given the force of law, are published in the Federal Register, and constructive notice of their contents is thus given all persons affected by them. 44 U.S.C. § 307. The penal provisions of the statute are applicable only to violations of a regulation which are willful. Petitioners have not contended that they were unaware of the Regulation, and the jury found that they knowingly violated it within eight days after its issue. The sixty days' period allowed for protest of the Administrator's regulations cannot be said to be unreasonably short in view of the urgency and exigencies of wartime price regulation. [ Footnote 3 ] Here, the Administrator is required to act initially upon the protest within thirty days after it is filed or ninety days after promulgation of the challenged regulation, by allowing the protest wholly or in part, or denying it or setting it down for hearing. (§ 203(a).) Page 321 U. S. 436 But we cannot say that the Administrator would not have allowed ample time for the presentation of evidence. [ Footnote 4 ] And, under § 204(a), petitioners could have applied to the Emergency Court of Appeals for leave to introduce any additional evidence "which could not reasonably" have been offered to the Administrator or included in the proceedings before him, and could have applied to the Administrator to modify or change his decision in the light of that evidence. Nor can we say that the administrative hearing provided by the statute will prove inadequate. We hold in Bowles v. Willingham, post, p. 321 U. S. 503 , that, in the circumstances to which this Act was intended to apply, the failure to afford a hearing prior to the issue of a price regulation does not offend against due process. While the hearing on a protest may be restricted to the presentation of documentary evidence, affidavits and briefs, the Act contemplates, and the Administrator's regulations provide for, a full oral hearing upon a showing that written evidence and briefs "will not permit the fair and expeditious disposition of the protest." (§ 203(a); Revised Procedural Regulation No. 1, § 1300.39, 7 Fed.Reg. 891.) In advance of application to the Administrator for such a hearing, we cannot well say whether its denial in any particular case would be a denial of due process. The Act requires the Administrator to inform the protestant of the grounds for his decision denying a protest, including all matters of which he has taken official notice. (§ 203(a).) In view of the provisions for the introduction of further evidence both before and after the Administrator has announced his determination, we cannot say that, if petitioners had filed a protest adequate Page 321 U. S. 437 opportunity would not have been afforded them to meet any arguments and evidence put forward by the Administrator, or that, if such opportunity had been denied, the denial would not have been corrected by the Emergency Court. The Emergency Court has power to review all questions of law, including the question whether the Administrator's determination is supported by evidence, and any question of the denial of due process or any procedural error appropriately raised in the course of the proceedings. No reason is advanced why petitioners could not, throughout the statutory proceeding, raise and preserve any due process objection to the statute, the regulations, or the procedure, and secure its full judicial review by the Emergency Court of Appeals and this Court. Compare White v. Johnson, 282 U. S. 367 , 282 U. S. 374 . [ Footnote 5 ] In the circumstances of this case, we find no denial of due process in the statutory prohibition of a temporary stay or injunction. The present statute is not open to the objection that petitioners are compelled to serve the public as in the case of a public utility, or that the only method by which they can test the validity of the regulations Page 321 U. S. 438 promulgated under it is by violating the statute and thus subjecting themselves to the possible imposition of severe and cumulative penalties. See Ex parte Young, 209 U. S. 123 ; Willcox v. Consolidated Gas Co., 212 U. S. 19 , 212 U. S. 53 ; Missouri Pacific Ry. Co. v. Tucker, 230 U. S. 340 ; Oklahoma Operating Co. v. Love, 252 U. S. 331 . For as we have seen, § 4(d) specifically provides that no one shall be compelled to sell any commodity, and the statute itself provides an expeditious means of testing the validity of any price regulation, without necessarily incurring any of the penalties of the Act. Compare Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651 , 235 U. S. 667 -669. The petitioners are not confronted with the choice of abandoning their businesses or subjecting themselves to the penalties of the Act before they have sought and secured a determination of the Regulation's validity. It is true that, if the Administrator denies a protest no stay or injunction may become effective before the final decision of the Emergency Court or of this Court if review here is sought. It is also true that the process of reaching a final decision may be time-consuming. But while courts have no power to suspend or ameliorate the operation of a regulation during the pendency of proceedings to determine its validity, we cannot say that the Administrator has no such power or assume that he would not exercise it in an appropriate case. The Administrator, who is the author of the regulations, is given wide discretion as to the time and conditions of their issue and continued effect. Section 2(a) authorizes him to issue such regulations as will effectuate the purposes of the Act, whenever, in his judgment, such action is necessary. Section 201(d) similarly authorizes him "from time to time" to issue regulations when necessary and proper to effectuate the purposes of the Act. One of the objects of the protest provisions is to enable the Administrator more fully to inform himself as to the wisdom Page 321 U. S. 439 of a regulation through evidence of its effect on particular cases. In the light of that information, he is authorized by 203(a) to grant or deny a protest "in whole or in part." And § 204(a) authorizes the Administrator to modify or rescind a regulation "at any time." [ Footnote 6 ] Moreover, 2(a) further authorizes the issue, in the Administrator's judgment, of temporary regulations, effective for sixty days, "establishing as a maximum . . . the price . . . prevailing with respect to any commodity . . . within five days prior to the date of issuance of such temporary regulations. . . ." Under these sections, the Administrator may not only alter or set aside the regulation, but he has wide scope for the exercise of his discretionary power to modify or suspend a regulation pending its administrative and judicial review. Hence, we cannot assume that petitioners, had they applied to the Administrator, would not have secured all the relief to which they were entitled. The denial of a right to a restraining order or interlocutory injunction to one who has failed to apply for available administrative relief, not shown to be inadequate, is not a denial of due process. Natural Gas Co. v. Slattery, supra, 302 U. S. 310 . In any event, we are unable to say that the denial of interlocutory relief pending a judicial determination of the validity of the regulation would, in the special circumstances of this case, involve a denial of constitutional right. If the alternatives, as Congress could have concluded, were wartime inflation or the imposition on individuals of the burden of complying with a price regulation while its validity is being determined, Congress could constitutionally make the choice in favor of the protection of the public interest from the dangers of inflation. Compare Page 321 U. S. 440 Miller v. Schone, 276 U. S. 272 , in which we held that the Fourteenth Amendment did not preclude a state from compelling the uncompensated destruction of private property in order to preserve important public interests from destruction. The award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff. Compare Scripps-Howard Radio v. Federal Communications Comm'n, 316 U. S. 4 , 316 U. S. 10 , and cases cited. Even in suits in which only private interests are involved, the award is a matter of sound judicial discretion, in the exercise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction. Meccano, Ltd. v. John Wanamaker, 253 U. S. 136 , 253 U. S. 141 ; Rice & Adams Corp. v. Lathrop, 278 U. S. 509 , 278 U. S. 514 . And it will avoid such inconvenience and injury, so far as may be, by attaching conditions to the award, such as the requirement of an injunction bond conditioned upon payment of any damage caused by the injunction if the plaintiff's contentions are not sustained. Prendrgast v. New York Telephone Co., 262 U. S. 43 , 262 U. S. 51 ; Ohio Oil Co. v.Conway, 279 U. S. 813 , 279 U. S. 815 . But where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may, in the public interest, withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff. [ Footnote 7 ] Virginian Page 321 U. S. 441 Ry. Co. v. United States, 272 U. S. 658 , 272 U. S. 672 -673; Petroleum Exploration Co. v. Public Service Comm'n, 304 U. S. 209 , 304 U. S. 222 -223; Dryfoos v. Edwards, 284 F. 596, 603, affirmed, 251 U. S. 251 U.S. 146; see Beaumont, S. L. & W. Ry. Co. v. United States, 282 U. S. 74 , 282 U. S. 91 , 282 U. S. 92 . Compare Wisconsin v. Illinois, 278 U. S. 367 , 278 U. S. 418 -421. This is but another application of the principle, declared in Virginian Ry. Co. v. System Federation, 300 U. S. 515 , 300 U. S. 552 , that "Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved." Here, in the exercise of the power to protect the national economy from the disruptive influences of inflation in time of war, Congress has seen fit to postpone injunctions restraining the operations of price regulations until their lawfulness could be ascertained by an appropriate and expeditious procedure. In so doing, it has done only what a court of equity could have done in the exercise of its discretion to protect the public interest. What the courts Page 321 U. S. 442 could do, Congress can do as the guardian of the public interest of the nation in time of war. The legislative formulation of what would otherwise be a rule of judicial discretion is not a denial of due process or a usurpation of judicial functions. Cf. Demorest v. City Bank Co., 321 U. S. 36 . [ Footnote 8 ] Our decisions leave no doubt that, when justified by compelling public interest, the legislature may authorize summary action subject to later judicial review of its validity. It may insist on the immediate collection of taxes. Phillips v. Commissioner, 283 U. S. 589 , 283 U. S. 595 -597 and cases cited. It may take possession of property presumptively abandoned by its owner, prior to determination of Page 321 U. S. 443 its actual abandonment. Anderson National Bank v. Luckett, 321 U. S. 233 . For the protection of public health, it may order the summary destruction of property without prior notice or hearing. North American Cold Storage Co. v. Chicago, 211 U. S. 306 ; Adams v. Milwaukee, 228 U. S. 572 , 228 U. S. 584 . It may summarily requisition property immediately needed for the prosecution of the war. Compare United States v. Pfitsch, 256 U. S. 547 . As a measure of public protection, the property of alien enemies may be seized, and property believed to be owned by enemies taken without prior determination of its true ownership. Central Union Trust Co. v. Garvan, 254 U. S. 554 , 254 U. S. 566 ; Stoehr v. Wallace, 255 U. S. 239 , 255 U. S. 245 . Similarly, public necessity in time of war may justify allowing tenants to remain in in possession against the will of the landlord. Block v. Hirsh, 256 U. S. 135 ; Marcus Brown Co. v. Feldman, 256 U. S. 170 . Even the personal liberty of the citizen may be temporarily restrained as a measure of public safety. Hirabayashi v. United States, supra; cf. Jacobson v. Massachusetts, 197 U. S. 11 . Measured by these standards, we find no denial of due process under the circumstances in which this Act was adopted and must be applied, in its denial of any judicial stay pending determination of a regulation's validity. IV As we have seen, Congress, through its power to define the jurisdiction of inferior federal courts and to create such courts for the exercise of the judicial power, could, subject to other constitutional limitations, create the Emergency Court of Appeals, give to it exclusive equity jurisdiction to determine the validity of price regulations prescribed by the Administrator, and foreclose any further or other consideration of the validity of a regulation as a defense to a prosecution for its violation. Page 321 U. S. 444 Unlike most penal statutes and regulations, whose validity can be determined only by running the risk of violation, see Douglas v. City of Jeannette, 319 U. S. 157 , 319 U. S. 163 , the present statute provides a mode of testing the validity of a regulation by an independent administrative proceeding. There is no constitutional requirement that that test be made in one tribunal, rather than in another, so long as there is an opportunity to be heard and for judicial review which satisfies the demands of due process, as is the case here. This was recognized in Bradley v. Richmond, supra, and in Wadley Southern Ry. Co. v. Georgia, supra, 235 U. S. 667 , 235 U. S. 669 , and has never been doubted by this Court. And we are pointed to no principle of law or provision of the Constitution which precludes Congress from making criminal the violation of an administrative regulation, by one who has failed to avail himself of an adequate separate procedure for the adjudication of its validity, or which precludes the practice, in many ways desirable, of splitting the trial for violations of an administrative regulation by committing the determination of the issue of its validity to the agency which created it, and the issue of violation to a court which is given jurisdiction to punish violations. Such a requirement presents no novel constitutional issue. No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal, as well as civil, cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. O'Neil v. Vermont, 144 U. S. 323 , 144 U. S. 331 ; Barbour v. Georgia, 249 U. S. 454 , 249 U. S. 460 ; Whitney v. California, 274 U. S. 357 , 274 U. S. 360 , 274 U. S. 362 , 274 U. S. 380 . Courts may, for that reason, refuse to consider a constitutional objection even though a like objection had previously been sustained in a case in which it was properly taken. Seaboard Air Line Ry. Co. v. Watson, 287 U. S. 86 . While this Court, in its Page 321 U. S. 445 discretion, sometimes departs from this rule in cases from lower federal courts, it invariably adheres to it in cases from state courts, see Brandeis, J. concurring in Whitney v. California, supra, 274 U. S. 380 , and it could hardly be maintained that it is beyond legislative power to make the rule inflexible in all cases. Compare Woolsey v. Best, 299 U. S. 1 , with Ex parte Siebold, 100 U. S. 371 . For more than fifty years, it has been a penal offense for shippers and interstate rail carriers to fail to observe the duly filed tariffs fixing freight rates -- including, since 1906, rates prescribed by the Commission -- even though the validity of those rates is open to attack only in a separate administrative proceeding before the Interstate Commerce Commission. 49 U.S.C. §§ 6(7), 10(1); Armour Packing Co. v. United States, 209 U. S. 56 , 209 U. S. 81 ; United States v. Adams Express Co., 229 U. S. 381 , 229 U. S. 388 . It is no defense to a prosecution for departure from a rate fixed by the filed tariffs that the rate is unreasonable or otherwise unlawful where its infirmity has not first been established by an independent proceeding before the Interstate Commerce Commission, and the denial of the defense in such a case does not violate any provision of the Constitution. United States v. Vacuum Oil Co., 158 F. 536, 539-541; Lehigh Valley R. Co. v. United States, 188 F. 879, 887-888. See also United States v. Standard Oil Co., 155 F. 305, 309-310, reversed on other grounds, 164 F. 376. Compare Pennsylvania R. Co. v. International Coal Co., 230 U. S. 184 , 230 U. S. 196 -197; Arizona Grocery Co. v. Atchison, T. & S.F. Ry. Co., 284 U. S. 370 , 24 U. S. 384 . Similarly, it has been held that one who has failed to avail himself of the statutory method of review of orders of the Secretary of Agriculture under the Packers and Stockyards Act of 1921, or of the Federal Radio Commission under the Radio Act of 1927, cannot enjoin threatened prosecutions for violation of those orders, United States v. Corrick, 298 U. S. 435 , 298 U. S. 440 ; Page 321 U. S. 446 White v. Johnson, supra, 282 U. S. 373 -374. See also Natural Gas Co. v. Slattery, supra, 302 U. S. 309 -310. [ Footnote 9 ] The analogy of such a procedure to the present, by which violation of a price regulation is made penal, unless the offender has established its unlawfulness by an independent statutory proceeding, is complete and obvious. As we have pointed out, such a requirement is objectionable only if, by statutory command or in operation, it will deny to those charged with violations an adequate opportunity to be heard on the question of validity. And, as we have seen, petitioners fail to show that such is the necessary effect of the present statute, or that, if so applied as to deprive them of an adequate opportunity to establish the invalidity of a regulation, there would not be adequate means of securing appropriate judicial relief in the course either of the statutory proceeding or of the criminal trial. During the present term of court, we have held that one charged with criminal violations of an order of his draft board may not challenge the validity of the order if he has failed to pursue to completion the exclusive administrative remedies provided by the Selective Training and Service Act of 1940. Falbo v. United States, 320 U. S. 549 , and see Bowles v. United States, 319 U. S. 33 . We perceive no tenable ground for distinguishing that case from this. We have no occasion to decide whether one charged with criminal violation of a duly promulgated price regulation Page 321 U. S. 447 may defend on the ground that the regulation is unconstitutional on its face. Nor do we consider whether one who is forced to trial and convicted of violation of a regulation, while diligently seeking determination of its validity by the statutory procedure, may thus be deprived of the defense that the regulation is invalid. There is no contention that the present regulation is void on its face, petitioners have taken no step to challenge its validity by the procedure which was open to them, and it does not appear that they have been deprived of the opportunity to do so. Even though the statute should be deemed to require it, any ruling at the criminal trial which would preclude the accused from showing that he had had no opportunity to establish the invalidity of the regulation by resort to the statutory procedure would be reviewable on appeal on constitutional grounds. It will be time enough to decide questions not involved in this case when they are brought to us for decision, as they may be, whether they arise in the Emergency Court of Appeals or in the district court upon a criminal trial. In the exercise of the equity jurisdiction of the Emergency Court of Appeals to test the validity of a price regulation, a jury trial is not mandatory under the Seventh Amendment. Cf. Block v. Hirsh, supra, 256 U. S. 158 . Nor has there been any denial in the present criminal proceeding of the right, guaranteed by the Sixth Amendment, to a trial by a jury of the state and district where the crime was committed. Subject to the requirements of due process, which are here satisfied, Congress could make criminal the violation of a price regulation. The indictment charged a violation of the regulation in the district of trial, and the question whether petitioners had committed the crime thus charged in the indictment and defined by Congress, namely, whether they had violated the statute by willful disobedience of a price regulation promulgated by the Page 321 U. S. 448 Administrator, was properly submitted to the jury. Cf. Falbo v. United States, supra. Affirmed. * Together with No. 375, Rottenberg et al. v. United States, also on writ of certiorari to the Circuit Court of Appeals for the First Circuit. [ Footnote 1 ] The parties have not discussed in briefs or on argument, and we do not find it necessary to consider, the precise effect of this direction to stabilize prices "so far as practicable" at the levels obtaining on September 15, 192, upon the standards laid down by § 2(a) of the Act and the discretion which they confer on the Administrator. [ Footnote 2 ] The use of the March 16-28, 1942, base period is explained by the fact that wholesale meat prices had already been stabilized at approximately that level by Maximum Price Regulation No. 169 as originally issued on June 19, 1942, 7 Fed.Reg. 4653, and by the General Maximum Price Regulation, issued April 28, 1942, 7 Fed.Reg. 3153, which forbade the sale of most commodities at prices in excess of the highest price charged by the seller during March, 1942. The Statement of Considerations accompanying the latter, 2 C.C.H. War Law Service -- Price Control, � 42,081, explains in some detail the considerations impelling the Administrator to the conclusion that stabilization at the levels obtaining in March, 1942, would be fair and equitable, and would effectuate the purposes of the Act; it considers the price levels prevailing during October 1-15, 1941, and gives reasons why price stabilization at those levels would not be practicable. The Statement of Considerations accompanying Maximum Price Regulation No. 169 as originally issued, 2 C.C.H. War Law Service -- Price Control, � 43,369A, refers to this discussion in explanation of the continuance of the use of March, 1942, levels as a base. [ Footnote 3 ] For numerous instances in which comparable or shorter periods for resort to administrative relief as a prerequisite to proceeding in the courts have been held to be sufficient, see, e.g., Bellingham Bay & B.C. R. Co. v. New Whatcom, 172 U. S. 314 (10 days); Campbell v. Olney, 262 U. S. 352 (20 days); Wick v. Chelan Electric Co., 280 U. S. 108 (18 days); Phillips v. Commissioner, 283 U. S. 589 (60 days); Opp Cotton Mills v. Administrator, 312 U. S. 126 (40 days). [ Footnote 4 ] Revised Procedural Regulation No. 1, 7 Fed.Reg. 8961, authorized by § 203(a), contain detailed provisions for extending the time for presentation of evidence when appropriate. §§ 1300.30(c), 1300.33, 1300.35(a)(3). [ Footnote 5 ] Nor is the inconvenience to petitioners of being required to make their objection to the Administrator in Washington, D.C., sufficient to outweigh the public interest, in the circumstances of this case, in having a centralized, unitary scheme of review of the regulations. The protest procedure is designed to be conducted primarily upon documentary evidence, § 203(a); Revised Procedural Regulation No. 1, §§ 1300.29-1300.31, 1300.39. There would thus be no purpose in the personal presence of the protestant unless the protest were set for hearing by the Administrator, and, in such a case, the hearing may be held at any place designated by the Administrator and before a person designated by him. Id., §§ 1300.39, 1300.42. The Emergency Court of Appeals is likewise authorized to "hold sessions at such places as it may specify," and does, in fact, hold sessions throughout the country as needed. § 204(c): Rule 4(a) of its Rules of Procedure, 50 U.S.C.App. Supp. II following § 924. [ Footnote 6 ] Revised Procedural Regulation No. 1 authorizes the filing at an time of a petition to amend a regulation (§ 1300.20), and authorizes the Administrator to treat a protest as a petition for amendment as well (§ 1300.49). [ Footnote 7 ] Congress has sought to minimize the burden so far as would be consistent with the public interest by providing expeditious procedure for the review, on protest and complaint, of a regulation's validity. Thus, a protest must be filed within 60 days (§ 203(a)); the Administrator must take initial action on it within a reasonable time but not more than 30 days after its filing or 90 days after the issuance of the regulation (§ 203(a)); the complaint to the Emergency Court must be filed within 30 days (§ 204(a)); that Court is directed to "prescribe rules governing its procedure in such manner as to expedite the determination of cases of which it has jurisdiction" (§ 204(c)); in order to promote that end, as many judges as are needed may be designated to serve on it, it may sit in divisions, and may hold sessions at such places as it may specify (§ 204(c)), and, in fact, it does sit in various parts of the country as the convenience of the parties may require; under its rules it is "always . . . open for the transaction of business," (Rule 4(a); 50 U.S.C.App. Supp. II following § 92); petitions for certiorari to review its decisions must be filed within 30 days (§ 204(d)), and this Court is directed to advance on the docket and expedite the decision of all cases from the Emergency Court (§ 204(d)). We cannot assume that the Administrator, who has a vital interest in the prompt and effective enforcement of the Act, would unreasonably delay action upon a protest; if he should, judicial remedies are not lacking, see Safeway Stores v. Brown, 138 F.2d 278, 280. [ Footnote 8 ] For other instances in which Congress has regulated and restricted the power of the federal courts to grant injunctions, see: 1. Section 16 of the Judiciary Act of 1789, 1 Stat. 82, Judicial Code § 267, 28 U.S.C. § 384, denying relief in equity where there is adequate remedy at law. 2. Section 5 of the Act of March 2, 1793, 1 Stat. 334, Judicial Code § 265, 28 U.S.C. § 379, prohibiting injunction of state judicial proceedings. 3. Act of March 2, 1867, 14 Stat. 475, 26 U.S.C. § 3653, prohibiting suits to enjoin collection or enforcement of federal taxes. 4. The Johnson Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. § 41(1), restricting jurisdiction to enjoin orders of state bodies fixing utility rates. 5. Act of Aug. 21, 1937, 50 Stat. 738, 28 U.S.C. § 41(1), similarly restricting jurisdiction to enjoin collection or enforcement of state taxes. 6. Section 17 of the Act of June 18, 1910, 36 Stat. 557 and § 3 of the Act of Aug. 24, 1937, 50 Stat. 752, 28 U.S.C. §§ 380 and 380(a), requiring the convening of a three-judge court for the granting of temporary injunctions in certain cases and allowing a temporary restraining order by one judge only to prevent irreparable injury. 7. The Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §§ 101-15, regulating the issue of injunctions in labor disputes and prohibiting their issue "contrary to the public policy" declared in the Act. In several cases, such statutes were held to be merely declaratory of a previously obtaining rule for the guidance of judicial discretion. See, e.g., State Railroad Tax Cases, 92 U. S. 575 , 92 U. S. 613 (Act of March 2, 1867); Matthews v. Rodgers, 284 U. S. 521 , 284 U. S. 525 (Judicial Code § 267); Great Lakes Dredge Dock Co. v. Human, 319 U. S. 293 , 319 U. S. 297 (Act of Aug. 21, 1937). [ Footnote 9 ] Compare the provisions of the Packers and Stockyards Act, 7 U.S.C. §§ 194 and 195, and of the Commodity Exchange Act, 7 U.S.C. § 13(a), imposing criminal sanctions, and those of the Federal Trade Commission Act as amended, 15 U.S.C. §§ 45(g)-( l ) imposing heavy penalties, for violation of an administrative order which has become final by its affirmance upon the exclusive statutory method of review provided, or by the expiration of the time allowed for review without resort to the statutory procedure. MR. JUSTICE ROBERTS. I dissent. I find it unnecessary to discuss certain of the questions treated in the opinion of the court. I am of opinion that the Act unconstitutionally delegates legislative power to the Administrator. As I read the opinion of the court, it holds the Act valid on the ground that sufficiently precise standards are prescribed to confine the Administrator's regulations and orders within fixed limits, and that judicial review is provided effectively to prohibit his transgression of those limits. I believe that analysis demonstrates the contrary. I proceed, therefore, to examine the statute. The Powers Conferred When, in his judgment, commodity prices have risen, or threaten to rise, "to an extent or in a manner inconsistent with the purposes" of the Act, the Administrator may establish "such maximum price or maximum prices as in his judgment will be generally fair and equitable and will effectuate the purposes" of the Act. "So far as practicable" in establishing any maximum price, he is to ascertain the prices prevailing in a specified period in 1941, but may use another period nearest to that specified because necessary data for the period specified is not available, and may make adjustments "for such relevant factors as he may determine and deem to be of general applicability," including several factors mentioned. Before issuing any regulation, he shall "so far as practicable" advise with representative members of the industry affected. Any regulation may provide for adjustments and reasonable exceptions which, in the Administrator's judgment, Page 321 U. S. 449 are necessary and proper to effectuate the purposes of the Act. If, in his judgment, such action is necessary or proper to effectuate the purposes of the Act, he may, by regulation or order, regulate or prohibit speculative or manipulative practices or hoarding in connection with any commodity (50 U.S.C. § 902). It will be seen that whether, and, if so, when, the price of any commodity [ Footnote 2/1 ] shall be regulated depends on the judgment of the Administrator as to the necessity or propriety of such price regulation in effectuating the purposes of the Act. The Supposed Standards for the Administrator's Guidance The Act provides that any regulation or order must be "generally fair and equitable" in the Administrator's judgment; but coupled with this injunction is another that the order and regulation must be such as, in the judgment of the Administrator, is necessary or proper to effectuate the purposes of the Act. I turn, therefore, to the stated purposes to ascertain what, if any, limits the statute places upon the Administrator's exercise of his powers. Section 1(a) (50 U.S.C. § 901(a)) states seven purposes, which should be set forth separately as follows: to stabilize prices and to prevent speculative, unwarranted, and abnormal increases in prices and rents; In order to exercise his power anent this purpose, the Administrator will have to form a judgment as to what stabilization means, and what are speculative, unwarranted and abnormal increases in price. It hardly need be said that men may differ radically as to the connotation of these terms, and that it would be very difficult to convict Page 321 U. S. 450 anyone of error of judgment in so classifying a given economic phenomenon. "to eliminate and prevent profiteering, hoarding, manipulation, speculation, and other disruptive practices resulting from abnormal market conditions or scarcities caused by or contributing to the national emergency;" To accomplish this purpose, the Administrator must form a judgment as to what constitutes profiteering, hoarding, manipulation or speculation. As if the administrative discretion were not sufficiently broad, there is added the phrase "other disruptive practices," which seems to leave the Administrator at large in the formation of opinion as to whether any practice is disruptive. "to assure that defense appropriations are not dissipated by excessive prices;" It is not clear -- to me, at least -- what is the limit of this purpose. I can conceive that an honest Administrator might, without laying himself open to the charge of exceeding his powers, make any kind of order or regulation based upon the view that otherwise defense appropriations by Congress might be dissipated by what he considers excessive prices. How his exercise of judgment in connection with this purpose could be thought excessive it is impossible for me to say. "to protect persons with relatively fixed and limited incomes, consumers, wage earners, investors, and persons dependent on life insurance, annuities, and pensions, from undue impairment of their standard of living;" The Administrator's judgment that any price policy will tend to affect the classes mentioned in this purpose from what he may decide to be "undue impairment of their standard of living" would seem to be so sweeping that it would be impossible to convict him of an error of judgment in any conclusion he might reach. "to prevent hardships to persons engaged in business, to schools, universities, and other institutions, and to the Page 321 U. S. 451 Federal, State, and local governments, which would result from abnormal increases in prices;" Of course, Congress might have included in the catalogue of beneficiaries churches, hospitals, labor unions, banks and trust companies and other praiseworthy organizations, without rendering the "standard" any more vague. "to assist in securing adequate production of commodities and facilities;" Here is a purpose which seems, to some extent at least, to permit the easing of price restrictions; for it would appear that diminishment of price would hardly assist in promoting production. Thus, the Administrator, and he alone, is to balance two competing policies and strike the happy mean between them. Who shall say his conclusion is so indubitably wrong as to be properly characterized as "arbitrary or capricious." "to prevent a post emergency collapse of values;" This purpose, or "standard," seems to permit adoption by the Administrator of any conceivable policy. I have difficulty in envisaging any price policy in support of which some economic data or opinion could not be cited to show that it would tend to prevent post emergency collapse of values. These seven purposes must, I submit, be considered as separate and independent. Any action taken by the Administrator which, in his judgment, promotes any one or more of them is within the granted power. If, in his judgment, any action by him is necessary or appropriate to the accomplishment of one or more of them, the Act gives sanction to his order or regulation. Reflection will demonstrate that, in fact, the Act sets no limits upon the discretion or judgment of the Administrator. His commission is to take any action with respect to prices which he believes will preserve what he deems a sound economy during the emergency and prevent what he considers to be a disruption of such a sound economy Page 321 U. S. 452 in the postwar period. His judgment, founded, as it may be, on his studies and investigations, as well as other economic data, even though contrary to the great weight of current opinion or authority, is the final touchstone of the validity of his action. I shall not repeat what I have said in Bowles v. Willingham, post, p. 321 U. S. 503 . I have there quoted the so-called standards prescribed in the National Industrial Recovery Act. Comparison of them with those of the present Act, and perusal of what was said concerning them in Schechter Corp. v. United States, 295 U. S. 495 , leaves no doubt that the decision is now overruled. There, as here, the "code" or regulation, to become effective, had to be found by the Executive to "tend to effectuate the policy" of the Act. ( See footnote 3, p. 321 U. S. 521 .) The Administrator's Procedure I have not yet spoken of the statutory provisions respecting the permissible procedure of the Administrator in imposing prices. Sec. 202(a) (50 U.S.C. § 922(a)) authorizes him to make such studies and investigations and to obtain such information as he deems necessary or proper to assist him in prescribing any regulation or order, or in the administration and enforcement of the Act and regulations, orders, and price schedules thereunder. The remaining subsections give him broad powers to compel disclosure of information. And he may take official notice of economic data and other facts, including facts found as a result of his investigations and studies (§ 203(b), 50 U.S.C. § 923(b)). Each regulation or order must be accompanied by a "statement of the considerations involved" in its issue (§ 2(a), 50 U.S.C. § 902(a)). This is not a statement or finding of fact. Webster defines the term "consideration" as "that which is, or should be, considered as a ground of opinion or action; motive; reason." The citizen, Page 321 U. S. 453 therefore, is merely to be advised of the reasons for the Administrator's action. How is he to proceed if he desires to challenge that action? The answer is found in § 203 (50 U.S.C. § 923). Within a specified time after the issue of a regulation, any person subject to any provision of it may file a protest "specifically setting forth objections to any such provision and affidavits or other written evidence in support of such objections." The Administrator may receive statements in support of the regulations and incorporate them in his proceedings. Within a time fixed, he must (1) grant or deny the protest in whole or in part, (2) note it for hearing, or (3) provide an opportunity to present further evidence. His is the choice. If he denies the protest in whole or in part, he must inform the protestant of the grounds upon which his decision was based and of any economic data or other facts of which he has taken official notice. This, then, is the first opportunity the protestant has to know on what the Administrator has based his "considerations" or reasons for action. As the Emergency Court of Appeals held in Lakemore Co. v. Brown, 137 F.2d 355: [ Footnote 2/2 ] "Thus, consistently with statutory requirements, the Administrator could have waited until he had entered his order denying the protest before informing the protestant of the economic data of which he had taken official notice and of the economic conclusions which he had derived therefrom and the other grounds upon which the denial was based." And it is to be observed that, after seeing the protestant's affidavits and the evidence, the Administrator may load the record with all sorts of material, articles, opinions, Page 321 U. S. 454 compilations, and what not -- pure hearsay -- subject to no cross-examination, to persuade the court that his order could, "in his judgment," promote one of the "purposes" of the Act. Thus is the "record" weighted against formal complaint in court. Chatlos v. Brown, 136 F.2d 490, Spaeth v. Brown, 137 F.2d 669, and Bibb Manufacturing Co. v. Bowles, 140 F.2d 459, amongst other cases, indicate the sort of data -- although they do not exclude the use of other sorts -- on which the Administrator seems to be accustomed, and to be entitled, to act. He need make no findings of fact. The Court Review The protestant who is aggrieved by the denial or partial denial of his protest may, within a set time, file a complaint with a specially created Emergency Court of Appeals "specifying his objections and praying that the regulation, order, or price schedule protested be enjoined or set aside in whole or in part." The court is given exclusive jurisdiction, and all other courts are forbidden to take jurisdiction to grant such relief. The court may set aside the order, dismiss the complaint, or remand the proceeding. Upon the filing and service of the complaint, the Administrator is to certify and file a transcript of such portion of the proceedings before him as are material to the complaint (§ 204(a); 50 U.S.C. § 924(a)). The section proceeds: "No objection to such regulation, order, or price schedule, and no evidence in support of any objection thereto, shall be considered by the court, unless such objection shall have been set forth by the complainant in the protest or such evidence shall be contained in the transcript. If application is made to the court by either party for leave to introduce additional evidence which was either offered to the Administrator and not admitted, or which could not Page 321 U. S. 455 reasonably have been offered to the Administrator or included by the Administrator in such proceedings, and the court determines that such evidence should be admitted, the court shall order the evidence to be presented to the Administrator. The Administrator shall promptly receive the same, and such other evidence as he deems necessary or proper, and thereupon he shall certify and file with the court a transcript thereof and any modification made in the regulation, order, or price schedule as a result thereof; except that, on request by the Administrator, any such evidence shall be presented directly to the court." "It is not difficult to picture the plight of the protestant. The Administrator's statement of considerations, without more, constitutes proof in the cause." In Montgomery Ward & Co. v. Bowles, 138 F.2d 669, the Administrator in his statement of considerations said that he took official notice of three propositions of the most general scope. No evidence in support of these or of any other facts upon which he relied was included in the transcript. The complainant suggested to the court the omission of pertinent matter, namely, the evidence in support of the propositions of which the Administrator said he took official notice, the evidence of various other assertions of fact in his opinion, and the particular facts and evidence upon which he based the conclusions expressed in his statement of considerations that "the maximum prices established in this regulation are fair and equitable." The Administrator objected to the suggestion, and the court rejected it. It was held that the Act requires "only a summary statement of the basic facts which justify the regulation." Referring to § 204(b), 50 U.S. Cl. § 924(b), the court held that the requirement that the complainant must establish "to the satisfaction of the court" that the regulation, order, or price schedule is not in accordance with law or is arbitrary or capricious throws upon the protestant Page 321 U. S. 456 the burden "to bring forward and satisfactorily prove the invalidating facts," and added: "Unless and until he does so, the regulation is to be taken as valid, and the existence of a state of facts which justify it is to be assumed without the necessity of proof thereof by the Administrator." The court added that the protestant is given means of carrying this burden by filing affidavits and other evidence, but omits to refer to the fact that these affidavits and other evidence must be addressed to the Administrator's order and his most general and sweeping statement of considerations, which merely means his reasons for making the order. These affidavits and this evidence under the procedure prescribed are to be put in before the protestant even knows what data the Administrator relied upon or sees the Administrator's opinion denying his protest. It is hardly necessary to dilate upon the burden thus placed on a protestant or the extent to which he is compelled to fill the record with what he may think relevant matter, only to find that he has been shooting at straws. The court further adverted to the fact that the Act permits the protestant to state in detail in connection with his protest the nature and sources of any further evidence not subject to his control upon which he believes he can rely in support of the facts alleged in his protest. Here again the protestant is under the same handicap. He must disclose all he has in mind to the Administrator before the Administrator makes any disclosure to him of the facts and data upon which that official has relied. Finally, the court refers to the privilege given the protestant to file a brief with the Administrator and to "request an oral hearing," without mentioning the facts that the brief can be addressed only to the reasons given in the statement of consideration, and that the Administrator is at liberty to deny the request. A procedure better designed to prevent the making of an issue between parties can hardly be conceived. Page 321 U. S. 457 And the extent of the burden is further emphasized by what the Emergency Court of Appeals has said in Lakemore Co. v. Brown, supra: "It is objected that the Administrator thus, in effect, has prejudged the case; that as witness, immune from cross-examination, he has rendered an opinion which concludes the matter which is before him as judge." "This overlooks the fact that the Administrator, from the necessities of the case, does not come with a virgin mind to the consideration of a protest. He has previously performed the official act of issuing the regulation, the terms of which, of course, reflect his conclusions on many economic, administrative and legal questions. In this sense, he necessarily approaches consideration of a protest with certain 'preconceived notions' -- to use complainant's phrase. It is the object of the protest procedure to give the Administrator a chance to reconsider any challenged provisions in the regulation in the light of further evidence or arguments which may be advanced by the protestant. What the Administrator did here was to lay his cards on the table in the protest proceedings, offering protestant an opportunity to play its trump cards, if it had any." "Of course, such statements of economic conclusions thus incorporated in the record are not 'evidence.' Section 204(a) requires the transcript of the protest proceedings, filed in this court, to" "include a statement setting forth, so far as practicable, the economic data and other facts of which the Administrator has taken official notice. Insofar as any economic generalizations or conclusions formulated by the Administrator constitute indispensable steps in his process of reasoning in denying the protest, it is for this court to say whether they have any rational basis, in performance of our statutory duty to consider whether the regulation or order should be set aside in whole or in part as being 'arbitrary or capricious.' This is so whether the Administrator includes such generalizations and conclusions Page 321 U. S. 458 in his opinion accompanying the denial of the protest or, as in this case, incorporates them into the record of the protest proceedings at an earlier stage in order to afford protestant an opportunity for rebuttal." To this may be added what the Emergency Court said in Madison Park Corp. v. Bowles, 140 F.2d 316, 324: "We do not decide that this Court should limit the application of the term 'generally fair and equitable' to standards mentioned in the law and in discussions of its enactment while pending in Congress. It may be possible that a case will occur in which the effect of a regulation established by the Administrator clearly will be shown to be generally unfair and inequitable on grounds not mentioned. But, in such a case, the reasons must be clear and compelling. The Act provides the Administrator may establish such rents as, in his judgment, will be generally fair and equitable. Review in this Court is plainly limited. It may not substitute its judgment for the judgment of the Administrator, but may act in review only when it finds the regulation is not in accordance with law or is arbitrary and capricious. Thus, if the Court finds any reasonable basis to support the view that the regulation deals fairly and equitably with the industry concerned, the regulation must stand." (Italics in original.) When these cumulative burdens placed upon the protestant who seeks review are fairly appraised, it becomes apparent that he must carry an insupportable load, and that, in truth, the court review is a solemn farce in which the Emergency Court of Appeals, and this court, on certiorari, must go through a series of motions which look like judicial review but, in fact, are nothing but a catalogue of reasons why, under the scheme of the Act, the courts are unable to say that the Administrator has exceeded the discretion vested in him. No court is competent, on a mass of economic opinion consisting of studies by subordinates of the Administrator, Page 321 U. S. 459 charts and graphs prepared in support of the studies, and economic essays gathered hither and yon, to demonstrate, beyond doubt, that the considerations or conclusions of the Administrator from such material cannot support the Administrator's judgment that what he has done by way of regulation or price schedule tends to prevent postwar collapse of values, or to prevent dissipation of defense appropriations through excessive prices, or to prevent impairment of the standard of living of persons dependent on life insurance, or to prevent hardship to schools -- to enumerate but a few of the stated purposes of the Act. It is not surprising that, in the thirty-one cases decided by the Emergency Court of Appeals of which I have found reports, complaints have been dismissed in twenty-eight, and but three have been remanded to the Administrator for further proceedings. [ Footnote 2/3 ] Two of the three involved no question of merits under the statutory provisions. The War Power The Emergency Court of Appeals, in Taylor v. Brown, 137 F.2d 654, overruled a challenge to the constitutional validity of the Act's delegation of legislative power to the Administrator by invocation of the "War Power" of Congress, the powers embodied in Article I, 8, of the Constitution "to declare War," "to raise and support Armies," "to provide and maintain a Navy," and "to make all Laws which shall be necessary and proper for carrying into Execution" those powers. After showing, what needs no argument, that these powers of Congress are very different from those to be exercised in peace, the court then -- without a sign that it realizes the great gap in the process -- assumes that one of Congress' war powers is the power to transfer its legislative function to a delegate. By the Page 321 U. S. 460 same reasoning, it could close this court or take away the constitutional prerogatives of the President as "War measures." I am not sure how far this court's present opinion adopts the same view. There are references in it to the war emergency, and yet the reasoning and the authorities cited seem to indicate that the delegation would be good in peacetime and in respect of peacetime administration. And the Emergency Court of Appeals, in spite of its decision in Taylor v. Brown, supra, and its statement in Philadelphia Coke Co. v. Bowles, 139 F.2d 349, that, as the Act is an exercise of the war power, and therefore does not deprive citizens of property without due process, has, nevertheless, weighed provisions of the Act as against the guaranty of the Fifth Amendment in Wilson v. Brown, 137 F.2d 348, and in Avant v. Bowles, 139 F.2d 702. I am sure that my brethren, no more than I, would say that Congress may set aside the Constitution during war. If not, may it suspend any of its provisions? The question deserves a fair answer. My view is that it may not suspend any of the provisions of the instrument. What any of the branches of government do in war must find warrant in the charter, and not in its nullification, either directly or stealthily, by evasion and equivocation. But if the court puts its decision on the war power, I think it should say so. The citizens of this country will then know that, in war, the function of legislation may be surrendered to an autocrat whose "judgment" will constitute the law, and that his judgment will be enforced by federal officials pursuant to civil judgments, and criminal punishments will be imposed by courts as matters of routine. If, on the contrary, such a delegation as is here disclosed is to be sustained even in peacetime, we should know it. [ Footnote 2/1 ] The Act gives the Administrator no power with respect to wages, and limits his powers as respects fishery commodities (50 U.S.C. § 902(i)), and agricultural commodities (50 U.S.C. § 903). [ Footnote 2/2 ] In citing cases decided by that court, I do so with no thought that, in construing the Act's provisions, that court has erred. On the contrary, I cite its interpretations of the statute as supporting my views that, as properly construed, the Act is invalid. [ Footnote 2/3 ] Armour & Co. v. Brown, 137 F.2d 233; Montgomery Ward & Co. v. Bowles, 138 F.2d 669; Hillcrest Terrace Corp. v. Brown, 137 F.2d 663. MR. JUSTICE RUTLEDGE, dissenting. I agree with the Court's conclusions upon the substantive issues. But I am unable to believe that the trial afforded Page 321 U. S. 461 the petitioners conformed to constitutional requirements. The matter is of such importance as requires a statement of the reasons for dissent. The Emergency Price Control legislation is unusual, if not unique. It is streamlined law in both substance and procedure. More than any other legislation except perhaps the Selective Service Act, in the combined effect of its provisions, it attenuates the rights of affected individuals. The Congress regarded this as necessary, though it sought to preserve as much of individual right as it felt was consistent with controlling wartime inflation. To that judgment we owe all deference, saving only what we owe to the Constitution. War such as we now fight calls into play the full power of government in extreme emergency. It compels invention of legal, as of martial, tools adequate for the times' necessity. Inevitably, some will be strange, if also lifesaving, instruments for a people accustomed to peace and the normal working of constitutional limitations. Citizens must surrender or forego exercising rights which in other times could not be impaired. But not all are lost. War expands the nation's power. But it does not suspend the judicial duty to guard whatever liberties will not imperil the paramount national interest. I Judged by normal peacetime standards, over-all nationwide price control hardly has accepted place in our institutions. Notwithstanding the considerable expansion of recent years in this respect, the extension has been piecemeal. [ Footnote 3/1 ] Until now, it has not enveloped the entire economy. [ Footnote 3/2 ] Whether control so extensive might be upheld in some emergency not created by war need not now be decided. Page 321 U. S. 462 That it can be supported in the present circumstances and for the declared purposes, there can be no doubt. It is enough, as the Court points out, that legal foundation exists in the nation's power to make war, as this has been given to Congress and the Chief Executive. Cf. Hirabayashi v. United States, 320 U. S. 81 . [ Footnote 3/3 ] The foundation has relevance for each of the issues. And generally it has significance for the application of peacetime precedents. Decisions made then with limitations, explicit or implied, not affected by influence of the war power and the conditions of a state of war, cannot be wholly conclusive in their limiting effect upon the exercise of war-making authority. Care must be taken therefore, in applying them, both to see that they are observed so far as the dominant necessity permits and to be equally sure they are not misapplied to hamstring essential authority. [ Footnote 3/4 ] As it is with the substantive control, so it is with delegating legislative power. War begets necessities for this, as for imposing substantive controls, not required by the lesser exigencies of more normal periods. In this respect, certainly there is as much room for difference as exists when Congress is dealing wholly with internal matters and when it is acting with the President about foreign affairs. Cf. United States v. Curtiss-Wright Export Corp., 299 U. S. 304 . Not only the broader power of Congress, but its conjunction in the particular delegation with the wider authority of the President, both as chief magistrate and as commander-in-chief, goes to sustain the greater delegation. Cf. Hirabayashi v. United States, supra. But the present legislation, as the Court's opinion demonstrates, Page 321 U. S. 463 does not go beyond the limits allowed by peacetime precedents in the substantive delegation. [ Footnote 3/5 ] II My difficulty arises from the Act's procedural provisions. They too are unusual. That is true though each save one has been used before, and sustained, in separate applications. No previous legislation has presented quite this combination of procedural devices. [ Footnote 3/6 ] In the combination, if in nothing more, unique quality would be found. But there is more. Congress sought to accomplish two procedural objectives. One was to afford a narrow but sufficient method for securing review and revision of the regulations. At the same time, the Act created broad and ready methods for enforcement. The short effect of the procedure is to give the individual a single channel for questioning the validity of a regulation, through the protest procedure and the Emergency Court of Appeals, with review of its decisions here on certiorari. § 204. On the other hand, the varied and widely available means for enforcement include criminal proceedings, suits in equity, and suits for recovery of civil penalties, in the federal district courts and in the state courts. § 205(a), (b), (c). See also Page 321 U. S. 464 § 205(d), (e), (f). [ Footnote 3/7 ] And in all these enforcement proceedings, the mandate of § 204(d) is that the court shall have no "jurisdiction or power to consider the validity of" a regulation, order or price schedule. The statute thus affords the individual, to question a regulation's validity, one route and that a very narrow one, open only briefly. The administrator and others, to enforce it, have many. And, in the enforcement proceedings, the issues are cut down so that, in a practical sense, little else than the fact whether a violation of the regulation as written has occurred or is threatened may be inquired into. [ Footnote 3/8 ] Disparity in remedial and penal measures does not necessarily invalidate the procedure, though it has relevance to adequacy of the remedy allowed the individual. [ Footnote 3/9 ] Congress has broad discretion to open and close the doors to litigation. In doing so, it may take account of the necessities presented by such a situation as it was dealing with here. To follow the usual course of legislation and permit challenge by restraining orders, injunctions, stay orders and the normal processes of litigation would have been, in this case, to lock the barn door after the horse had been stolen. There was therefore compelling reason for Congress to balance the scales of litigation unevenly, if only it did not go too far. In no other way could it protect the paramount national interest. If the result, within the permissible limits, is harsh or inconvenient for Page 321 U. S. 465 the individual, that is but part of the price he, with all others, must pay for living in a nation which ordinarily gives him so much of protection, but in a world which has not been organized to give it security against events so disruptive of democratic procedures. I have no difficulty with the provision which confers jurisdiction upon the Emergency Court of Appeals to determine the validity of price regulations or, if that had been all, with the mandate which makes its jurisdiction in that respect exclusive. Equally clear is the power of Congress to deprive the other federal courts of jurisdiction to issue stay orders, restraining orders, injunctions or other relief to prevent the operation of price regulations or to set them aside. So much may be rested on Congress' plenary authority to define and control the jurisdiction of the federal courts. Constitution, Article III, § 2; Lockerty v. Phillips, 319 U. S. 182 . It may be taken too, for the purposes of this case, that Congress' power to channel enforcement of federal authority through the federal courts sustains the like prohibitions it has placed on the state courts. [ Footnote 3/10 ] Without more, the statute's provisions would seem to be unquestionably within the Congressional power. Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 . Congress, however, was not content to create a single national tribunal, give it exclusive jurisdiction to determine all cases arising under the statute, and deny jurisdiction over them to all other courts. [ Footnote 3/11 ] It provided for enforcement Page 321 U. S. 466 by civil and criminal proceedings in the federal district courts and in the state courts throughout the country. This, too, it could do, though only if adequate proceedings, in the constitutional sense, were authorized. And I agree that the enforcing jurisdiction would not be made inadequate merely by the fact that no stay order or other relief could be had pending the outcome of litigation. Confronted as the nation was with the imminent danger of inflation, and therefore the necessity that price controls should become effective at once and continue so without interruption at least until invalidated in particular instances, Congress could require individuals to sustain, in deference to the paramount public interest, whatever harm might ensue during the period of litigation and until each had demonstrated the invalidity of the regulation as it affected himself. [ Footnote 3/12 ] Runaway inflation could not have been avoided in any other way. The lid had to go on, go on tight, and stay tight. This necessity united with the general presumption of validity which attaches to legislation [ Footnote 3/13 ] and Congress' power to control the jurisdiction of the courts to sustain its denial of power to all courts, including the enforcing courts, the Emergency Court and this one, [ Footnote 3/14 ] to suspend operation of the regulations pending final determination of validity. Page 321 U. S. 467 The crux of this case comes, as I see it, in the question whether Congress can confer jurisdiction upon federal and state courts in the enforcement proceedings, more particularly the criminal suit, and at the same time deny them "jurisdiction or power to consider the validity" of the regulations for which enforcement is thus sought. This question, which the Court now says "presents no novel constitutional issue," was expressly and carefully reserved in Lockerty v. Phillips, supra. The prohibition is the statute's most novel feature. In combination with others, it gives the procedure a culminating summary touch, and presents questions different from those arising from the other features. The prohibition is unqualified. It makes no distinction between regulations invalid on constitutional grounds and others merely departing in some respect from statutory limitations, which Congress might waive, or by the criterion whether invalidity appears on the face of the regulation or only by proof of facts. If the purpose and effect are to forbid the enforcing court to consider all questions of validity, and thus to require it to enforce regulations which are or may be invalid for constitutional reasons, doubt arises in two respects. First, broad as is Congress' power to confer or withhold jurisdiction, there has been none heretofore to confer it and at the same time deprive the parties affected of opportunity to call in question in a criminal trial whether the law, be it statute or Page 321 U. S. 468 regulation, [ Footnote 3/15 ] upon which the jurisdiction is exercised squares with the fundamental law. Nor has it been held that Congress can forbid a court invested with the judicial power under Article III to consider this question, when called upon to give effect to a statutory or other mandate. It is one thing for Congress to withhold jurisdiction. It is entirely another to confer it and direct that it be exercised in a manner inconsistent with constitutional requirements, or, what in some instances may be the same thing, without regard to them. Once it is held that Congress can require the courts criminally to enforce unconstitutional laws or statutes, including regulations, or to do so without regard for their validity, the way will have been found to circumvent the supreme law and, what is more, to make the courts parties to doing so. This Congress cannot do. There are limits to the judicial power. Congress may impose others. And, in some matters, Congress or the President has final say under the Constitution. But whenever the judicial power is called into play, it is responsible directly to the fundamental law ,and no other authority can intervene to force or authorize the judicial body to disregard it. The problem therefore is not solely one of individual right or due process of law. It is equally one of the separation and independence of the powers of government and of the constitutional integrity of the judicial process, more especially in criminal trials. III The idea is entirely novel that regulations may have a greater immunity to judicial scrutiny than statutes have with respect to the power of Congress to require the courts to enforce them without regard to constitutional requirements. Page 321 U. S. 469 At a time when administrative action assumes more and more of the lawmaking function, [ Footnote 3/16 ] it would seem the balance of advantage, if any, should be the other way. But there is none. The statute has impact upon individuals only through the regulations. They are, in effect, part of the Act itself, unless invalid. If invalid, they rule, just as the statute does, until set aside. And, in respect to constitutional requirements, they have no more immunity than the statute itself. [ Footnote 3/17 ] Clearly, Congress could not require judicial enforcement of an unconstitutional statute. The same is true of an unconstitutional regulation. And it is conceded that Congress could not have compelled judicial enforcement of all price regulations, without regard to their validity, if it had not given opportunity for attack upon them through the Emergency Court or if that opportunity is inadequate. But because the opportunity is afforded and is deemed adequate in the unusual circumstances, at any rate for some of its purposes, and because it was not followed, the Court holds that criminal enforcement must be given, and the enforcing court cannot consider the question of validity. Page 321 U. S. 470 If I understand it, the argument to sustain the conviction, in its broadest form, rests upon the proposition that Congress, by providing in one proceeding a constitutionally adequate mode for deciding upon the validity of a law or regulation, and requiring this to be followed within a limited time, can cut off all other right to question it and make that determination, or the failure to secure it in time, conclusive for all purposes and in all other proceedings. The proposition cannot be accepted in that broad form. To do so would mean, for instance, that if, in this case, a regulation had prescribed one maximum price for sales by merchants of one race or religion and a lower one for distributors of another, the judicial power of the United States would have to be exercised to convict the latter for selling at the formers' price, if they had not availed themselves of the limited review afforded by this Act. It hardly would be consistent with accepted ideas of due process or equal protection for any court to impose penalty or restraint in such a case. [ Footnote 3/18 ] And I cannot imagine this Court as sustaining such a conviction or any other as imposing it. [ Footnote 3/19 ] The illustration is extreme and improbable of occurrence. But it serves to test the broad contention. Such a doctrine, established as generally applicable, would contain seeds of influence too dangerous for acceptance, more especially for the determination of criminal matters. No authority compels or enjoins this. And I am unwilling to give the idea adherence in particular applications without stating qualification which confines its possible effects Page 321 U. S. 471 to situations where the gravest dangers to the nation's interest exist and cannot be escaped in any other way. The question narrows, therefore, to the inquiry, in what circumstances and under what conditions may Congress, by offering the individual a single chance to challenge a law or an order, foreclose for him all further opportunity to question it, though requiring the courts to enforce it by criminal processes? This question is the most important one in the case, and demands explicit attention. "It is easy enough to say that a party has enough of a remedy if statutory review of the order is available, and, if he does not choose to employ that procedure, he should be foreclosed from raising elsewhere the questions that could have been raised in that proceeding. [ Footnote 3/20 ]" But to make this easy assumption is at once to decide the rock-bottom issue and, in my opinion, one this Court has not determined heretofore with effects upon the criminal process like those produced in this case. [ Footnote 3/21 ] IV It is true that, in a variety of situations and for a variety of reasons, a person is foreclosed from raising issues, including some constitutional ones, where he has failed to exercise an earlier opportunity. Thus, ordinarily issues cannot be raised on appeal which were not presented in Page 321 U. S. 472 the trial court. And a variant is that federal questions not raised in the state courts generally will not be considered here. [ Footnote 3/22 ] But such instances of foreclosure, whether legislative or judicial in origin, do not support the broader basis of argument in this case. Two things are to be emphasized. One is that the previous opportunity is in an earlier phase of the same proceeding, not, as here, a separate and independent one of wholly different character. In other words, the determination of guilt or other matter ultimately in issue is not cut up into two separate, distinct and independent proceedings in different tribunals, in which neither body has power to consider and decide all the issues, but each can determine them only in part. The other thing for stress is that the foreclosure by failure to take the earlier chance is not universally effective. And this is true particularly of constitutional questions, some of which may be raised at any time. [ Footnote 3/23 ] While Congress has plenary power to confer Page 321 U. S. 473 or withhold appellate jurisdiction, cf. 74 U. S. 7 Wall. 506, it has not so far been held, and it does not follow, that Congress can confer it, yet deny the appellate court "power to consider" constitutional questions relating to the law in issue. If the foreclosure is not always effective when the earlier phase of litigation is wholly judicial, it hardly should be when this consists of administrative or of both administrative and judicial proceedings, still less when these are civil in character and the later enforcement phase is criminal. In the enforcement of administrative orders, the courts have been assiduous, perhaps at times extremely so, [ Footnote 3/24 ] to see that constitutional protections to the persons affected are observed. By trial and error, ways have been found to give the administrative process scope for effective action and yet to maintain individual security against abuse, especially in respect to constitutional rights. [ Footnote 3/25 ] The instances closest to the problem here have provided for attaching penalties, including criminal sanctions, to violations of orders. But generally, by one method or another, means have been supplied for postponing their impact, at any rate irrevocably, until after the order's validity has Page 321 U. S. 474 been established. [ Footnote 3/26 ] And in that effort, this Court has joined. [ Footnote 3/27 ] Whatever may be the limitations on judicial review in criminal proceedings under other administrative enforcement patterns, [ Footnote 3/28 ] no one of these arrangements goes as far as the combination presented by this Act. It restricts the individual's right to review to the protest procedure and appeal through the Emergency Court of Appeals Both are short-cut proceedings, trimmed almost to the bone of due process, even for wholly civil purposes, and pared down further by a short statute of limitations. Protest must be filed within the sixty-day period. After that time, no protest can be made, and no review can be Page 321 U. S. 475 had, except upon grounds arising later. § 203(a). [ Footnote 3/29 ] The only right is to submit written evidence and argument to the administrator. § 203(c). There is none to present additional evidence to the court. [ Footnote 3/30 ] Necessarily, there is none of cross-examination. No court can suspend the order unless or until a judgment of the Emergency Court invalidating it becomes final. [ Footnote 3/31 ] The penalties, civil and criminal, attach at once on violation and, it would seem, until the contrary is decided, with finality. [ Footnote 3/32 ] At any rate, Page 321 U. S. 476 that is the statute's purport. In short, the statute, as drawn, makes not only the regulation, but also the penalties, immediately and fully effective without regard to whether protest is made, the protest proceeding is carried to conclusion, or what the conclusion may be, except, and this is by inference, that violation after the order finally is held invalid may not be punishable. This is the scope and reach of the statute. It is greater than any this Court heretofore has sustained. [ Footnote 3/33 ] It places Page 321 U. S. 477 the affected individual just where the Court, speaking through Mr. Justice Lamar in Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651 , 235 U. S. 662 , said he could not be put: "He must either obey what may finally be held to be a void order or disobey what may ultimately be held to be a lawful order." Yet the Court holds this special proceeding "adequate," and therefore effective to foreclose all opportunity for defense in a criminal prosecution on the ground the regulation is void. This is no answer. A procedure so summary, imposing such risks, does not meet the requirements heretofore considered essential to the determination or foreclosure of issues material to guilt in criminal causes. It makes no difference that petitioners did not follow the special procedure. The very question, posed in the Court's own terms, is whether, if they had followed it, the remedy would be adequate constitutionally. It cannot be, under previously accepted ideas, if, for one who follows it to a favorable judgment, the penalty yet may fall. That question the Court does not decide. Unless it is decided, the question of adequacy, in any sense heretofore received, has not been determined, or an entirely new conception of adequacy has been approved. Page 321 U. S. 478 V But there is a deeper fault, even if we assume what neither the statute nor the Court's opinion today justifies, that a potential offender who successfully challenges the constitutionality of a regulation or begins a challenge on constitutional grounds in the Emergency Court at any time before or during the criminal prosecution, cannot be convicted, at least until after final decision that the order is valid. There still remain those cases where he has either challenged unsuccessfully in the Emergency Court or has not challenged at all. In them, the would-be offender is subject to criminal prosecution without a right to question in the criminal trial the constitutionality of the regulation on which his prosecution and conviction hinge. And this seems to be true without distinction as to the character of the ground on which he seeks to make the issue. To say that this does not operate unconstitutionally on the accused because he has the choice of refraining from violation or of testing the constitutional questions in a civil proceeding beforehand entirely misses the point. The fact is that, if he violates the regulation, he must be convicted, in a trial in which either an earlier and summary civil determination or the complete absence of a determination forecloses him on a crucial constitutional question. In short, his trial for the crime is either in two parts in two courts or on only a portion of the issues material to guilt in one court. This may be all very well for some civil proceedings. But, so far as I know, criminal proceedings of this character never before have received the sanction of Congress or of this Court. That, like many other criminals, an offender here can be punished for making the wrong guess as to the constitutionality of the regulation I have no doubt. But that, unlike all other criminals, he can be convicted on a trial in two parts, one so summary and civil and the other criminal Page 321 U. S. 479 or, in the alternative, on a trial which shuts out what may be the most important of the issues material to his guilt, I do deny. The Sixth Amendment guarantees to the accused "in all criminal prosecutions . . . the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . ." By Article III, § 2, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed. . . ." And, by the same section, "The judicial Power," which is vested in the supreme and inferior courts by § 1, "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made . . . under their Authority." By these provisions, the purpose hardly is to be supposed to authorize splitting up a criminal trial into separate segments, with some of the issues essential to guilt triable before one court in the state and district where the crime was committed and others, equally essential, triable in another court in a highly summary civil proceeding held elsewhere, or to dispense with trial on them because that proceeding has not been followed. [ Footnote 3/34 ] If the validity of the Page 321 U. S. 480 order, on constitutional or other grounds, has any substantial relationship to the petitioners' guilt, and it cannot be denied that it does, the short effect of the procedure is to chop up their trial into two separate, successive and distinct parts or proceedings, in each of which only some of the issues determinative of guilt can be tried, the two being connected only by the thread of finality which runs from the decision of the first into the second. The effect is to segregate out of the trial proper issues, whether of law or of fact, relating to the validity of the law for violation of which the defendants are charged, and to leave to the criminal court only the determination of whether a violation of the regulation as written actually took place and whether, in some other respect, the statute itself is invalid. If Congress can remove these questions, it can remove also all questions of validity of the statute or, it would seem, of law. The consequences of this splitting hardly need further noting. On facts and issues material to validity of the regulation, the persons charged are deprived of a full trial in the state or district where the crime occurs, even if the Emergency Court sits there, as it is not required to do. Their right to try those constitutional issues, both of fact and of law, on which a criminal conviction ultimately will hinge is restricted rigidly to the introduction of written evidence before the administrator in a proceeding barely adequate, even under special circumstances like these, to meet the requirements of due process of law in civil proceedings. The court which makes the decision on these issues cannot consider the facts constituting the violation. It has no power to pass judgment of guilty or not guilty upon the whole of the evidence. It can only pronounce Page 321 U. S. 481 the law valid or invalid in a setting wholly apart from any charge of crime, from the facts alleged as its commission, and from the usual protections which surround its trial. On the other hand the special tribunal's judgment, rendered it may be on disputed facts as well as law, becomes binding against the accused in the later proceeding. He cannot then dispute it, regardless of whether, meanwhile, the facts have changed [ Footnote 3/35 ] or new and additional evidence has been discovered and might be tendered with conclusive effect, if it were admissible. He can tender no evidence on what may be the most vital issue in his case and one, it may likewise be, that the evidence then available would sustain overwhelmingly. The trial court must shut its eyes to all such offers of proof and, moreover, to any such issue of law. VI A procedure so piecemeal, so chopped up, so disruptive of constitutional guaranties in relation to trials for crime, should not, and, in my judgment, cannot be validated as to such proceedings, under the Constitution. Even war does not suspend the protections which are inherently part and parcel of our criminal process. Such a dissection of the trial for crime could be supported, under our system, only upon some such notions as waiver and estoppel or res judicata, whether or not embodied in legislation. [ Footnote 3/36 ] These too are strange and inadequate vehicles for trying whether the citizen has been guilty of criminal conduct. They bar defense, while keeping prosecution open, before it begins. Page 321 U. S. 482 Res judicata, by virtue of a judgment in some prior civil proceeding, where different constitutional guaranties relating to the mode and course of trial have play, has not done duty heretofore to replace either proof of facts before a jury or decision of constitutional questions necessary to make up the sum of guilt in the criminal proceeding itself. Congress can invade the judicial function in criminal cases no more by compelling the court to dispense with proof, jury trial or other constitutionally required characteristics than it can by denying all effect of finality to judicial judgments. Cf. Schneiderman v. United States, 320 U. S. 118 , concurring opinion at 320 U. S. 167 -168. And while, as noted above, notions of waiver and estoppel have had place in criminal proceedings to an extent not wholly defined, in some instances harshly and artificially, [ Footnote 3/37 ] they have not had effect heretofore to enable Congress to force a waiver of defense upon the individual by offering a choice between two kinds of trial, neither of which satisfies constitutional requirements for criminal trials. Certainly when the consequences are so novel and far-reaching as they may be under this procedure, both for the individual and for the judicial system, these conceptions should not be given legal establishment to bring them into being. To state the question often is to decide it. And it may do this by failure to reveal fully what is at stake. The question is not merely whether the protest proceeding is adequate in the constitutional sense for some of the purposes pertinent to that proceeding. It is rather what effect shall be given to the civil determination in the later and entirely different criminal trial. It is whether, by substituting that civil proceeding for decision of basic issues in the criminal trial itself, Congress can foreclose Page 321 U. S. 483 the accused from having them decided in that trial, and thereby deprive him of the protections in trial guaranteed all persons charged with crime and thus of full and adequate defense. It is not the equivalent of that sort of defense to force one to initiate a curtailed civil suit or to cut him off shortly from all defense on the issues allocated to it, if he does not do so. Again, the question is not merely whether the individual can waive his constitutional trial of the issue of validity. It is, rather, whether Congress can force him to do so in the manner attempted and, beyond this, whether he and Congress together, in the combined effects of what they do, can so strip the criminal forum of its power and of its duty to abide the law of the land. And if the issue is further whether Congress can do this in some situations, respecting some issues, under more usual safeguards, the question requires attention to these important limitations. [ Footnote 3/38 ] The procedural pattern is one which may be adapted to the trial of almost any crime. Once approved, it is bound to spawn progeny. If, in one case, Congress thus can withdraw from the criminal court the power to consider the validity of the regulations on which the charge is based, it can do so for other cases, unless limitations are pointed out clearly and specifically. And it can do so for statutes, as well. In short, the way will have been found to avoid, if not altogether the power of the courts to review legislation for consistency with the Constitution, [ Footnote 3/39 ] then, in part, at least, their obligation to observe its commands, and, more especially, the guaranteed protections of persons charged with crime in the trial of their causes. This is not merely control or definition of jurisdiction. It Page 321 U. S. 484 is, rather, unwarranted abridgement of the judicial power in the criminal process unless, at the very least, it is confined specifically to situations where the special proceeding provides a fair and equal substitute for full defense in the criminal trial or other adequate safeguard is afforded against punishment for violating an order which itself violates or may violate basic rights. So much should not be accomplished merely by giving to the failure to take advantage of opportunity for summary civil determination, coupled with a short statute of limitations upon its availability, the effect of a full and final criminal adjudication. To do this hardly observes the substance of "adequacy" in criminal trials. From what has been said, it seems clear that Congress cannot forbid the enforcing court, exercising the criminal jurisdiction, to consider the constitutional validity of an order invalid on its face. Any other view would permit Congress to compel the courts to enforce unconstitutional laws. Nor, in my opinion, can Congress forbid consideration of validity in all cases, if it can in any, where the invalidity appears only from proof of facts extrinsic to the regulation. Again, the racial or religious line is obvious and pertinent. If, for instance, one charged criminally with violating the regulation should tender proof it was being enforced in a manner to deny him the equal protection of the laws, because of his racial or religious connections, it is difficult to believe the evidence could be excluded consistently with the judicial obligation. The Constitution does not make judicial observance or enforcement of its basic guaranties depend on whether their violation appears from the face of legislation, or only from its application to proven facts. Snowden v. Hughes, 321 U. S. 1 ; Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 373 -374; United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 -154. For legislation not void on its face, a presumption of constitutionality attaches and remains until it is proven Page 321 U. S. 485 invalid or so in operation. In such cases, there is no unfairness, nor any invasion of the court's paramount obligation in requiring one who would avoid the regulations' impact to show they are not what they appear to be or that they are made to operate otherwise than as they purport or were intended. But it is one thing to say that burden must be borne within the enforcement proceeding itself, and another to say it must be carried entirely outside it. To require the defendant to prove invalidity in such a situation in the criminal trial itself upon a showing of violation of the statute is wholly permissible. But for the court to be unable to receive tendered evidence which might disclose the statute's invalid character and effect is quite different. Certainly, under the circumstances of this case, it would seem to be as much a violation of individual right and as much an invasion of the judicial function for Congress to command the court not to receive the evidence regardless of its character or effect as for it to direct the court to enforce a law or an order void on its face. VII To sanction conviction of crime in a proceeding which does not accord the accused full protection for his rights under the Fifth and Sixth Amendments and which entails a substantial legislative incursion on the constitutionally derived judicial power, if, indeed, this ever could be sustained, would require a showing of the greatest emergency coupled with an inability to accomplish the substantive ends sought in any other way. No one questions the seriousness of the emergency the Price Control Act was adopted to meet. And it has been urged with great earnestness that the nation's security in the present situation requires that the statute's procedure followed in this case be sustained to its full extent. That argument would be more powerful if enforcement of the statute, and thus maintenance of price control, were Page 321 U. S. 486 dependent upon accepting every feature. No doubt to impose the criminal sanction, as has been done in this case, implements the enforcement process with the deterrent effects which usually accompany that sanction. But neither its use nor enforcement of the statute's substantive prohibitions requires that the criminal court shall not consider the validity of the regulations. With the arsenal of other valid legal weapons available, there can be no lack of speedy and effective measures to secure compliance. The regulations are effective until invalidated. They cannot be suspended by any court pending final decision here, if the last source of relief is sought. All the armory of equity, and with it the sanctions of contempt, are available to keep the regulations in force and to prevent violations, at least until decision here is sought and had that the regulations are invalid. The same weapons are available to enforce them permanently if they are found valid. Apart from defense when charged with crime, the individual's only avenue of escape, and that not until final decision of invalidity has been made, is by protest and appeal through the single route prescribed. Finally, in addition to all this, the dealer may be punished for crime if he violates the regulation willfully and cannot show it is invalid either in his defense or by securing a judgment to this effect through the protest procedure. In either case, in view of the statute's curtailment of his substantive rights and the consequent increase in the burden of proving facts sufficient to nullify the regulation, [ Footnote 3/40 ] his chance for escape Page 321 U. S. 487 becomes remote, to say the least. In view of all these resources and advantages, the assertion hardly is sustained that enforcement requires also depriving the accused of his opportunity for full and adequate defense in his criminal trial. War requires much of the citizen. He surrenders rights for the time being to secure their more permanent establishment. Most men do so freely. According to our plan, others must do so also, as far as the nation's safety requires. But the surrender is neither permanent nor total. The great liberties of speech and the press are curtailed, but not denied. Religious freedom remains a Page 321 U. S. 488 living thing. With these, in our system, rank the elemental protections thrown about the citizen charged with crime, more especially those forged on history's anvil in great crises. They secure fair play to the guilty and vindication for the innocent. By one means only may they be suspended, even when chaos threatens. Whatever else seeks to dispense with them or materially impair their integrity should fail. Not yet has the war brought extremity that demands or permits them to be put aside. Nor does maintaining price control require this. The effect, though not intended, of the provision which forbids a criminal court to "consider the validity" of the law on which the charge of crime is founded, in only opinion, would be greatly to impair these securities. Hence, I cannot assent to that provision as valid. Different considerations, in part at any rate, apply in civil proceedings. [ Footnote 3/41 ] But, for the trial of crimes, no procedure Page 321 U. S. 489 should be approved which dispenses with trial of any material issue or splits the trial into disjointed segments, one of which is summary and civil, the other but a remnant of the ancient criminal proceeding. The judgment should be reversed. I am authorized to say that MR. JUSTICE MURPHY joins in this opinion. [ Footnote 3/1 ] Cf., e.g., Nebbia v. New York, 291 U. S. 502 . [ Footnote 3/2 ] Perhaps the nearest previous approach to control so extensive was in the National Industrial Recovery legislation. [ Footnote 3/3 ] Cf. 321 U.S. 414 fn3/18|>note 18 infra. [ Footnote 3/4 ] It goes without saying that whatever scope is allowed for operation of governmental authority in peace continues to be effective in war. [ Footnote 3/5 ] E.g., the administrator has no power to adopt codes of fair competition generally, such as was given under NIRA. His principal function is single, to determine and make effective by regulation the maximum price at which a commodity may be sold. The task is vast and complex, in comparison with previously sustained price-fixing delegations, by virtue of the number of industries and items affected and the nationwide scope of the authority. But the focus of the price-fixing function is narrow, although powerful, in its incidence upon a particular industry or operator. [ Footnote 3/6 ] Cf. Judicial Review of Price Orders under the Emergency Price Control Act (1942) 37 Ill.L.Rev. 256, 263-264, and other materials cited infra, notes 321 U.S. 414 fn3/20|>20, 321 U.S. 414 fn3/21|>21. [ Footnote 3/7 ] By § 205(f)(1), (2), licensing authority is given to the administrator, with special provisions for suspension for not more than twelve months by proceedings in state, territorial or federal district courts. [ Footnote 3/8 ] It is conceded that questions concerning the validity of statutory provisions, as distinguished from regulations, remain determinable by enforcing courts. See Sen.Rep. No. 931, 77th Cong., 2d Sess., 24-25, and compare H.R. 5479, 77th Cong., 1st Sess., printed in hearings before Committee on Banking and Currency on 11. R. 5479, 77th Cong., 2d Sess., 4, 7. [ Footnote 3/9 ] Cf. Parts 321 U. S. 321 U. S. infra. [ Footnote 3/10 ] The Moses Taylor , 4 Wall. 411; Bowles v. Willingham, post, p. 321 U. S. 503 ; cf. Claflin v. Houseman, 93 U. S. 130 ; Plaquemines Tropical Fruit Co. v. Henderson, 170 U. S. 511 . [ Footnote 3/11 ] This it might have done, subject only to the requirement that the procedure specified for the single competent court afford a constitutionally adequate mode for determining the issues. Myers v. Bethlehem Shipbuilding Corp., supra. In case criminal jurisdiction were conferred, observance of the requirements of Article III, § 2, and of the Fifth and Sixth Amendments concerning such trials would be required. Cf. text infra Parts 321 U. S. 321 U. S. [ Footnote 3/12 ] Cf. L'Hote v. New Orleans, 177 U. S. 587 ; Welch v. Swasey, 214 U. S. 91 ; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146 . [ Footnote 3/13 ] Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580 ; United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 -154. [ Footnote 3/14 ] By § 204(b) of the Act, the effectiveness of a judgment of the Emergency Court enjoining or setting aside the regulation, in whole or in part, is postponed until the expiration of thirty days from its entry and, if certiorari is sought here within that time, the postponement continues until this Court's denial of the writ becomes final or until other final disposition of the case by this Court. By § 204(d), the Emergency Court and this Court are given exclusive jurisdiction to determine the validity of the regulation, and all other courts are denied "jurisdiction or power to consider" this question and to stay, restrain, enjoin or set aside any provision of the regulation or its enforcement. The net effect is to deprive all courts of power to suspend operation of the regulation pending final decision on its validity, and to keep it in force until a final judgment of the Emergency Court, or of this Court on review of its decision, becomes effective. [ Footnote 3/15 ] Cf. text infra, 321 U. S. at notes 321 U.S. 414 fn3/16|>16, 321 U.S. 414 fn3/17|>17. [ Footnote 3/16 ] There hardly can be question that, whenever an administrative agency, acting within the discretion validly conferred upon it by Congress, promulgates a regulation or issues an order of general applicability it is "making the law," as effectively as is Congress when it enacts a specific prescription, by whatever name this may be called. United States v. Grimaud, 220 U. S. 506 ; Avent v. United States, 266 U. S. 127 ; United States v. Michigan Portland Cement Co., 270 U. S. 521 . [ Footnote 3/17 ] Cf. the 321 U. S. Justice Roberts. The notion that Congress somehow could cut off review of regulations for constitutional invalidity when it could not do so for statutes, of which suggestions appear in the legislative history and the briefs, was not adhered to in the oral argument as to regulations void on their face, and is not tolerable when the effect would be to make the courts instruments for enforcing unconstitutional mandates. Cf. 321 U. S. infra. [ Footnote 3/18 ] See 321 U.S. 414 fn3/17|>note 17 supra. The unique circumstances involved in Hirabayashi v. United States, 320 U. S. 1 , confine that case to its facts, including the particular emergency with which legislation there under review had dealt, as respects the issue of equal protection. [ Footnote 3/19 ] Cf. notes 321 U.S. 414 fn3/23|>23, 321 U.S. 414 fn3/33|>33 infra. [ Footnote 3/20 ] McAllister, Statutory Roads to Review of Federal Administrative Orders (1940), 28 Calif.L.Rev. 129, 166. [ Footnote 3/21 ] Ibid. Cf. Judicial Review of Price Orders Under the Emergency Price Control Act (1942) 37 Ill.L.Rev. 256, 263; Stason, Timing of Judicial Redress from Erroneous Administrative Action (1941) 25 Minn.L.Rev. 560, 575, 576-581; Administrative Features of the Emergency Price Control Act (1942) 28 Va.L.Rev. 991, 998, 999; Reid and Hatton, Price Control and National Defense (1941) 36 Ill.L.Rev. 255, 283-284. For an analysis of litigation under this Act, see Sprecher, Price Control in the Courts (1944) 44 Col.L.Rev. 34. [ Footnote 3/22 ] The foreclosure may be founded upon notions of waiver, comity, putting an end to litigation, securing orderly procedure or the advantages of having available for consideration in the later stages the informed judgment of the trial tribunal, or some combination of these and other considerations. Cf. Stason, Timing of Judicial Review from Erroneous Administrative Action (1941) 25 Minn.L.Rev. 560, 576-581; Berger, Exhaustion of Administrative Remedies (1939) 48 Yale L.J. 980, 1006. And the rule against allowing collateral attack, where a judgment is involved, is relevant to the broad problem of foreclosure. [ Footnote 3/23 ] Commonly it is said that "jurisdictional" questions, particularly concerning the court's power to deal with the subject matter, may be raised at any stage or in a collateral attack. And this seems to be true also of some other constitutional issues through challenge to judgments by habeas corpus proceedings long after the judgment has become final. Cf., e.g., Ex parte Virginia, 100 U. S. 339 ; Ex parte Siebold, 100 U. S. 371 ; Johnson v. Zerbst, 304 U. S. 458 ; Mooney v. Holohan, 294 U. S. 103 . Compare Revised Rules of the Supreme Court of the United States, Rule 27, paragraph 6; cf. Weems v. United States, 217 U. S. 349 , 217 U. S. 362 ; Columbia Heights Realty Co. v. Rudolph, 217 U. S. 547 ; Brasfield v. United States, 272 U. S. 448 ; Mahler v. Eby, 264 U. S. 32 , 264 U. S. 45 . [ Footnote 3/24 ] Compare Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 ; Crowell v. Benson, 285 U. S. 22 ; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38 ; Utah Fuel Co. v. National Bituminous Coal Comm'n, 306 U. S. 56 , with Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 . [ Footnote 3/25 ] E.g., compare Federal Trade Commission v. Gratz, 253 U. S. 421 , with Labor Board v. Mackay Radio Co., 304 U. S. 333 ; cf. also Morgan v. United States, 298 U. S. 468 ; 304 U. S. 304 U.S. 1; United States v. Morgan, 307 U. S. 183 . Compare 321 U.S. 414 fn3/24|>note 24, supra, and see Ng Fung Ho v. White, 259 U. S. 276 . [ Footnote 3/26 ] Thus, in some cases, review and enforcement are concentrated exclusively in the same court. Cf. National Labor Relations Act, 49 Stat. 449, 29 U.S.C. § 151 et seq., giving the circuit courts of appeal exclusive jurisdiction to review and enforce the board's orders, to which no penalty attaches until the board has sought and obtained an order from the court for enforcement. With this done, there is no danger the individual will be sentenced for crime for failure to comply with an invalid order. And there is none that the court will be called upon to lend its hand in enforcing an unconstitutional edict or, for that matter, one merely in excess of statutory authority. Likewise, when there is provision for stay or suspension of the order pending determination of its validity, e.g., the Securities Act of 1933, 48 Stat. 81, 15 U.S.C. § 77i; the Securities Exchange Act of 1934, 48 Stat. 902, 15 U.S.C. § 78y; the Public Utility Holding Company Act of 1935, 49 Stat. 835, 15 U.S.C. § 79x. And this is true where the enforcing court is not forbidden to consider the validity of the order, a prohibition entirely novel to the Emergency Price Control Act. [ Footnote 3/27 ] Cf. Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651 , and authorities cited. I n notable instances, also, where no specific provision has been made for either judicial review or avoiding the irrevocable impact of possibly invalid administrative action, and review has not been expressly denied, the courts have been ready to find means for review and for averting the impact of the penalty until it has been had. E.g., Ex parte Young, 209 U. S. 123 ; cf. Southern Ry. Co. v. Virginia, 290 U. S. 190 . [ Footnote 3/28 ] Cf. McAllister, op. cit. supra, 321 U.S. 414 fn3/20|>note 20, and 321 U.S. 414 fn3/26|>note 26 supra. [ Footnote 3/29 ] Apparently it is contemplated that the "affidavits or other written evidence" submitted in support of the objections be filed with the protest, though later submissions may be made at times and under regulations prescribed by the administrator, or when ordered by the Emergency Court, or to that court when the administrator requests. §§ 203(a), 204(a). The administrator is authorized to permit filing of protest after the sixty days have expired solely on grounds arising after that time. § 203(a). He is required to grant or deny the protest, in whole or in part, notice the protest for a hearing, or provide an opportunity to present further evidence, within thirty days after the protest is filed or ninety days after issuance of the regulation or order, or, in the case of a price schedule, ninety days from the effective date, whichever occurs later. Ibid. [ Footnote 3/30 ] Cf. 321 U.S. 414 fn3/29|>note 29 supra. In the Emergency Court of Appeals, "no objection to [the] regulation . . . , and no evidence in support of any objection thereto, shall be considered . . . unless such objection" has been set forth in the protest or such evidence is in the transcript. Additional evidence can be admitted only if it was "either offered to the Administrator and not admitted [by him] or . . . could not reasonably have been offered to . . . or included by the Administrator in such proceedings." In that case, it is to be presented to the administrator, received by him, and certified to the court together with any modification he may make in the regulation. Where the administrator so requests, however, such additional evidence "shall be presented directly to the court." § 204(a). [ Footnote 3/31 ] Cf. 321 U.S. 414 fn3/14|>note 14 supra. [ Footnote 3/32 ] That is true whether the infraction occurs before or after the time for protest or appeal has passed and, it would seem, notwithstanding the protestant may proceed with all diligence. The statute makes no provision for relieving from its penal sanctions one who follows the protest procedure to the end in case the protest eventually is sustained, if meanwhile he disobeys the order. Punishment is not made dependent on or required to await the outcome of that proceeding. Rather, the enforcing court is commanded not to consider validity. The command is unqualified, unvarying, and universal. It is cast in the compelling terms of "jurisdiction." Under the statute's provisions, it applies as much when trial and conviction occur before the Emergency Court's decision is final as afterwards. [ Footnote 3/33 ] Cf. Bradley v. Richmond, 227 U. S. 477 , which involved a state prosecution for violating a state law. In affirming the conviction, this Court rejected the contention that the administrative determination on which prosecution rested was unconstitutional. But it would not follow from the fact a state might thus condition its criminal proceedings consistently with the Fourteenth Amendment's requirement of due process that Congress can do likewise for federal criminal trials. Cf. infra, 321 U. S. Wadley Southern Ry. Co. v. Georgia supra, also involved a state suit for civil penalty for violation of a state administrative order, to which the limitations of the Sixth Amendment would not apply. The dicta which the Court regards as pointing to the validity of the procedure here do not sustain it, not only for this reason, but because the special procedure was different, did not purport to foreclose defense to enforcement if not followed, and expressly asserted that, if followed, penalty could be imposed only for violations taking place after the order was adjudicated valid, not beforehand. This case involves the very risk the Court there said could not be imposed. Other instances relied on by the Court involve only civil, not criminal, consequences, or distinguishable instances of criminal prosecution, and therefore have no conclusive bearing here. As the Court seems to recognize, the question now presented was not presented or considered in Armour Packing Co. v. United States, 209 U. S. 56 , or in United States v. Adams Express Co., 229 U. S. 381 . And it was not involved or determined in the cited decisions, either here or in the inferior federal courts, dealing with carriers who violate tariffs framed and filed by themselves and thereby become subject to penalty. The same is true of the cases holding that threatened criminal prosecution for violation of administrative orders cannot be enjoined. In these decisions, none of the statutes forbade the enforcing court "to consider the validity" of the orders, none afforded a special proceeding so summary as that provided here, and only United States v. Vacuum Oil Co., 158 F. 536, raised a constitutional question relevant here. Falbo v. United States, 320 U. S. 549 , involved a different procedure and a different and more urgent problem. Compare 321 U. S. @ It may be doubted the decision's effect is to preclude the enforcing court from examining constitutional questions affecting the order's validity. [ Footnote 3/34 ] Nor, according to accepted notions of the criminal process, has it ever been contemplated that some of the issues of fact should be provable by confrontation of witnesses, and others by written evidence only, when other evidence is or may be available. If, for instance, Congress should define an act as a crime, but should require that, in the trial, issues relating to the validity of the law furnishing the basis for the charge should be proven only by affidavit, though others by the normal processes of proof, the proceeding hardly could be held to comport with the kind of trial the Constitution, and, more particularly, the Sixth Amendment, require. And if Congress should go further and provide for determination of the issues triable only by affidavit in a court or other body sitting elsewhere than in the state and district of the crime, with other issues triable before a court with a jury empaneled there, but with that court compelled to give finality to the other's findings against the accused, the departure from constitutional requirements would seem to be only the more obvious. This is not far in effect, if it is at all, from what has been done here. [ Footnote 3/35 ] His only remedy is to begin a new protest proceeding (§ 203(a)), which is not only as limited in character as the original one, but, under the administrator's procedural regulations, must be "filed within . . . sixty days after the protestant has had, or could reasonably have had, notice" of the changed facts. Revised Procedural Regulation 1, § 1300.26. Cf. notes 321 U.S. 414 fn3/29|>29, 321 U.S. 414 fn3/30|>30 supra. [ Footnote 3/36 ] Cf. 321 U.S. 414 fn3/22|>note 22 supra. [ Footnote 3/37 ] Compare Johnson v. Zerbst, 304 U. S. 458 ; Glasser v. United States, 315 U. S. 60 ; with Patton v. United States, 281 U. S. 276 ; Adams v. United States ex rel. McCann, 317 U. S. 269 . [ Footnote 3/38 ] Cf. 321 U.S. 414 fn3/41|>note 41 infra. [ Footnote 3/39 ] Cf. McLaren, Can a Trial Court of the United States Be Completely Deprive of the Power to Determine Constitutional Questions? (1944) 30 A.B.A.J. 17. [ Footnote 3/40 ] That burden is heavy, as this case illustrates. Petitioners attacked the regulation's constitutionality on the ground that, by compelling them to sell at prices less than cost, it deprived them of their property without due process of law. And, on the same ground, they urged the regulation violates the statute's requirement that the price fixed allow margins which are "generally fair and equitable." But the Fifth Amendment does not insure a profit to any given individual or group not under legal compulsion to render service, where doing so would contravene an enacted policy of Congress sustainable on a balance of public necessity and private hardship. Cf. the Court's opinion herein and authorities cited; also Bowles v. Willingham, post, p. 321 U. S. 503 . And, in this case, both the statute's basic purpose and its terms, as well as the legislative history, cf. Sen.Rep. No. 931, 77th Cong., 2d Sess., 15, show that Congress intended to forbid only a price so low that the trade in general, not merely some individual dealers or groups, could not have the margin prescribed. Bowles v. Willingham, supra. Petitioners' offers of proof, in this respect, which the trial court rejected, went only to show that they, or at most the meat wholesalers of Boston, could sell beef only at a loss. Harsh as this may seem in individual instances, it was Congress' judgment that the interests of dealers who could not operate profitably at a level of prices permitting a fair margin generally to the trade would have to give way, in the acute prevailing circumstances, to the paramount national necessity of keeping prices stabilized, and that judgment, by virtue of those circumstances, was for Congress to make. Accordingly, the tendered proof hardly was sufficient to raise an issue of confiscation giving ground for setting aside the regulation. It is likely that by far the greater number of challenges would arise on grounds of supposed confiscation, in which this burden would have to be met. Once it is made clear just what that burden is, the fear hardly seems justified that enforcement would swamp the agency with litigation. In any event, the remedy for that would be by providing a more adequate enforcing staff, not by cutting off defense to criminal prosecutions based on invalid orders. [ Footnote 3/41 ] Cf. concurring opinion in Bowles v. Willingham, post, p. 321 U. S. 503 . Limitations applicable solely to criminal proceedings fall to one side. Giving the decision in the special proceeding, or failure to seek it after reasonable opportunity, the effect of res judicata in later civil proceedings does not therefore deprive the party affected of opportunity for full and adequate defense in his criminal trial, where not only his rights of property, but his liberty or his life, may be at stake. However widely the character of the special remedy may be varied to meet different urgencies, with consequences of foreclosure for civil effects, the foreclosure of criminal defense should be allowed, if at all, only by a procedure affording its substantial equivalent, in relation to special constitutional issues and in such a manner that the failure to follow it reasonably could be taken as an actual, not a forced waiver. Thus, possibly foreclosure of criminal defense could be sustained, when validity turns on complex economic questions, usually of confiscatory effects of legislation, and proof of complicated facts bearing on them. But, if so, this should be only when the special proceeding is clearly adequate, affording the usual rights to present evidence, cross-examine, and make argument, characteristic of judicial proceedings, so that, if followed, the party would have a substantial equivalent to defense in a criminal trial. And the opportunity should be long enough so that the failure to take it reasonably could be taken to mean that the party intends, by not taking it, to waive the question actually and not by forced surrender. So safeguarded, the foreclosure of such questions in this way would not work a substantial deprivation of defense. In respect to other questions, such as the drawing of racial or religious lines in orders or by their application, of a character determinable as well by the criminal as by the special tribunal, in my opinion, the special constitutional limitations applicable to federal criminal trials, and due enforcement of some substantive requirements as well, require keeping open and available the chance for full and complete defense in the criminal trial itself.

In *Yakus v. United States*, the Supreme Court upheld the constitutionality of the Emergency Price Control Act of 1942, which aimed to prevent wartime inflation by regulating commodity prices. The Court ruled that Congress had specified the basic conditions under which price controls would be implemented and that the Price Administrator's role in executing this policy did not constitute an unconstitutional delegation of legislative power. The Court also outlined the standards for determining the validity of price regulations and the procedures for challenging them, emphasizing the importance of a fair and adequate defense in criminal proceedings.

Separation of Powers

Bowsher v. Synar

https://supreme.justia.com/cases/federal/us/478/714/

U.S. Supreme Court Bowsher v. Synar, 478 U.S. 714 (1986) Bowsher v. Synar No. 85-1377 Argued April 23, 1986 Decided July 7, 1986 478 U.S. 714 ast|>* 478 U.S. 714 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Syllabus In order to eliminate the federal budget deficit, Congress enacted the Balanced Budget and Emergency Deficit Control Act of 1985 (Act), popularly known as the "Gramm-Rudman-Hollings Act," which sets a maximum deficit amount for federal spending for each of the fiscal years 1986 through 1991 (progressively reducing the deficit amount to zero in 1991). If in any fiscal year the budget deficit exceeds the prescribed maximum by more than a specified sum, the Act requires basically across-the-board cuts in federal spending to reach the targeted deficit level. These reductions are accomplished under the "reporting provisions" spelled out in § 251 of the Act, which requires the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) to submit their deficit estimates and program-by-program budget reduction calculations to the Comptroller General, who, after reviewing the Directors' joint report, then reports his conclusions to the President. The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General, and the sequestration order becomes effective unless, within a specified time, Congress legislates reductions to obviate the need for the sequestration order. The Act also contains in § 274(f) a "fallback" deficit reduction process (eliminating the Comptroller General's participation) to take effect if § 251's reporting provisions are invalidated. In consolidated actions in the Federal District Court, individual Congressmen and the National Treasury Employees Union (Union) (who, along with one of the Union's members, are appellees here) challenged the Act's constitutionality. The court held, inter alia, that the Comptroller General's role in exercising executive functions under the Act's deficit reduction process violated the constitutionally imposed doctrine of separation of powers because the Comptroller General is removable only by a congressional Page 478 U. S. 715 joint resolution or by impeachment, and Congress may not retain the power of removal over an officer performing executive powers. Held: 1. The fact that members of the Union, one of whom is an appellee here, will sustain injury because the Act suspends certain scheduled cost-of-living benefit increases to the members, is sufficient to create standing under a provision of the Act and Article III to challenge the Act's constitutionality. Therefore, the standing issue as to the Union itself or Members of Congress need not be considered. P. 478 U. S. 721 . 2. The powers vested in the Comptroller General under § 251 violate the Constitution's command that Congress play no direct role in the execution of the laws. Pp. 478 U. S. 721 -734. (a) Under the constitutional principle of separation of powers, Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control of the execution of the laws. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. Cf. INS v Chadha, 462 U. S. 919 . Pp. 478 U. S. 721 -727. (b) There is no merit to the contention that the Comptroller General performs his duties independently and is not subservient to Congress. Although nominated by the President and confirmed by the Senate, the Comptroller General is removable only at the initiative of Congress. Under controlling statutes, he may be removed not only by impeachment but also by joint resolution of Congress "at any time" for specified causes, including "inefficiency," "neglect of duty," and "malfeasance." The quoted terms, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. Moreover, the political realities do not reveal that the Comptroller General is free from Congress' influence. He heads the General Accounting Office, which, under pertinent statutes, is "an instrumentality of the United States Government independent of the executive departments," and Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. Thus, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. Pp. 478 U. S. 727 -732. (c) Under § 251 of the Act, the Comptroller General has been improperly assigned executive powers. Although he is to have "due regard" for the estimates and reductions contained in the joint report of Page 478 U. S. 716 the Directors of the CBO and the OMB, the Act clearly contemplates that, in preparing his report, the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates, and will make decisions of the kind that are made by officers charged with executing a statute. The Act's provisions give him, not the President, the ultimate authority in determining what budget cuts are to be made. By placing the responsibility for execution of the Act in the hands of an officer who is subject to removal only by itself, Congress, in effect, has retained control over the Act's execution, and has unconstitutionally intruded into the executive function. Pp. 478 U. S. 732 -734. 3. It is not necessary to consider whether the appropriate remedy is to nullify the 1921 statutory provisions that authorize Congress to remove the Comptroller General, rather than to invalidate § 251 of the Act. In § 274(f), Congress has explicitly provided "fallback" provisions that take effect if any of the reporting procedures described in § 251 are invalidated. Assuming that the question of the appropriate remedy must be resolved on the basis of congressional intent, the intent appears to have been for § 274(f) to be given effect as written. Pp. 478 U. S. 734 -736. 626 F. Supp. 1374 , affirmed. BURGER, C.J., delivered the opinion of the Court. in which BRENNAN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 478 U. S. 736 . WHITE, J., post, p. 478 U. S. 759 , and BLACKMUN, J., post, p. 478 U. S. 776 , filed dissenting opinions. Page 478 U. S. 717 CHIEF JUSTICE BURGER delivered the opinion of the Court. The question presented by these appeals is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 violates the doctrine of separation of powers. I A On December 12, 1985, the President signed into law the Balanced Budget and Emergency Deficit Control Act of 1985, Pub.L. 99-177, 99 Stat. 1038, 2 U.S.C. § 901 et seq. (1982 ed., Supp. III), popularly known as the "Gramm-Rudman-Hollings Act." The purpose of the Act is to eliminate the federal budget deficit. To that end, the Act sets a "maximum deficit amount" for federal spending for each of fiscal years 1986 through 1991. The size of that maximum deficit amount progressively reduces to zero in fiscal year 1991. If in any fiscal year the federal budget deficit exceeds the maximum Page 478 U. S. 718 deficit amount by more than a specified sum, the Act requires across-the-board cuts in federal spending to reach the targeted deficit level, with half of the cuts made to defense programs and the other half made to nondefense programs. The Act exempts certain priority programs from these cuts. § 255. These "automatic" reductions are accomplished through a rather complicated procedure, spelled out in § 251, the so-called "reporting provisions" of the Act. Each year, the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) independently estimate the amount of the federal budget deficit for the upcoming fiscal year. If that deficit exceeds the maximum targeted deficit amount for that fiscal year by more than a specified amount, the Directors of OMB and CBO independently calculate, on a program-by-program basis, the budget reductions necessary to ensure that the deficit does not exceed the maximum deficit amount. The Act then requires the Directors to report jointly their deficit estimates and budget reduction calculations to the Comptroller General. The Comptroller General, after reviewing the Directors' reports, then reports his conclusions to the President. § 251(b). The President, in turn, must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General. § 252. There follows a period during which Congress may by legislation reduce spending to obviate, in whole or in part, the need for the sequestration order. If such reductions are not enacted, the sequestration order becomes effective and the spending reductions included in that order are made. Anticipating constitutional challenge to these procedures, the Act also contains a "fallback" deficit reduction process to take effect "[i]n the event that any of the reporting procedures described in section 251 are invalidated." § 274(f). Under these provisions, the report prepared by the Directors of OMB and the CBO is submitted directly to a specially Page 478 U. S. 719 created Temporary Joint Committee on Deficit Reduction, which must report in five days to both Houses a joint resolution setting forth the content of the Directors' report. Congress then must vote on the resolution under special rules, which render amendments out of order. If the resolution is passed and signed by the President, it then serves as the basis for a Presidential sequestration order. B Within hours of the President's signing of the Act, [ Footnote 1 ] Congressman Synar, who had voted against the Act, filed a complaint seeking declaratory relief that the Act was unconstitutional. Eleven other Members later joined Congressman Synar's suit. A virtually identical lawsuit was also filed by the National Treasury Employees Union. The Union alleged that its members had been injured as a result of the Act's automatic spending reduction provisions, which have suspended certain cost-of-living benefit increases to the Union's members. [ Footnote 2 ] A three-judge District Court, appointed pursuant to 2 U.S.C. § 922(a)(5) (1982 ed., Supp. III), invalidated the reporting provisions. Synar v. United States, 626 F. Supp. 1374 (DC 1986) (Scalia, Johnson, and Gasch, JJ.). The District Court concluded that the Union had standing to challenge the Act, since the members of the Union had suffered actual injury by suspension of certain benefit increases. The District Court also concluded that Congressman Synar and his fellow Members had standing under the so-called "congressional standing" doctrine. See Barnes v. Kline, 245 U.S.App.D.C. 1, 21, 759 F.2d 21, 41 (1985), cert. granted sub nom. Burke v. Barnes, 475 U.S. 1044 (1986). Page 478 U. S. 720 The District Court next rejected appellees' challenge that the Act violated the delegation doctrine. The court expressed no doubt that the Act delegated broad authority, but delegation of similarly broad authority has been upheld in past cases. The District Court observed that, in Yakus v. United States, 321 U. S. 414 , 321 U. S. 420 (1944), this Court upheld a statute that delegated to an unelected "Price Administrator" the power "to promulgate regulations fixing prices of commodities." Moreover in the District Court's view, the Act adequately confined the exercise of administrative discretion. The District Court concluded that "the totality of the Act's standards, definitions, context, and reference to past administrative practice provides an adequate 'intelligible principle' to guide and confine administrative decisionmaking." 626 F. Supp. at 1389. Although the District Court concluded that the Act survived a delegation doctrine challenge, it held that the role of the Comptroller General in the deficit reduction process violated the constitutionally imposed separation of powers. The court first explained that the Comptroller General exercises executive functions under the Act. However, the Comptroller General, while appointed by the President with the advice and consent of the Senate, is removable not by the President but only by a joint resolution of Congress or by impeachment. The District Court reasoned that this arrangement could not be sustained under this Court's decisions in Myers v. United States, 272 U. S. 52 (1926), and Humphrey's Executor v. United States, 295 U. S. 602 (1935). Under the separation of powers established by the Framers of the Constitution, the court concluded, Congress may not retain the power of removal over an officer performing executive functions. The congressional removal power created a "here-and-now subservience" of the Comptroller General to Congress. 626 F. Supp. at 1392. The District Court therefore held that, Page 478 U. S. 721 "since the powers conferred upon the Comptroller General as part of the automatic deficit reduction process are executive powers, which cannot constitutionally be exercised by an officer removable by Congress, those powers cannot be exercised, and therefore the automatic deficit reduction process to which they are are central cannot be implemented." Id. at 1403. Appeals were taken directly to this Court pursuant to § 274(b) of the Act. We noted probable jurisdiction and expedited consideration of the appeals. 475 U.S. 1009 (1986). We affirm. II A threshold issue is whether the Members of Congress, members of the National Treasury Employees Union, or the Union itself have standing to challenge the constitutionality of the Act in question. It is clear that members of the Union, one of whom is an appellee here, will sustain injury by not receiving a scheduled increase in benefits. See § 252(a)(6)(C)(i); 626 F. Supp. at 1381. This is sufficient to confer standing under § 274(a)(2) and Article III. We therefore need not consider the standing issue as to the Union or Members of Congress. See Secretary of Interior v. California, 464 U. S. 312 , 464 U. S. 319 , n. 3 (1984). Cf. Automobile Workers v. Brock, 477 U. S. 274 (1986); Barnes v. Kline, supra. Accordingly, we turn to the merits of the case. III We noted recently that "[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." INS v. Chadha, 462 U. S. 919 , 462 U. S. 951 (1983). The declared purpose of separating and dividing the powers of government, of course, was to "diffus[e] power the better to secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 635 (1952) (Jackson, J., concurring). Justice Jackson's words echo the famous warning of Montesquieu, Page 478 U. S. 722 quoted by James Madison in The Federalist No. 47, that " there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates'. . . ." The Federalist No. 47, p. 325 (J. Cooke ed.1961). Even a cursory examination of the Constitution reveals the influence of Montesquieu's thesis that checks and balances were the foundation of a structure of government that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people. The Framers also provided for a Judicial Branch equally independent, with "[t]he judicial Power . . . extend[ing] to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States." Art. III, § 2. Other, more subtle, examples of separated powers are evident as well. Unlike parliamentary systems such as that of Great Britain, no person who is an officer of the United States may serve as a Member of the Congress. Art. I, § 6. Moreover, unlike parliamentary systems, the President, under Article II, is responsible not to the Congress, but to the people, subject only to impeachment proceedings which are exercised by the two Houses as representatives of the people. Art. II, § 4. And even in the impeachment of a President, the presiding officer of the ultimate tribunal is not a member of the 1egislative Branch, but the Chief Justice of the United States. Art. I, § 3. That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured to assure full, vigorous, and open debate on the great issues affecting the people, and to provide avenues for the operation of checks on the exercise of governmental power. The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. The President appoints "Officers of the United States" with the "Advice and Consent of Page 478 U. S. 723 the Senate. . . ." Art. II, § 2. Once the appointment has been made and confirmed, however, the Constitution explicitly provides for removal of Officers of the United States by Congress only upon impeachment by the House of Representatives and conviction by the Senate. An impeachment by the House and trial by the Senate can rest only on "Treason, Bribery or other high Crimes and Misdemeanors." Art. II, § 4. A direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one is inconsistent with separation of powers. This was made clear in debate in the First Congress in 1789. When Congress considered an amendment to a bill establishing the Department of Foreign Affairs, the debate centered around whether the Congress "should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate." Myers, 272 U.S. at 272 U. S. 114 . James Madison urged rejection of a congressional role in the removal of Executive Branch officers, other than by impeachment, saying in debate: "Perhaps there was no argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling of the Executive and Legislative branches of the Government in one body. It has been objected, that the Senate have too much of the Executive power even, by having a control over the President in the appointment to office. Now, shall we extend this connexion between the Legislative and Executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the Executive?" 1 Annals of Cong. 380 (1789). Madison's position ultimately prevailed, and a congressional role in the removal process was rejected. This "Decision of 1789" provides "contemporaneous and weighty evidence" of the Constitution's meaning, since many of the Members of the Page 478 U. S. 724 First Congress "had taken part in framing that instrument." Marsh v. Chambers, 463 U. S. 783 , 463 U. S. 790 (1983). [ Footnote 3 ] This Court first directly addressed this issue in Myers v. United States, 272 U. S. 52 (1925). At issue in Myers was a statute providing that certain postmasters could be removed only "by and with the advice and consent of the Senate." The President removed one such Postmaster without Senate approval, and a lawsuit ensued. Chief Justice Taft, writing for the Court, declared the statute unconstitutional on the ground that for Congress to "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power . . . would be . . . to infringe the constitutional principle of the separation of governmental powers." Id. at 272 U. S. 161 . A decade later, in Humphrey's Executor v. United States, 295 U. S. 602 (1935), relied upon heavily by appellants, a Federal Trade Commissioner who had been removed by the President sought backpay. Humphrey's Executor involved an issue not presented either in the Myers case or in this case -- i.e., the power of Congress to limit the President's powers of removal of a Federal Trade Commissioner. Page 478 U. S. 725 295 U.S. at 295 U. S. 630 . [ Footnote 4 ] The relevant statute permitted removal "by the President," but only "for inefficiency, neglect of duty, or malfeasance in office." Justice Sutherland, speaking for the Court, upheld the statute, holding that "illimitable power of removal is not possessed by the President [with respect to Federal Trade Commissioners]." Id. at 295 U. S. 628 -629. The Court distinguished Myers, reaffirming its holding that congressional participation in the removal of executive officers is unconstitutional. Justice Sutherland's opinion for the Court also underscored the crucial role of separated powers in our system: "The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others has often been stressed, and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution, and in the rule which recognizes their essential co-equality." 295 U.S. at 295 U. S. 629 -630. The Court reached a similar result in Wiener v. United States, 357 U. S. 349 (1958), concluding that, under Humphrey's Executor, the President did not have unrestrained Page 478 U. S. 726 removal authority over a member of the War Claims Commission. In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. As the District Court observed: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." 626 F. Supp. at 1401. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. Our decision in INS v. Chadha, 462 U. S. 919 (1983), supports this conclusion. In Chadha, we struck down a one-House "legislative veto" provision by which each House of Congress retained the power to reverse a decision Congress had expressly authorized the Attorney General to make: "Disagreement with the Attorney General's decision on Chadha's deportation -- that is, Congress' decision to deport Chadha -- no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way: bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked." Id. at 462 U. S. 954 -955. To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over Page 478 U. S. 727 the execution of the laws, Chadha makes clear, is constitutionally impermissible. The dangers of congressional usurpation of Executive Branch functions have long been recognized. "[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches." Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 129 (1976). Indeed, we also have observed only recently that "[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted." Chadha, supra, at 462 U. S. 951 . With these principles in mind, we turn to consideration of whether the Comptroller General is controlled by Congress. IV Appellants urge that the Comptroller General performs his duties independently and is not subservient to Congress. We agree with the District Court that this contention does not bear close scrutiny. The critical factor lies in the provisions of the statute defining the Comptroller General's office relating to removability. [ Footnote 5 ] Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, see 31 U.S.C. Page 478 U. S. 728 § 703(a)(2), [ Footnote 6 ] and confirmed by the Senate, he is removable only at the initiative of Congress. He may be removed not only by impeachment, but also by joint resolution of Congress "at any time" resting on any one of the following bases: "(i) permanent disability;" "(ii) inefficiency;" "(iii) neglect of duty;" "(iv) malfeasance; or" "(v) a felony or conduct involving moral turpitude." 31 U.S.C. § 703(e)(1)B. [ Footnote 7 ] This provision was included, as one Congressman explained in urging passage of the Act, because Congress "felt that [the Comptroller General] should be brought under the sole control of Congress, so that Congress, at any moment when it found he was inefficient and was not carrying on the duties of his office as he should and as the Congress expected, could remove him without the long tedious process of a trial by impeachment." 61 Cong.Rec. 1081 (1921). The removal provision was an important part of the legislative scheme, as a number of Congressmen recognized. Representative Hawley commented: "[H]e is our officer, in a measure, getting information for us. . . . If he does not do his work properly, we, as practically his employers, ought to be able to discharge him from his office." 58 Cong.Rec. 7136 (1919). Representative Sisson observed that the removal provisions would give "[t]he Congress of the United States . . . absolute control of the man's destiny in office." Page 478 U. S. 729 61 Cong.Rec. 987 (1921). The ultimate design was to "give the legislative branch of the Government control of the audit not through the power of appointment, but through the power of removal." 58 Cong.Rec. 7211 (1919) (Rep. Temple). JUSTICE WHITE contends: "The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary." Post at 478 U.S. 770 . That observation by the dissenter rests on at least two arguable premises: (a) that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes, cf. Shurtleff v. United States, 189 U. S. 311 , 189 U. S. 315 -316 (1903); and (b) that any removal would be subject to judicial review, a position that appellants were unwilling to endorse. [ Footnote 8 ] Glossing over these difficulties, the dissent's assessment of the statute fails to recognize the breadth of the grounds for removal. The statute permits removal for "inefficiency," "neglect of duty," or "malfeasance." These terms are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. The Constitutional Convention chose to permit impeachment of executive officers only for "Treason, Bribery, or other high Crimes and Misdemeanors." It rejected language that would have permitted impeachment for "maladministration," with Madison Page 478 U. S. 730 arguing that "[s]o vague a term will be equivalent to a tenure during pleasure of the Senate." 2 M. Farrand, Records of the Federal Convention of 1787, p. 550 (1911). We need not decide whether "inefficiency" or "malfeasance" are terms as broad as "maladministration" in order to reject the dissent's position that removing the Comptroller General requires "a feat of bipartisanship more difficult than that required to impeach and convict." Post at 478 U. S. 771 (WHITE, J., dissenting). Surely no one would seriously suggest that judicial independence would be strengthened by allowing removal of federal judges only by a joint resolution finding "inefficiency," "neglect of duty," or "malfeasance." JUSTICE WHITE, however, assures us that "[r]ealistic consideration" of the "practical result of the removal provision," post at 478 U. S. 773 , 774, reveals that the Comptroller General is unlikely to be removed by Congress. The separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress. The Framers recognized that, in the long-term, structural protections against abuse of power were critical to preserving liberty. In constitutional terms, the removal powers over the Comptroller General's office dictate that he will be subservient to Congress. This much said, we must also add that the dissent is simply in error to suggest that the political realities reveal that the Comptroller General is free from influence by Congress. The Comptroller General heads the General Accounting Office (GAO), "an instrumentality of the United States Government independent of the executive departments," 31 U.S.C. § 702(a), which was created by Congress in 1921 as part of the Budget and Accounting Act of 1921, 42 Stat. 23. Congress created the office because it believed that it "needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations." H. Mansfield, Page 478 U. S. 731 The Comptroller General: A Study in the Law and Practice of Financial Administration 65 (1939). It is clear that Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. The Reorganization Acts of 1945 and 1949, for example, both stated that the Comptroller General and the GAO are "a part of the legislative branch of the Government." 59 Stat. 616; 63 Stat. 205. Similarly, in the Accounting and Auditing Act of 1950, Congress required the Comptroller General to conduct audits "as an agent of the Congress." 64 Stat. 835. Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. In one of the early Annual Reports of Comptroller General, the official seal of his office was described as reflecting "the independence of judgment to be exercised by the General Accounting Office, subject to the control of the legislative branch. . . . The combination represents an agency of the Congress independent of other authority auditing and checking the expenditures of the Government as required by law and subjecting any questions arising in that connection to quasijudicial determination." GAO Ann. Rep. 5-6 (1924). Later, Comptroller General Warren, who had been a Member of Congress for 15 years before being appointed Comptroller General, testified: "During most of my public life, . . . I have been a member of the legislative branch. Even now, although heading a great agency, it is an agency of the Congress, and I am an agent of the Congress. " To Provide for Reorganizing of Agencies of the Government: Hearings on H.R. 3325 before the House Committee on Expenditures, 79th Cong., 1st Sess., 69 (1945) (emphasis added). And, in one conflict during Comptroller General McCarl's tenure, he asserted his independence of the Executive Branch, stating: "Congress . . . is . . . the only authority to which there lies an appeal from the decision of this office. . . . " Page 478 U. S. 732 ". . . I may not accept the opinion of any official, inclusive of the Attorney General, as controlling my duty under the law." 2 Comp.Gen. 784, 786-787 (1923) (disregarding conclusion of the Attorney General, 33 Op.Atty.Gen. 476 (1923), with respect to interpretation of compensation statute). Against this background, we see no escape from the conclusion that, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. The remaining question is whether the Comptroller General has been assigned such powers in the Balanced Budget and Emergency Deficit Control Act of 1985. V The primary responsibility of the Comptroller General under the instant Act is the preparation of a "report." This report must contain detailed estimates of projected federal revenues and expenditures. The report must also specify the reductions, if any, necessary to reduce the deficit to the target for the appropriate fiscal year. The reductions must be set forth on a program-by-program basis. In preparing the report, the Comptroller General is to have "due regard" for the estimates and reductions set forth in a joint report submitted to him by the Director of CBO and the Director of OMB, the President's fiscal and budgetary adviser. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates. The Act also provides that the Comptroller General's report "shall explain fully any differences between the contents of such report and the report of the Directors." § 251(b)(2). Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical, so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution Page 478 U. S. 733 of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law. Under § 251, the Comptroller General must exercise judgment concerning facts that affect the application of the Act. He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute. The executive nature of the Comptroller General's functions under the Act is revealed in § 252(a)(3), which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions: "The [Presidential] order must provide for reductions in the manner specified in section 251(a)(3), must incorporate the provisions of the [Comptroller General's] report submitted under section 251(b), and must be consistent with such report in all respects. The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under section 251(b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account. . . ." § 252(a)(3) (emphasis added). See also § 251(d)(3)(A). Congress, of course, initially determined the content of the Balanced Budget and Emergency Deficit Control Act, and undoubtedly the content of the Act determines the nature of the executive duty. However, as Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution Page 478 U. S. 734 of its enactment only indirectly -- by passing new legislation. Chadha, 462 U.S. at 462 U. S. 958 . By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress, in effect, has retained control over the execution of the Act, and has intruded into the executive function. The Constitution does not permit such intrusion. VI We now turn to the final issue of remedy. Appellants urge that, rather than striking down § 251 and invalidating the significant power Congress vested in the Comptroller General to meet a national fiscal emergency, we should take the lesser course of nullifying the statutory provisions of the 1921 Act that authorizes Congress to remove the Comptroller General. At oral argument, counsel for the Comptroller General suggested that this might make the Comptroller General removable by the President. All appellants urge that Congress would prefer invalidation of the removal provisions, rather than invalidation of § 251 of the Balanced Budget and Emergency Deficit Control Act. Severance at this late date of the removal provisions enacted 65 years ago would significantly alter the Comptroller General's office, possibly by making him subservient to the Executive Branch. Recasting the Comptroller General as an officer of the Executive Branch would, accordingly, alter the balance that Congress had in mind in drafting the Budget and Accounting Act of 1921 and the Balanced Budget and Emergency Deficit Control Act, to say nothing of the wide array of other tasks and duties Congress has assigned the Comptroller General in other statutes. [ Footnote 9 ] Thus, appellants' Page 478 U. S. 735 argument would require this Court to undertake a weighing of the importance Congress attached to the removal provisions in the Budget and Accounting Act of 1921, as well as in other subsequent enactments, against the importance it placed on the Balanced Budget and Emergency Deficit Control Act of 1985. Fortunately this is a thicket we need not enter. The language of the Balanced Budget and Emergency Deficit Control Act itself settles the issue. In § 274(f), Congress has explicitly provided "fallback" provisions in the Act that take effect "[i]n the event . . . any of the reporting procedures described in section 251 are invalidated." § 274(f)(1) (emphasis added). The fallback provisions are " fully operative as a law,'" Buckley v. Valeo, 424 U.S. at 424 U. S. 108 (quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U. S. 210 , 286 U. S. 234 (1932)). Assuming that appellants are correct in urging that this matter must be resolved on the basis of congressional intent, the intent appears to have been for § 274(f) to be given effect in this situation. Indeed, striking the removal provisions would lead to a statute that Congress would probably have refused to adopt. As the District Court concluded: "[T]he grant of authority to the Comptroller General was a carefully considered protection against what the House conceived to be the pro-executive bias of the OMB. It is doubtful that the automatic deficit reduction process would have passed without such protection, and doubtful that the protection would have been considered present if the Comptroller General were not removable by Congress itself. . . ." 626 F. Supp. at 1394. Page 478 U. S. 736 Accordingly, rather than perform the type of creative and imaginative statutory surgery urged by appellants, our holding simply permits the fallback provisions to come into play. [ Footnote 10 ] VII No one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude, but "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives -- or the hallmarks -- of democratic government. . . ." Chadha, supra, at 462 U. S. 944 . We conclude that the District Court correctly held that the powers vested in the Comptroller General under § 251 violate the command of the Constitution that the Congress play no direct role in the execution of the laws. Accordingly, the judgment and order of the District Court are affirmed. Our judgment is stayed for a period not to exceed 60 days to permit Congress to implement the fallback provisions. It is so ordered. * Together with No 85-1378, United States Senate v. Synar, Member of Congress. et al., and No. 85-1379, O'Neill, Speaker of the United States House of Representatives, et al v. Synar Member of Congress, et al., also on appeal from the same court. [ Footnote 1 ] In his signing statement, the President expressed his view that the Act was constitutionally defective because of the Comptroller General's ability to exercise supervisory authority over the President. Statement on Signing H.J.Res. 372 Into Law, 21 Weekly Comp. of Pres.Doc. 1491 (1985). [ Footnote 2 ] An individual member of the Union was later added as a plaintiff. See 475 U.S. 1094 (1986). [ Footnote 3 ] The First Congress included 20 Members who had been delegates to the Philadelphia Convention: bwm: I N THE SENATE Richard Bassett (Delaware) Rufus King (New York) Pierce Butler (South Carolina) John Langdon (New Hampshire) Oliver Ellsworth (Connecticut) Robert Morris (Pennsylvania) William Few (Georgia) William Paterson (New Jersey) William Samuel Johnson George Read (Delaware (Connecticut) Caleb Strong (Massachusetts) I N THE HOUSE Abraham Baldwin (Georgia) Nicholas Gilman (New Hampshire) Daniel Carroll (Maryland) James Madison (Virginia) George Clymer (Pennsylvania) Roger Sherman (Connecticut) Thomas FitzSimons (Pennsylvania) Hugh Williamson (North Carolina) Elbridge Gerry (Massachusetts) ewm: [ Footnote 4 ] Appellants therefore are wide of the mark in arguing that an affirmance in this case requires casting doubt on the status of "independent" agencies, because no issues involving such agencies are presented here. The statutes establishing independent agencies typically specify either that the agency members are removable by the President for specified causes, see, e.g., 15 U.S.C. § 41 (members of the Federal Trade Commission may be removed by the President "for inefficiency, neglect of duty, or malfeasance in office"), or else do not specify a removal procedure, see, e.g., 2 U.S.C. § 437c (Federal Election Commission). This case involves nothing like these statutes, but rather a statute that provides for direct congressional involvement over the decision to remove the Comptroller General. Appellants have referred us to no independent agency whose members are removable by the Congress for certain causes short of impeachable offenses, as is the Comptroller General, see Part IV infra [ Footnote 5 ] We reject appellants' argument that consideration of the effect of a removal provision is not "ripe" until that provision is actually used. As the District Court concluded, "it is the Comptroller General's presumed desire to avoid removal by pleasing Congress, which creates the here-and-now subservience to another branch that raises separation of powers problems." Synar v. United States, 626 F. Supp. 1374 , 1392 (DC 1986). The Impeachment Clause of the Constitution can hardly be thought to be undermined because of nonuse. [ Footnote 6 ] Congress adopted this provision in 1980 because of "the special interest of both Houses in the choice of an individual whose primary function is to provide assistance to Congress." S.Rep. No. 96-570, p. 10. [ Footnote 7 ] Although the President could veto such a joint resolution, the veto could be overridden by a two-thirds vote of both Houses of Congress. Thus, the Comptroller General could be removed in the face of Presidential opposition. Like the District Court, 626 F. Supp. at 1393, n. 21, we therefore read the removal provision as authorizing removal by Congress alone. [ Footnote 8 ] The dissent relies on Humphrey's Executor v. United States, 295 U. S. 602 (1935), as its only Court authority for this point, but the President did not assert that he had removed the Federal Trade Commissioner in compliance with one of the enumerated statutory causes for removal. See id. at 612 (argument of Solicitor General Reed [omitted in electronic version]); see also Synar v. United States, 626 F. Supp. at 1398. [ Footnote 9 ] Since 1921, the Comptroller General has been assigned a variety of functions. See, e.g., 2 U.S.C. § 687 (1982 ed., Supp. III) (duty to bring suit to require release of impounded budget authority); 42 U.S.C. § 6384(a) (duty to impose civil penalties under the Energy Policy and Conservation Act of 1975);15 U.S.C. § 1862 (member of Chrysler Corporation Loan Guarantee Board); 45 U.S.C. § 711(d)(1)(C) (member of Board of Directors of United States Railway Association); 31 U.S.C. §§ 3551-3556 (1982 ed., Supp. III) (authority to consider bid protests under Competition in Contracting Act of 1984). [ Footnote 10 ] Because we conclude that the Comptroller General, as an officer removable by Congress, may not exercise the powers conferred upon him by the Act, we have no occasion for considering appellees' other challenges to the Act, including their argument that the assignment of powers to the Comptroller General in § 251 violates the delegation doctrine, see, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935); Yakus v. United States, 321 U. S. 414 (1944). JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, concurring in the judgment. When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons. I Page 478 U. S. 737 agree with the Court that the "Gramm-Rudman-Hollings" Act contains a constitutional infirmity so severe that the flawed provision may not stand. I disagree with the Court, however, on the reasons why the Constitution prohibits the Comptroller General from exercising the powers assigned to him by § 251(b) and § 251(c)(2) of the Act. It is not the dormant, carefully circumscribed congressional removal power that represents the primary constitutional evil. Nor do I agree with the conclusion of both the majority and the dissent that the analysis depends on a labeling of the functions assigned to the Comptroller General as "executive powers." Ante at 478 U. S. 732 -734; post at 478 U. S. 764 -765. Rather, I am convinced that the Comptroller General must be characterized as an agent of Congress because of his longstanding statutory responsibilities; that the powers assigned to him under the Gramm-Rudman-Hollings Act require him to make policy that will bind the Nation; and that, when Congress, or a component or an agent of Congress seeks to make policy that will bind the Nation, it must follow the procedures mandated by Article I of the Constitution -- through passage by both Houses and presentment to the President. In short, Congress may not exercise its fundamental power to formulate national policy by delegating that power to one of its two Houses, to a legislative committee, or to an individual agent of the Congress such as the Speaker of the House of Representatives, the Sergeant at Arms of the Senate, or the Director of the Congressional Budget Office. INS v. Chadha, 462 U. S. 919 (1983). That principle, I believe, is applicable to the Comptroller General. I The fact that Congress retained for itself the power to remove the Comptroller General is important evidence supporting the conclusion that he is a member of the Legislative Branch of the Government. Unlike the Court, however, I am not persuaded that the congressional removal power is either a necessary or a sufficient basis for concluding that his statutory assignment is invalid. Page 478 U. S. 738 As JUSTICE WHITE explains, post at 478 U.S. 770 -771, Congress does not have the power to remove the Comptroller General at will, or because of disagreement with any policy determination that he may be required to make in the administration of this or any other Act. The statute provides a term of 15 years for the Comptroller General; it further provides that he must retire upon becoming 70 years of age, and that he may be removed at any time by impeachment or by "joint resolution of Congress, after notice and an opportunity for a hearing, only for -- (i) permanent disability; (ii) inefficiency; (iii) neglect of duty; (iv) malfeasance; or (v) a felony or conduct involving moral turpitude." 31 U.S.C. § 703(e)(1)(B). Far from assuming that this provision creates a " here-and-now subservience'" respecting all of the Comptroller General's actions, ante at 478 U. S. 727 , n. 5 (quoting District Court), we should presume that Congress will adhere to the law -- that it would only exercise its removal powers if the Comptroller General were found to be permanently disabled inefficient, neglectful, or culpable of malfeasance, a felony, or conduct involving moral turpitude. [ Footnote 2/1 ] Page 478 U. S. 739 The notion that the removal power at issue here automatically creates some kind of "here-and-now subservience" of the Comptroller General to Congress is belied by history. There is no evidence that Congress has ever removed, or threatened to remove, the Comptroller General for reasons of policy. Moreover, the President has long possessed a comparable power to remove members of the Federal Trade Commission, yet it is universally accepted that they are independent of, rather than subservient to, the President in performing their official duties. Thus, the statute that the Court construed in Humphrey's Executor v. United States, 295 U. S. 602 (1935), provided: "Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office." 38 Stat. 718. In upholding the congressional limitations on the President's power of removal, the Court stressed the independence of the Commission from the President. [ Footnote 2/2 ] There was no suggestion that the retained Presidential removal powers -- similar to those at issue here -- created a subservience to the President. [ Footnote 2/3 ] Page 478 U. S. 740 To be sure, there may be a significant separation of powers difference between the President's exercise of carefully circumscribed removal authority and Congress' exercise of identically circumscribed removal authority. But the Humphrey's Executor analysis at least demonstrates that it is entirely proper for Congress to specify the qualifications for an office that it has created, and that the prescription of what might be termed "dereliction of duty" removal standards does not itself impair the independence of the official subject to such standards. [ Footnote 2/4 ] The fact that Congress retained for itself the power to remove the Comptroller General thus not necessarily an adequate reason for concluding that his role in the Gramm-Rudman-Hollings budget reduction process is unconstitutional. It is however, a fact that lends support to my ultimate Page 478 U. S. 741 conclusion that, in exercising his functions under this Act, he serves as an agent of the Congress. II In assessing the role of the Comptroller General, it is appropriate to consider his already existing statutory responsibilities. Those responsibilities leave little doubt that one of the identifying characteristics of the Comptroller General is his statutorily required relationship to the Legislative Branch. In the statutory section that identifies the Comptroller General's responsibilities for investigating the use of public money, four of the five enumerated duties specifically describe an obligation owed to Congress. The first is the only one that does not expressly refer to Congress: The Comptroller General shall "investigate all matters related to the receipt, disbursement, and use of public money." 31 U.S.C. § 712(1). The other four clearly require the Comptroller General to work with Congress' specific needs as his legal duty. Thus, the Comptroller General must "estimate the cost to the United States Government of complying with each restriction on expenditures of a specific appropriation in a general appropriation law and report each estimate to Congress with recommendations the Comptroller General considers desirable." § 712(2) (emphasis added). He must "analyze expenditures of each executive agency the Comptroller General believes will help Congress decide whether public money has been used and expended economically and efficiently." § 712(3) (emphasis added). He must "make an investigation and report ordered by either House of Congress or a committee of Congress having jurisdiction over revenue, appropriations, or expenditures." § 712(4) (emphasis added). Finally, he must "give a committee of Congress having jurisdiction over revenue, appropriations, or expenditures the help and information the committee requests." § 712(5) (emphasis added). Page 478 U. S. 742 The statutory provision detailing the Comptroller General's role in evaluating programs and activities of the United States Government similarly leaves no doubt regarding the beneficiary of the Comptroller General's labors. The Comptroller General may undertake such an evaluation for one of three specified reasons: (1) on his own initiative; (2) "when either House of Congress orders an evaluation"; or (3) "when a committee of Congress with jurisdiction over the program or activity requests the evaluation." 31 U.S.C. § 717(b). In assessing a program or activity, moreover, the Comptroller General's responsibility is to "develop and recommend to Congress ways to evaluate a program or activity the Government carries out under existing law." § 717(c) (emphasis added). The Comptroller General's responsibilities are repeatedly framed in terms of his specific obligations to Congress. Thus, one provision specifies in some detail the obligations of the Comptroller General with respect to an individual committee's request for a program evaluation: "On request of a committee of Congress, the Comptroller General shall help the committee to -- " "(A) develop a statement of legislative goals and ways to assess and report program performance related to the goals, including recommended ways to assess performance, information to be reported, responsibility for reporting, frequency of reports, and feasibility of pilot testing; and" "(B) assess program evaluations prepared by and for an agency." § 717(d)(1). Similarly, another provision requires that, on "request of a member of Congress, the Comptroller General shall give the member a copy of the material the Comptroller General compiles in carrying out this subsection that has been released by the committee for which the material was compiled." § 717(d)(2). Page 478 U. S. 743 Numerous other provisions strongly support the conclusion that one of the Comptroller General's primary responsibilities is to work specifically on behalf of Congress. The Comptroller General must make annual reports on specified subjects to Congress. to the Senate Committee on Finance, to the Senate Committee on Governmental Affairs, to the House Committee on Ways and Means, to the House Committee on Government Operations, and to the Joint Committee on Taxation. 31 U.S.C. §§ 719(a), (d). On request of a committee, the Comptroller General "shall explain to and discuss with the committee or committee staff a report the Comptroller General makes that would help the committee (1) evaluate a program or activity of an agency within the jurisdiction of the committee; or (2) in its consideration of proposed legislation." § 719(i). Indeed, the relationship between the Comptroller General and Congress is so close that the "Comptroller General may assign or detail an officer or employee of the General Accounting Office to full-time continuous duty with a committee of Congress for not more than one year." 31 U.S.C. § 734(a). The Comptroller General's current statutory responsibilities on behalf of Congress are fully consistent with the historic conception of the Comptroller General's office. The statute that created the Comptroller General's office -- the Budget and Accounting Act of 1921 -- provided that four of the five statutory responsibilities given to the Comptroller General be exercised on behalf of Congress, three of them exclusively so. [ Footnote 2/5 ] On at least three occasions since 1921, moreover, Page 478 U. S. 744 in considering the structure of Government. Congress has defined the Comptroller General as being a part of the Legislative Branch. In the Reorganization Act of 1945, Congress specified that the Comptroller General and the General Accounting Office "are a part of the legislative branch of the Government." 59 Stat. 616. [ Footnote 2/6 ] In the Reorganization Act of 1949, Congress again confirmed that the Comptroller General and the General Accounting Office "are a part of the legislative branch of the Government." 63 Stat. 205. [ Footnote 2/7 ] Finally, in the Budget and Accounting Procedures Act of 1950, Congress referred to the "auditing for the Government, conducted Page 478 U. S. 745 by the Comptroller General of the United States as an agent of the Congress." 64 Stat. 835. Like the already existing statutory responsibilities, then, the history of the Comptroller General statute confirms that the Comptroller General should be viewed as an agent of the Congress. This is not to say, of course, that the Comptroller General has no obligations to the Executive Branch, or that he is an agent of the Congress in quite so clear a manner as the Doorkeeper of the House. For the current statutory responsibilities also envision a role for the Comptroller General with respect to the Executive Branch. The Comptroller General must "give the President information on expenditures and accounting the President requests." 31 U.S.C. § 719(f). Although the Comptroller General is required to provide Congress with an annual report, he is also required to provide the President with the report if the President so requires. § 719(a). The Comptroller General is statutorily required to audit the Internal Revenue Service and the Bureau of Alcohol Tobacco, and Firearms (and provide congressional committees with information respecting the audits). § 713. In at least one respect, moreover, the Comptroller General is treated like an executive agency: "To the extent applicable, all laws generally related to administering an agency apply to the Comptroller General." § 704(a). Historically, as well, the Comptroller General has had some relationship to the Executive Branch. As noted, n 5, supra, in the 1921 Act, one of the Comptroller General's specific responsibilities was to provide information to the Bureau of the Budget. In fact, when the Comptroller General's office was created, its functions, personnel, records, and even furniture derived from a previous executive office. [ Footnote 2/8 ] Page 478 U. S. 746 Thus, the Comptroller General retains certain obligations with respect to the Executive Branch. [ Footnote 2/9 ] Obligations to two branches are not, however, impermissible, and the presence of such dual obligations does not prevent the characterization of the official with the dual obligations as part of one branch. [ Footnote 2/10 ] It is at least clear that in most, if not all, of his statutory responsibilities, the Comptroller General is properly characterized as an agent of the Congress. [ Footnote 2/11 ] Page 478 U. S. 747 III Everyone agrees that the powers assigned to the Comptroller General by § 251(b) and § 251(c)(2) of the Gramm-Rudman-Hollings Act are extremely important. They require him to exercise sophisticated economic judgment concerning anticipated trends in the Nation's economy, projected Page 478 U. S. 748 levels of unemployment, interest rates, and the special problems that may be confronted by the many components of a vast federal bureaucracy. His duties are anything but ministerial -- he is not merely a clerk wearing a "green eyeshade" as he undertakes these tasks. Rather, he is vested with the kind of responsibilities that Congress has elected to discharge itself under the fallback provision that will become effective if and when § 251(b) and § 251(c)(2) are held invalid. Unless we make the naive assumption that the economic destiny of the Nation could be safely entrusted to a mindless bank of computers, the powers that this Act vests in the Comptroller General must be recognized as having transcendent importance. [ Footnote 2/12 ] The Court concludes that the Gramm-Rudman-Hollings Act impermissibly assigns the Comptroller General "executive powers." Ante at 478 U. S. 732 . JUSTICE WHITE's dissent agrees that "the powers exercised by the Comptroller under the Act may be characterized as executive' in that they involve the interpretation and carrying out of the Act's mandate." Post at 478 U. S. 765 . This conclusion is not only far from obvious, but also rests on the unstated and unsound premise that there is a definite line that distinguishes executive power from legislative power. "The great ordinances of the Constitution do not establish and divide fields of black and white." Springer v. Philippine Islands, 277 U. S. 189 , 277 U. S. 209 (1928) (Holmes, J., dissenting). "The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another Page 478 U. S. 749 would preclude the establishment of a Nation capable of governing itself effectively." Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 121 (1976). As Justice Brandeis explained in his dissent in Myers v. United States, 272 U. S. 52 , 272 U. S. 291 (1926): "The separation of the powers of government did not make each branch completely autonomous. It left each, in some measure, dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial." One reason that the exercise of legislative, executive, and judicial powers cannot be categorically distributed among three mutually exclusive branches of Government is that governmental power cannot always be readily characterized with only one of those three labels. On the contrary, as our cases demonstrate, a particular function, like a chameleon, will often take on the aspect of the office to which it is assigned. For this reason, "[w]hen any Branch acts, it is presumptively exercising the power the Constitution has delegated to it." INS v. Chadha, 462 U.S. at 462 U. S. 951 . [ Footnote 2/13 ] The Chadha case itself illustrates this basic point. The governmental decision that was being made was whether a resident alien who had overstayed his student visa should be Page 478 U. S. 750 deported. From the point of view of the Administrative Law Judge who conducted a hearing on the issue -- or, as JUSTICE POWELL saw the issue in his concurrence [ Footnote 2/14 ] -- the decision took on a judicial coloring. From the point of view of the Attorney General of the United States, to whom Congress had delegated the authority to suspend deportation of certain aliens, the decision appeared to have an executive character. [ Footnote 2/15 ] But, as the Court held, when the House of Representatives finally decided that Chadha must be deported, its action "was essentially legislative in purpose and effect." Id. at 462 U. S. 952 . The powers delegated to the Comptroller General by § 251 of the Act before us today have a similar chameleon-like quality. The District Court persuasively explained why they may be appropriately characterized as executive powers. [ Footnote 2/16 ] But, when that delegation is held invalid, the "fallback provision" provides that the report that would otherwise be issued by the Comptroller General shall be issued by Congress itself. [ Footnote 2/17 ] Page 478 U. S. 751 In the event that the resolution is enacted, the congressional report will have the same legal consequences as if it had been issued by the Comptroller General. In that event, moreover, surely no one would suggest that Congress had acted in any capacity other than "legislative." Since the District Court expressly recognized the validity of what it described as the " fallback' deficit reduction process," Synar v. United States, 626 F. Supp. 1374 , 1377 (DC 1986), it obviously did not doubt the constitutionality of the performance by Congress of the functions delegated to the Comptroller General. Under the District Court's analysis, and the analysis adopted by the majority today, it would therefore appear that the function at issue is "executive" if performed by the Comptroller General, but "legislative" if performed by the Congress. In my view, however, the function may appropriately Page 478 U. S. 752 be labeled "legislative" even if performed by the Comptroller General or by an executive agency. Despite the statement in Article I of the Constitution that "All legislative Powers herein granted shall be vested in a Congress of the United States," it is far from novel to acknowledge that independent agencies do indeed exercise legislative powers. As JUSTICE WHITE explained in his Chadha dissent, after reviewing our cases upholding broad delegations of legislative power: "[T]hese cases establish that, by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without the passage of new legislation. For some time, the sheer amount of law -- the substantive rules that regulate private conduct and direct the operation of government -- made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term. The Administrative Procedure Act, 5 U.S.C. § 551(4), provides that a 'rule' is an agency statement 'designed to implement, interpret, or prescribe law or policy.' When agencies are authorized to prescribe law through substantive rulemaking, the administrator's regulation is not only due deference, but is accorded 'legislative effect.' See, e g., Schweiker v. Gray Panthers, 453 U. S. 34 , 453 U. S. 43 -44 (1981); Batterton v. Francis, 432 U. S. 416 (1977). These regulations bind courts and officers of the Federal Government, may preempt state law, see, e.g., Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141 (1982), and grant rights to and impose obligations on the public. In sum, they have the force of law." 462 U.S. at 462 U. S. 985 -986 (footnote omitted). Thus, I do not agree that the Comptroller General's responsibilities under the Gramm-Rudman-Hollings Act must be Page 478 U. S. 753 termed "executive powers," or even that our inquiry is much advanced by using that term. For, whatever the label given the functions to be performed by the Comptroller General under § 251 -- or by the Congress under § 274 -- the District Court had no difficulty in concluding that Congress could delegate the performance of those functions to another branch of the Government. [ Footnote 2/18 ] If the delegation to a stranger is permissible, why may not Congress delegate the same responsibilities to one of its own agents? That is the central question before us today. IV Congress regularly delegates responsibility to a number of agents who provide important support for its legislative activities. Many perform functions that could be characterized as "executive" in most contexts -- the Capitol Police can arrest and press charges against lawbreakers, the Sergeant at Arms manages the congressional payroll, the Capitol Architect maintains the buildings and grounds, and its Librarian has custody of a vast number of books and records. Moreover, the Members themselves necessarily engage in many activities that are merely ancillary to their primary lawmaking Page 478 U. S. 754 responsibilities -- they manage their separate offices, they communicate with their constituents, they conduct hearings, they inform themselves about the problems confronting the Nation, and they make rules for the governance of their own business. The responsibilities assigned to the Comptroller General in the case before us are, of course, quite different from these delegations and ancillary activities. The Gramm-Rudman-Hollings Act assigns to the Comptroller General the duty to make policy decisions that have the force of law. The Comptroller General's report is, in the current statute, the engine that gives life to the ambitious budget reduction process. It is the Comptroller General's report that "provide[s] for the determination of reductions" and that "contain[s] estimates, determinations, and specifications for all of the items contained in the report" submitted by the Office of Management and Budget and the Congressional Budget Office. § 251(b). It is the Comptroller General's report that the President must follow and that will have conclusive effect. § 252. It is, in short, the Comptroller General's report that will have a profound, dramatic, and immediate impact on the Government and on the Nation at large. Article I of the Constitution specifies the procedures that Congress must follow when it makes policy that binds the Nation: its legislation must be approved by both of its Houses and presented to the President. In holding that an attempt to legislate by means of a "one-House veto" violated the procedural mandate in Article I, we explained: "We see therefore that the Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions. The President's participation in the legislative process was to protect the Executive Branch from Congress and to protect the whole people from improvident laws. The division of the Congress into two distinctive bodies assures that the legislative power would be exercised Page 478 U. S. 755 only after opportunity for full study and debate in separate settings. The President's unilateral veto power, in turn, was limited by the power of two-thirds of both Houses of Congress to overrule a veto, thereby precluding final arbitrary action of one person. . . . It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7, represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure." INS v. Chadha, 462 U.S. at 462 U. S. 951 . If Congress were free to delegate its policymaking authority to one of its components, or to one of its agents, it would be able to evade "the carefully crafted restraints spelled out in the Constitution." Id. at 462 U. S. 959 . [ Footnote 2/19 ] That danger -- congressional action that evades constitutional restraints -- is not present when Congress delegates lawmaking power to the executive or to an independent agency. [ Footnote 2/20 ] The distinction between the kinds of action that Congress may delegate to its own components and agents and those that require either compliance with Article I procedures or delegation to another branch pursuant to defined standards is Page 478 U. S. 756 reflected in the practices that have developed over the years regarding congressional resolutions. The joint resolution, which is used for "special purposes and . . . incidental matters," 7 Deschler's Precedents of the House of Representatives 334 (1977), makes binding policy and "requires an affirmative vote by both Houses and submission to the President for approval," id. at 333 -- the full Article I requirements. A concurrent resolution, in contrast, makes no binding policy; it is "a means of expressing fact, principles, opinions, and purposes of the two Houses," Jefferson's Manual and Rules of the House of Representatives 176 (1983), and thus does not need to be presented to the President. It is settled, however, that, if a resolution is intended to make policy that will bind the Nation, and thus is "legislative in its character and effect," S.Rep. No. 1335, 54th Cong. .2d Sess., 8 (1897) -- then the full Article I requirements must be observed. For "the nature or substance of the resolution, and not its form, controls the question of its disposition." Ibid. In my opinion, Congress itself could not exercise the Gramm-Rudman-Hollings functions through a concurrent resolution. The fact that the fallback provision in § 274 requires a joint resolution, rather than a concurrent resolution, indicates that Congress endorsed this view. [ Footnote 2/21 ] I think it equally clear that Congress may not simply delegate those functions to an agent such as the Congressional Budget Office. Since I am persuaded that the Comptroller General is also fairly deemed to be an agent of Congress, he too cannot exercise such functions. [ Footnote 2/22 ] Page 478 U. S. 757 As a result, to decide this case, there is no need to consider the Decision of 1789, the President's removal power, or the abstract nature of "executive powers." Once it is clear that the Comptroller General, whose statutory duties define him as an agent of Congress, has been assigned the task of making policy determinations that will bind the Nation, the question is simply one of congressional process. There can be no doubt that the Comptroller General's statutory duties under Gramm-Rudman-Hollings do not follow the constitutionally prescribed procedures for congressional lawmaking. [ Footnote 2/23 ] In short, even though it is well settled that Congress may delegate legislative power to independent agencies or to the Executive, and thereby divest itself of a portion of its lawmaking power, when it elects to exercise such power itself, it may not authorize a lesser representative of the Legislative Page 478 U. S. 758 Branch to act on its behalf. [ Footnote 2/24 ] It is for this reason that I believe § 251(b) and § 251(c)(2) of the Act are unconstitutional. [ Footnote 2/25 ] Thus, the critical inquiry in this case concerns not the manner in which executive officials or agencies may act, but the manner in which Congress and its agents may act. As we emphasized in Chadha, when Congress legislates, when it makes binding policy, it must follow the procedures prescribed in Article I. Neither the unquestioned urgency of the national budget crisis nor the Comptroller General's proud record of professionalism and dedication provides a justification for allowing a congressional agent to set policy that binds Page 478 U. S. 759 the Nation. Rather than turning the task over to its agent, if the Legislative Branch decides to act with conclusive effect, it must do so through a process akin to that specified in the fallback provision -- through enactment by both Houses and presentment to the President. I concur in the judgment. [ Footnote 2/1 ] Just as it is "always appropriate to assume that our elected representatives, like other citizens, know the law," Cannon v. University of Chicago, 441 U. S. 677 , 441 U. S. 696 -697 (1979), so too is it appropriate to assume that our elected representatives, like other citizens, will respect the law. As the proceedings in the United States Senate resulting from the impeachment of Justice Chase demonstrate, moreover, if that body were willing to give only lip service to the governing standard, political considerations, rather than "good behavior" would determine the tenure of federal judges. See M. Elsmere, The Impeachment Trial of Justice Samuel Chase 205 (1962); 3 A. Beveridge, The Life of John Marshall 157-223 (1919). See also W. Wilson, Congressional Government: A Study in American Politics 186-187 (Meridian Books ed., 1956) (quoted in Levi, Some Aspects of Separation of Powers, 76 Colum.L.Rev. 369, 380 (1976)): "'If there be one principle clearer than another, it is this: that in any business, whether of government or of mere merchandising, somebody must be trusted, in order that, when things go wrong it may be quite plain who should be punished. . . . Power and strict accountability of its use are the essential constituents of good government.'" (Emphasis in original.) [ Footnote 2/2 ] See Humphrey's Executor, 295 U.S. at 295 U. S. 625 -626 (describing congressional intention to create "a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government") (emphasis in original). [ Footnote 2/3 ] The manner in which President Franklin Roosevelt exercised his removal power further underscores the propriety of presuming that Congress, and the President, will not use statutorily prescribed removal causes as pretexts for other removal reasons. President Roosevelt never claimed that his removal of Humphrey was for one of the statutorily prescribed reasons -- inefficiency, neglect of duty, or malfeasance in office. The President's removal letter merely stated: "'Effective as of this date, you are hereby removed from the office of Commissioner of the Federal Trade Commission.'" See id. at 295 U. S. 619 . Previously, the President had written to Commissioner Humphrey, stating: "'You will, I know, . . . realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly. I think it is best for the people of this country that I should have a full confidence.'" Ibid. [ Footnote 2/4 ] Indeed, even in Myers v. United States, 272 U. S. 52 (1926), in its challenge to the provision requiring Senate approval of the removal of a postmaster, the Federal Government assumed that Congress had power to limit the terms of removal to reasons that relate to the office. Solicitor General Beck recognized "that the power of removal may be subject to such general laws as do not destroy the exercise by the President of his power of removal, and which leaves to him the exercise of the power subject to such general laws as may fairly measure the standard of public service." Substitute Brief for United States on Reargument in No. 2, O.T. 1926, p. 9. At oral argument, the Solicitor General explained his position: "Mr. Beck: Suppose the Congress creates an office and says that it shall only be filled by a man learned in the law; and suppose it further provides that, if a man ceases to be member of the bar, he shall be removed. I am not prepared to say that such a law cannot be reconciled with the Constitution. What I do say is that, when the condition imposed upon the creation of the office has no reasonable relation to the office; when it is not a legislative standard to be applied by the President, and is not the declaration of qualifications, but is the creation of an appointing power other than the President, then Congress has crossed the deadline, for it has usurped the prerogative of the President." 272 U.S. at 96-97 [argument of counsel omitted from electronic version]. [ Footnote 2/5 ] In pertinent part, the 1921 Act provided: "SEC. 312(a). The Comptroller General shall investigate, at the seat of government or elsewhere, all matters relating to the receipt, disbursement, and application of public funds, and shall make to the President when requested by him, and to Congress at the beginning of each regular session, a report in writing of the work of the General Accounting Office, containing recommendations concerning the legislation he may deem necessary to facilitate the prompt and accurate rendition and settlement of accounts and concerning such other matters relating to the receipt, disbursement, and application of public funds as he may think advisable. In such regular report, or in special reports at any time when Congress is in session, he shall make recommendations looking to greater economy or efficiency in public expenditures." "(b) He shall make such investigations and reports as shall be ordered by either House of Congress or by any committee of either House having jurisdiction over revenue, appropriations or expenditures. The Comptroller General shall also, at the request of any such committee, direct assistants from his office to furnish the committee such aid and information as it may request." "(c) The Comptroller General shall specifically report to Congress every expenditure or contract made by any department or establishment in any year in violation of law." "(d) He shall submit to Congress reports upon the adequacy and effectiveness of the administrative examination of accounts and claims in the respective departments and establishments and upon the adequacy and effectiveness of departmental inspection of the offices and accounts of fiscal officers." "(e) He shall furnish such information relating to expenditures and accounting to the Bureau of the Budget as it may request from time to time." 42 Stat. 25-26 (emphases added). [ Footnote 2/6 ] See also H.R.Rep. No. 971, 79th Cong., 1st Sess., 12 (1949) ("[T]he Comptroller General of the United States" and "the General Accounting Office . . . are declared by the bill to be a part of the legislative branch of the Government"). [ Footnote 2/7 ] See also H.R.Rep. No. 23, 81st Cong., 1st Sess., 11 (1949) ("[T]he Comptroller General of the United States" and "the General Accounting Office (as in the Reorganization Act of 1945) are declared by the bill to be a part of the legislative branch of the Government."). [ Footnote 2/8 ] See 42 Stat. 23 ("The offices of Comptroller of the Treasury and Assistant Comptroller of the Treasury are abolished, to take effect July 21, 1921. . . . [A]ll books, records, documents, papers, furniture, office equipment and other property of the office of the Comptroller of the Treasury shall become the property of the General Accounting Office"). [ Footnote 2/9 ] The Comptroller General, of course, is also appointed by the President. 31 U.S.C. § 703(a)(1). So too, however, are the Librarian of Congress, 2 U.S.C. § 136, the Architect of the Capitol, 40 U.S.C. § 162, and the Public Printer, 44 U.S.C. § 301. [ Footnote 2/10 ] See Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U. S. 34 , 474 U. S. 36 -37, and n. 1 (1985) (reviewing the Marshals' statutory obligations to the Judiciary and the Executive Branch, but noting that the "Marshals are within the Executive Branch of the Federal Government"). Cf. Report by the Comptroller General, U.S. Marshals' Dilemma: Serving Two Branches of Government 14 (1982) ("It is extremely difficult for one person to effectively serve two masters"). Surely no one would suggest that the fact that THE CHIEF JUSTICE performs executive functions for the Smithsonian Institution, 20 U.S.C. § 42, affects his characterization as a member of the Judicial Branch of the Government. Nor does the performance of similar functions by three Members of the Senate and three Members of the House, ibid., affect their characterization as members of the Legislative Branch of the Government. [ Footnote 2/11 ] Despite the suggestions of the dissents, post at 478 U. S. 773 n. 12 (WHITE, J., dissenting); post at 478 U. S. 778 -779, n. 1 (BLACKMUN, J., dissenting), it is quite obvious that the Comptroller General, and the General Accounting office, have a fundamentally different relationship with Congress than do independent agencies like the Federal Trade Commission. Rather than an independent agency, the Comptroller General and the GAO are functionally equivalent to congressional agents such as the Congressional Budget Office, the Office of Technology Assessment, and the Library of Congress' Congressional Research Service. As the statutory responsibilities make clear, like those congressional agents, the Comptroller General and the GAO function virtually as a permanent staff for Congress. Indeed, in creating the Congressional Budget Office, Congress explicitly required that the GAO provide extensive services for the CBO -- a fact with some significance for this case. The CBO statute enumerates the three "congressional agencies" that must provide assistance to the CBO: "the General Accounting Office, the Library of Congress, and the Office of Technology Assessment." 2 U.S.C. § 601(e). These "congressional agencies" are authorized to provide the CBO with "services, facilities, and personnel with or without reimbursement," ibid., as well as "information, data, estimates, and statistics." Ibid. See also Congressional Quarterly's Guide to Congress 555 (3d ed.1982) ("In addition to their staffs, committees, facilities and privileges, members of Congress are backed by a number of other supporting organizations and activities that keep Capitol Hill running. Among the largest of these in size of staff are the General Accounting Office (GAO), with about 5,200 employees; the Library of Congress' Congressional Research Service (CRS), with 856; the Congressional Budget Office (CBO), with 218; and the Office of Technology Assessment (OTA), with 130. . . . To an extent, each of the four legislative agencies has its own specialized functions. . . . Although each of the four agencies has been given its own task, their jobs overlap to some extent. This has led in some cases to duplication and waste and even to competition among the different groups. . . . The General Accounting Office is an arm of the legislative branch that was created to oversee the expenditures of the executive branch"). Thus, to contend that the Comptroller General's numerous statutory responsibilities to serve Congress directly are somehow like an independent agency's obligations to report to Congress and to implement legislatively mandated standards simply misconceives the actual duties of the Comptroller General and the GAO. It also ignores the clear import of the legislative history of these entities. See, e.g., Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 892-893 (CA3 1986) (Becker, J., concurring in part) ("Because the office of the Comptroller General is created by statute, the Comptroller General's status within the government is a matter of statutory interpretation which, like all statutory interpretation, is controlled by legislative intent. . . . There is copious evidence in the legislative history that the GAO (and therefore the Comptroller General) was intended to be in the legislative branch. . . . Because there is no legislative intent to the contrary, I believe that it is incumbent upon us to hold that the Comptroller General is within the legislative branch of government, despite the inconveniences that may attend such a holding"). [ Footnote 2/12 ] The element of judgment that the Comptroller General must exercise is evident by the congressional recognition that "there may be differences between the contents of [his] report and the report of the Directors" of the Congressional Budget Office and the Office of Management and Budget. § 251(b)(2). [ Footnote 2/13 ] "Perhaps as a matter of political science we could say that Congress should only concern itself with broad principles of policy, and leave their application in particular cases to the executive branch. But no such rule can be found in the Constitution itself, or in legislative practice. It is fruitless, therefore, to try to draw any sharp and logical line between legislative and executive functions. Characteristically, the draftsmen of 1787 did not even attempt doctrinaire definitions, but placed their reliance in the mechanics of the Constitution. One of their principal devices was to vest the legislative powers in the two Houses of Congress, and to make the President a part of the legislative process by requiring that all bills passed by the two Houses be submitted to him for his approval or disapproval, his disapproval or veto to be overridden only by a two-thirds vote of each House. It is in such checks upon powers, rather than in the classifications of powers, that our governmental system finds equilibrium." Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L .Rev. 569, 571 (1953) (footnote omitted). [ Footnote 2/14 ] For JUSTICE POWELL, the critical question in the Chadha case was "whether Congress impermissibly assumed a judicial function." 462 U.S. at 462 U. S. 963 . [ Footnote 2/15 ] "It is clear, therefore, that the Attorney General acts in his presumptively Art. II capacity when he administers the Immigration and Nationality Act." Id. at 462 U. S. 953 , n. 16. [ Footnote 2/16 ] "Under subsection 251(b)(1), the Comptroller General must specify levels of anticipated revenue and expenditure that determine the gross amount which must be sequestered, and he must specify which particular budget items are required to be reduced by the various provisions of the Act (which are not in all respects clear), and in what particular amounts. The first of these specifications requires the exercise of substantial judgment concerning present and future facts that affect the application of the law -- the sort of power normally conferred upon the executive officer charged with implementing a statute. The second specification requires an interpretation of the law enacted by Congress, similarly a power normally committed initially to the Executive under the Constitution's prescription that he 'take Care that the Laws be faithfully executed.' Art. II, § 3." Synar v. United States, 626 F. Supp. 1374 , 1400 (DC 1986). [ Footnote 2/17 ] Section 274(f) of the Act provides, in part: "ALTERNATIVE PROCEDURES FOR THE JOINT REPORTS OF THE DIRECTORS" "(1) In the event that any of the reporting procedures described In section 251 are invalidated, then any report of the Directors referred to in section 251(a) or (c)(1) . . . shall be transmitted to the joint committee established under this subsection." "(2) Upon the invalidation of any such procedure there is established a Temporary Joint Committee on Deficit Reduction, composed of the entire membership of the Budget Committees of the House of Representatives and the Senate. . . . The purposes of the Joint Committee are to receive the reports of the Directors as described in paragraph (1), and to report (with respect to each such report of the Directors) a joint resolution as described in paragraph (3)." "(3) No later than 5 days after the receipt of a report of the Directors in accordance with paragraph (1), the Joint Committee shall report to the House of Representatives and the Senate a joint resolution setting forth the contents of the report of the Directors." " * * * *" "(5) Upon its enactment, the joint resolution shall be deemed to be the report received by the President under section 251(b) or (c)(2) (whichever is applicable)." 99 Stat. 1100 (emphasis added). [ Footnote 2/18 ] "All that has been left to administrative discretion is the estimation of the aggregate amount of reductions that will be necessary, in light of predicted revenues and expenditures, and we believe that the Act contains standards adequately confining administrative discretion in making that estimation. While this is assuredly an estimation that requires some judgment, and on which various individuals may disagree, we hardly think it is a distinctively political judgment, much less a political judgment of such scope that it must be made by Congress itself. Through specification of maximum deficit amounts, establishment of a detailed administrative mechanism, and determination of the standards governing administrative decisionmaking, Congress has made the policy decisions which constitute the essence of the legislative function." 626 F. Supp. at 1391. The District Court's holding that the exercise of discretion was not the kind of political judgment that "must be made by Congress itself" is, of course, consistent with the view that it is a judgment that "may be made by Congress itself" pursuant to § 274. [ Footnote 2/19 ] Even scholars who would have sustained the one-House veto appear to agree with this ultimate conclusion. See Nathanson, Separation of Powers and Administrative Law: Delegation, The Legislative Veto, and the "Independent" Agencies, 75 Nw.U.L.Rev. 1064, 1090 (1981) ("It is not a case where the Congress has delegated authority to one of its components to take affirmative steps to impose regulations upon private interests -- an action which would, I assume, be unconstitutional"). Cf. Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 286 (1976) (WHITE, J., dissenting) (expressing the opinion that a one-House veto of agency regulations would be unobjectionable, but adding that it "would be considerably different if Congress itself purported to adopt and propound regulations by the action of both Houses"). [ Footnote 2/20 ] As 1 have emphasized, in this case, the Comptroller General is assigned functions that require him to make policy determinations that bind the Nation. I note only that this analysis need not call into question the Comptroller General's performance of numerous existing functions that may not rise to this level. See ante at 478 U. S. 734 -735, n. 9. [ Footnote 2/21 ] The fact that Congress specified a joint resolution as the fallback provision has another significance as well. For it reveals the congressional intent that, if the Comptroller General could not exercise the prescribed functions, Congress wished to perform them itself, rather than delegating them, for instance, to an independent agency or to an Executive Branch official. This choice shows that Congress intended that the important functions of the Act be no further from itself than the Comptroller General. [ Footnote 2/22 ] In considering analogous problems, our state courts have consistently recognized the importance of strict adherence to constitutionally mandated procedures in the legislative process. See, e.g., State v. A.L.I.V.E. Voluntary, 606 P.2d 769 , 773. 777 (Alaska 1980) ("Of course, when the legislature wishes to act in an advisory capacity, it may act by resolution. However, when it means to take action having a binding effect on those outside the legislature, it may do so only by following the enactment procedures. Other state courts have so held with virtual unanimity. . . . The fact that it can delegate legislative power to others who are not bound by article II does not mean that it can delegate the same power to itself and, in the process, escape from the constraints under which it must operate"); People v. Tremaine, 252 N. Y 27, 44 168 N.E. 817, 822 (1929) ("If the power to approve the segregation of lump sum appropriations may be delegated to any one, even to one or two members of the Legislature, it necessarily follows that the power to segregate such appropriations may also be conferred upon such delegates. . . . To visualize an extreme case, one lump sum appropriation might be made to be segregated by the committee chairmen. Such a delegation of legislative power would be abhor[r]ent to all our notions of legislation on the matter of appropriations"). [ Footnote 2/23 ] I have previously noted my concern about the need for a "due process of lawmaking" even when Congress has acted with bicameralism and presentment. See Fullilove v. Klutznick, 448 U. S. 448 , 448 U. S. 549 , and n. 24 (1980) (STEVENS, J., dissenting); Delaware Tribal Business Committee v. Weeks, 430 U. S. 73 , 430 U. S. 98 , and n. 11 (1977) (STEVENS, J., dissenting). When a legislature's agent is given powers to act without even the formalities of the legislative process, these concerns are especially prominent. [ Footnote 2/24 ] See also Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1067, n. 430 (1975) ("A delegation which disperses power is not necessarily constitutionally equivalent to one which concentrates power in the hands of the delegating agency"); Ginnane, 66 Harv.L.Rev. at 595 ("It is a non sequitur to say that, since a statute can delegate a power to someone not bound by the procedure prescribed in the Constitution for Congress' exercise of the power, it can therefore delegate' the power to Congress free of constitutional restrictions on the manner of its exercise"). [ Footnote 2/25 ] JUSTICE BLACKMUN suggests that Congress may delegate legislative power to one of its own agents as long as it does not retain "tight control" over that agent. Post at 478 U. S. 779 , n. 1. His suggestion is not faithful to the rationale of Chadha, because no component of Congress, not even one of its Houses, is subject to the "tight control" of the entire Congress. For instance, the Congressional Research Service, whose primary function is to respond to congressional research requests, 2 U.S.C. § 166, apparently would not fall within JUSTICE BLACKMUN's "tight control" test, because Congress has guaranteed the Service "complete research independence and the maximum practicable administrative independence consistent with these objectives." § 166(b)(2). I take it, however, that few would doubt the unconstitutionality of assigning the functions at issue in this case to the Congressional Research Service. Moreover, Chadha surely forecloses the suggestion that, because delegation of legislative power to an independent agency is acceptable, such power may also be delegated to a component or an agent of Congress. Finally, with respect to JUSTICE BLACKMUN's emphasis on Presidential appointment of the Comptroller General, post at 478 U. S. 778 -779, n. 1, as I have previously pointed out, other obvious congressional agents, such as the Librarian of Congress, the Architect of the Capitol, and the Public Printer are also appointed by the President. See 478 U.S. 714 fn2/9|>n. 9, supra. JUSTICE WHITE, dissenting. The Court, acting in the name of separation of powers, takes upon itself to strike down the Gramm-Rudman-Hollings Act, one of the most novel and far-reaching legislative responses to a national crisis since the New Deal. The basis of the Court's action is a solitary provision of another statute that was passed over 60 years ago and has lain dormant since that time. I cannot concur in the Court's action. Like the Court, I will not purport to speak to the wisdom of the policies incorporated in the legislation the Court invalidates; that is a matter for the Congress and the Executive, both of which expressed their assent to the statute barely half a year ago. I will, however, address the wisdom of the Court's willingness to interpose its distressingly formalistic view of separation of powers as a bar to the attainment of governmental objectives through the means chosen by the Congress and the President in the legislative process established by the Constitution. Twice in the past four years I have expressed my view that the Court's recent efforts to police the separation of powers have rested on untenable constitutional propositions leading to regrettable results. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 , 458 U. S. 92 -118 (1982) (WHITE, J., dissenting); INS v. Chadha, 462 U. S. 919 , 462 U. S. 967 -1003 (1983) (WHITE, J., dissenting). Today's result is even more misguided. As I will explain, the Court's decision rests on a feature of the legislative scheme that is of minimal practical significance and that presents no substantial threat to the basic scheme of separation of powers. In attaching dispositive significance to what should be regarded as a triviality, the Court neglects what has Page 478 U. S. 760 in the past been recognized as a fundamental principle governing consideration of disputes over separation of powers: "The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 635 (1952) (Jackson, J. concurring). I The Court's argument is straightforward: the Act vests the Comptroller General with "executive" powers, that is, powers to "[i]nterpre[t] a law enacted by Congress [in order] to implement the legislative mandate," ante at 478 U. S. 733 ; such powers may not be vested by Congress in itself or its agents, see Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 120 -141 (1976), for the system of Government established by the Constitution, for the most part, limits Congress to a legislative, rather than an executive or judicial, role, see INS v. Chadha, supra; the Comptroller General is an agent of Congress by virtue of a provision in the Budget and Accounting Act of 1921, 43 Stat. 23, 31 U.S.C. § 703(e)(1), granting Congress the power to remove the Comptroller for cause through joint resolution; therefore the Comptroller General may not constitutionally exercise the executive powers granted him in the Gramm-Rudman-Hollings Act, and the Act's automatic budget reduction mechanism, which is premised on the Comptroller's exercise of those powers, must be struck down. Before examining the merits of the Court's argument, I wish to emphasize what it is that the Court quite pointedly and correctly does not hold: namely, that "executive" powers of the sort granted the Comptroller by the Act may only be exercised by officers removable at will by the President. Page 478 U. S. 761 The Court's apparent unwillingness to accept this argument, [ Footnote 3/1 ] which has been tendered in this Court by the Solicitor General, [ Footnote 3/2 ] is fully consistent with the Court's longstanding recognition that it is within the power of Congress under the "Necessary and Proper" Clause, Art. I, § 8, to vest authority that falls within the Court's definition of executive power in officers who are not subject to removal at will by the President, and are therefore not under the President's direct control. See, e.g., Humphrey's Executor v. United States, 295 U. S. 602 (1935); Wiener v. United States, 357 U. S. 349 (1958). [ Footnote 3/3 ] In an earlier day, in which simpler notions of the role of government in society prevailed, it was perhaps plausible to insist that all "executive" officers be subject to an unqualified Presidential removal power, see Myers v. United States, 272 U. S. 52 (1926); but with the advent and triumph of the administrative state and the accompanying multiplication of the tasks undertaken by the Federal Government, the Page 478 U. S. 762 Court has been virtually compelled to recognize that Congress may reasonably deem it "necessary and proper" to vest some among the broad new array of governmental functions in officers who are free from the partisanship that may be expected of agents wholly dependent upon the President. The Court's recognition of the legitimacy of legislation vesting "executive" authority in officers independent of the President does not imply derogation of the President's own constitutional authority -- indeed, duty -- to "take Care that the Laws be faithfully executed," Art. II, § 3, for any such duty is necessarily limited to a great extent by the content of the laws enacted by the Congress. As Justice Holmes put it: "The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." Myers v. United States, supra, at 272 U. S. 177 (dissenting). [ Footnote 3/4 ] Justice Holmes perhaps overstated his case, for there are undoubtedly executive functions that, regardless of the enactments of Congress, must be performed by officers subject to removal at will by the President. Whether a particular function falls within this class or within the far larger class that may be relegated to independent officers "will depend upon the character of the office." Humphrey's Executor, supra, at 295 U. S. 631 . In determining whether a limitation on the President's power to remove an officer performing executive functions constitutes a violation of the constitutional scheme of separation of powers, a court must "focu[s] on the extent to which [such a limitation] prevents the Executive Branch from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Services, 433 U. S. 425 , 433 U. S. 443 (1977). "Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." Ibid. This inquiry Page 478 U. S. 763 is, to be sure, not one that will beget easy answers; it provides nothing approaching a bright-line rule or set of rules. Such an inquiry, however, is necessitated by the recognition that "formalistic and unbending rules" in the area of separation of powers may "unduly constrict Congress' ability to take needed and innovative action pursuant to its Article I powers." Commodity Futures Trading Comm'n v. Schor, post at 478 U. S. 851 . It is evident (and nothing in the Court's opinion is to the contrary) that the powers exercised by the Comptroller General under the Gramm-Rudman-Hollings Act are not such that vesting them in an officer not subject to removal at will by the President would in itself improperly interfere with Presidential powers. Determining the level of spending by the Federal Government is not, by nature, a function central either to the exercise of the President's enumerated powers or to his general duty to ensure execution of the laws; rather, appropriating funds is a peculiarly legislative function, and one expressly committed to Congress by Art. I, § 9, which provides that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." In enacting Gramm-Rudman-Hollings, Congress has chosen to exercise this legislative power to establish the level of federal spending by providing a detailed set of criteria for reducing expenditures below the level of appropriations in the event that certain conditions are met. Delegating the execution of this legislation -- that is, the power to apply the Act's criteria and make the required calculations -- to an officer independent of the President's will does not deprive the President of any power that he would otherwise have or that is essential to the performance of the duties of his office. Rather, the result of such a delegation, from the standpoint of the President, is no different from the result of more traditional forms of appropriation: under either system, the level of funds available to the Executive Branch to carry out its duties is not within the President's discretionary control. To be sure, Page 478 U. S. 764 if the budget-cutting mechanism required the responsible officer to exercise a great deal of policymaking discretion, one might argue that, having created such broad discretion, Congress had some obligation based upon Art. II to vest it in the Chief Executive or his agents. In Gramm-Rudman-Hollings, however, Congress has done no such thing; instead, it has created a precise and articulated set of criteria designed to minimize the degree of policy choice exercised by the officer executing the statute, and to ensure that the relative spending priorities established by Congress in the appropriations it passes into law remain unaltered. [ Footnote 3/5 ] Given that the exercise of policy choice by the officer executing the statute would be inimical to Congress' goal in enacting "automatic" budget-cutting measures, it is eminently reasonable and proper for Congress to vest the budget-cutting authority in an officer who is, to the greatest degree possible, nonpartisan and independent of the President and his political agenda, and who therefore may be relied upon not to allow his calculations to be colored by political considerations. Such a delegation deprives the President of no authority that is rightfully his. II If, as the Court seems to agree, the assignment of "executive" powers under Gramm-Rudman-Hollings to an officer not removable at will by the President would not, in itself, represent a violation of the constitutional scheme of separated Page 478 U. S. 765 powers, the question remains whether, as the Court concludes, the fact that the officer to whom Congress has delegated the authority to implement the Act is removable by a joint resolution of Congress should require invalidation of the Act. The Court's decision, as I have stated above, is based on a syllogism: the Act vests the Comptroller with "executive power"; such power may not be exercised by Congress or its agents; the Comptroller is an agent of Congress because he is removable by Congress; therefore the Act is invalid. I have no quarrel with the proposition that the powers exercised by the Comptroller under the Act may be characterized as "executive" in that they involve the interpretation and carrying out of the Act's mandate. I can also accept the general proposition that, although Congress has considerable authority in designating the officers who are to execute legislation, see supra, at 478 U. S. 760 -764, the constitutional scheme of separated powers does prevent Congress from reserving an executive role for itself or for its "agents." Buckley v. Valeo, 424 U.S. at 424 U. S. 120 -141; id. at 424 U. S. 267 -282 (WHITE, J., concurring in part and dissenting in part). I cannot accept, however, that the exercise of authority by an officer removable for cause by a joint resolution of Congress is analogous to the impermissible execution of the law by Congress itself, nor would I hold that the congressional role in the removal process renders the Comptroller an "agent" of the Congress, incapable of receiving "executive" power. In Buckley v. Valeo, supra, the Court held that Congress could not reserve to itself the power to appoint members of the Federal Election Commission, a body exercising "executive" power. Buckley, however, was grounded on a textually based separation of powers argument whose central premise was that the Constitution requires that all "Officers of the United States" (defined as "all persons who can be said to hold an office under the government," 424 U.S. at 424 U. S. 126 ) whose appointment is not otherwise specifically provided for elsewhere in its text be appointed through the means specified Page 478 U. S. 766 by the Appointments Clause, Art. II, § 2, cl. 2 -- that is, either by the President with the advice and consent of the Senate or, if Congress so specifies, by the President alone, by the courts, or by the head of a department. The Buckley Court treated the Appointments Clause as reflecting the principle that "the Legislative Branch may not exercise executive authority," 424 U.S. at 424 U. S. 119 (citing Springer v. Philippine Islands, 277 U. S. 189 (1928)), but the Court's holding was merely that Congress may not direct that its laws be implemented through persons who are its agents in the sense that it chose them; the Court did not pass on the legitimacy of other means by which Congress might exercise authority over those who execute its laws. Because the Comptroller is not an appointee of Congress, but an officer of the United States appointed by the President with the advice and consent of the Senate, Buckley neither requires that he be characterized as an agent of the Congress nor in any other way calls into question his capacity to exercise "executive" authority. See 424 U.S. at 424 U. S. 128 , n. 165. As the majority points out, however, the Court's decision in INS v. Chadha, 462 U. S. 919 (1983), recognizes additional limits on the ability of Congress to participate in or influence the execution of the laws. As interpreted in Chadha, the Constitution prevents Congress from interfering with the actions of officers of the United StateS through means short of legislation satisfying the demands of bicameral passage and presentment to the President for approval or disapproval. Id. at 462 U. S. 954 -955. Today's majority concludes that the same concerns that underlay Chadha indicate the invalidity of a statutory provision allowing the removal by joint resolution for specified cause of any officer performing executive functions. Such removal power, the Court contends, constitutes a "congressional veto" analogous to that struck down in Chadha, for it permits Congress to "remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory." Ante at 478 U. S. 726 . The Court concludes Page 478 U. S. 767 that it is "[t]his kind of congressional control over the execution of the laws" that Chadha condemns. Ante at 478 U. S. 726 -727. The deficiencies in the Court's reasoning are apparent. First, the Court baldly mischaracterizes the removal provision when it suggests that it allows Congress to remove the Comptroller for "executing the laws in any fashion found to be unsatisfactory"; in fact, Congress may remove the Comptroller only for one or more of five specified reasons, which, "although not so narrow as to deny Congress any leeway, circumscribe Congress' power to some extent by providing a basis for judicial review of congressional removal." Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 895 (CA3 1986) (Becker, J., concurring in part). Second, and more to the point, the Court overlooks or deliberately ignores the decisive difference between the congressional removal provision and the legislative veto struck down in Chadha: under the Budget and Accounting Act, Congress may remove the Comptroller only through a joint resolution, which, by definition, must be passed by both Houses and signed by the President. See United States v. California, 332 U. S. 19 , 332 U. S. 28 (1947). [ Footnote 3/6 ] In other words, a removal of the Comptroller under the statute satisfies the requirements of bicameralism and presentment laid down in Chadha. The majority's citation of Chadha for the proposition that Congress may only control the acts of officers of the United States "by passing new legislation," ante at 478 U. S. 734 , in Page 478 U. S. 768 no sense casts doubt on the legitimacy of the removal provision, for that provision allows Congress to effect removal only through action that constitutes legislation as defined in Chadha. To the extent that it has any bearing on the problem now before us, Chadha would seem to suggest the legitimacy of the statutory provision making the Comptroller removable through joint resolution, for the Court's opinion in Chadha reflects the view that the bicameralism and presentment requirements of Art. I represent the principal assurances that Congress will remain within its legislative role in the constitutionally prescribed scheme of separated powers. Action taken in accordance with the "single, finely wrought, and exhaustively considered, procedure" established by Art. I, Chadha, supra, at 462 U. S. 951 , should be presumptively viewed as a legitimate exercise of legislative power. That such action may represent a more or less successful attempt by Congress to "control" the actions of an officer of the United States surely does not, in itself, indicate that it is unconstitutional, for no one would dispute that Congress has the power to "control" administration through legislation imposing duties or substantive restraints on executive officers, through legislation increasing or decreasing the funds made available to such officers, or through legislation actually abolishing a particular office. Indeed, Chadha expressly recognizes that, while congressional meddling with administration of the laws outside of the legislative process is impermissible, congressional control over executive officers exercised through the legislative process is valid. 462 U.S. at 462 U. S. 955 , n.19. Thus, if the existence of a statute permitting removal of the Comptroller through joint resolution (that is, through the legislative process) renders his exercise of executive powers unconstitutional, it is for reasons having virtually nothing to do with Chadha. [ Footnote 3/7 ] Page 478 U. S. 769 That a joint resolution removing the Comptroller General would satisfy the requirements for legitimate legislative action laid down in Chadha does not fully answer the separation-of-powers argument, for it is apparent that even the results of the constitutional legislative process may be unconstitutional if those results are, in fact, destructive of the scheme of separation of powers. Nixon v. Administrator of General Page 478 U. S. 770 Services, 433 U. S. 425 (1977). The question to be answered is whether the threat of removal of the Comptroller General for cause through joint resolution as authorized by the Budget and Accounting Act renders the Comptroller sufficiently subservient to Congress that investing him with "executive" power can be realistically equated with the unlawful retention of such power by Congress itself; more generally, the question is whether there is a genuine threat of "encroachment or aggrandizement of one branch at the expense of the other," Buckley v. Valeo, 424 U.S. at 424 U. S. 122 . Common sense indicates that the existence of the removal provision poses no such threat to the principle of separation of powers. The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary. See Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d at 895 (Becker, J., concurring in part). [ Footnote 3/8 ] These procedural and substantive limitations on the removal power militate strongly against the characterization of the Comptroller as a mere agent of Congress by virtue of the removal authority. Indeed, similarly qualified grants of removal power are generally deemed to protect the officers to whom they apply and to establish their independence from the domination of the possessor of the removal power. See Humphrey's Executor v. United States, 295 U.S. at 295 U. S. 625 -626, 295 U. S. 629 -630. Removal authority limited in such a manner is more properly viewed as motivating adherence to a substantive standard established by law than as inducing subservience to the particular Page 478 U. S. 771 institution that enforces that standard. That the agent enforcing the standard is Congress may be of some significance to the Comptroller, but Congress' substantively limited removal power will undoubtedly be less of a spur to subservience than Congress' unquestionable and unqualified power to enact legislation reducing the Comptroller's salary, cutting the funds available to his department, reducing his personnel, limiting or expanding his duties, or even abolishing his position altogether. More importantly, the substantial role played by the President in the process of removal through joint resolution reduces to utter insignificance the possibility that the threat of removal will induce subservience to the Congress. As I have pointed out above, a joint resolution must be presented to the President, and is ineffective if it is vetoed by him, unless the veto is overridden by the constitutionally prescribed two-thirds majority of both Houses of Congress. The requirement of Presidential approval obviates the possibility that the Comptroller will perceive himself as so completely at the mercy of Congress that he will function as its tool. [ Footnote 3/9 ] If the Comptroller's conduct in office is not so unsatisfactory to the President as to convince the latter that removal is required under the statutory standard, Congress will have no independent power to coerce the Comptroller unless it can muster a two-thirds majority in both Houses -- a feat of bipartisanship more difficult than that required to impeach and convict. The incremental in terrorem effect of the possibility of congressional removal in the face of a Presidential Page 478 U. S. 772 veto is therefore exceedingly unlikely to have any discernible impact on the extent of congressional influence over the Comptroller. [ Footnote 3/10 ] Page 478 U. S. 773 The practical result of the removal provision is not to render the Comptroller unduly dependent upon or subservient to Congress, but to render him one of the most independent officers in the entire federal establishment. Those who have studied the office agree that the procedural and substantive limits on the power of Congress and the President to remove the Comptroller make dislodging him against his will practically impossible. As one scholar put it nearly 50 years ago: "Under the statute, the Comptroller General, once confirmed, is safe so long as he avoids a public exhibition of personal immorality, dishonesty, or failing mentality." H. Mansfield, The Comptroller General 75-76 (1939). [ Footnote 3/11 ] The passage of time has done little to cast doubt on this view: of the six Comptrollers who have served since 1921, none has been threatened with, much less subjected to, removal. Recent students of the office concur that, "[b]arring resignation, death, physical or mental incapacity, or extremely bad behavior, the Comptroller General is assured his tenure if he wants it, and not a day more." F. Mosher, The GAO 242 (1979). [ Footnote 3/12 ] The threat of "here-and-now subservience," ante at 478 U. S. 720 , is obviously remote indeed. [ Footnote 3/13 ] Page 478 U. S. 774 Realistic consideration of the nature of the Comptroller General's relation to Congress thus reveals that the threat to separation of powers conjured up by the majority is wholly chimerical. The power over removal retained by the Congress is not a power that is exercised outside the legislative process as established by the Constitution, nor does it appear likely that it is a power that adds significantly to the influence Congress may exert over executive officers through other, undoubtedly constitutional exercises of legislative power and through the constitutionally guaranteed impeachment power. Indeed, the removal power is so constrained by its own substantive limits and by the requirement of Presidential approval. Page 478 U. S. 775 "that, as a practical matter, Congress has not exercised, and probably will never exercise, such control over the Comptroller General that his nonlegislative powers will threaten the goal of dispersion of power, and hence the goal of individual liberty, that separation of powers serves." Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d at 895 (Becker, J., concurring in part). [ Footnote 3/14 ] Page 478 U. S. 776 The majority's contrary conclusion rests on the rigid dogma that, outside of the impeachment process, any "direct congressional role in the removal of officers charged with the execution of the laws . . . is inconsistent with separation of powers." Ante at 478 U. S. 723 . Reliance on such an unyielding principle to strike down a statute posing no real danger of aggrandizement of congressional power is extremely misguided and insensitive to our constitutional role. The wisdom of vesting "executive" powers in an officer removable by joint resolution may indeed be debatable -- as may be the wisdom of the entire scheme of permitting an unelected official to revise the budget enacted by Congress -- but such matters are, for the most part, to be worked out between the Congress and the President through the legislative process, which affords each branch ample opportunity to defend its interests. The Act vesting budget-cutting authority in the Comptroller General represents Congress' judgment that the delegation of such authority to counteract ever-mounting deficits is "necessary and proper" to the exercise of the powers granted the Federal Government by the Constitution; and the President's approval of the statute signifies his unwillingness to reject the choice made by Congress. Cf. Nixon v. Administrator of General Services, 433 U.S. at 433 U. S. 441 . Under such circumstances, the role of this Court should be limited to determining whether the Act so alters the balance of authority among the branches of government as to pose a genuine threat to the basic division between the lawmaking power and the power to execute the law. Because I see no such threat, I cannot join the Court in striking down the Act. I dissent. [ Footnote 3/1 ] See ante at 478 U. S. 724 -726, and n. 4. [ Footnote 3/2 ] The Solicitor General appeared on behalf of the "United States," or, more properly, the Executive Departments, which intervened to attack the constitutionality of the statute that the Chief Executive had earlier endorsed and signed into law. [ Footnote 3/3 ] Although the Court in Humphrey's Executor characterized the powers of the Federal Trade Commissioner whose tenure was at issue as "quasi-legislative" and "quasi-judicial," it is clear that the FTC's power to enforce and give content to the Federal Trade Commission Act's proscription of "unfair" acts and practices and methods of competition is in fact "executive" in the same sense as is the Comptroller's authority under Gramm-Rudman-Hollings -- that is, it involves the implementation (or the interpretation and application) of an Act of Congress. Thus, although the Court in Humphrey's Executor found the use of the labels "quasi-legislative" and "quasi-judicial" helpful in "distinguishing" its then-recent decision in Myers v. United States, 272 U. S. 52 (1926), these terms are hardly of any use in limiting the holding of the case; as Justice Jackson pointed out, "[t]he mere retreat to the qualifying 'quasi' is implicit with confession that all recognized classifications have broken down, and 'quasi' is a smooth cover which we draw over our confusion, as we might use a counterpane to conceal a disordered bed." FTC v. Ruberoid Co., 343 U. S. 470 , 343 U. S. 487 -488 (1952) (dissenting). [ Footnote 3/4 ] Cf. ante at 478 U. S. 733 ("[U]ndoubtedly the content of the Act determines the nature of the executive duty"). [ Footnote 3/5 ] That the statute provides, to the greatest extent possible, precise guidelines for the officer assigned to carry out the required budget cuts not only indicates that vesting budget-cutting authority in an officer independent of the President does not in any sense deprive the President of a significant amount of discretionary authority that should rightfully be vested in him or an officer accountable to him, but also answers the claim that the Act represents an excessive, and hence unlawful, delegation of legislative authority. Because the majority does not address the delegation argument, I shall not discuss it at any length, other than to refer the reader to the District Court's persuasive demonstration that the statute is not void under the nondelegation doctrine. [ Footnote 3/6 ] The legislative history indicates that the inclusion of the President in the removal process was a deliberate choice on the part of the Congress that enacted the Budget and Accounting Act. The previous year, legislation establishing the position of Comptroller General and providing for removal by concurrent resolution -- that is, by a resolution not presented to the President -- had been vetoed by President Wilson on the ground that granting the sole power of removal to the Congress would be unconstitutional. See 59 Cong.Rec. 8609-8610 (1920). That Congress responded by providing for removal through joint resolution clearly evinces congressional intent that removal take place only through the legislative process, with Presidential participation. [ Footnote 3/7 ] Because a joint resolution passed by both Houses of Congress and signed by the President (or repassed over the President's Veto) is legislation having the same force as any other Act of Congress, it is somewhat mysterious why the Court focuses on the Budget and Accounting Act's authorization of removal of the Comptroller through such a resolution as an indicator that the Comptroller may not be vested with executive powers. After all, even without such prior statutory authorization, Congress could pass, and the President sign, a joint resolution purporting to remove the Comptroller, and the validity of such legislation would seem in no way dependent on previous legislation contemplating it. Surely the fact that Congress might at any time pass, and the President sign, legislation purporting to remove some officer of the United States does not make the exercise of executive power by all such officers unconstitutional. Since the effect of the Budget and Accounting Act is merely to recognize the possibility of legislation that Congress might at any time attempt to enact with respect to any executive officer, it should not make the exercise of "executive" power by the Comptroller any more problematic than the exercise of such power by any other officer. A joint resolution purporting to remove the Comptroller, or any other executive officer, might be constitutionally infirm, but Congress' advance assertion of the power to enact such legislation seems irrelevant to the question whether exercise of authority by an officer who might in the future be subject to such a possibly valid and possibly invalid resolution is permissible, since the provision contemplating a resolution of removal obviously cannot in any way add to Congress' power to enact such a resolution. Of course, the foregoing analysis does not imply that the removal provision of the Budget and Accounting Act is meaningless; for although that provision cannot add to any power Congress might have to pass legislation (that is, a joint resolution) removing the Comptroller, it can limit its power to do so to the circumstances specified. The reason for this is that any joint resolution purporting to remove the Comptroller in the absence of a hearing or one of the specified grounds for removal would not be deemed an implied repeal of the limits on removal in the 1921 Act (for such implied repeals are disfavored), and thus the joint resolution would only be given effect to the extent consistent with the preexisting law (that is, to the extent that there was actually cause for removal). [ Footnote 3/8 ] Cf. Humphrey's Executor v. United States, 295 U. S. 602 (1935), in which the Court entertained a challenge to Presidential removal under a statute that similarly limited removals to specified cause. [ Footnote 3/9 ] The Court cites statements made by supporters of the Budget and Accounting Act indicating their belief that the Act's removal provisions would render the Comptroller subservient to Congress by giving Congress " absolute control of the man's destiny in office.'" Ante at 478 U. S. 728 . The Court's scholarship, however, is faulty: at the time all of these statements were made -- including Representative Sisson's statement of May 3, 1921 -- the proposed legislation provided for removal by concurrent resolution, with no Presidential role. See 61 Cong.Rec. 983, 989-992, 1079-1085 (1921). [ Footnote 3/10 ] Concededly, the substantive grounds for removal under the statute are broader than the grounds for impeachment specified by the Constitution, see ante at 478 U. S. 729 -730, although, given that it is unclear whether the limits on the impeachment power may be policed by any body other than Congress itself, the practical significance of the difference is hard to gauge. It seems to me most likely that the difficulty of obtaining a two-thirds vote for removal in both Houses would more than offset any increased likelihood of removal that might result from the greater liberality of the substantive grounds for removal under the statute. And even if removal by Congress alone through joint resolution passed over Presidential veto is marginally more likely than impeachment, whatever additional influence over the Comptroller Congress may thereby possess seems likely to be minimal in relation to that which Congress already possesses by virtue of its general legislative powers and its power to impeach. Of course, if it were demonstrable that the Constitution specifically limited Congress' role in removal to the impeachment process, the insignificance of the marginal increase in congressional influence resulting from the provision authorizing removal through joint resolution would be no answer to a claim of unconstitutionality. But no such limit appears in the Constitution: the Constitution merely provides that all officers of the United States may be impeached for high crimes and misdemeanors, and nowhere suggests that impeachment is the sole means of removing such officers. As for the Court's observation that "no one would seriously suggest that judicial independence would be strengthened by allowing removal of federal judges only by a joint resolution finding 'inefficiency,' 'neglect of duty,' or 'malfeasance,'" ante at 478 U. S. 730 , it can only be described as a non sequitur. The issue is not whether the removal provision makes the Comptroller more independent than he would be if he were removable only through impeachment, but whether the provision so weakens the Comptroller that he may not exercise executive authority. Moreover, the Court's reference to standards applicable to removal of Art. III judges is a red herring, for Art. III judges -- unlike other officers of the United States -- are specifically protected against removal for other than constitutionally specified cause. Thus, the infirmity of a statute purporting to allow removal of judges for some other reason would be that it violated the specific command of Art. III. In the absence of a similar textual limit on the removal of nonjudicial officers, the test for a violation of separation of powers should be whether an asserted congressional power to remove would constitute a real and substantial aggrandizement of congressional authority at the expense of executive power, not whether a similar removal provision would appear problematic if applied to federal judges. [ Footnote 3/11 ] The author of this statement was no apologist for the Comptroller; rather, his study of the office is premised on the desirability of Presidential control over many of the Comptroller's functions. Nonetheless, he apparently found no reason to accuse the Comptroller of subservience to Congress, and he conceded that "[t]he political independence of the office has, in fact, been one of its outstanding characteristics." H. Mansfield, The Comptroller General 75 (1939). [ Footnote 3/12 ] Professor Mosher's reference to the fact that the Comptroller is limited to a single term highlights an additional source of independence: unlike an officer with a fixed term who may be reappointed to office, the Comptroller need not concern himself with currying favor with the Senate in order to secure its consent to his reappointment. [ Footnote 3/13 ] The majority responds to the facts indicating the practical independence of the Comptroller from congressional control by cataloging a series of statements and materials categorizing the Comptroller as a part of the "Legislative Branch." Ante at 478 U. S. 730 -732. Such meaningless labels are quite obviously irrelevant to the question whether in actuality the Comptroller is so subject to congressional domination that he may not participate in the execution of the laws. JUSTICE STEVENS, for his part, finds that the Comptroller is an "agent" of Congress, and thus incapable of wielding the authority granted him by the Act, because his responsibilities under a variety of statutes include making reports to the Congress. JUSTICE STEVENS' position is puzzling, to say the least. It seems to rest on the view that an officer required to perform certain duties for the benefit of Congress somehow becomes a part of Congress for all purposes. But it is by no means true that an officer who must perform specified duties for some other body is under that body's control or acts as its agent when carrying out other, unrelated duties. As JUSTICE BLACKMUN points out, see post at 478 U. S. 778 -779, n. 1. duties toward Congress are imposed on a variety of agencies, including the Federal Trade Commission; and certainly it cannot credibly be maintained that, by virtue of those duties, the agencies become branches of Congress, incapable of wielding governmental power except through the legislative process. Indeed, the President himself is under numerous obligations, both statutory and constitutional, to provide information to Congress, see, e.g., Art. II, § 3, cl. 1; surely the President is not thereby transformed into an arm or agency of the Congress. If, therefore, as JUSTICE STEVENS concedes, see ante at 478 U. S. 737 -741, the provision authorizing removal of the Comptroller by joint resolution does not suffice to establish that he may not exercise the authority granted him under Gramm-Rudman-Hollings, I see no substantial basis for concluding that his various duties toward Congress render him incapable of receiving such power. [ Footnote 3/14 ] Even if I were to concede that the exercise of executive authority by the Comptroller is inconsistent with the removal provision, I would agree with JUSTICE BLACKMUN that striking down the provisions of the Gramm-Rudman-Hollings Act vesting the Comptroller with such duties is a grossly inappropriate remedy for the supposed constitutional infirmity, and that, if one of the features of the statutory scheme must go, it should be the removal provision. As JUSTICE BLACKMUN points out, the mere fact that the parties before the Court have standing only to seek invalidation of the Gramm-Rudman-Hollings spending limits cannot dictate that the Court resolve any constitutional incompatibility by striking down Gramm-Rudman-Hollings. Nor does the existence of the fallback provisions in Gramm-Rudman-Hollings indicate the appropriateness of the Court's choice, for those provisions, by their terms, go into effect only if the Court finds that the primary budget-cutting mechanism established by the Act must be invalidated; they by no means answer the antecedent question whether the Court should take that step. Given the majority's constitutional premises, it is clear to me that the decision whether to strike down Gramm-Rudman-Hollings must depend on whether such a choice would be more or less disruptive of congressional objectives than declaring the removal provision invalid (with the result that the Comptroller would still be protected against removal at will by the President, but could also not be removed through joint resolution). When the choice is put in these terms, it is evident that it is the never-used removal provision that is far less central to the overall statutory scheme. That this is so is underscored by the fact that, under the majority's theory, the removal provision was never constitutional, as the Comptroller's primary duties under the 1921 Act were clearly executive under the Court's definition: the Comptroller's most important tasks under that legislation were to dictate accounting techniques for all executive agencies, to audit all federal expenditures, and to approve or disapprove disbursement of funds. See F. Mosher, The GAO (1979). Surely the Congress in 1921 would have sacrificed its own role in removal rather than allow such duties to go unfulfilled by a Comptroller independent of the President. See 59 Cong.Rec. 8611 (1920). JUSTICE BLACKMUN, dissenting. The Court may be correct when it says that Congress cannot constitutionally exercise removal authority over an official vested with the budget-reduction powers that § 251 of the Balanced Budget and Emergency Deficit Control Act of 1985 Page 478 U. S. 777 gives to the Comptroller General. This, however, is not because "the removal powers over the Comptroller General's office dictate that he will be subservient to Congress," ante at 478 U. S. 730 ; I agree with JUSTICE WHITE that any such claim is unrealistic. Furthermore, I think it is clear under Humphrey's Executor v. United States, 295 U. S. 602 (1935), that "executive" powers of the kind delegated to the Comptroller General under the Deficit Control Act need not be exercised by an officer who serves at the President's pleasure; Congress certainly could prescribe the standards and procedures for removing the Comptroller General. But it seems to me that an attempt by Congress to participate directly in the removal of an executive officer -- other than through the constitutionally prescribed procedure of impeachment -- might well violate the principle of separation of powers by assuming for Congress part of the President's constitutional responsibility to carry out the laws. In my view, however, that important and difficult question need not be decided in this litigation, because, no matter how it is resolved, the plaintiffs, now appellees, are not entitled to the relief they have requested. Appellees have not sought invalidation of the 1921 provision that authorizes Congress to remove the Comptroller General by joint resolution; indeed, it is far from clear they would have standing to request such a judgment. The only relief sought in this case is nullification of the automatic budget-reduction provisions of the Deficit Control Act, and that relief should not be awarded even if the Court is correct that those provisions are constitutionally incompatible with Congress' authority to remove the Comptroller General by joint resolution. Any incompatibility, I feel, should be cured by refusing to allow congressional removal -- if it ever is attempted -- and not by striking down the central provisions of the Deficit Control Act. However wise or foolish it may be, that statute unquestionably ranks among the most important federal enactments of the past several Page 478 U. S. 778 decades. I cannot see the sense of invalidating legislation of this magnitude in order to preserve a cumbersome, 65-year-old removal power that has never been exercised and appears to have been all but forgotten until this litigation. [ Footnote 4/1 ] Page 478 U. S. 779 I The District Court believed it had no choice in this matter. Once it concluded that the Comptroller General's functions under the Deficit Control Act were constitutionally incompatible with the 1921 removal provision, the District Court considered itself bound as a matter of orderly judicial procedure to set aside the statute challenged by the plaintiffs. See Synar v. United States, 626 F. Supp. 1374 , 1393 (DC 1986). The majority today does not take this view, and I believe it is untenable. Under the District Court's approach, everything depends on who first files suit. Because Representative Synar and Page 478 U. S. 780 the plaintiffs who later joined him in this case objected to budget cuts made pursuant to the Deficit Control Act, the District Court struck down that statute, while retaining the 1921 removal provision. But if the Comptroller General had filed suit 15 minutes before the Congressman did, seeking a declaratory judgment that the 1921 removal power could not constitutionally be exercised in light of the duties delegated to the Comptroller General in 1985, the removal provision presumably would have been invalidated, and the Deficit Control Act would have survived intact. Momentous issues of public law should not be decided in so arbitrary a fashion. In my view, the only sensible way to choose between two conjunctively unconstitutional statutory provisions is to determine which provision can be invalidated with the least disruption of congressional objectives. The District Court apparently thought differently in large part because it believed this Court had never undertaken such analysis in the past; instead, according to the District Court, this Court has "set aside that statute which either allegedly prohibits or allegedly authorizes the injury-in-fact that confers standing upon the plaintiff." 626 F. Supp. at 1393. But none of the four cases the District Court cited for this proposition discussed the problem of choice of remedy, and in none of them could a strong argument have been made that invalidating the other of the inconsistent statutory provisions would have interfered less substantially with legislative goals or have been less disruptive of governmental operations. [ Footnote 4/2 ] Page 478 U. S. 781 More importantly, the District Court ignored what appears to be the only separation of powers case in which this Court did expressly consider the question as to which of two incompatible statutes to invalidate: Glidden Co. v. Zdanok, 370 U. S. 530 (1962). The petitioners in that case had received unfavorable rulings from judges assigned to temporary duty in the District Court or Court of Appeals from the Court of Claims or the Court of Customs and Patent Appeals; they argued that those rulings should be set aside because the judges from the specialized courts did not enjoy the tenure and compensation guaranteed by Article III of the Constitution. Before the assignments, Congress had pronounced the Court of Claims and the Court of Customs and Patent Appeals to be Article III courts, implying that judges on those courts were entitled to Article III benefits. Older statutes, however, gave both courts authority to issue advisory opinions, an authority incompatible with Article III status. Glidden held that the Court of Claims and the Court of Customs and Patent Appeals were indeed Article III tribunals. With respect to the advisory opinion jurisdiction, Justice Harlan's opinion for the plurality noted: "The overwhelming majority of the Court of Claims' business is composed of cases and controversies." 370 U.S. at 370 U. S. 583 . Since Page 478 U. S. 782 "it would be . . . perverse to make the status of these courts turn upon so minuscule a portion of their purported functions," Justice Harlan reasoned that, "if necessary, the particular offensive jurisdiction, and not the courts, would fall." Ibid. Justice Clark's opinion concurring in the result for himself and the Chief Justice similarly concluded that the "minuscule" advisory opinion jurisdiction of the courts in question would have to bow to the Article III status clearly proclaimed by Congress, and not vice versa. Id. at 370 U. S. 587 -589. The Court thus recognized in Glidden that it makes no sense to resolve the constitutional incompatibility between two statutory provisions simply by striking down whichever provision happens to be challenged first. A similar recognition has underlain the Court's approach in equal protection cases concerning statutes that create unconstitutionally circumscribed groups of beneficiaries. The Court has noted repeatedly that such a defect may be remedied in either of two ways: the statute may be nullified or its benefits may be extended to the excluded class. See, e.g., Heckler v. Mathews, 465 U. S. 728 , 465 U. S. 738 (1984); Califano v. Westcott, 443 U. S. 76 , 443 U. S. 89 (1979). Although extension is generally the preferred alternative, we have instructed lower courts choosing between the two remedies to "'measure the intensity of [legislative] commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.'" Heckler v. Mathews, supra, at 465 U. S. 739 , n. 5, quoting Welsh v. United States, 398 U. S. 333 , 398 U. S. 365 (1970) (Harlan, J., concurring in result). Calculations of this kind are obviously more complicated when a court is faced with two different statutes, enacted decades apart, but Glidden indicates that even then the task is judicially manageable. No matter how difficult it is to determine which remedy would less obstruct congressional objectives, surely we should make that determination as best we can, instead of leaving the selection to the litigants. Page 478 U. S. 783 II Assuming that the Comptroller General's functions under § 251 of the Deficit Control Act cannot be exercised by an official removable by joint resolution of Congress, we must determine whether legislative goals would be frustrated more by striking down § 251 or by invalidating the 1921 removal provision. That question is not answered by the "fallback" provisions of the 1985 Act, which take effect "[i]n the event that any of the reporting procedures described in section 251 [of the Act] are invalidated." § 274(f)(1), 99 Stat. 1100. The question is whether the reporting procedures should be invalidated in the first place. The fallback provisions simply make clear that Congress would prefer a watered-down version of the Deficit Control Act to none at all; they provide no evidence that Congress would rather settle for the watered-down version than surrender its statutory authority to remove the Comptroller General. The legislative history of the Deficit Control Act contains no mention of the 1921 statute, and both Houses of Congress have argued in this Court that, if necessary, the removal provision should be invalidated, rather than § 251. See Brief for Appellant United States Senate 31-43; Brief for Appellants Speaker and Bipartisan Leadership Group of United States House of Representatives 49; accord, Brief for Appellant Comptroller General 33-47. To the extent that the absence of express fallback provisions in the 1921 statute signifies anything, it appears to signify only that, if the removal provision were invalidated, Congress preferred simply that the remainder of the statute should remain in effect without alteration. [ Footnote 4/3 ] Page 478 U. S. 784 In the absence of express statutory direction, I think it is plain that, as both Houses urge, invalidating the Comptroller General's functions under the Deficit Control Act would frustrate congressional objectives far more seriously than would refusing to allow Congress to exercise its removal authority under the 1921 law. The majority suggests that the removal authority plays an important role in furthering Congress' desire to keep the Comptroller General under its control. But, as JUSTICE WHITE demonstrates, see ante at 478 U.S. 770 -773, the removal provision serves feebly for such purposes, especially in comparison to other, more effective means of supervision at Congress' disposal. Unless Congress institutes impeachment proceedings -- a course all agree the Constitution would permit -- the 1921 law authorizes Congress to remove the Comptroller General only for specified cause, only after a hearing, and only by passing the procedural equivalent of a new public law. Congress has never attempted to use this cumbersome procedure, and the Comptroller General has shown few signs of subservience. [ Footnote 4/4 ] If Congress in 1921 Page 478 U. S. 785 wished to make the Comptroller General its lackey, it did a remarkably poor job. Indeed, there is little evidence that Congress as a whole was very concerned in 1921 -- much less in 1985 or during the intervening decades -- with its own ability to control the Comptroller General. The Committee Reports on the 1921 Act and its predecessor bills strongly suggest that what was critical to the legislators was not the Comptroller General's subservience to Congress, but rather his independence from the President. See, e.g., H.R.Rep. No. 14, 67th Cong., 1st Sess., 7-8 (1921); H.R.Conf.Rep. No. 1044, 66th Cong., 2d Sess., 13 (1920); S.Rep. No. 524, 66th Cong., 2d Sess., 6-7 (1920); H.R.Rep. No. 362, 66th Cong., 1st Sess., 8-9 (1919). The debates over the Deficit Control Act contain no suggestion that the Comptroller General was chosen for the tasks outlined in § 251 because Congress thought it could count on him to do its will; instead, the Comptroller General appears to have been selected precisely because of his independence from both the Legislature and the Executive. By assigning the reporting functions to the Comptroller General, rather than to the Congressional Budget Office or to the Office of Management and Budget, Congress sought to create "a wall . . . that takes these decisions out of the hands of the President and the Congress. " 131 Cong.Rec. 30865 (1985) (remarks of Rep. Gephardt) (emphasis added); see also, e.g., id. at 36089 (1985) (remarks of Rep. Weiss); id. at 36367 (1985) (remarks of Rep. Bedell). Of course, the Deficit Control Act was hardly the first statute to assign new functions to the Comptroller General; a good number of other duties have been delegated to the Comptroller General over the years. But there is no reason to believe that, in effecting these earlier delegations, Congress relied any more heavily on the availability of the removal Page 478 U. S. 786 provision than it did in passing the Deficit Control Act. In the past, as in 1985, it is far more likely that Congress was concerned mainly with the Comptroller General's demonstrated political independence, and perhaps, to a lesser extent, with his long tradition of service to the Legislative Branch; neither of these characteristics depends to any significant extent on the ability of Congress to remove the Comptroller General without instituting impeachment proceedings. Striking down the congressional removal provision might marginally frustrate the legislative expectations underlying some grants of authority to the Comptroller General, but surely to a lesser extent than would invalidation of § 251 of Gramm-Rudman-Hollings -- along with all other "executive" powers delegated to the Comptroller General over the years. [ Footnote 4/5 ] Page 478 U. S. 787 I do not claim that the 1921 removal provision is a piece of statutory deadwood utterly without contemporary significance. But it comes close. Rarely if ever invoked even for symbolic purposes, the removal provision certainly pales in importance beside the legislative scheme the Court strikes down today -- an extraordinarily far-reaching response to a deficit problem of unprecedented proportions. Because I believe that the constitutional defect found by the Court cannot justify the remedy it has imposed, I respectfully dissent. [ Footnote 4/1 ] For the reasons identified by the District Court, I agree that the Deficit Control Act does not violate the nondelegation doctrine. See Synar v. United States, 626 F. Supp. 1374 , 1382-1391 (DC 1986). JUSTICE STEVENS concludes that the delegation effected under § 251 contravenes the holding of INS v. Chadha, 462 U. S. 919 (1983), that Congress may make law only "in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President." Id. at 462 U. S. 958 . I do not agree. We made clear in Chadha that the bicameralism and presentation requirements prevented Congress from itself exercising legislative power through some kind of procedural shortcut, such as the one-House veto challenged in that case. But we also made clear that our holding in no way questioned "Congress' authority to delegate portions of its power to administrative agencies." Id. at 462 U. S. 953 -954, n. 16. We explained: "Executive action under legislatively delegated authority that might resemble 'legislative' action in some respects is not subject to the approval of both Houses of Congress and the President, for the reason that the Constitution does not so require. That kind of Executive action is always subject to check by the terms of the legislation that authorized it, and, if that authority is exceeded, it is open to judicial review, as well as the power of Congress to modify or revoke the authority entirely." Ibid. Although JUSTICE STEVENS seems to agree that the duties delegated to the Comptroller General under § 251 could be assigned constitutionally to an independent administrative agency, he argues that Congress may not give these duties "to one of its own agents." Ante at 478 U. S. 752 -753. He explains that the Comptroller General fits this description because "most" of his statutory responsibilities require him to provide services to Congress, and because Congress has repeatedly referred to the Comptroller General as part of the Legislative Branch. See ante at 478 U. S. 741 -746. "If Congress were free to delegate its policymaking authority" to such an officer, JUSTICE STEVENS contends that "it would be able to evade the carefully crafted restraints spelled out in the Constitution.'" Ante at 478 U. S. 755 , quoting Chadha, 462 U.S. at 462 U. S. 959 . In his view, "[t]hat danger -- congressional action that evades constitutional restraints -- is not present when Congress delegates lawmaking power to the executive or to an independent agency." Ante at 478 U. S. 755 . I do not think that danger is present here, either. The Comptroller General is not Congress, nor is he a part of Congress; "irrespective of Congress' designation," he is an officer of the United States, appointed by the President. Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 128 , n. 165 (1976). In this respect, the Comptroller General differs critically from, for example, the Director of the Congressional Budget Office, who is appointed by Congress, see 2 U.S.C. § 601(a)(2), and hence may not "exercis[e] significant authority pursuant to the laws of the United States," Buckley v. Valeo, supra, at 424 U. S. 126 ; see U.S.Const., Art. II, § 2, cl. 2. The exercise of rulemaking authority by an independent agency such as the Federal Trade Commission does not offend Chadha, even though the Commission could be described as an "agent" of Congress because it "carr[ies] into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed." Humphrey's Executor v. United States, 295 U. S. 602 , 295 U. S. 628 (1935). I do not see why the danger of "congressional action that evades constitutional restraints" becomes any more pronounced when a statute delegates power to a Presidentially appointed agent whose primary duties require him to provide services to Congress. The impermissibility of such a delegation surely is not rendered "obvious" by the fact that some officers who perform services for Congress have titles such as "librarian," "architect," or "printer." See ante at 478 U. S. 758 , n. 25 (STEVENS, J., concurring in judgment). Furthermore, in sustaining the constitutionality of the Federal Trade Commission's independent status, this Court noted specifically that the Commission "acts as a legislative agency" in "making investigations and reports thereon for the information of Congress . . . in aid of the legislative power." 295 U.S. at 295 U. S. 628 . JUSTICE STEVENS' approach might make some sense if Congress had delegated legislative responsibility to an officer over whom Congress could hope to exercise tight control, but even JUSTICE STEVENS does not claim that the Comptroller General is such an officer. [ Footnote 4/2 ] In Myers v. United States, 272 U. S. 52 (1926), the Court refused to enforce a statute requiring congressional approval for removal of postmasters. The Court's analysis suggested that there was no practical way the duties of the office could have been reformulated to render congressional participation in the removal process permissible. In Springer v. Philippine Islands, 277 U. S. 189 (1928), the Court removed from office several Philippine officials exercising executive powers but appointed by officers of the Philippine Legislature. As in Myers, the Court concluded that the offices by their very nature were executive, so the appointments could not have been rendered legal simply by trimming the delegated duties. In Buckley v. Valeo, 424 U. S. 1 (1976), the Court set aside Federal Election Campaign Act provisions granting certain powers to officials appointed by Congress, but it structured its remedy so as to interfere as little as possible with the orderly conduct of business by the Federal Election Commission. Past acts of the improperly constituted Commission were deemed valid, and the Court's mandate was stayed for 30 days to allow time for the Commission to be reconstituted through Presidential appointment. See id. at 424 U. S. 142 -143. Finally, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982), the Court set aside an exercise of judicial power by a bankruptcy judge, because his tenure was not protected in the manner required by Article III of the Constitution. To give Article III protections to bankruptcy judges, the federal bankruptcy statute would have had to be rewritten completely. [ Footnote 4/3 ] Although the legislative history on this point is sparse, it seems reasonably clear that Congress intended the removal provision to be severable from the remainder of the 1921 statute. An earlier bill, providing for removal of the Comptroller General only by impeachment or concurrent resolution of Congress, was vetoed by President Wilson on the grounds that Congress could not constitutionally limit the President's removal power or exercise such power on its own. See 59 Cong.Rec. 8609-8610 (1920). In the course of an unsuccessful attempt to override the veto, Representative Pell inquired: "If we pass this over the President's veto and then the Supreme Court should uphold the contention of the President, this bill would not fail, would it? The bill would continue." Representative Blanton answered, "Certainly." Id. at 8611. [ Footnote 4/4 ] "All of the comptrollers general have treasured and defended the independence of their office, not alone from the president, but also from the Congress itself. . . . Like the other Institutions in the government, GAO depends upon Congress for its powers, its resources, and its general oversight. But it also possesses continuing legal powers, of both long and recent standing, that Congress has granted it and that it can exercise in a quite independent fashion. And the comptroller general, realistically speaking, is immune from removal during his fifteen-year term for anything short of a capital crime, a crippling illness, or insanity." F. Mosher, A Tale of Two Agencies 158 (1984). See also, e.g., Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 885-887 (CA3 1986); F. Mosher, The GAO 2, 240-244 (1979); H. Mansfield, The Comptroller General 75-76 (1939) [ Footnote 4/5 ] Many of the Comptroller General's other duties, including those listed by the majority, see ante at 478 U. S. 734 , n. 9, appear to meet the majority's test for plainly "executive" functions -- i.e., they require the Comptroller General to "[i]nterpre[t] a law enacted by Congress to implement the legislative mandate," and to "exercise judgment concerning facts that affect the application of the [law]." Ante at 478 U. S. 733 . Indeed, the majority's approach would appear to classify as "executive" some of the most traditional duties of the Comptroller General, such as approving expenditure warrants, rendering conclusive decisions on the legality of proposed agency disbursements, and settling financial claims by and against the Government. See 31 U.S.C. §§ 3323, 3526-3529, 3702; F Mosher, A Tale of Two Agencies 159-160 (1984). All three of these functions were given to the Comptroller General when the position was created in 1921. See 42 Stat. 20,24-25. I do not understand the majority's assertion that invalidating the 1921 removal provision might make the Comptroller General "subservient to the Executive Branch." Ante at 478 U. S. 734 . The majority does not suggest that an official who exercises the functions that the Deficit Control Act vests in the Comptroller General must be removable by the President at will. Perhaps the President possesses inherent constitutional authority to remove "executive" officials for such politically neutral grounds as inefficiency or neglect of duty, but if so -- and I am not convinced of it -- I do not see how that power would be enhanced by nullification of a statutory provision giving similar authority to Congress. In any event, I agree with JUSTICE WHITE and JUSTICE STEVENS that the power to remove an officer for reasons of this kind cannot realistically be expected to make an officer "subservient" in any meaningful sense to the removing authority. Cf. Humphrey's Executor v. United States, 295 U.S. at 295 U. S. 629 .

Here is a summary of the case: In *Bowsher v. Synar*, the Supreme Court considered the constitutionality of the Balanced Budget and Emergency Deficit Control Act of 1985, also known as the Gramm-Rudman-Hollings Act. The Act aimed to eliminate the federal budget deficit by setting maximum deficit amounts for each fiscal year from 1986 to 1991. If the budget deficit exceeded the prescribed maximum, the Act required across-the-board cuts in federal spending. The case centered on the role of the Comptroller General, who was tasked with reviewing deficit estimates and budget reduction calculations from the Directors of the Office of Management and Budget and the Congressional Budget Office. The Comptroller General's conclusions were then reported to the President, who had to issue a "sequestration" order mandating the specified spending reductions. The Court held that the powers vested in the Comptroller General under the Act violated the separation of powers doctrine enshrined in the Constitution. Specifically, the Court found that the Comptroller General's role in executing the Act's deficit reduction process was unconstitutional because Congress, not the President, had the power to remove the Comptroller General. The Court also addressed standing, ruling that members of the National Treasury Employees Union had standing to challenge the Act's constitutionality due to the suspension of their scheduled cost-of-living benefit increases. In conclusion, the Court invalidated the Comptroller General's role in the deficit reduction process, highlighting the importance of maintaining a clear separation of powers between the legislative and executive branches of the US government.

Separation of Powers

U.S. v. Nixon

https://supreme.justia.com/cases/federal/us/418/683/

U.S. Supreme Court United States v. Nixon, 418 U.S. 683 (1974) United States v. Nixon No. 73-1766 Argued July 8, 1974 Decided July 24, 1974 418 U.S. 683 ast|>* 418 U.S. 683 CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus Following indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed.Rule Crim.Proc. 17(c) for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule 17(c) had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having rejected the President's contentions (a) that the dispute between him and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked authority to review the President's assertion of executive privilege. The court stayed its order pending appellate review, which the President then sought in the Court of Appeals. The Special Prosecutor then filed in this Court a petition for a writ of certiorari before judgment (No. 73-1766), and the President filed a cross-petition for such a writ challenging the grand jury action (No. 73-1834). The Court granted both petitions. Held: 1. The District Court's order was appealable as a "final" order under 28 U.S.C. § 1291, was therefore properly "in" the Court of Appeals, 28 U.S.C. § 1254, when the petition for certiorari before judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a "limited class of Page 418 U. S. 684 cases where denial of immediate review would render impossible any review whatsoever of an individual's claims," United States v. Ryan, 402 U. S. 530 , 402 U. S. 533 . Such an exception is proper in the unique circumstances of this case, where it would be inappropriate to subject the President to the procedure of securing review by resisting the order and inappropriate to require that the District Court proceed by a traditional contempt citation in order to provide appellate review. Pp. 418 U. S. 690 -692. 2. The dispute between the Special Prosecutor and the President presents a justiciable controversy. Pp. 418 U. S. 692 -697. (a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal jurisdiction. United States v. ICC, 337 U. S. 426 . P. 418 U. S. 693 . (b) The Attorney General, by regulation, has conferred upon the Special Prosecutor unique tenure and authority to represent the United States, and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 . Pp. 418 U. S. 694 -696. (c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues "of a type which are traditionally justiciable," United States v. ICC, supra, at 337 U. S. 430 , and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 418 U. S. 696 -697. 3. From this Court's examination of the material submitted by the Special Prosecutor in support of his motion for the subpoena, much of which is under seal, it is clear that the District Court's denial of the motion to quash comported with Rule 17(c), and that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. Pp. 418 U. S. 697 -702. 4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e.g., 5 U. S. Madison, 1 Cranch 137, 5 U. S. 177 ; Baker v. Carr, 369 U. S. 186 , 369 U. S. 211 . Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Page 418 U. S. 685 Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 418 U. S. 703 -707. 5. Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 418 U. S. 707 -713. 6. On the basis of this Court's examination of the record, it cannot be concluded that the District Court erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be transmitted to the District Court. Pp. 418 U. S. 713 -714. 7. Since a president's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President, and that such material be returned under seal to its lawful custodian. Until released to the Special Prosecutor, no in camera material is to be released to anyone. Pp. 418 U. S. 714 -716. No. 73-1766, 377 F. Supp. 1326 , affirmed; No. 73-1834, certiorari dismissed as improvidently granted. BURGER, C.J., delivered the opinion of the Court, in which all Members joined except REHNQUIST, J., who took no part in the consideration or decision of the cases. Page 418 U. S. 686 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. This litigation presents for review the denial of a motion, filed in the District Court on behalf of the President of the United States, in the case of United States v. Mitchell (D.C.Crim. No. 7110), to quash a third-party subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed.Rule Crim.Proc. 17(c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President's claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President appealed to the Court of Appeals. We granted both the United States' petition for certiorari before judgment (No. 7 1766), [ Footnote 1 ] and also the President's cross-petition for certiorari Page 418 U. S. 687 before judgment (No. 73-1834), [ Footnote 2 ] because of the public importance of the issues presented and the need for their prompt resolution. 417 U.S. 927 and 960 (1974). On March 1, 1974, a grand jury of the United States District Court for the District of Columbia returned an indictment charging seven named individuals [ Footnote 3 ] with various offenses, including conspiracy to defraud the United States and to obstruct justice. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator. [ Footnote 4 ] On April 18, 1974, upon motion of the Special Page 418 U. S. 688 Prosecutor, see n 8, infra, a subpoena duces tecum was issued pursuant to Rule 17(c) to the President by the United States District Court and made returnable on May 2, 1974. This subpoena required the production, in advance of the September 9 trial date, of certain tapes, memoranda, papers, transcripts, or other writings relating to certain precisely identified meetings between the President and others. [ Footnote 5 ] The Special Prosecutor was able to fix the time, place, and persons present at these discussions because the White House daily logs and appointment records had been delivered to him. On April 30, the President publicly released edited transcripts of 43 conversations; portions of 20 conversations subject to subpoena in the present case were included. On May 1, 1974, the President's counsel filed a "special appearance" and a motion to quash the subpoena under Rule 17(c). This motion was accompanied by a formal claim of privilege. At a subsequent hearing, [ Footnote 6 ] further motions to expunge the grand jury's action naming the President as an unindicted coconspirator and for protective orders against the disclosure of that information were filed or raised orally by counsel for the President. On May 20, 1974, the District Court denied the motion to quash and the motions to expunge and for protective orders. 377 F. Supp. 1326 . It further ordered "the President or any subordinate officer, official, or employee with custody or control of the documents or Page 418 U. S. 689 objects subpoenaed," id. at 1331, to deliver to the District Court, on or before May 31, 1974, the originals of all subpoenaed items, as well as an index and analysis of those items, together with tape copies of those portions of the subpoenaed recordings for which transcripts had been released to the public by the President on April 30. The District Court rejected jurisdictional challenges based on a contention that the dispute was nonjusticiable because it was between the Special Prosecutor and the Chief Executive and hence "intra-executive" in character; it also rejected the contention that the Judiciary was without authority to review an assertion of executive privilege by the President. The court's rejection of the first challenge was based on the authority and powers vested in the Special Prosecutor by the regulation promulgated by the Attorney General; the court concluded that a justiciable controversy was presented. The second challenge was held to be foreclosed by the decision in Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973). The District Court held that the judiciary, not the President, was the final arbiter of a claim of executive privilege. The court concluded that, under the circumstances of this case, the presumptive privilege was overcome by the Special Prosecutor's prima facie "demonstration of need sufficiently compelling to warrant judicial examination in chambers. . . ." 377 F. Supp. at 1330. The court held, finally, that the Special Prosecutor had satisfied the requirements of Rule 17(c). The District Court stayed its order pending appellate review on condition that review was sought before 4 p.m., May 24. The court further provided that matters filed under seal remain under seal when transmitted as part of the record. On May 24, 1974, the President filed a timely notice of appeal from the District Court order, and the certified record from the District Court was docketed in the United Page 418 U. S. 690 States Court of Appeals for the District of Columbia Circuit. On the same day, the President also filed a petition for writ of mandamus in the Court of Appeals seeking review of the District Court order. Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of certiorari before judgment. On May 31, the petition was granted with an expedited briefing schedule. 417 U.S. 927. On June 6, the President filed, under seal, a cross-petition for writ of certiorari before judgment. This cross-petition was granted June 1, 1974, 417 U.S. 960, and the case was set for argument on July 8, 1974. I JURISDICTION The threshold question presented is whether the May 20, 1974, order of the District Court was an appealable order and whether this case was properly "in" the Court of Appeals when the petition for certiorari was filed in this Cort. 28 U.S.C. § 1254. The Court of Appeals' jurisdiction under 28 U.S.C. § 1291 encompasses only "final decisions of the district courts." Since the appeal as timely filed and all other procedural requirements were met, the petition is properly before this Court for consideration if the District Court order was final. 28 U.S.C. §§ 1254(1), 2101(e). The finality requirement of 28 U.S.C. § 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals. See, e.g., Cobbledick v. United States, 309 U. S. 323 , 309 U. S. 324 -326 (1940). This requirement ordinarily promotes judicial efficiency and hastens the ultimate termination of litigation. In applying this principle to an order denying a motion to quash and requiring the production of evidence pursuant Page 418 U. S. 691 to a subpoena duces tecum, it has been repeatedly held that the order is not final, and hence not appealable. United States v. Ryan, 402 U. S. 530 , 402 U. S. 532 (1971); Cobbledick v. United States, supra; Alexander v. United States, 201 U. S. 117 (1906). This Court has "consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal." United States v. Ryan, supra, at 402 U. S. 533 . The requirement of submitting to contempt, however, is not without exception, and in some instances the purposes underlying the finality rule require a different result. For example, in Perlman v. United States, 247 U. S. 7 (1918), a subpoena had been directed to a third party requesting certain exhibits; the appellant, who owned the exhibits, sought to raise a claim of privilege. The Court held an order compelling production was appealable because it was unlikely that the third party would risk a contempt citation in order to allow immediate review of the appellant's claim of privilege. Id. at 247 U. S. 12 -13. That case fell within the "limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims." United States v. Ryan, supra, at 402 U. S. 533 . Here too, the traditional contempt avenue to immediate appeal is peculiarly inappropriate due to the unique setting in which the question arises. To require a President of the United States to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review of the ruling would be Page 418 U. S. 692 unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government. Similarly, a federal judge should not be placed in the posture of issuing a citation to a President simply in order to invoke review. The issue whether a President can be cited for contempt could itself engender protracted litigation, and would further delay both review on the merits of his claim of privilege and the ultimate termination of the underlying criminal action for which his evidence is sought. These considerations lead us to conclude that the order of the District Court was an appealable order. The appeal from that order was therefore properly "in" the Court of Appeals, and the case is now properly before this Court on the writ of certiorari before judgment. 28 U.S.C. § 1254; 28 U.S.C. § 2101(e). Gay v. Ruff, 292 U. S. 25 , 292 U. S. 30 (1934). [ Footnote 7 ] II JUSTICIABILITY In the District Court, the President's counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an intra-branch dispute between a subordinate and superior officer of the Executive Branch, and hence not subject to judicial resolution. That argument has been renewed in this Court with emphasis on the contention that the dispute does not present a "case" or "controversy" which can be adjudicated in the federal courts. The President's counsel argues that the federal courts should not intrude into areas committed to the other branches of Government. Page 418 U. S. 693 He views the present dispute as essentially a "jurisdictional" dispute within the Executive Branch which he analogizes to a dispute between two congressional committees. Since the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case, Confiscation Cases , 7 Wall. 454 (1869); United States v. Cox, 342 F.2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauber, 381 U.S. 935 (1965), it is contended that a President's decision is final in determining what evidence is to be used in a given criminal case. Although his counsel concedes that the President ha delegated certain specific powers to the Special Prosecutor, he has not "waived nor delegated to the Special Prosecutor the President's duty to claim privilege as to all materials . . . which fall within the President's inherent authority to refuse to disclose to any executive officer." Brief for the President 42. The Special Prosecutor's demand for the items therefore presents, in the view of the President's counsel, a political question under Baker v. Carr, 369 U. S. 186 (1962), since it involves a "textually demonstrable" grant of power under Art. II. The mere assertion of a claim of an "intra-branch dispute," without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. In United States v. ICC, 337 U. S. 426 (1949), the Court observed, "courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." Id. at 337 U. S. 430 . See also Powell v. McCormack, 395 U. S. 486 (1969); ICC v. Jersey City, 322 U. S. 503 (1944); United States ex rel. Chapman v. FPC, 345 U. S. 153 (1953); Secretary of Agriculture v. United States, 347 U. S. 645 (1954); FMB v. Isbrandtsen Co., 356 U. S. 481 , 356 U. S. 483 n. 2 (1958); United States v. Marine Bancorporation, ante, p. 418 U. S. 602 ; and United States v. Connecticut National Bank, ante, p. 418 U. S. 656 . Page 418 U. S. 694 Our starting point is the nature of the proceeding for which the evidence is sought -- here, a pending criminal prosecution. It is a judicial proceeding in a federal court alleging violation of federal laws, and is brought in the name of the United States as sovereign. Berger v. United States, 295 U. S. 78 , 295 U. S. 88 (1935). Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure. [ Footnote 8 ] The regulation gives the Page 418 U. S. 695 Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties. [ Footnote 9 ] 38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805. So long as this regulation is extant, it has the force of law. In United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954), regulations of the Attorney General delegated certain of his discretionary powers to the Board Page 418 U. S. 696 of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation cases. The Court held that, so long as the Attorney General's regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations. Service v. Dulles, 354 U. S. 363 , 354 U. S. 388 (1957), and Vitarelli v. Seaton, 359 U. S. 535 (1959), reaffirmed the basic holding of Accardi. Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so. [ Footnote 10 ] So long as this regulation remains in force, the Executive Branch is bound by it, and indeed the United States, as the sovereign composed of the three branches, is bound to respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in this case is not an ordinary delegation by the Attorney General to a subordinate officer: with the authorization of the President, the Acting Attorney General provided in the regulation that the Special Prosecutor was not to be removed without the "consensus" of eight designated leaders of Congress. N 8, supra. The demands of and the resistance to the subpoena present an obvious controversy in the ordinary sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here Page 418 U. S. 697 at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President. Whatever the correct answer on the merits, these issues are "of a type which are traditionally justiciable." United States v. ICC, 337 U.S. at 337 U. S. 430 . The independent Special Prosecutor, with his asserted need for the subpoenaed material in the underlying criminal prosecution, is opposed by the President, with his steadfast assertion of privilege against disclosure of the material. This setting assures there is "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. at 369 U. S. 204 . Moreover, since the matter is one arising in the regular course of a federal criminal prosecution, it is within the traditional scope of Art. III power. Id. at 369 U. S. 198 . In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officer of the Executive Branch cannot be viewed as a barrier to justiciability. It would be inconsistent with the applicable law and regulation, and the unique facts of this case, to conclude other than that the Special Prosecutor has standing to bring this action, and that a justiciable controversy is presented for decision. III RULE 17(c) The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satisfy the requirements of Fed.Rule Crim.Proc. 17(c), which governs Page 418 U. S. 698 the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained this challenge, there would be no occasion to reach the claim of privilege asserted with respect to the subpoenaed material. Thus, we turn to the question whether the requirements of Rule 17(c) have been satisfied. See Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U. S. 61 , 304 U. S. 64 (1938); Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 346 -347 (1936) (Brandeis, J., concurring). Rule 17(c) provides: "A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys." A subpoena for documents may be quashed if their production would be "unreasonable or oppressive," but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U. S. 214 (1951). This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id. at 341 U. S. 220 ; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of Page 418 U. S. 699 subpoenaed materials, [ Footnote 11 ] ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary [ Footnote 12 ] and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial, and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that Page 418 U. S. 700 the application is made in good faith and is not intended as a general "fishing expedition." Against this background, the Special Prosecutor, in order to carry his burden, must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our own review of the record necessarily affords a less comprehensive view of the total situation than was available to the trial judge, and we are unwilling to conclude that the District Court erred in the evaluation of the Special Prosecutor's showing under Rule 17(c). Our conclusion is based on the record before us, much of which is under seal. Of course, the contents of the subpoenaed tapes could not at that stage be described fully by the Special Prosecutor, but there was a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment. United States v. Gross, 24 F.R.D. 138 (SDNY 1959). With respect to many of the tapes, the Special Prosecutor offered the sworn testimony or statements of one or more of the participants in the conversations as to what was said at the time. As for the remainder of the tapes, the identity of the participants and the time and place of the conversations, taken in their total context, permit a rational inference that at least part of the conversations relate to the offenses charged in the indictment. We also conclude there was a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment. The most cogent objection to the admissibility of the taped conversations here at issue is that they are a collection of out-of-court statements by declarants who will not be subject to cross-examination, and that the statements are therefore inadmissible hearsay. Here, however, most of the tapes apparently contain conversations Page 418 U. S. 701 to which one or more of the defendant named in the indictment were party. The hearsay rule does not automatically bar all out-of-court statements by a defendant in a criminal case. [ Footnote 13 ] Declarations by one defendant may also be admissible against other defendant upon a sufficient showing, by independent evidence, [ Footnote 14 ] of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy. The same is true of declarations of coconspirators who are not defendants in the case on trial. Dutton v. Evans, 400 U. S. 74 , 400 U. S. 81 (1970). Recorded conversations may also be admissible for the limited purpose of impeaching the credibility of any defendant who testifies or any other coconspirator who testifies. Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial. See, e.g., United States v. Carter, 15 F.R.D. 367, Page 418 U. S. 702 371 (DC 1954). Here, however, there are other valid potential evidentiary uses for the same material, and the analysis and possible transcription of the tapes may take a significant period of time. Accordingly, we cannot conclude that the District Court erred in authorizing the issuance of the subpoena duces tecum. Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court, since the necessity for the subpoena most often turns upon a determination of factual issues. Without a determination of arbitrariness or that the trial court finding was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with Rule 17(c). See, e.g., Sue v. Chicago Transit Authority, 279 F.2d 416, 419 (CA7 1960); Shotkin v. Nelson, 146 F.2d 402 (CA10 1944). In a case such as this, however, where a subpoena is directed to a President of the United States, appellate review, in deference to a coordinate branch of Government, should be particularly meticulous to ensure that the standards of Rule 17(c) have been correctly applied. United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). From our examination of the materials submitted by the Special Prosecutor to the District Court in support of his motion for the subpoena, we are persuaded that the District Court's denial of the President's motion to quash the subpoena was consistent with Rule 17(c). We also conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. The subpoenaed materials are not available from any other source, and their examination and processing should not await trial in the circumstances shown. Bowman Dairy Co. v. United States, 341 U. S. 214 (1951); United States v. Iozia, 13 F.R.D. 335 (SDNY 1952). Page 418 U. S. 703 IV THE CLAIM OF PRIVILEGE A Having determined that the requirements of Rule 17(c) were satisfied, we turn to the claim that the subpoena should be quashed because it demands "confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce." App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that, if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum. In the performance of assigned constitutional duties, each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison , 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Id. at 5 U. S. 177 . No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. Powell v. McCormack, 395 U. S. 486 (1969); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). In a Page 418 U. S. 704 series of cases, the Court interpreted the explicit immunity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, U.S.Const. Art. I, § 6. Doe v. McMillan, 412 U. S. 306 (1973); Gravel v. United States, 408 U. S. 606 (1972); United States v. Brewster, 408 U. S. 501 (1972); United States v. Johnson 383 U. S. 169 (1966). Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers. Our system of government "requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." Powell v. McCormack, supra, at 395 U. S. 549 . And in Baker v. Carr, 369 U.S. at 369 U. S. 211 , the Court stated: "Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed. Page 418 U. S. 705 1938). We therefore reaffirm that it is the province and duty of this Court "to say what the law is" with respect to the claim of privilege presented in this case. Marbury v. Madison, supra at 5 U. S. 177 . B In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. [ Footnote 15 ] Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; [ Footnote 16 ] the protection of the confidentiality of Page 418 U. S. 706 Presidential communications has similar constitutional underpinnings. The second ground asserted by the President's counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere, Humphrey's Executor v. United States, 295 U. S. 602 , 295 U. S. 629 -630 (1935); Kilbourn v. Thompson, 103 U. S. 168 , 103 U. S. 190 -191 (1881), insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications. However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. Page 418 U. S. 707 The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. "While the Constitution diffuses power the better to secure liberty, it also contemplate that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S. 635 (Jackson, J., concurring). To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III. C . Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. The right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President. United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694) (CC Va. 1807). Page 418 U. S. 708 The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution. [ Footnote 17 ] In Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973), the Court of Appeals held that such Presidential communications are "presumptively privileged," id. at 75, 487 F.2d at 717, and this position is accepted by both parties in the present litigation. We agree with Mr. Chief Justice Marshall's observation, therefore, that "[i]n no case of his kind would a court be required to proceed against the president as against an ordinary individual." United States v. Burr, 25 F. Cas. at 192. But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This Page 418 U. S. 709 is nowhere more profoundly manifest than, in our view, that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer." Berger v. United States, 295 U.S. at 295 U. S. 88 . We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. Only recently the Court restated the ancient proposition of law, albeit in the context of a grand jury inquiry, rather than a trial, "that 'the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common law, or statutory privilege, United States v. Bryan , 339 U.S. [323, 339 U. S. 331 (1950)]; Blackmer v. United States, 284 U. S. 421 , 284 U. S. 438 (1932). . . ." Branzburg v. Hayes, 408 U. S. 665 , 408 U. S. 688 (1972). The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man "shall be compelled in any criminal case to be a witness against himself." And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence. These and other interests are recognized in law by privileges Page 418 U. S. 710 against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth. [ Footnote 18 ] In this case, the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties, the courts have traditionally shown the utmost deference to Presidential responsibilities. In C. & S. Air Lines v. Waterman S.S. Corp., 333 U. S. 103 , 333 U. S. 111 (1948), dealing with Presidential authority involving foreign policy considerations, the Court said: "The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret." In United States v. Reynolds, 345 U. S. 1 (1953), dealing Page 418 U. S. 711 with a claimant's demand for evidence in a Tort Claims Act case against the Government, the Court said: "It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers." Id. at 345 U. S. 10 . No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based. The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. In this case, we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair Page 418 U. S. 712 administration of criminal justice. [ Footnote 19 ] The interest in preserving confidentiality is weighty indeed, and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution. [ Footnote 20 ] On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the court. A President's acknowledged need for confidentiality Page 418 U. S. 713 in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts, a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. We conclude that, when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. D We have earlier determined that the District Court did not err in authorizing the issuance of the subpoena. If a President concludes that compliance with a subpoena would be injurious to the public interest, he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was "essential to the justice of the [pending criminal] case." United States v. Burr, 25 F. Cas. at 192. Here, the District Court treated the material as presumptively privileged, proceeded to find that the Special Page 418 U. S. 714 Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in camera examination of the subpoenaed material. On the basis of our examination of the record, we are unable to conclude that the District Court erred in ordering the inspection. Accordingly, we affirm the order of the District Court that subpoenaed materials be transmitted to that court. We now turn to the important question of the District Court's responsibilities in conducting the in camera examination of Presidential materials or communications delivered under the compulsion of the subpoena duces tecum. E Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of the issues raised by the petitions for certiorari. Those issues now having been disposed of, the matter of implementation will rest with the District Court. "[T]he guard, furnished to [the President] to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a [district] court after those subpoenas have issued; not in any circumstance which is to precede their being issued." United States v. Burr, 25 F. Cas. at 34. Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. At this stage, the District Court is not limited to representations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordinary situation, it is obvious that the District Court has Page 418 U. S. 715 a very heavy responsibility to see to it that Presidential conversations, which are either not relevant or not admissible, are accorded that high degree of respect due the President of the United States. Mr. Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was extraordinarily careful to point out that "[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual." 25 F. Cas. at 192. Marshall's statement cannot be read to mean in any sense that a President is above the law, but relates to the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article. Moreover, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any "ordinary individual." It is therefore necessary [ Footnote 21 ] in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested in United States v. Burr, supra, and will discharge his responsibility to see to Page 418 U. S. 716 it that, until released to the Special Prosecutor, no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status, and should be returned under seal to its lawful custodian. Since this matter came before the Court during the pendency of a criminal prosecution, and on representations that time is of the essence, the mandate shall issue forthwith. Affirmed. MR. JUSTICE REHNQUIST took no part in the consideration or decision of these cases. * Together with No. 73-1834, Nixon, President of the United States v. United States, also on certiorari before judgment to the same court. [ Footnote 1 ] See 28 U.S.C. §§ 1254(1) and 2101(e) and our Rule 20. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952); United States v. United Mine Workers, 330 U. S. 258 (1947); Carter v. Carter Coal Co, 298 U. S. 238 (1936); Rickert Rice Mills v. Fontenot, 297 U. S. 110 (1936); Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935); Norman v. Baltimore & Ohio R. Co, 294 U. S. 240 (1935) [ Footnote 2 ] The cross-petition in No. 73-1824 raised the issue whether the grand jury acted within its authority in naming the President as an unindicted coconspirator. Since we find resolution of this issue unnecessary to resolution of the question whether the claim of privilege is to prevail, the cross-petition for certiorari is dismissed as improvidently granted and the remainder of this opinion is concerned with the issues raised in No. 73-1766. On June 19, 1974, the President's counsel moved for disclosure and transmittal to this Court of all evidence presented to the grand jury relating to its action in naming the President as an unindicted coconspirator. Action on this motion was deferred pending oral argument of the case, and is now denied. [ Footnote 3 ] The seven defendants were John N. Mitchell, H. R. Haldeman, John D. Ehrlichman, Charles W. Colson, Robert C. Mardian, Kenneth W. Parkinson, and Gordon Strachan. Each has occupied either a position of responsibility on the White House Staff or a position with the Committee for the Re-election of the President. Colson entered a guilty plea on another charge, and is no longer a defendant. [ Footnote 4 ] The President entered a special appearance in the District Court on June 6 and requested that court to lift its protective order regarding the naming of certain individuals as coconspirators and to any additional extent deemed appropriate by the Court. This motion of the President was based on the ground that the disclosures to the news media made the reasons for continuance of the protective order no longer meaningful. On June 7, the District Court removed its protective order and, on June 10, counsel for both parties jointly moved this Court to unseal those parts of the record which related to the action of the grand jury regarding the President. After receiving a statement in opposition from the defendants, this Court denied that motion on June 15, 1974, except for the grand jury's immediate finding relating to the status of the President as an unindicted coconspirator. 417 U.S. 960. [ Footnote 5 ] The specific meetings and conversations are enumerated in a schedule attached to the subpoena. App. 42a-46a. [ Footnote 6 ] At the joint suggestion of the Special Prosecutor and counsel for the President, and with the approval of counsel for the defendants, further proceedings in the District Court were held in camera. [ Footnote 7 ] The parties have suggested that this Court has jurisdiction on other grounds. In view of our conclusion that there is jurisdiction under 28 U.S.C. § 1254(1) because the District Court's order was appealable, we need not decide whether other jurisdictional vehicles are available. [ Footnote 8 ] The regulation issued by the Attorney General pursuant to his statutory authority vests in the Special Prosecutor plenary authority to control the course of investigations and litigation related to "all offenses arising out of the 1972 Presidential Election for which the Special Prosecutor deems it necessary and appropriate to assume responsibility, allegations involving the President, members of the White House staff, or Presidential appointees, and any other matters which he consents to have assigned to him by the Attorney General." 38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805. In particular, the Special Prosecutor was given full authority, inter alia, "to contest the assertion of Executive Privilege' . . . and handl[e] all aspects of any cases within his jurisdiction." Id. at 30739. The regulation then goes on to provide: "In exercising this authority, the Special Prosecutor will have the greatest degree of independence that is consistent with the Attorney General's statutory accountability for all matters falling within the jurisdiction of the Department of Justice. The Attorney General will not countermand or interfere with the Special Prosecutor's decisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney General about the conduct of his duties and responsibilities. In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given, the Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part and without the President's first consulting the Majority and the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary Committees of the Senate and House of Representatives and ascertaining that their consensus is in accord with his proposed action." [ Footnote 9 ] That this was the understanding of Acting Attorney General Robert Bork, the author of the regulation establishing the independence of the Special Prosecutor, is shown by his testimony before the Senate Judiciary Committee: "Although it is anticipated that Mr. Jaworski will receive cooperation from the White House in getting any evidence he feels he needs to conduct investigations and prosecutions, it is clear and understood on all sides that he has the power to use judicial processes to pursue evidence if disagreement should develop." Hearings on the Special Prosecutor before the Senate Committee on the Judiciary, 93d Cong., 1st Sess., pt. 2, p. 450 (1973). Acting Attorney General Bork gave similar assurances to the House Subcommittee on Criminal Justice. Hearings on H. J Res. 784 and H.R. 10937 before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d Cong., 1st Sess., 266 (1973). At his confirmation hearings, Attorney General William Saxbe testified that he shared Acting Attorney General Bork's views concerning the Special Prosecutor's authority to test any claim of executive privilege in the courts. Hearings on the Nomination of William B. Saxbe to be Attorney General before the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 9 (1973). [ Footnote 10 ] At his confirmation hearings, Attorney General William Saxbe testified that he agreed with the regulation adopted by Acting Attorney General Bork, and would not remove the Special Prosecutor except for "gross impropriety." Id. at 5-6, 8-10. There is no contention here that the Special Prosecutor is guilty of any such impropriety. [ Footnote 11 ] The Court quoted a statement of a member of the advisory committee that the purpose of the Rule was to bring documents into court "in advance of the time that they are offered in evidence, so that they may then be inspected in advance, for the purpose . . . of enabling the party to see whether he can use [them] or whether he wants to use [them]." 341 U.S. at 341 U. S. 220 n. 5. The Manual for Complex and Multidistrict Litigation published by the Federal Judicial Center recommends that use of Rule 17(c) be encouraged in complex criminal cases in order that each party may be compelled to produce its documentary evidence well in advance of trial and in advance of the time it is to be offered. P. 150. [ Footnote 12 ] The District Court found here that it was faced with "the more unusual situation . . . where the subpoena, rather than being directed to the government by defendants, issues to what, as a practical matter, is a third party." United States v. Mitchell, 377 F. Supp. 1326 , 1330 (DC 1974). The Special Prosecutor suggests that the evidentiary requirement of Bowman Dairy Co. and Iozia does not apply in its full vigor when the subpoena duces tecum is issued to third parties, rather than to government prosecutors. Brief for United States 128-129. We need not decide whether a lower standard exists, because we are satisfied that the relevance and evidentiary nature of the subpoenaed tapes were sufficiently shown as a preliminary matter to warrant the District Court's refusal to quash the subpoena. [ Footnote 13 ] Such statements are declarations by a party defendant that "would surmount all objections based on the hearsay rule . . ." and, at least as to the declarant himself, "would be admissible for whatever inferences" might be reasonably drawn. United States v. Matlock, 415 U. S. 164 , 415 U. S. 172 (1974). On Lee v. United States, 343 U. S. 747 , 343 U. S. 757 (1952). See also C. McCormick, Evidence § 270, pp. 651-652 (2d ed.1972). [ Footnote 14 ] As a preliminary matter, there must be substantial, independent evidence of the conspiracy, at least enough to take the question to the jury. United States v. Vaught, 485 F.2d 320, 323 (CA4 1973); United States v. Hoffa, 349 F.2d 20, 412 (CA6 1965), aff'd on other grounds, 385 U. S. 293 (1966); United States v. Santos, 385 F.2d 43, 45 (CA7 1967), cert. denied, 390 U.S. 954 (1968); United States v. Morton, 483 F.2d 573, 576 (CA8 1973); United States v. Spanos, 462 F.2d 1012, 1014 (CA9 1972); Carbo v. United States, 314 F.2d 718, 737 (CA9 1963), cert. denied, 377 U.S. 953 (1964). Whether the standard has been satisfied is a question of admissibility of evidence to be decided by the trial judge. [ Footnote 15 ] There is nothing novel about governmental confidentiality. The meetings of the Constitutional Convention in 1787 were conducted in complete privacy. 1 M. Farrand, The Records of the Federal Convention of 1787, pp. xi-xxv (1911). Moreover, all records of those meetings were sealed for more than 30 years after the Convention. See 3 Stat. 475, 15th Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledged that, without secrecy, no constitution of the kind that was developed could have been written. C. Warren, The Making of the Constitution 134-139 (1937). [ Footnote 16 ] The Special Prosecutor argues that there is no provision in the Constitution for a Presidential privilege as to the President's communications corresponding to the privilege of Members of Congress under the Speech or Debate Clause. But the silence of the Constitution on this score is not dispositive. "The rule of constitutional interpretation announced in McCulloch v. Maryland , 4 Wheat. 316, that that which was reasonably appropriate and relevant to the exercise of a granted power was to be considered as accompanying the grant, has been so universally applied that it suffices merely to state it." Marshall v. Gordon, 243 U. S. 521 , 243 U. S. 537 (1917). [ Footnote 17 ] "Freedom of communication vital to fulfillment of the aims of wholesome relationships is obtained only by removing the specter of compelled disclosure. . . . [G]overnment . . . needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning." Carl Zeiss Stiftung v. v. E. B. Carl Zeis, Jena, 4 F.R.D. 318, 325 (DC 1966). See Nixon v. Sirica, 159 U.S.App.D.C. 58, 71, 487 F.2d 700, 713 (1973); Kaiser Aluminum & Chem. Corp. v. United States, 141 Ct.Cl. 38, 157 F. Supp. 939 (1958) (Reed, J.); The Federalist, No. 64 (S. Mittell ed.1938). [ Footnote 18 ] Because of the key role of the testimony of witnesses in the judicial process, courts have historically been cautious about privileges. Mr. Justice Frankfurter, dissenting in Elkins v. United States, 364 U. S. 206 , 364 U. S. 234 (1960), said of this: "Limitations are properly placed upon the operation of this general principle only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." [ Footnote 19 ] We are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets. We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials. [ Footnote 20 ] Mr. Justice Cardozo made this point in an analogous context. Speaking for a unanimous Court in Clark v. United States, 289 U. S. 1 (1933), he emphasized the importance of maintaining the secrecy of the deliberations of a petit jury in a criminal case. "Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world." Id. at 289 U. S. 13 . Nonetheless, the Court also recognized that isolated inroads on confidentiality designed to serve the paramount need of the criminal law would not vitiate the interests served by secrecy: "A juror of integrity and reasonable firmness will not fear to speak his mind if the confidences of debate are barred to the ears of mere impertinence or malice. He will not expect to be shielded against the disclosure of his conduct in the event that there is evidence reflecting upon his honor. The chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice." Id. at 289 U. S. 16 . [ Footnote 21 ] When the subpoenaed material is delivered to the District Judge in camera, questions may arise as to the excising of parts, and it lies within the discretion of that court to seek the aid of the Special Prosecutor and the President's counsel for in camera consideration of the validity of particular excision, whether the basis of excision is relevancy or admissibility or under such cases as United States v. Reynolds, 345 U. S. 1 (1953), or C. & S. Air Line v. Waterman S.S. Corp., 333 U. S. 103 (1948).

Here is a summary of the key points from the case: - The case involves a conflict between the Special Prosecutor and the President of the United States regarding the subpoena of certain tapes and documents related to conversations and meetings between the President and others. - The President claimed executive privilege and filed a motion to quash the subpoena, but the District Court ordered an in camera examination of the materials. - The Supreme Court granted both the Special Prosecutor's and the President's petitions for a writ of certiorari before judgment. - The Court held that the District Court's order was appealable and properly before the Court for review. - The dispute between the Special Prosecutor and the President presents a justiciable controversy, and the Court rejected the President's argument that it was an "intra-executive" conflict. - The Court recognized the importance of confidentiality in the presidential decision-making process but also emphasized the need for relevant evidence in criminal trials. - The Court suggested that the District Court may seek the aid of both parties for in camera consideration of the validity of particular excisions of the subpoenaed materials.

Separation of Powers

Dames & Moore v. Regan

https://supreme.justia.com/cases/federal/us/453/654/

U.S. Supreme Court Dames & Moore v. Regan, 453 U.S. 654 (1981) Dames & Moore v. Regan No. 80-2078 Argued June 24, 1981 Decided July 2, 1981 453 U.S. 654 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus In response to the seizure of American personnel as hostages at the American Embassy in Tehran, Iran, President Carter, pursuant to the International Emergency Economic Powers Act (IEEPA), declared a national emergency on November 14, 1979, and blocked the removal or transfer of all property and interests in property of the Government of Iran which were subject to the jurisdiction of the United States. The Treasury Department then issued implementing regulations providing that, "[u]nless licensed or authorized . . . , any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which, on or since [November 14, 1979,] there existed an interest of Iran," and that any licenses or authorizations granted could be "amended, modified, or revoked at any time." The President then granted a general license that authorized certain judicial proceedings, including prejudgment attachments, against Iran, but did not allow the entry of any judgment or decree. On December 19, 1979, petitioner filed suit in Federal District Court against the Government of Iran, the Atomic Energy Organization of Iran, and a number of Iranian banks, alleging that it was owed a certain amount of money for services performed under a contract with the Atomic Energy Organization. The District Court issued orders of attachment against the defendants' property, and property of certain Iranian banks was then attached to secure any judgment that might be entered against them. Subsequently, on January 19, 1981, the Americans held hostage were released by Iran pursuant to an agreement with the United States. Under this agreement, the United States was obligated to terminate all legal proceedings in United States courts involving claims of United States nationals against Iran, to nullify all attachments and judgments obtained therein, and to bring about the termination of such claims through binding arbitration in an Iran-United States Claims Tribunal. The President at the same time issued implementing Executive Orders revoking all licenses that permitted the exercise of "any right, power, or privilege" with regard to Iranian funds, nullifying all non-Iranian interests in such assets acquired after the blocking order of November Page 453 U. S. 655 14, 1979, and requiring banks holding Iranian assets to transfer them to the Federal Reserve Bank of New York to be held or transferred as directed by the Secretary of the Treasury. On February 24, 1981, President Reagan issued an Executive Order which ratified President Carter's Executive Orders and "suspended" all claims that may be presented to the Claims Tribunal, but which provided that the suspension of a claim terminates if the Claims Tribunal determines that it has no jurisdiction over the claim. Meanwhile, the District Court granted summary judgment for petitioner and awarded it the amount claimed under the contract plus interest, but stayed execution of the judgment pending appeal by the defendants, and ordered that all prejudgment attachments against the defendants be vacated and that further proceedings against the bank defendants be stayed. Petitioner then filed an action in Federal District Court against the United States and the Secretary of the Treasury, seeking to prevent enforcement of the various Executive Orders and regulations implementing the agreement with Iran. It was alleged that the actions of the President and the Secretary of the Treasury were beyond their statutory and constitutional powers, and, in any event, were unconstitutional to the extent they adversely affect petitioner's final judgment against Iran and the Atomic Energy Organization, its execution of that judgment, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted, but entered an injunction pending appeal to the Court of Appeals prohibiting the United States from requiring the transfer of Iranian property that is subject to any writ of attachment issued by any court in petitioner's favor. This Court then granted certiorari before judgment. Held: 1. The President was authorized to nullify the attachments and order the transfer of Iranian assets by the provision of the IEEPA, 50 U.S.C. § 1702(a)(1)(B), which empowers the President to "compel," "nullify," or "prohibit" any "transfer" with respect to, or transactions involving, any property subject to the jurisdiction of the United States, in which any foreign country has any interest. Pp. 453 U. S. 669 -674. (a) Nothing in the legislative history of either § 1702 or § 5(b) of the Trading With the Enemy Act (TWEA), from which § 1702 was directly drawn, requires reading out of § 1702 all meaning to the words "transfer," "compel," or "nullify," and limiting the President's authority in this case only to continuing the freeze, as petitioner claims. To the contrary, both the legislative history and cases interpreting the TWEA fully sustain the President's broad authority when acting under Page 453 U. S. 656 such congressional grant of power. And the changes brought about by the enactment of the IEEPA did not in any way affect the President's authority to take the specific action taken here. By the time petitioner brought the instant action, the President had already entered the freeze order, and petitioner proceeded against the blocked assets only after the Treasury Department had issued revocable licenses authorizing such proceedings and attachments. The attachments obtained by petitioner, being subject to revocation, were specifically made subordinate to further actions which the President might take under the IEEPA. Pp. 453 U. S. 671 -673. (b) Blocking orders, such as the one here, permit the President to maintain foreign assets at his disposal for use in negotiating the resolution of a declared national emergency, and the frozen assets serve as a "bargaining chip" to be used by the President when dealing with a hostile country. To limit the President's authority, as petitioner urges, would mean that claimants could minimize or eliminate this "bargaining chip" through attachments or similar encumbrances. Pp. 453 U. S. 673 -674. (c) Petitioner's interest in its attachments was conditional and revocable, and as such, the President's action nullifying the attachments and ordering the transfer of the assets did not effect a taking of property in violation of the Fifth Amendment absent just compensation. P. 453 U. S. 674 , n. 6. (d) Because the President's action in nullifying the attachments and ordering the transfer of assets was taken pursuant to specific congressional authorization, it is "supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 637 (Jackson, J., concurring). Under the circumstances of this case, petitioner has not sustained that burden. P. 453 U. S. 674 . 2. On the basis of the inferences to be drawn from the character of the legislation, such as the IEEPA and the Hostage Act, which Congress has enacted in the area of the President's authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement, the President was authorized to suspend claims pursuant to the Executive Order in question here. Pp. 453 U. S. 675 -688. (a) Although neither the IEEPA nor the Hostage Act constitutes specific authorization for the President's suspension of the claims, these statutes are highly relevant as an indication of congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. Pp. 453 U. S. 675 -679. (b) The United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. Page 453 U. S. 657 Although those settlements have sometimes been made by treaty, there has also been a longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate, and this practice continues at the present time. Pp. 453 U. S. 679 -680. (c) That Congress has implicitly approved the practice of claims settlement by executive agreement is best demonstrated by Congress' enactment of the International Claims Settlement Act of 1919, which created the International Claims Commission, now the Foreign Claims Settlement Commission, and gave it jurisdiction to make final and binding decisions with respect to claims by United States nationals against settlement funds. And the legislative history of the IEEPA further reveals that Congress has accepted the authority of the President to enter into settlement agreements. Pp. 453 U. S. 680 -682. (d) In addition to congressional acquiescence in the President's power to settle claims, prior cases of this Court have also recognized that the President has some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. See, e.g., United States v. Pink, 315 U. S. 203 . Pp. 453 U. S. 682 -683. (e) Petitioner's argument that all settlement claims prior to 1952, when the United States had adhered to the doctrine of absolute sovereign immunity should be discounted because of the evolution of sovereign immunity, is refuted by the fact that, since 1952, there have been at least 10 claim settlements by executive agreement. Thus, even if the pre-1952 cases should be disregarded, congressional acquiescence in settlement agreements since that time supports the President's power to act here. Pp. 453 U. S. 683 -684. (f) By enacting the Foreign Sovereign Immunities Act of 1976 (FSIA), which granted personal and subject matter jurisdiction to federal district courts over commercial suits by claimants against foreign states that waived immunity, Congress did not divest the President of the authority to settle claims. The President, by suspending petitioner's claim, has not circumscribed the jurisdiction of the United States courts in violation of Art. III, but has simply effected a change in the substantive law governing the lawsuit. The FSIA was designed to remove one particular barrier to suit, namely, sovereign immunity, and cannot be read as prohibiting the President from settling claims of United States nationals against foreign governments. Pp. 453 U. S. 684 -686. (g) Long continued executive practice, known to and acquiesced in by Congress, raises a presumption that the President's action has been taken pursuant to Congress' consent. Such practice is present here, and such a presumption is also appropriate. P. 453 U. S. 686 . (h) The conclusion that the President's action in suspending petitioner's Page 453 U. S. 658 claim did not exceed his powers is buttressed by the fact the President has provided an alternative forum, the Claims Tribunal, to settle the claims of the American nationals. Moreover, Congress has not disapproved the action taken here. Pp. 453 U. S. 686 -688. (i) While it is not concluded that the President has plenary power to settle claims, even against foreign governmental entities, nevertheless, where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between this country and another, and Congress has acquiesced in the President's action, it cannot be said that the President lacks the power to settle such claim. P. 453 U. S. 688 . 3. The possibility that the President's actions with respect to the suspension of the claims may effect a taking of petitioner's property in violation of the Fifth Amendment in the absence of just compensation makes ripe for adjudication the question whether petitioner will have a remedy at law in the Court of Claims. And there is no jurisdictional obstacle to an appropriate action in that court under the Tucker Act. Pp. 453 U. S. 688 -690. Affirmed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined; in all but n. 6 of which POWELL, J., joined; and in all but Part V of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part, post, p. 453 U. S. 690 . POWELL, J., filed an opinion concurring in part and dissenting in part, post, p. 453 U. S. 690 . Page 453 U. S. 659 JUSTICE REHNQUIST delivered the opinion of the Court. The questions presented by this case touch fundamentally upon the manner in which our Republic is to be governed. Throughout the nearly two centuries of our Nation's existence under the Constitution, this subject has generated considerable debate. We have had the benefit of commentators such a John Jay, Alexander Hamilton, and James Madison writing in The Federalist Paper at the Nation's very inception, the benefit of astute foreign observers of our system such as Page 453 U. S. 660 Alexis de Tocqueville and James Bryce writing during the first century of the Nation's existence, and the benefit of many other treatises, as well as more than 400 volumes of reports of decisions of this Court. As these writings reveal, it is doubtless both futile and perhaps dangerous to find any epigrammatical explanation of how this country has been governed. Indeed, as Justice Jackson noted, "[a] judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 634 (1952) (concurring opinion). Our decision today will not dramatically alter this situation, for the Framers "did not make the judiciary the overseer of our government." Id. at 343 U. S. 594 (Frankfurter, J., concurring). We are confined to a resolution of the dispute presented to us. That dispute involves various Executive Orders and regulations by which the President nullified attachments and liens on Iranian assets in the United States, directed that these assets be transferred to Iran, and suspended claims against Iran that may be presented to an International Claims Tribunal. This action was taken in an effort to comply with an Executive Agreement between the United States and Iran. We granted certiorari before judgment in this case, and set an expedited briefing and argument schedule, because lower courts had reached conflicting conclusions on the validity of the President's actions and, as the Solicitor General informed us, unless the Government acted by July 19, 1981, Iran could consider the United States to be in breach of the Executive Agreement. But before turning to the facts and law which we believe determine the result in this case, we stress that the expeditious treatment of the issues involved by all of the courts which have considered the President's actions makes us acutely aware of the necessity to rest decision on the narrowest possible ground capable of deciding the case. Ashwander v. TVA , Page 453 U. S. 661 297 U. S. 288 , 297 U. S. 347 (1936) (Brandeis, J., concurring). This does not mean that reasoned analysis may give way to judicial fiat. It does mean that the statement of Justice Jackson -- that we decide difficult cases presented to us by virtue of our commissions, not our competence -- is especially true here. We attempt to lay down no general "guidelines" covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case. Perhaps it is because it is so difficult to reconcile the foregoing definition of Art. III judicial power with the broad range of vitally important day-to-day questions regularly decided by Congress or the Executive, without either challenge or interference by the Judiciary, that the decisions of the Court in this area have been rare, episodic, and afford little precedential value for subsequent cases. The tensions present in any exercise of executive power under the tripartite system of Federal Government established by the Constitution have been reflected in opinions by Members of this Court more than once. The Court stated in United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 299 U. S. 319 -320 (1936): "[W] e are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." And yet, 16 years later, Justice Jackson, in his concurring opinion in Youngstown, supra, which both parties agree brings together as much combination of analysis and common sense as there is in this area, focused not on the "plenary and exclusive Page 453 U. S. 662 power of the President," but rather responded to a claim of virtually unlimited powers for the Executive by noting: "The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image." 343 U.S. at 343 U. S. 641 . As we now turn to the factual and legal issues in this case, we freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal, and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances. I On November 4, 1979, the American Embassy in Tehran was seized and our diplomatic personnel were captured and held hostage. In response to that crisis, President Carter, acting pursuant to the International Emergency Economic Powers Act, 91 Stat. 1626, 50 U.S.C. §§ 1701-1706 (1976 ed., Supp. III) (hereinafter IEEPA), declared a national emergency on November 14, 1979, [ Footnote 1 ] and blocked the removal or transfer of "all property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or become subject to Page 453 U. S. 663 the jurisdiction of the United States. . . ." Exec.Order No. 12170, 3 CFR 457 (1980), note following 50 U.S.C. 1701 (1976 ed. Supp. III). [ Footnote 2 ] President Carter authorized the Secretary of the Treasury to promulgate regulations carrying out the blocking order. On November 15, 1979, the Treasury Department's Office of Foreign Assets Control issued a regulation providing that, "[u]nless licensed or authorized . . . any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which, on or since [November 14, 1979,] there existed an interest of Iran." 31 CFR § 535.203(e) (1980). The regulations also made clear that any licenses or authorizations granted could be "amended, modified, or revoked at any time." § 535.805. [ Footnote 3 ] On November 26, 1979, the President granted a general license authorizing certain judicial proceedings against Iran, but which did not allow the "entry of any judgment or of any decree or order of similar or analogous effect. . . ." § 535.504(a). On December 19, 1979, a clarifying regulation was issued stating that "the general authorization for judicial proceedings contained in § 535.504(a) includes prejudgment attachment." § 535.418. On December 19, 1979, petitioner Dames & Moore filed suit in the United States District Court for the Central District of California against the Government of Iran, the Atomic Page 453 U. S. 664 Energy Organization of Iran, and a number of Iranian banks. In its complaint, petitioner alleged that its wholly owned subsidiary, Dames & Moore International, S.R.L., was a party to a written contract with the Atomic Energy Organization, and that the subsidiary's entire interest in the contract had been assigned to petitioner. Under the contract, the subsidiary was to conduct site studies for a proposed nuclear power plant in Iran. As provided in the terms of the contract, the Atomic Energy Organization terminated the agreement for its own convenience on June 30, 1979. Petitioner contended, however, that it was owed $3,436,694.30 plus interest for services performed under the contract prior to the date of termination. [ Footnote 4 ] The District Court issued orders of attachment directed against property of the defendants, and the property of certain Iranian banks was then attached to secure any judgment that might be entered against them. On January 20, 1981, the Americans held hostage were released by Iran pursuant to an Agreement entered into the day before and embodied in two Declarations of the Democratic and Popular Republic of Algeria. Declaration of the Government of the Democratic and Popular Republic of Algeria (App. to Pet. for Cert. 21-29), and Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran ( id. at 335). The Agreement Page 453 U. S. 665 stated that "[i]t is the purpose of [the United States and Iran] . . . to terminate all litigation as between the Government of each party and the nationals of the other, and to bring about the settlement and termination of all such claims through binding arbitration." Id. at 21-22. In furtherance of this goal, the Agreement called for the establishment of an Iran-United States Claims Tribunal which would arbitrate any claims not settled within six months. Awards of the Claims Tribunal are to be "final and binding," and "enforceable . . . in the courts of any nation in accordance with its laws." Id. at 32. Under the Agreement, the United States is obligated "to terminate all legal proceedings in United States courts involving claims of United States persons and institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration." Id. at 22. In addition, the United States must "act to bring about the transfer" by July 19, 1981, of all Iranian assets held in this country by American banks. Id. at 24-25. One billion dollars of these assets will be deposited in a security account in the Bank of England, to the account of the Algerian Central Bank, and used to satisfy awards rendered against Iran by the Claims Tribunal. Ibid. On January 19, 1981, President Carter issued a series of Executive Orders implementing the terms of the agreement. Exec.Orders Nos. 12276-12285, 46 Fed.Reg. 7913-7932. These Orders revoked all licenses permitting the exercise of "any right, power, or privilege" with regard to Iranian funds, securities, or deposits; "nullified" all non-Iranian interests in such assets acquired subsequent to the blocking order of November 14, 1979; and required those banks holding Iranian assets to transfer them "to the Federal Reserve Bank of New Page 453 U. S. 666 York, to be held or transferred as directed by the Secretary of the Treasury." Exec.Order No. 12279, 46 Fed.Reg. 7919. On February 24. 1081, President Reagan issued an Executive Order in which he "ratified" the January 19th Executive Orders. Exec.Order No. 12294, 46 Fed.Reg. 14111. Moreover, he "suspended" all "claims which may be presented to the . . . Tribunal," and provided that such claims "shall have no legal effect in any action now pending in any court of the United States." Ibid. The suspension of any particular claim terminates if the Claims Tribunal determines that it has no jurisdiction over that claim; claims are discharged for all purposes when the Claims Tribunal either awards some recovery and that amount is paid or determines that no recovery is due. Ibid. Meanwhile, on January 27, 1981, petitioner moved for summary judgment in the District Court against the Government of Iran and the Atomic Energy Organization, but not against the Iranian banks. The District Court granted petitioner's motion and awarded petitioner the amount claimed under the contract, plus interest. Thereafter, petitioner attempted to execute the judgment by obtaining writs of garnishment and execution in state court in the State of Washington, and a sheriff's sale of Iranian property in Washington was noticed to satisfy the judgment. However, by order of May 28, 1981, as amended by order of June 8, the District Court stayed execution of its judgment pending appeal by the Government of Iran and the Atomic Energy Organization. The District Court also ordered that all prejudgment attachments obtained against the Iranian defendants be vacated, and that further proceedings against the bank defendants be stayed in light of the Executive Orders discussed above. App. to Pet. for Cert. 106-107. On April 28, 1981, petitioner filed this action in the District Court for declaratory and injunctive relief against the United States and the Secretary of the Treasury, seeking to Page 453 U. S. 667 prevent enforcement of the Executive Orders and Treasury Department regulations implementing the Agreement with Iran. In its complaint, petitioner alleged that the actions of the President and the Secretary of the Treasury implementing the Agreement with Iran were beyond their statutory and constitutional powers, and, in any event, were unconstitutional to the extent they adversely affect petitioner's final judgment against the Government of Iran and the Atomic Energy Organization, its execution of that judgment in the State of Washington, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks. Id. at 1-12. On May 28, 1981, the District Court denied petitioner's motion for a preliminary injunction and dismissed petitioner's complaint for failure to state a claim upon which relief could be granted. Id. at 106-107. Prior to the District Court's ruling, the United States Courts of Appeals for the First and the District of Columbia Circuits upheld the President's authority to issue the Executive Orders and regulations challenged by petitioner. See Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d 800 (CA1 1981); American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. 468, 657 F.2d 430 (1981). On June 3, 1981, petitioner filed a notice of appeal from the District Court's order, and the appeal was docketed in the United States Court of Appeals for the Ninth Circuit. On June 4, the Treasury Department amended its regulations to mandate "the transfer of bank deposits and certain other financial assets of Iran in the United States to the Federal Reserve Bank of New York by noon, June 19." App. to Pet. for Cert. 151-152. The District Court, however, entered an injunction pending appeal prohibiting the United States from requiring the transfer of Iranian property that is subject to "any writ of attachment, garnishment, judgment, levy, or other judicial lien" issued by any court in favor of petitioner. Id. at 168. Arguing that this is a case of "imperative public importance," petitioner then sought a writ of certiorari before Page 453 U. S. 668 judgment. Pet. for Cert. 10. See 28 U.S.C. § 2101 (e); this Court's Rule 18. Because the issues presented here are of great significance and demand prompt resolution, we granted the petition for the writ, adopted an expedited briefing schedule, and set the case for oral argument on June 24, 1981. 452 U.S. 932 (1981). II The parties and the lower courts, confronted with the instant questions, have all agreed that much relevant analysis is contained in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). Justice Black's opinion for the Court in that case, involving the validity of President Truman's effort to seize the country's steel mills in the wake of a nationwide strike, recognized that "[t]he President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Id. at 343 U. S. 585 . Justice Jackson's concurring opinion elaborated in a general way the consequences of different types of interaction between the two democratic branches in assessing Presidential authority to act in any given case. When the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress. In such a case, the executive action "would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Id. at 343 U. S. 637 . When the President acts in the absence of congressional authorization, he may enter "a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." Ibid. In such a case, the analysis becomes more complicated, and the validity of the President's action, at least so far as separation of powers principles are concerned, hinges on a consideration of all the circumstances which might shed light on the views of the Legislative Branch toward such action, including "congressional Page 453 U. S. 669 inertia, indifference or quiescence." Ibid. Finally, when the President acts in contravention of the will of Congress, "his power is at its lowest ebb," and the Court can sustain his actions "only by disabling the Congress from acting upon the subject." Id. at 343 U. S. 637 -638. Although we have in the past found, and do today find, Justice Jackson's classification of executive actions into three general categories analytically useful, we should be mindful of Justice Holmes' admonition, quoted by Justice Frankfurter in Youngstown, supra, at 343 U. S. 597 (concurring opinion), that "[t]he great ordinances of the Constitution do not establish and divide fields of black and white." Springer v. Philippine Islands, 277 U. S. 189 , 277 U. S. 209 (1928) (dissenting opinion). Justice Jackson himself recognized that his three categories represented "a somewhat over-simplified grouping," 343 U.S. at 343 U. S. 635 , and it is doubtless the case that executive action in any particular instance falls not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail. III In nullifying post-November 14, 1979, attachments and directing those persons holding blocked Iranian funds and securities to transfer them to the Federal Reserve Bank of New York for ultimate transfer to Iran, President Carter cited five sources of express or inherent power. The Government, however, has principally relied on § 203 of the IEEPA, 91 Stat. 1626, 50 U.S.C. § 1702(a)(1) (1976 ed., Supp. III), as authorization for these actions. Section 1702(a)(1) provides in part: "At the times and to the extent specified in section 1701 of this title, the President may, under such regulations Page 453 U. S. 670 as he may prescribe, by means of instructions, licenses, or otherwise -- " "(A) investigate, regulate, or prohibit -- " "(i) any transactions in foreign exchange," "(ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof," "(iii) the importing or exporting of currency or securities, and" "(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest;" "by any person, or with respect to any property, subject to the jurisdiction of the United States." The Government contends that the acts of "nullifying" the attachments and ordering the "transfer" of the frozen assets are specifically authorized by the plain language of the above statute. The two Courts of Appeals that have considered the issue agreed with this contention. In Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, the Court of Appeals for the First Circuit explained: "The President relied on his IEEPA powers in November, 1979, when he 'blocked' all Iranian assets in this country, and again in January, 1981, when he 'nullified' interests acquired in blocked property, and ordered that property's transfer. The President's actions in this regard are in keeping with the language of IEEPA: initially he 'prevent[ed] and prohibit[ed]' 'transfers' of Iranian assets; later he 'direct[ed] and compel[led]' the Page 453 U. S. 671 'transfer' and 'withdrawal' of the assets, 'nullify[ing]' certain 'rights' and 'privileges' acquired in them." "Main argues that IEEPA does not supply the President with power to override judicial remedies, such as attachments and injunctions, or to extinguish 'interests' in foreign assets held by United States citizens. But we can find no such limitation in IEEPA's terms. The language of IEEPA is sweeping and unqualified. It provides broadly that the President may void or nullify the" "exercising [by any person of] any right, power or privilege with respect to . . . any property in which any foreign country has any interest. . . ." "50 U.S.C. § 1702(a)(1)(B)." 651 F.2d at 806-807 (emphasis in original). In American Int'l Group, Inc. v. Islamic Republic of Iran, the Court of Appeals for the District of Columbia Circuit employed a similar rationale in sustaining President Carter's action: "The Presidential revocation of the license he issued permitting prejudgment restraints upon Iranian assets is an action that falls within the plain language of the IEEPA. In vacating the attachments, he acted to" "nullify [and] void . . . any . . . exercising any right, power, or privilege with respect to . . . any property in which any foreign country . . . has any interest . . . by any person . . . subject to the jurisdiction of the United States." 211 U.S.App.D.C. at 477, 657 F.2d at 439 (footnote omitted). Petitioner contends that we should ignore the plain language of this statute because an examination of its legislative history, as well as the history of § 5(b) of the Trading With the Enemy Act (hereinafter TWEA), 40 Stat. 411, as amended, 50 U.S.C.App. § 5(b) (1976 ed. and Supp. III), from which the pertinent language of § 1702 is directly drawn, Page 453 U. S. 672 reveals that the statute was not intended to give the President such extensive power over the assets of a foreign state during times of national emergency. According to petitioner, once the President instituted the November 14, 1979, blocking order, § 1702 authorized him "only to continue the freeze or to discontinue controls." Brief for Petitioner 32. We do not agree, and refuse to read out of § 1702 all meaning to the words "transfer," "compel," or "nullify." Nothing in the legislative history of either § 1702 or § 5(b)of the TWEA requires such a result. To the contrary, we think both the legislative history and cases interpreting the TWEA fully sustain such a result. To the contrary, we think both the legislative history and cases interpreting the TWEA fully sustain the broad authority of the Executive when acting under this congressional grant of power. See, e.g., Orvis v. Brownell 345 U. S. 183 (1953). [ Footnote 5 ] Although Congress intended Page 453 U. S. 673 to limit the President's emergency power in peacetime, we do not think the changes brought about by the enactment of the IEEPA in any way affected the authority of the President to take the specific actions taken here. We likewise note that, by the time petitioner instituted this action, the President had already entered the freeze order. Petitioner proceeded against the blocked assets only after the Treasury Department had issued revocable licenses authorizing such proceedings and attachments. The Treasury Regulations provided that, "unless licensed," any attachment is null and void, 31 CFR § 535.203(e) (1980), and all licenses "may be amended, modified, or revoked at any time." § 535.805. As such, the attachments obtained by petitioner were specifically made subordinate to further actions which the President might take under the IEEPA. Petitioner was on notice of the contingent nature of its interest in the frozen assets. This Court has previously recognized that the congressional purpose in authorizing blocking orders is "to put control of foreign assets in the hands of the President. . . ." Propper v. Clark, 337 U. S. 472 , 337 U. S. 493 (1949). Such orders permit the President to maintain the foreign assets at his disposal for use in negotiating the resolution of a declared national emergency. The frozen assets serve as a "bargaining chip" to be used by the President when dealing with a hostile country. Accordingly, it is difficult to accept petitioner's argument, because the practical effect of it is to allow individual claimants throughout the country to minimize or wholly eliminate this "bargaining chip" through attachments, garnishments, or similar encumbrances on property. Neither the purpose the Page 453 U. S. 674 statute was enacted to serve nor its plain language supports such a result. [ Footnote 6 ] Because the President's action in nullifying the attachments and ordering the transfer of the assets was taken pursuant to specific congressional authorization, it is "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown, 343 U.S. at 343 U. S. 637 (Jackson, J., concurring). Under the circumstances of this case, we cannot say that petitioner has sustained that heavy burden. A contrary ruling would mean that the Federal Government as a whole lacked the power exercised by the President, see id. at 343 U. S. 636 -637, and that we are not prepared to say. Page 453 U. S. 675 IV Although we have concluded that the IEEPA constitutes specific congressional authorization to the President to nullify the attachments and order the transfer of Iranian assets, there remains the question of the President's authority to suspend claims pending in American courts. Such claims have, of course, an existence apart from the attachments which accompanied them. In terminating these claims through Executive Order No. 12294, the President purported to act under authority of both the IEEPA and 22 U.S.C. § 1732, the so-called "Hostage Act." [ Footnote 7 ] 46 Fed.Reg. 14111 (1981). We conclude that, although the IEEPA authorized the nullification of the attachments, it cannot be read to authorize the suspension of the claims. The claims of American citizens against Iran are not, in themselves, transactions involving Iranian property or efforts to exercise any rights with respect to such property. An in personam lawsuit, although it might eventually be reduced to judgment and that judgment might be executed upon, is an effort to establish liability and fix damages, and does not focus on any particular property within the jurisdiction. The terms of the IEEPA therefore do not authorize the President to suspend claims in American courts. This is the view of all the courts which have considered the question. Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d at 809-814; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. at 481, n. 15, 657 F.2d at 443, n. 15; The Marschalk Co. v. Iran National Airlines Corp., 518 F. Supp. 69 , 79 (SDNY Page 453 U. S. 676 1981); Electronic Data Systems Corp. v. Social Security Organization of Iran, 508 F. Supp. 1350 , 131 (ND Tex.1981). The Hostage Act, passed in 1868, provides: "Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress." Rev.Stat. § 2001, 22 U.S.C. § 1732. We are reluctant to conclude that this provision constitutes specific authorization to the President to suspend claims in American courts. Although the broad language of the Hostage Act suggests it may cover this case, there are several difficulties with such a view. The legislative history indicates that the Act was passed in response to a situation unlike the recent Iranian crisis. Congress in 1868 was concerned with the activity of certain countries refusing to recognize the citizenship of naturalized Americans traveling abroad and repatriating such citizens against their will. See, e.g., Cong.Globe, 40th Cong., 2d Sess., 4331 (1868) (Sen. Fessenden); id. at 4354 (Sen. Conness); see also 22 U.S.C. § 1731. These countries were not interested in returning the citizens in exchange for any sort of ransom. This also explains the reference in the Act to imprisonment "in violation of the rights of American citizenship." Although the Iranian hostage-taking violated international law and common decency, Page 453 U. S. 677 the hostages were not seized out of any refusal to recognize their American citizenship -- they were seized precisely because of their American citizenship. The legislative history is also somewhat ambiguous on the question whether Congress contemplated Presidential action such as that involved here, or rather simply reprisals directed against the offending foreign country and its citizens. See, e.g., Cong.Globe, 40th Cong., 2d Sess., 4205 (1868); American Int'l Group, Inc. v. Islamic Republic of Iran, supra, at 490-491, 657 F.2d at 452-453 (opinion of Mikva, J.). Concluding that neither the IEEPA nor the Hostage Act constitutes specific authorization of the President's action suspending claims, however, is not to say that these statutory provisions are entirely irrelevant to the question of the validity of the President's action. We think both statutes highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. As noted in Part III, supra, at 453 U. S. 670 -672, the IEEPA delegates broad authority to the President to act in times of national emergency with respect to property of a foreign country. The Hostage Act similarly indicates congressional willingness that the President have broad discretion when responding to the hostile acts of foreign sovereigns. As Senator Williams, draftsman of the language eventually enacted as the Hostage Act, put it: "If you propose any remedy at all, you must invest the Executive with some discretion, so that he may apply the remedy to a case as it may arise. As to England or France, he might adopt one policy to relieve a citizen imprisoned by either one of those countries; as to the Barbary powers, he might adopt another policy; as to the islands of the ocean, another. With different countries that have different systems of government, he might adopt different means." Cong.Globe, 40th Cong., 2d Sess., 4359 (1868). Page 453 U. S. 678 Proponents of the bill recognized that it placed a "loose discretion" in the President's hands, id. at 4238 (Sen. Stewart), but argued that "[s]omething must be intrusted to the Executive," and that "[t]he President ought to have the power to do what the exigencies of the case require to rescue [a] citizen from imprisonment." Id. at 4233, 4357 (Sen. Williams). An original version of the Act, which authorized the President to suspend trade with a foreign country and even arrest citizens of that country in the United States in retaliation, was rejected because "there may be a great variety of cases arising where other and different means would be equally effective, and where the end desired could be accomplished without resorting to such dangerous and violent measures." Id. at 4233 (Sen. Williams). Although we have declined to conclude that the IEEPA or the Hostage Act directly authorizes the President's suspension of claims for the reasons noted, we cannot ignore the general tenor of Congress' legislation in this area in trying to determine whether the President is acting alone, or at least with the acceptance of Congress. As we have noted, Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take, or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, "especially . . . in the areas of foreign policy and national security," imply "congressional disapproval" of action taken by the Executive. Haig v. Agee, ante at 453 U. S. 291 . On the contrary, the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to "invite" "measures on independent presidential responsibility," Youngstown, 343 U.S. at 343 U. S. 637 (Jackson, J., concurring). At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort Page 453 U. S. 679 engaged in by the President. It is to that history which we now turn. Not infrequently in affairs between nations, outstanding claims by nationals of one country against the government of another country are "sources of friction" between the two sovereigns. United States v. Pink, 315 U. S. 203 , 315 U. S. 225 (1942). To resolve these difficulties, nations have often entered into agreements settling the claims of their respective nationals. As one treatise writer puts it, international agreements settling claims by nationals of one state against the government of another "are established international practice reflecting traditional international theory." L. Henkin, Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. Though those settlements have sometimes been made by treaty, there has also been a longstanding practice of settling such claims by executive agreement, without the advice and consent of the Senate. [ Footnote 8 ] Under such agreements, the President has agreed to renounce or extinguish claims of United States nationals against foreign governments in return for lump-sum payments or the establishment of arbitration procedures. To be sure, many of these settlements were encouraged by the United States claimants themselves, since a claimant's only hope of obtaining any payment at all might lie in having his Government negotiate a diplomatic settlement on his behalf. But it is also undisputed Page 453 U. S. 680 that the "United States has sometimes disposed of the claims of its citizens without their consent, or even without consultation with them, usually without exclusive regard for their interests, as distinguished from those of the nation as a whole." Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of the United States § 213 (1965) (President "may waive or settle a claim against a foreign state . . . [even] without the consent of the [injured] national"). It is clear that the practice of settling claims continues today. Since 1952, the President has entered into at least 10 binding settlements with foreign nations, including an $80 million settlement with the People's Republic of China. [ Footnote 9 ] Crucial to our decision today is the conclusion that Congress has implicitly approved the practice of claim settlement by executive agreement. This is best demonstrated by Congress' enactment of the International Claims Settlement Act of 1949, 64 Stat. 13, as amended, 22 U.S.C. § 1621 et seq. (1976 ed. and Supp. IV). The Act had two purposes: (1) to allocate to United States nationals funds received in the course of an executive claims settlement with Yugoslavia, and (2) to provide a procedure whereby funds resulting from future settlements could be distributed. To achieve these ends Congress created the International Claims Commission, now the Foreign Claims Settlement Commission, and gave it jurisdiction to make final and binding decisions with respect to claims by United States nationals against settlement funds. 22 U.S.C. § 1623(a). By creating a procedure to implement future settlement agreements, Congress placed its stamp of approval on such agreements. Indeed, the legislative history of the Act observed that the United States was seeking settlements Page 453 U. S. 681 with countries other than Yugoslavia, and that the bill contemplated settlements of a similar nature in the future. H.R.Rep. No. 770, 81st Cong., 1st Sess., 4, 8 (1949). Over the years, Congress has frequently amended the International Claims Settlement Act to provide for particular problems arising out of settlement agreements, thus demonstrating Congress' continuing acceptance of the President's claim settlement authority. With respect to the Executive Agreement with the People's Republic of China, for example, Congress established an allocation formula for distribution of the funds received pursuant to the Agreement. 22 U.S.C. § 1627(f) (1976 ed., Supp. IV). As with legislation involving other executive agreements, Congress did not question the fact of the settlement or the power of the President to have concluded it. In 1976, Congress authorized the Foreign Claims Settlement Commission to adjudicate the merits of claims by United States nationals against East Germany, prior to any settlement with East Germany, so that the Executive would "be in a better position to negotiate an adequate settlement . . . of these claims." S.Rep. No. 94-1188, p. 2 (1976); 22 U.S.C. § 1644b. Similarly, Congress recently amended the International Claims Settlement Act to facilitate the settlement of claims against Vietnam. 22 U.S.C. §§ 1645, 1645a(5) (1976 ed., Supp. IV). The House Report stated that the purpose of the legislation was to establish an official inventory of losses of private United States property in Vietnam so that recovery could be achieved "through future direct Government-to-Government negotiation of private property claims." H.R.Rep. No. 96-915, pp. 2-3 (1980). Finally, the legislative history of the IEEPA further reveals that Congress has accepted the authority of the Executive to enter into settlement agreements. Though the IEEPA was enacted to provide for some limitation on the President's emergency powers, Congress stressed that "[n]othing in this act is intended . . . to interfere with the authority Page 453 U. S. 682 of the President to [block assets], or to impede the settlement of claims of U.S. citizens against foreign countries." S.Rep. No. 9566, p. 6 (1977); 50 U.S.C. § 1706(a)(1) (1976 ed., Supp. III). [ Footnote 10 ] In addition to congressional acquiescence in the President's power to settle claims, prior cases of this Court have also recognized that the President does have some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. In United States v. Pink, 315 U. S. 203 (1942), for example, the Court upheld the validity of the Litvinov Assignment, which was part of an Executive Agreement whereby the Soviet Union assigned to the United States amounts owed to it by American nationals so that outstanding claims of other American nationals could Page 453 U. S. 683 be paid. The Court explained that the resolution of such claims was integrally connected with normalizing United States' relations with a foreign state: "Power to remove such obstacles to full recognition as settlement of claims of our nationals . . . certainly is a modest implied power of the President. . . . No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation unless the historic conception of the powers and responsibilities . . . is to be drastically revised." Id. at 315 U. S. 229 -230. Similarly, Judge Learned Hand recognized: "The constitutional power of the President extends to the settlement of mutual claims between a foreign government and the United States, at least when it is an incident to the recognition of that government; and it would be unreasonable to circumscribe it to such controversies. The continued mutual amity between the nation and other powers again and again depends upon a satisfactory compromise of mutual claims; the necessary power to make such compromises has existed from the earliest times and been exercised by the foreign offices of all civilized nations." Ozanic v. United States, 188 F.2d 228, 231 (CA2 1951). Petitioner raises two arguments in opposition to the proposition that Congress has acquiesced in this longstanding practice of claims settlement by executive agreement. First, it suggests that all pre-1952 settlement claims, and corresponding court cases such as Pink, should be discounted because of the evolution of the doctrine of sovereign immunity. Petitioner observes that, prior to 1952, the United States adhered to the doctrine of absolute sovereign immunity, so that, absent action by the Executive, there simply would be no remedy for a United States national against a foreign government. When the United States in 1952 adopted a more restrictive Page 453 U. S. 684 notion of sovereign immunity, by means of the so-called "Tate" letter, it is petitioner's view that United States nationals no longer needed executive aid to settle claims, and that, as a result, the President's authority to settle such claims in some sense "disappeared." Though petitioner's argument is not wholly without merit, it is refuted by the fact that, since 1952, there have been at least 10 claims settlements by executive agreement. Thus, even if the pre-1952 cases should be disregarded, congressional acquiescence in settlement agreements since that time supports the President's power to act here. Petitioner next asserts that Congress divested the President of the authority to settle claims when it enacted the Foreign Sovereign Immunities Act of 1976 (hereinafter FSIA), 28 U.S.C. §§ 1330, 1602 et seq. The FSIA granted personal and subject matter jurisdiction in the federal district courts over commercial suits brought by claimants against those foreign states which have waived immunity. 28 U.S.C. 1330. Prior to the enactment of the FSIA, a foreign government's immunity to suit was determined by the Executive Branch on a case-by-case basis. According to petitioner, the principal purpose of the FSIA was to depoliticize these commercial lawsuits by taking them out of the arena of foreign affairs -- where the Executive Branch is subject to the pressures of foreign states seeking to avoid liability through a grant of immunity -- and by placing them within the exclusive jurisdiction of the courts. Petitioner thus insists that the President, by suspending its claims, has circumscribed the jurisdiction of the United States courts in violation of Art. III of the Constitution. We disagree. In the first place, we do not believe that the President has attempted to divest the federal courts of jurisdiction. Executive Order No. 12294 purports only to "suspend" the claims, not divest the federal court of "jurisdiction." As we read the Executive Order, those claims not within the jurisdiction of the Claims Tribunal will "revive" Page 453 U. S. 685 and become judicially enforceable in United States courts. This case, in short, illustrates the difference between modifying federal court jurisdiction and directing the courts to apply a different rule of law. See United States v. Schooner Peggy , 1 Cranch 103 (1801). The President has exercised the power, acquiesced in by Congress, to settle claims and, as such, has simply effected a change in the substantive law governing the lawsuit. Indeed, the very example of sovereign immunity belies petitioner's argument. No one would suggest that a determination of sovereign immunity divests the federal courts of "jurisdiction." Yet petitioner's argument, if accepted, would have required courts prior to the enactment of the FSIA to reject as an encroachment on their jurisdiction the President's determination of a foreign state's sovereign immunity. Petitioner also reads the FSIA much too broadly. The principal purpose of the FSIA was to codify contemporary concepts concerning the scope of sovereign immunity and withdraw from the President the authority to make binding determinations of the sovereign immunity to be accorded foreign states. See Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d at 813-814; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. at 482, 67 F.2d at 444. The FSIA was thus designed to remove one particular barrier to suit, namely sovereign immunity, and cannot be fairly read as prohibiting the President from settling claims of United States nationals against foreign governments. It is telling that the Congress which enacted the FSIA considered, but rejected, several proposals designed to limit the power of the President to enter into executive agreements, including claims settlement agreements. [ Footnote 11 ] Page 453 U. S. 686 It is quite unlikely that the same Congress that rejected proposals to limit the President's authority to conclude executive agreements sought to accomplish that very purpose sub silentio through the FSIA. And, as noted above, just one year after enacting the FSIA, Congress enacted the IEEPA, where the legislative history stressed that nothing in the IEEPA was to impede the settlement of claims of United States citizens. It would be surprising for Congress to express this support for settlement agreements had it intended the FSIA to eliminate the President's authority to make such agreements. In light of all of the foregoing -- the inferences to be drawn from the character of the legislation Congress has enacted in the area, such as the IEEPA and the Hostage Act, and from the history of acquiescence in executive claims settlement -- we conclude that the President was authorized to suspend pending claims pursuant to Executive Order No. 12294. As Justice Frankfurter pointed out in Youngstown, 343 U.S. at 343 U. S. 610 -611, "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'Executive Power' vested in the President by § 1 of Art. II." Past practice does not, by itself, create power, but "long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent. . . ." United States v. Midwest Oil Co., 236 U. S. 459 , 236 U. S. 474 (1915). See Haig v. Agee, ante at 453 U. S. 291 -292. Such practice is present here, and such a presumption is also appropriate. In light of the fact that Congress may be considered to have consented to the President's action in suspending claims, we cannot say that action exceeded the President's powers. Our conclusion is buttressed by the fact that the means Page 453 U. S. 687 chosen by the President to settle the claims of American nationals provided an alternative forum, the Claims Tribunal which is capable of providing meaningful relief. The Solicitor General also suggests that the provision of the Claims Tribunal will actually enhance the opportunity for claimants to recover their claims, in that the Agreement removes a number of jurisdictional and procedural impediments faced by claimants in United States courts. Brief for Federal Respondents 13-14. Although being overly sanguine about the chances of United States claimants before the Claims Tribunal would require a degree of naivete which should not be demanded even of judges, the Solicitor General's point cannot be discounted. Moreover, it is important to remember that we have already held that the President has the statutory authority to nullify attachments and to transfer the assets out of the country. The President's power to do so does not depend on his provision of a forum whereby claimants can recover on those claims. The fact that the President has provided such a forum here means that the claimants are receiving something in return for the suspension of their claims, namely, access to an international tribunal before which they may well recover something on their claims. Because there does appear to be a real "settlement" here, this case is more easily analogized to the more traditional claim settlement cases of the past. Just as importantly, Congress has not disapproved of the action taken here. Though Congress has held hearings on the Iranian Agreement itself, [ Footnote 12 ] Congress has not enacted legislation, or even passed a resolution, indicating its displeasure with the Agreement. Quite the contrary, the relevant Senate Page 453 U. S. 688 Committee has stated that the establishment of the Tribunal is "of vital importance to the United States." S.Rep. No. 97-71, p. 5 (1981). [ Footnote 13 ] We are thus clearly not confronted with a situation in which Congress has in some way resisted the exercise of Presidential authority. Finally, we reemphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. As the Court of Appeals for the First Circuit stressed, "[t]he sheer magnitude of such a power, considered against the background of the diversity and complexity of modern international trade, cautions against any broader construction of authority than is necessary." Chas. T. Main Int'l, Inc. v. Khuzestan Water Power Authority, 651 F.2d at 814. But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims. V We do not think it appropriate at the present time to address petitioner's contention that the suspension of claims, if authorized, would constitute a taking of property in violation of the Fifth Amendment to the United States Constitution in the absence of just compensation. [ Footnote 14 ] Both petitioner and Page 453 U. S. 689 the Government concede that the question whether the suspension of the claims constitutes a taking is not ripe for review. Brief for Petitioner 34, n. 32; Brief for Federal Respondents 65. Accord, Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, supra, at 814-815; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. at 485. 657 F.2d at 447. However, this contention, and the possibility that the President's actions may effect a taking of petitioner's property, make ripe for adjudication the question whether petitioner will have a remedy at law in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1976 ed., Supp. III), in such an event. That the fact and extent of the taking in this case is yet speculative is inconsequential, because "there must be, at the time of taking, reasonable, certain and adequate provision for obtaining compensation.'" Regional Rail Reorganization Act Cases, 419 U. S. 102 , 419 U. S. 124 -125 (1974), quoting Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641 , 135 U. S. 659 (1890); see also Cities Service Co. v. McGrath, 342 U. S. 330 , 342 U. S. 335 -336 (1952); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 , 438 U. S. 94 , n. 39 (1978). It has been contended that the "treaty exception" to the jurisdiction of the Court of Claims, 28 U.S.C. § 1502, might preclude the Court of Claims from exercising jurisdiction over any takings claim the petitioner might bring. At oral argument, however, the Government conceded that § 1502 would not act as a bar to petitioner's action in the Court of Claims. Tr. of Oral Arg. 392, 47. We agree. See United States v. Weld, 127 U. S. 51 (1888); United States v. Old Settlers, 148 U. S. 427 (1893); Hughes Aircraft Co. v. United States, 209 Ct.Cl. 446, 534 F.2d 889 (1976). Accordingly, to the extent petitioner believes it has suffered an unconstitutional taking by the suspension of the claims, we see no jurisdictional Page 453 U. S. 690 obstacle to an appropriate action in the United States Court of Claims under the Tucker Act. The judgment of the District Court is accordingly affirmed, and the mandate shall issue forthwith. It is so ordered. [ Footnote 1 ] Title 50 U.S.C. § 1701(a) (1976 ed., Supp. III) states that the President's authority under the Act "may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." Petitioner does not challenge President Carter's declaration of a national emergency. [ Footnote 2 ] Title 50 U.S.C. § 1702(a)(1)(B) (1976 ed., Supp. III) empowers the President to "investigate, regulate, direct and compel, nullify, void, prevent or prohibit any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest. . . ." [ Footnote 3 ] Title 31 CFR § 535.805 (1980) provides in full: "The provisions of this part and any rulings, licenses, authorizations, instructions, orders, or forms issued thereunder may be amended, modified, or revoked at any time." [ Footnote 4 ] The contract stated that any dispute incapable of resolution by agreement of the parties would be submitted to conciliation, and that, if either party was unwilling to accept the results of conciliation, "the matter shall be decided finally by resort to the courts of Iran." Pet. for Cert. 7, n. 2. In its complaint, which was based on breach of contract and related theories, petitioner alleged that it had sought a meeting with the Atomic Energy Organization for purposes of settling matters relating to the contract, but that the Organization "has continually postponed [the] meeting, and obviously does not intend that it take place." Complaint in Dame & Moore v. Atomic Energy Organization of Iran, No. CV 79-04918 LEW (Px) (CD Cal.), � 27. [ Footnote 5 ] Petitioner argues that, under the TWEA, the President was given two powers: (1) the power temporarily to freeze or block the transfer of foreign owned assets, and (2) the power summarily to seize and permanently vest title to foreign-owned assets. It is contended that only the "vesting" provisions of the TWEA gave the President the power permanently to dispose of assets, and, when Congress enacted the IEEPA in 1977, it purposefully did not grant the President this power. According to petitioner, the nullification of the attachments and the transfer of the assets will permanently dispose of the assets, and would not even be permissible under the TWEA. We disagree. Although it is true the IEEPA does not give the President the power to "vest" or to take title to the assets, it does not follow that the President is not authorized under both the IEEPA and the TWEA to otherwise permanently dispose of the assets in the manner done here. Petitioner errs in assuming that the only power granted by the language used in both § 1702 and § 5(b) of the TWEA is the power temporarily to freeze assets. As noted above, the plain language of the statute defies such a holding. Section 1701 authorizes the President to "direct and compel" the "transfer, withdrawal, transportation, . . . or exportation of . . . any property in which any foreign country has any interest. . . ." We likewise reject the contention that Orvis v. Brownell and Zittman v. McGrath, 341 U. S. 446 (1951), grant petitioner the right to retain its attachments on the Iranian assets. To the contrary, we think Orvis supports the proposition that an American claimant may not use an attachment that is subject to a revocable license and that has been obtained after the entry of a freeze order to limit in any way the actions the President may take under § 1702 respecting the frozen assets. An attachment so obtained is in every sense subordinate to the President's power under the IEEPA. [ Footnote 6 ] Although petitioner concedes that the President could have forbidden attachments, it nevertheless argues that, once he allowed them, the President permitted claimants to acquire property interests in their attachments. Petitioner further argues that only the licenses to obtain the attachments were made revocable, not the attachments themselves. It is urged that the January 19, 1981, order revoking all licenses only affected petitioner's right to obtain future attachments. We disagree. As noted above, the regulations specifically provided that any attachment is null and void "unless licensed," and all licenses may be revoked at any time. Moreover, common sense defies petitioner's reading of the regulations. The President could hardly have intended petitioner and other similarly situated claimants to have the power to take control of the frozen assets out of his hands. Our construction of petitioner's attachments as being "revocable," "contingent," and "in every sense subordinate to the President's power under the IEEPA," in effect answers petitioner's claim that, even if the President had the authority to nullify the attachments and transfer the assets, the exercise of such would constitute an unconstitutional taking of property, in violation of the Fifth Amendment absent just compensation. We conclude that, because of the President's authority to prevent or condition attachments, and because of the orders he issued to this effect, petitioner did not acquire any "property" interest in its attachments of the sort that would support a constitutional claim for compensation. [ Footnote 7 ] Judge Mikva, in his separate opinion in American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. 468, 490, 657 F.2d 430, 452 (1981), argued that the moniker "Hostage Act" was newly coined for purposes of this litigation. Suffice it to say that we focus on the language of 22 U.S.C. § 1732, not any shorthand description of it. See W. Shakespeare, Romeo and Juliet, Act II, scene 2, line 43 ("What's in a name?"). [ Footnote 8 ] At least since the case of the "Wilmington Packet" in 1799, Presidents have exercised the power to settle claims of United States nationals by executive agreement. See Lillich, The Gravel Amendment to the Trade Reform Act of 1974, 69 Am.J.Int'l L. 837, 844 (1975). In fact, during the period of 1817-1917, "no fewer than eighty executive agreements were entered into by the United States looking toward the liquidation of claims of its citizens." W. McClure, International Executive Agreements 53 (1941). See also 14 M. Whiteman, Digest of International Law 247 (1970). [ Footnote 9 ] Those agreement are [1979] 30 U.S.T.1957 (People's Republic of China); [1976] 27 U.S.T. 3933 (Peru); [1976] 27 U.S.T. 4214 (Egypt); [1974] 25 U.S.T. 227 (Peru); [1973] 24 U.S.T. 522 (Hungary); [1969] 20 U.S.T. 2654 (Japan); [1965] 16 U.S.T. 1 (Yugoslavia); [1963] 14 U.S.T. 969 (Bulgaria); [1960] 11 U.S.T. 1953 (Poland); [1960] 11 U.S.T. 317 (Rumania). [ Footnote 10 ] Indeed, Congress has consistently failed to object to this longstanding practice of claim settlement by executive agreement, even when it has had an opportunity to do so. In 1972, Congress entertained legislation relating to congressional oversight of such agreements. But Congress took only limited action, requiring that the text of significant executive agreements be transmitted to Congress. 1 U.S.C. § 112b. In Haig v. Agee, ante p. 453 U. S. 280 , we noted that, "[d]espite the longstanding and officially promulgated view that the Executive has the power to withhold passports for reasons of national security and foreign policy, Congress in 1978," "though it once again enacted legislation relating to passports, left completely untouched the broad rulemaking authority granted in the earlier Act." Ante at 453 U. S. 301 , quoting Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 12 (1965). Likewise in this case, Congress, though legislating in the area, has left "untouched" the authority of the President to enter into settlement agreements. The legislative history of 1 U.S.C. § 112b further reveals that Congress has accepted the President's authority to settle claims. During the hearings on the bill, Senator Case, the sponsor of the Act, stated with respect to executive claim settlements: "I think it is a most interesting [area] in which we have accepted the right of the President, one individual, acting through his diplomatic force, to adjudicate and settle claims of American nationals against foreign countries. But that is a fact." Transmittal of Executive Agreements to Congress: Hearings on S. 596 before the Senate Committee on Foreign Relations, 92d Cong., 1st Sess., 74 (1971). [ Footnote 11 ] The rejected legislation would typically have required congressional approval of executive agreements before they could be considered effective. See Congressional Oversight of Executive Agreements: Hearings on S. 632 and S. 1251 before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 9th Cong., 1st Sess., 243-261, 302-311 (1975); Congressional Review of International Agreements: Hearings before the Subcommittee on International Security and Scientific Affairs of the House Committee on International Relations, 94th Cong., 2d Sess., 167, 246 (1976). [ Footnote 12 ] See Hearings on the Iranian Agreements before the Senate Committee on Foreign Relations, 97th Cong., 1st Sess. (1981); Hearings on the Iranian Asset Settlement before the Senate Committee on Banking, Housing and Urban Affairs, 97th Cong., 1st Sess. (1981); Hearings on the Algerian Declarations before the House Committee on Foreign Affairs, 97th Cong., 1st Sess. (1981). [ Footnote 13 ] Contrast congressional reaction to the Iranian Agreements with congressional reaction to a 1973 Executive Agreement with Czechoslovakia. There the President sought to settle over $105 million in claims against Czechoslovakia for $20.5 million. Congress quickly demonstrated its displeasure by enacting legislation requiring that the Agreement be renegotiated. See Lillich, supra, n 8, at 839-840. Though Congress has shown itself capable of objecting to executive agreements, it has rarely done so, and has not done so in this case. [ Footnote 14 ] Though we conclude that the President has settled petitioner's claims against Iran, we do not suggest that the settlement has terminated petitioner's possible taking claim against the United States. We express no views on petitioner's claims that it has suffered a taking. JUSTICE STEVENS, concurring in part. In my judgment, the possibility that requiring this petitioner to prosecute its claim in another forum will constitute an unconstitutional "taking" is so remote that I would not address the jurisdictional question considered in 453 U. S. However, I join the remainder of the opinion. JUSTICE POWELL, concurring in part and dissenting in part. I join the Court's opinion except its decision that the nullification of the attachments did not effect a taking of property interests giving rise to claims for just compensation. Ante at 453 U. S. 674 , n. 6. The nullification of attachments presents a separate question from whether the suspension and proposed settlement of claims against Iran may constitute a taking. I would leave both "taking" claims open for resolution on a case-by-case basis in actions before the Court of Claims. The facts of the hundreds of claims pending against Iran are not known to this Court, and may differ from the facts in this case. I therefore dissent from the Court's decision with respect to attachments. The decision may well be erroneous, [ Footnote 2/1 ] and it certainly is premature with respect to many claims. Page 453 U. S. 691 I agree with the Court's opinion with respect to the suspension and settlement of claims against Iran and its instrumentalities. The opinion makes clear that some claims may not be adjudicated by the Claims Tribunal, and that others may not be paid in full. The Court holds that parties whose valid claims are not adjudicated or not fully paid may bring a "taking" claim against the United States in the Court of Claims, the jurisdiction of which this Court acknowledges. The Government must pay just compensation when it furthers the Nation's foreign policy goals by using as "bargaining chips" claims lawfully held by a relatively few persons and subject to the jurisdiction of our courts. [ Footnote 2/2 ] The extraordinary powers of the President and Congress upon which our decision rests cannot, in the circumstances of this case, displace the Just Compensation Clause of the Constitution. [ Footnote 2/1 ] Even though the Executive Orders purported to make attachments conditional, there is a substantial question whether the Orders themselves may have effected a taking by making conditional the attachments that claimants against Iran otherwise could have obtained without condition. Moreover, because it is settled that an attachment entitling a creditor to resort to specific property for the satisfaction of a claim is a property right compensable under the Fifth Amendment, Armstrong v. United States, 364 U. S. 40 (1960); Louisville Bank v. Radford, 295 U. S. 555 (1935), there is a question whether the revocability of the license under which petitioner obtained its attachments suffices to render revocable the attachments themselves. See Marschalk Co. v. Iran National Airlines Corp., 518 F. Supp. 69 (SDNY 1981). [ Footnote 2/2 ] As the Court held in Armstrong v. United States, supra, at 364 U. S. 49 : "The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." The Court unanimously reaffirmed this understanding Of the Just Compensation Clause in the recent case Of Agins v. City of Tiburon, 447 U. S. 255 , 447 U. S. 260 -261 (1980).

Here is a summary of the case: **Dames & Moore v. Regan (1981)** **Facts:** - In response to the Iran hostage crisis, President Carter blocked all Iranian government property and interests in the US under the International Emergency Economic Powers Act (IEEPA). - Treasury Department regulations nullified any judicial processes (attachments, judgments, liens, etc.) against Iranian property. - Petitioner Dames & Moore filed suit against the Iranian government and entities, obtaining orders of attachment against their property. - The hostages were released, and an agreement between the US and Iran required the termination of legal proceedings and attachments against Iran. - President Carter and later President Reagan issued Executive Orders revoking licenses, nullifying non-Iranian interests, and requiring banks to transfer Iranian assets. **Issue:** Whether the President's actions under the IEEPA and the subsequent Executive Orders constitute a taking of property without just compensation in violation of the Fifth Amendment. **Holding:** - The President's authority under the IEEPA includes the power to nullify attachments and suspend claims, even those already in the hands of the courts. - The President's actions do not effect a taking without just compensation because there is no absolute right to judicial resolution of claims, and the IEEPA provides for potential compensation. - Any taking claims can be resolved on a case-by-case basis in the Court of Claims. **Dissent:** - Justice Marshall dissents regarding the nullification of attachments, arguing that it may constitute a taking and that the decision is premature without knowing the facts of all pending claims.

Separation of Powers

Morrison v. Olson

https://supreme.justia.com/cases/federal/us/487/654/

U.S. Supreme Court Morrison v. Olson, 487 U.S. 654 (1988) Morrison v. Olson No. 87-1279 Argued April 26, 1988 Decided June 29, 1988 487 U.S. 654 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus This case presents the question of the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978 (Act). It arose when the House Judiciary Committee began an investigation into the Justice Department's role in a controversy between the House and the Environmental Protection Agency (EPA) with regard to the Agency's limited production of certain documents that had been subpoenaed during an earlier House Investigation. The Judiciary Committee's Report suggested that an official of the Attorney General's Office (appellee Olson) had given false testimony during the earlier EPA investigation, and that two other officials of that Office (appellees Schmults and Dinkins) had obstructed the EPA investigation by wrongfully withholding certain documents. A copy of the Report was forwarded to the Attorney General with a request, pursuant to the Act, that he seek appointment of an independent counsel to investigate the allegations against appellees. Ultimately, pursuant to the Act's provisions, the Special Division (a special court created by the Act) appointed appellant as independent counsel with respect to Olson only, and gave her jurisdiction to investigate whether Olson's testimony, or any other matter related thereto, violated federal law, and to prosecute any violations. When a dispute arose between independent counsel and the Attorney General, who refused to furnish as "related matters" the Judiciary Committee's allegations against Schmults and Dinkins, the Special Division ruled that its grant of jurisdiction to counsel was broad enough to permit inquiry into whether Olson had conspired with others, including Schmults and Dinkins, to obstruct the EPA investigation. Appellant then caused a grand jury to issue subpoenas on appellees, who moved in Federal District Court to quash the subpoenas, claiming that the Act's independent counsel provisions were unconstitutional and that appellant accordingly had no authority to proceed. The court upheld the Act's constitutionality, denied the motions, and later ordered that appellees be held in contempt for continuing to refuse to comply with the subpoenas. The Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2; the limitations Page 487 U. S. 655 of Article III; and the principle of separation of powers by interfering with the President's authority under Article II. Held: 1. There is no merit to appellant's contention -- based on Blair v. United States, 250 U. S. 273 , which limited the issues that may be raised by a person who has been held in contempt for failure to comply with a grand jury subpoena -- that the constitutional issues addressed by the Court of Appeals cannot be raised on this appeal from the District Court's contempt judgment. The Court of Appeals ruled that, because appellant had failed to object to the District Court's consideration of the merits of appellees' constitutional claims, she had waived her opportunity to contend on appeal that Blair barred review of those claims. Appellant's contention is not "jurisdictional" in the sense that it cannot be waived by failure to raise it at the proper time and place. Nor is it the sort of claim which would defeat jurisdiction in the District Court by showing that an Article III "Case or Controversy" is lacking. Pp. 487 U. S. 669 -670. 2. It does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division. Pp. 487 U. S. 670 -677. (a) Appellant is an "inferior" officer for purposes of the Clause, which -- after providing for the appointment of certain federal officials ("principal" officers) by the President with the Senate's advice and consent -- states that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as, under the Act, she possesses a degree of independent discretion to exercise the powers delegated to her, the fact that the Act authorizes her removal by the Attorney General indicates that she is to some degree "inferior" in rank and authority. Moreover, appellant is empowered by the Act to perform only certain, limited duties, restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. In addition, appellant's office is limited in jurisdiction to that which has been granted by the Special Division pursuant to a request by the Attorney General. Also, appellant's office is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over, the office is terminated, either by counsel herself or by action of the Special Division. Pp. 487 U. S. 670 -673. (b) There is no merit to appellees' argument that, even if appellant is an "inferior" officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch -- that Page 487 U. S. 656 is, to make "interbranch appointments." The Clause's language as to "inferior" officers admits of no limitation on interbranch appointments, but instead seems clearly to give Congress significant discretion to determine whether it is "proper" to vest the appointment of, for example, executive officials in the "courts of Law." The Clause's history provides no support for appellees' position. Moreover, Congress was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers, and the most logical place to put the appointing authority was in the Judicial Branch. In light of the Act's provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, appointment of independent counsel by that court does not run afoul of the constitutional limitation on "incongruous" interbranch appointments. Pp. 487 U. S. 673 -677. 3. The powers vested in the Special Division do not violate Article III, under which executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Article III. Pp. 487 U. S. 677 -685. (a) There can be no Article III objection to the Special Division's exercise of the power, under the Act, to appoint independent counsel, since the power itself derives from the Appointments Clause, a source of authority for judicial action that is independent of Article III. Moreover, the Division's Appointments Clause powers encompass the power to define the independent counsel's jurisdiction. When, as here, Congress creates a temporary "office," the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the office's scope in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. However, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General's request for the appointment of independent counsel in the particular case. Pp. 487 U.S. 678 -679. (b) Article III does not absolutely prevent Congress from vesting certain miscellaneous powers in the Special Division under the Act. One purpose of the broad prohibition upon the courts' exercise of executive or administrative duties of a nonjudicial nature is to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches. Here, the Division's miscellaneous powers -- such as the passive powers to "receive" (but not to act on or specifically approve) various reports from independent counsel or the Attorney General -- do not encroach upon the Executive Branch's authority. The Act Page 487 U. S. 657 simply does not give the Division power to "supervise" the independent counsel in the exercise of counsel's investigative or prosecutorial authority. And, the functions that the Division is empowered to perform are not inherently "Executive," but are directly analogous to functions that federal judges perform in other contexts. Pp. 487 U. S. 680 -681. (c) The Special Division's power to terminate an independent counsel's office when counsel's task is completed -- although "administrative" to the extent that it requires the Division to monitor the progress of counsel's proceedings and to decide whether counsel's job is "completed" -- is not such a significant judicial encroachment upon executive power or upon independent counsel's prosecutorial discretion as to require that the Act be invalidated as inconsistent with Article III. The Act's termination provisions do not give the Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway -- this power is vested solely in the Attorney General. Pp. 487 U. S. 682 -683. (d) Nor does the Special Division's exercise of the various powers specifically granted to it pose any threat to the impartial and independent federal adjudication of claims within the judicial power of the United States. The Act gives the Division itself no power to review any of the independent counsel's actions or any of the Attorney General's actions with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court. Moreover, the Act prevents the Division's members from participating in "any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless of whether such independent counsel is still serving in that office." Pp. 487 U. S. 683 -685. 4. The Act does not violate separation of powers principles by impermissibly interfering with the functions of the Executive Branch. Pp. 487 U. S. 685 -696. (a) The Act's provision restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show "good cause," taken by itself, does not impermissibly interfere with the President's exercise of his constitutionally appointed functions. Here, Congress has not attempted to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch. Bowsher v. Synar, 478 U. S. 714 ; and Myers v. United States, 272 U. S. 52 , distinguished. The determination of whether the Constitution allows Congress to impose a "good cause"-type restriction on the President's power to remove an official does not turn on whether or not that official is classified as "purely executive." The Page 487 U. S. 658 analysis contained in this Court's removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President's exercise of the "executive power" and his constitutionally appointed duty to "take care that the laws be faithfully executed" under Article II. Cf. Humphrey's Executor v. United States, 295 U. S. 602 ; Wiener v. United States, 357 U. S. 349 . Here, the Act's imposition of a "good cause" standard for removal by itself does not unduly trammel on executive authority. The congressional determination to limit the Attorney General's removal power was essential, in Congress' view, to establish the necessary independence of the office of independent counsel. Pp. 487 U. S. 685 -693. (b) The Act, taken as a whole, does not violate the principle of separation of powers by unduly interfering with the Executive Branch's role. This case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. Other than that, Congress' role under the Act is limited to receiving reports or other information and to oversight of the independent counsel's activities, functions that have been recognized generally as being incidental to the legislative function of Congress. Similarly, the Act does not work any judicial usurpation of properly executive functions. Nor does the Act impermissibly undermine the powers of the Executive Branch, or disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions. Even though counsel is to some degree "independent" and free from Executive Branch supervision to a greater extent than other federal prosecutors, the Act gives the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties. Pp. 487 U. S. 693 -696. 267 U.S.App.D.C. 178, 838 F.2d 476, reversed. REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 487 U. S. 697 . KENNEDY, J., took no part in the consideration or decision of the case. Page 487 U. S. 659 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. This case presents us with a challenge to the independent counsel provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 49, 591 et seq. (1982 ed., Supp. V). We hold Page 487 U. S. 660 today that these provisions of the Act do not violate the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, or the limitations of Article III, nor do they impermissibly interfere with the President's authority under Article II in violation of the constitutional principle of separation of powers. I Briefly stated, Title VI of the Ethics in Government Act (Title VI or the Act), 28 U.S.C. §§ 591-599 (1982 ed., Supp. V), [ Footnote 1 ] allows for the appointment of an "independent counsel" to investigate and, if appropriate, prosecute certain high ranking Government officials for violations of federal criminal laws. [ Footnote 2 ] The Act requires the Attorney General, upon receipt of information that he determines is "sufficient to constitute grounds to investigate whether any person [covered by the Act] may have violated any Federal criminal law," to conduct a preliminary investigation of the matter. When the Attorney Page 487 U. S. 661 General has completed this investigation, or 90 days has elapsed, he is required to report to a special court (the Special Division) created by the Act "for the purpose of appointing independent counsels." 28 U.S.C. § 49 (1982 ed., Supp. V). [ Footnote 3 ] If the Attorney General determines that "there are no reasonable grounds to believe that further investigation is warranted," then he must notify the Special Division of this result. In such a case, "the division of the court shall have no power to appoint an independent counsel." § 592(b)(1). If, however, the Attorney General has determined that there are "reasonable grounds to believe that further investigation or prosecution is warranted," then he "shall apply to the division of the court for the appointment of an independent counsel." [ Footnote 4 ] The Attorney General's application to the court "shall contain sufficient information to assist the [court] in selecting an independent counsel and in defining that independent counsel's prosecutorial jurisdiction." § 592(d). Upon receiving this application, the Special Division "shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction." § 593(b). [ Footnote 5 ] Page 487 U. S. 662 With respect to all matters within the independent counsel's jurisdiction, the Act grants the counsel "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice." § 594(a). [ Footnote 6 ] The functions of the independent counsel include conducting grand jury proceedings and other investigations, participating in civil and criminal court proceedings and litigation, and appealing any decision in any case in which the counsel participates in an official capacity. §§ 594(a)(1)-(3). Under § 594(a)(9), the counsel's powers include "initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States." The counsel may appoint employees, § 594(c), may request and obtain assistance from the Department of Justice, § 594(d), and may accept referral of matters from the Attorney General if the matter falls within the counsel's jurisdiction as defined by the Special Division, § 594(e). The Act also states that an independent counsel "shall, except where not possible, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws." § 594(f). In addition, whenever a matter has been referred to an independent counsel under the Act, the Attorney General Page 487 U. S. 663 and the Justice Department are required to suspend all investigations and proceedings regarding the matter. § 597(a). An independent counsel has "full authority to dismiss matters within [his or her] prosecutorial jurisdiction without conducting an investigation or at any subsequent time before prosecution, if to do so would be consistent" with Department of Justice policy. § 594(g). [ Footnote 7 ] Two statutory provisions govern the length of an independent counsel's tenure in office. The first defines the procedure for removing an independent counsel. Section 596(a)(1) provides: "An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties." If an independent counsel is removed pursuant to this section, the Attorney General is required to submit a report to both the Special Division and the Judiciary Committees of the Senate and the House "specifying the facts found and the ultimate grounds for such removal." § 596(a)(2). Under the current version of the Act, an independent counsel can obtain judicial review of the Attorney General's action by filing a civil action in the United States District Court for the District of Columbia. Members of the Special Division "may not hear or determine any such civil action or any appeal of a decision Page 487 U. S. 664 in any such civil action." The reviewing court is authorized to grant reinstatement or "other appropriate relief." § 596(a)(3). [ Footnote 8 ] The other provision governing the tenure of the independent counsel defines the procedures for "terminating" the counsel's office. Under § 596(b)(1), the office of an independent counsel terminates when he or she notifies the Attorney General that he or she has completed or substantially completed any investigations or prosecutions undertaken pursuant to the Act. In addition, the Special Division, acting either on its own or on the suggestion of the Attorney General, may terminate the office of an independent counsel at any time if it finds that "the investigation of all matters within the prosecutorial jurisdiction of such independent counsel . . . have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions." § 596(b)(2). [ Footnote 9 ] Finally, the Act provides for congressional oversight of the activities of independent counsel. An independent counsel may from time to time send Congress statements or reports on his or her activities. § 595(a)(2). The "appropriate committees of the Congress" are given oversight jurisdiction in regard to the official conduct of an independent counsel, and the counsel is required by the Act to cooperate with Congress in the exercise of this jurisdiction. § 595(a)(1). The counsel is required to inform the House of Representatives of Page 487 U. S. 665 "substantial and credible information which [the counsel] receives . . . that may constitute grounds for an impeachment." § 595(c). In addition, the Act gives certain congressional committee members the power to "request in writing that the Attorney General apply for the appointment of an independent counsel." § 592(g)(1). The Attorney General is required to respond to this request within a specified time, but is not required to accede to the request. § 592(g)(2). The proceedings in this case provide an example of how the Act works in practice. In 1982, two Subcommittees of the House of Representatives issued subpoenas directing the Environmental Protection Agency (EPA) to produce certain documents relating to the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to enforce the "Superfund Law." [ Footnote 10 ] At that time, appellee Olson was the Assistant Attorney General for the Office of Legal Counsel (OLC), appellee Schmults was Deputy Attorney General, and appellee Dinkins was the Assistant Attorney General for the Land and Natural Resources Division. Acting on the advice of the Justice Department, the President ordered the Administrator of EPA to invoke executive privilege to withhold certain of the documents on the ground that they contained "enforcement-sensitive information." The Administrator obeyed this order and withheld the documents. In response, the House voted to hold the Administrator in contempt, after which the Administrator and the United States together filed a lawsuit against the House. The conflict abated in March, 1983, when the administration agreed to give the House Committees limited access to the documents. The following year, the House Judiciary Committee began an investigation into the Justice Department's role in the controversy over the EPA documents. During this investigation, appellee Olson testified before a House Subcommittee Page 487 U. S. 666 on March 10, 1983. Both before and after that testimony, the Department complied with several Committee requests to produce certain documents. Other documents were at first withheld, although these documents were eventually disclosed by the Department after the Committee learned of their existence. In 1985, the majority members of the Judiciary Committee published a lengthy report on the Committee's investigation. Report on Investigation of the Role of the Department of Justice in the Withholding of Environmental Protection Agency Documents from Congress in 1982-83, H.R.Rep. No. 99-435 (1985). The report not only criticized various officials in the Department of Justice for their role in the EPA executive privilege dispute, but it also suggested that appellee Olson had given false and misleading testimony to the Subcommittee on March 10, 1983, and that appellees Schmults and Dinkins had wrongfully withheld certain documents from the Committee, thus obstructing the Committee's investigation. The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request, pursuant to 28 U.S.C. § 592(c), that he seek the appointment of an independent counsel to investigate the allegations against Olson, Schmults, and Dinkins. The Attorney General directed the Public Integrity Section of the Criminal Division to conduct a preliminary investigation. The Section's report concluded that the appointment of an independent counsel was warranted to investigate the Committee's allegations with respect to all three appellees. After consulting with other Department officials, however, the Attorney General chose to apply to the Special Division for the appointment of an independent counsel solely with respect to appellee Olson. [ Footnote 11 ] The Attorney General accordingly Page 487 U. S. 667 requested appointment of an independent counsel to investigate whether Olson's March 10, 1983, testimony "regarding the completeness of [OLC's] response to the Judiciary Committee's request for OLC documents, and regarding his knowledge of EPA's willingness to turn over certain disputed documents to Congress, violated 18 U.S.C. § 1505, § 1001, or any other provision of federal criminal law." Attorney General Report, at 2-3. The Attorney General also requested that the independent counsel have authority to investigate "any other matter related to that allegation." Id. at 11. On April 23, 1986, the Special Division appointed James C. McKay as independent counsel to investigate "whether the testimony of . . . Olson and his revision of such testimony on March 10, 1983, violated either 18 U.S.C. § 1505 or § 1001, or any other provision of federal law." The court also ordered that the independent counsel "shall have jurisdiction to investigate any other allegation of evidence of violation of any Federal criminal law by Theodore Olson developed during investigations, by the Independent Counsel, referred to above, and connected with or arising out of that investigation, and Independent Counsel shall have jurisdiction to prosecute for any such violation." Order, Div. No. 86-1 (CADC Special Division, April 23, 1986). McKay later resigned as independent counsel, and on May 29, 1986, the Division appointed appellant Morrison as his replacement, with the same jurisdiction. In January, 1987, appellant asked the Attorney General pursuant to § 594(e) to refer to her as "related matters" the Committee's allegations against appellees Schmults and Dinkins. The Attorney General refused to refer the matters, concluding that his decision not to request the appointment of Page 487 U. S. 668 an independent counsel in regard to those matters was final under § 592(b)(1). Appellant then asked the Special Division to order that the matters be referred to her under § 594(e). On April 2, 1987, the Division ruled that the Attorney General's decision not to seek appointment of an independent counsel with respect to Schmults and Dinkins was final and unreviewable under § 592(b)(1), and that therefore the court had no authority to make the requested referral. In re Olson, 260 U.S.App.D.C. 168, 818 F.2d 34. The court ruled, however, that its original grant of jurisdiction to appellant was broad enough to permit inquiry into whether Olson may have conspired with others, including Schmults and Dinkins, to obstruct the Committee's investigation. Id. at 181-182, 818 F.2d at 47-48. Following this ruling, in May and June, 1987, appellant caused a grand jury to issue and serve subpoenas ad testificandum and duces tecum on appellees. All three appellees moved to quash the subpoenas, claiming, among other things, that the independent counsel provisions of the Act were unconstitutional, and that appellant accordingly had no authority to proceed. On July 20, 1987, the District Court upheld the constitutionality of the Act and denied the motions to quash. In re Sealed Case, 665 F. Supp. 56 (DC). The court subsequently ordered that appellees be held in contempt pursuant to 28 U.S.C. § 1826(a) for continuing to refuse to comply with the subpoenas. See App. to Juris. Statement 140a, 143a, 146a. The court stayed the effect of its contempt orders pending expedited appeal. A divided Court of Appeals reversed. In re Sealed Case, 267 U.S.App.D.C. 178, 838 F.2d 476 (1988). The majority ruled first that an independent counsel is not an "inferior Officer" of the United States for purposes of the Appointments Clause. Accordingly, the court found the Act invalid because it does not provide for the independent counsel to be nominated by the President and confirmed by the Senate, as the Clause requires for "principal" officers. The court then Page 487 U. S. 669 went on to consider several alternative grounds for its conclusion that the statute was unconstitutional. In the majority's view, the Act also violates the Appointments Clause insofar as it empowers a court of law to appoint an "inferior" officer who performs core executive functions; the Act's delegation of various powers to the Special Division violates the limitations of Article III; the Act's restrictions on the Attorney General's power to remove an independent counsel violate the separation of powers; and finally, the Act interferes with the Executive Branch's prerogative to "take care that the Laws be faithfully executed," Art. II, § 3. The dissenting judge was of the view that the Act was constitutional. 267 U.S.App.D.C. at 238, 838 F.2d at 536. Appellant then sought review by this Court, and we noted probable jurisdiction. 484 U.S. 1058 (1988). We now reverse. II Before we get to the merits, we first must deal with appellant's contention that the constitutional issues addressed by the Court of Appeals cannot be reviewed on this appeal from the District Court's contempt judgment. Appellant relies on Blair v. United States, 250 U. S. 273 (1919), in which this Court limited rather sharply the issues that may be raised by an individual who has been subpoenaed as a grand jury witness and has been held in contempt for failure to comply with the subpoena. On the facts of this case, however, we find it unnecessary to consider whether Blair has since been narrowed by our more recent decisions, as appellees contend and the Court of Appeals found in another related case, In re Sealed Case, 264 U.S.App.D.C. 125, 827 F.2d 776 (1987). Appellant herself admits that she failed to object to the District Court's consideration of the merits of appellees' constitutional claims, and as a result, the Court of Appeals ruled that she had waived her opportunity to contend on appeal that review of those claims was barred by Blair. We see no reason why the Court of Appeals was not entitled to conclude Page 487 U. S. 670 that the failure of appellant to object on this ground in the District Court was a sufficient reason for refusing to consider it, and we likewise decline to consider it. Appellant's contention is not "jurisdictional" in the sense that it cannot be waived by failure to raise it at the proper time and place. It is not the sort of claim which would defeat jurisdiction in the District Court by showing that an Article III "Case" or "Controversy" is lacking. Appellees are subject to the burden of complying with the grand jury subpoena as a result of the District Court's contempt order, there is a legitimate adversarial relationship between the parties, and the courts possess the power to redress or resolve the current controversy. See Bender v. Williamsport Area School District, 475 U. S. 534 , 475 U. S. 541 -543 (1986). We therefore turn to consider the merits of appellees' constitutional claims. III The Appointments Clause of Article II reads as follows: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U.S.Const., Art. II, § 2, cl. 2. The parties do not dispute that "[t]he Constitution for purposes of appointment . . . divides all its officers into two classes." United States v. Germaine, 99 U. S. 508 , 99 U. S. 509 (1879). As we stated in Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 132 (1976): "Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary." The initial Page 487 U. S. 671 question is, accordingly, whether appellant is an "inferior" or a "principal" officer. [ Footnote 12 ] If she is the latter, as the Court of Appeals concluded, then the Act is in violation of the Appointments Clause. The line between "inferior" and "principal" officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. See, e.g., 2 J. Story, Commentaries on the Constitution § 1536, pp. 397-398 (3d ed. 1858) ("In the practical course of the government, there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate"). We need not attempt here to decide exactly where the line falls between the two types of officers, because, in our view, appellant clearly falls on the "inferior officer" side of that line. Several factors lead to this conclusion. First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is, to some degree, "inferior" in rank and authority. Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice," § 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary Page 487 U. S. 672 to operate her office. The Act specifically provides that, in policy matters, appellant is to comply to the extent possible with the policies of the Department. § 594(f). Third, appellant's office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant's office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over, the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the "ideas of tenure, duration . . . and duties" of the independent counsel, Germaine, supra, at 99 U. S. 511 , are sufficient to establish that appellant is an "inferior" officer in the constitutional sense. This conclusion is consistent with our few previous decisions that considered the question of whether a particular Government official is a "principal" or an "inferior" officer. In United States v. Eaton, 169 U. S. 331 (1898), for example, we approved Department of State regulations that allowed executive officials to appoint a "vice-consul" during the temporary absence of the consul, terming the "vice-consul" a "subordinate officer" notwithstanding the Appointment Clause's specific reference to "Consuls" as principal officers. As we stated: "Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official. " Page 487 U. S. 673 Id. at 169 U. S. 343 . In Ex parte Siebold, 100 U. S. 371 (1880), the Court found that federal "supervisor[s] of elections," who were charged with various duties involving oversight of local congressional elections, see id. at 100 U. S. 379 -380, were inferior officers for purposes of the Clause. In Go-Bart Importing Co. v. United States, 282 U. S. 344 , 282 U. S. 352 -353 (1931), we held that "United States commissioners are inferior officers." Id. at 282 U. S. 352 . These commissioners had various judicial and prosecutorial powers, including the power to arrest and imprison for trial, to issue warrants, and to institute prosecutions under "laws relating to the elective franchise and civil rights." Id. at 282 U. S. 353 , n. 2. All of this is consistent with our reference in United States v. Nixon, 418 U. S. 683 , 418 U. S. 694 , 418 U. S. 696 (1974), to the office of Watergate Special Prosecutor -- whose authority was similar to that of appellant, see id. at 418 U. S. 694 , n. 8 -- as a "subordinate officer." This does not, however, end our inquiry under the Appointments Clause. Appellees argue that, even if appellant is an "inferior" officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch. They contend that the Clause does not contemplate congressional authorization of "interbranch appointments," in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: ". . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments." On its face, the language of this "excepting clause" admits of no limitation on interbranch appointments. Indeed, the inclusion of "as they think proper" seems clearly to give Congress significant discretion to determine whether it is "proper" to vest the appointment of, for example, executive officials in the "courts of Law." We recognized as much in one of our few decisions in this area, Ex parte Siebold, supra, where we stated: Page 487 U. S. 674 "It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged. . . ." "But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress. And, looking at the subject in a practical light, it is perhaps better that it should rest there than that the country should be harassed by the endless controversies to which a more specific direction on this subject might have given rise." Id. at 100 U. S. 397 -398. Our only decision to suggest otherwise, Ex parte Hennen , 13 Pet. 230 (1839), from which the first sentence in the above quotation from Siebold was derived, was discussed in Siebold and distinguished as "not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed." 100 U.S. at 100 U. S. 398 . Outside of these two cases, there is very little, if any, express discussion of the propriety of interbranch appointments in our decisions, and we see no reason now to depart from the holding of Siebold that such appointments are not proscribed by the excepting clause. We also note that the history of the Clause provides no support for appellees' position. Throughout most of the process of drafting the Constitution, the Convention concentrated on the problem of who should have the authority to appoint judges. At the suggestion of James Madison, the Convention adopted a proposal that the Senate should have this authority, 1 Records of the Federal Convention of 1787, pp. 232-233 (M. Farrand ed.1966), and several attempts to transfer the appointment power to the President were rejected. Page 487 U. S. 675 See 2 id. at 42-44, 80-83. The August 6, 1787, draft of the Constitution reported by the Committee of Detail retained Senate appointment of Supreme Court Judges, provided also for Senate appointment of ambassadors, and vested in the President the authority to "appoint officers in all cases not otherwise provided for by this Constitution." Id. at 183, 185. This scheme was maintained until September 4, when the Committee of Eleven reported its suggestions to the Convention. This Committee suggested that the Constitution be amended to state that the President "shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public Ministers, Judges of the Supreme Court, and all other Officers of the [United States], whose appointments are not otherwise herein provided for." Id. at 498-499. After the addition of "Consuls" to the list, the Committee's proposal was adopted, id. at 539, and was subsequently reported to the Convention by the Committee of Style. See id. at 599. It was at this point, on September 15, that Gouverneur Morris moved to add the Excepting Clause to Art. II, § 2. Id. at 627. The one comment made on this motion was by Madison, who felt that the Clause did not go far enough, in that it did not allow Congress to vest appointment powers in "Superior Officers below Heads of Departments." The first vote on Morris' motion ended in a tie. It was then put forward a second time, with the urging that "some such provision [was] too necessary to be omitted." This time the proposal was adopted. Id. at 627-628. As this discussion shows, there was little or no debate on the question whether the Clause empowers Congress to provide for interbranch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power. We do not mean to say that Congress' power to provide for interbranch appointments of "inferior officers" is unlimited. In addition to separation of powers concerns, which would arise if such provisions for appointment had the potential to Page 487 U. S. 676 impair the constitutional functions assigned to one of the branches, Siebold itself suggested that Congress' decision to vest the appointment power in the courts would be improper if there was some "incongruity" between the functions normally performed by the courts and the performance of their duty to appoint. 100 U.S. at 100 U. S. 398 ("[T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case, there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void"). In this case, however, we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court. We thus disagree with the Court of Appeals' conclusion that there is an inherent incongruity about a court having the power to appoint prosecutorial officers. [ Footnote 13 ] We have recognized that courts may appoint private attorneys to act as prosecutor for judicial contempt judgments. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U. S. 787 (1987). In Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931), we approved court appointment of United States commissioners, who exercised certain limited prosecutorial powers. Id. at 282 U. S. 353 , n. 2. In Siebold, as well, we indicated that judicial appointment of federal marshals, who are "executive officer[s]," would not be inappropriate. Lower courts have also upheld interim judicial appointments of United States Attorneys, see United States v. Solomon, 216 F. Supp. 835 (SDNY 1963), and Congress itself has vested the power to make these interim appointments in the district courts, see 28 Page 487 U. S. 677 U.S.C. § 546(d) (1982 ed., Supp. V). [ Footnote 14 ] Congress of course was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers. If it were to remove the appointing authority from the Executive Branch, the most logical place to put it was in the Judicial Branch. In the light of the Act's provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, 28 U.S.C. § 49(f) (1982 ed., Supp. V), we do not think that appointment of the independent counsel by the court runs afoul of the constitutional limitation on "incongruous" interbranch appointments. IV Appellees next contend that the powers vested in the Special Division by the Act conflict with Article III of the Constitution. We have long recognized that by the express provision of Article III, the judicial power of the United States is limited to "Cases" and "Controversies." See Muskrat v. United States, 219 U. S. 346 , 219 U. S. 356 (1911). As a general rule, we have broadly stated that "executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution." Buckley, 424 U.S. at 424 U. S. 123 (citing United States v. Ferreira , 13 How. 40 (1852); Hayburn's Case , 2 Dall. 409 (1792)). [ Footnote 15 ] The purpose Page 487 U. S. 678 of this limitation is to help ensure the independence of the Judicial Branch and to prevent the judiciary from encroaching into areas reserved for the other branches. See United States Parole Comm'n v. Geraghty, 445 U. S. 388 , 445 U. S. 396 (1980). With this in mind, we address in turn the various duties given to the Special Division by the Act. Most importantly, the Act vests in the Special Division the power to choose who will serve as independent counsel and the power to define his or her jurisdiction. § 593(b). Clearly, once it is accepted that the Appointments Clause gives Congress the power to vest the appointment of officials such as the independent counsel in the "courts of Law," there can be no Article III objection to the Special Division's exercise of that power, as the power itself derives from the Appointments Clause, a source of authority for judicial action Page 487 U. S. 679 that is independent of Article III. [ Footnote 16 ] Appellees contend, however, that the Division's Appointments Clause powers do not encompass the power to define the independent counsel's jurisdiction. We disagree. In our view, Congress' power under the Clause to vest the "Appointment" of inferior officers in the courts may, in certain circumstances, allow Congress to give the courts some discretion in defining the nature and scope of the appointed official's authority. Particularly when, as here, Congress creates a temporary "office" the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the scope of the office in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. This said, we do not think that Congress may give the Division unlimited discretion to determine the independent counsel's jurisdiction. In order for the Division's definition of the counsel's jurisdiction to be truly "incidental" to its power to appoint, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General's investigation and request for the appointment of the independent counsel in the particular case. [ Footnote 17 ] Page 487 U. S. 680 The Act also vests in the Special Division various powers and duties in relation to the independent counsel that, because they do not involve appointing the counsel or defining his or her jurisdiction, cannot be said to derive from the Division's Appointments Clause authority. These duties include granting extensions for the Attorney General's preliminary investigation, § 592(a)(3); receiving the report of the Attorney General at the conclusion of his preliminary investigation, §§ 592(b)(1), 593(c)(2)(B); referring matters to the counsel upon request, § 594(e); [ Footnote 18 ] receiving reports from the counsel regarding expenses incurred, § 594(h)(1)(A); receiving a report from the Attorney General following the removal of an independent counsel, § 596(a)(2); granting attorney's fees upon request to individuals who were investigated but not indicted by an independent counsel, § 593(f); receiving a final report from the counsel, § 594(h)(1)(B); deciding whether to release the counsel's final report to Congress or the public and determining whether any protective orders should be issued, § 594(h)(2); and terminating an independent counsel when his or her task is completed, § 596(b)(2). Leaving aside for the moment the Division's power to terminate an independent counsel, we do not think that Article III absolutely prevents Congress from vesting these other miscellaneous powers in the Special Division pursuant to the Act. As we observed above, one purpose of the broad prohibition upon the courts' exercise of "executive or administrative duties of a nonjudicial nature," Buckley, 424 U.S. at 424 U. S. 123 , is to maintain the separation between the judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished Page 487 U. S. 681 by those branches. In this case, the miscellaneous powers described above do not impermissibly trespass upon the authority of the Executive Branch. Some of these allegedly "supervisory" powers conferred on the court are passive: the Division merely "receives" reports from the counsel or the Attorney General; it is not entitled to act on them or to specifically approve or disapprove of their contents. Other provisions of the Act do require the court to exercise some judgment and discretion, [ Footnote 19 ] but the powers granted by these provisions are themselves essentially ministerial. The Act simply does not give the Division the power to "supervise" the independent counsel in the exercise of his or her investigative or prosecutorial authority. And the functions that the Special Division is empowered to perform are not inherently "Executive"; indeed, they are directly analogous to functions that federal judges perform in other contexts, such as deciding whether to allow disclosure of matters occurring before a grand jury, see Fed.Rule Crim.Proc. 6(e), deciding to extend a grand jury investigation, Rule 6(g), or awarding attorney's fees, see, e.g., 42 U.S.C. § 1988. [ Footnote 20 ] Page 487 U. S. 682 We are more doubtful about the Special Division's power to terminate the office of the independent counsel pursuant to § 596(b)(2). As appellees suggest, the power to terminate, especially when exercised by the Division on its own motion, is "administrative" to the extent that it requires the Special Division to monitor the progress of proceedings of the independent counsel and come to a decision as to whether the counsel's job is "completed." § 596(b)(2). It also is not a power that could be considered typically "judicial," as it has few analogues among the court's more traditional powers. Nonetheless, we do not, as did the Court of Appeals, view this provision as a significant judicial encroachment upon executive power or upon the prosecutorial discretion of the independent counsel. We think that the Court of Appeals overstated the matter when it described the power to terminate as a "broadsword and . . . rapier" that enables the court to "control the pace and depth of the independent counsel's activities." 267 U.S.App.D.C. at 217, 838 F.2d at 515. The provision has not been tested in practice, and we do not mean to say that an adventurous special court could not reasonably construe the provision as did the Court of Appeals; but it is the duty of federal courts to construe a statute in order to save it from constitutional infirmities, see, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833 , 478 U. S. 841 (1986), and to that end we think a narrow construction is appropriate here. The termination provisions of the Act do not give the Special Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway -- this power is vested solely in the Attorney General. As we see it, "termination" may occur only when the duties of Page 487 U. S. 683 the counsel are truly "completed" or "so substantially completed" that there remains no need for any continuing action by the independent counsel. [ Footnote 21 ] It is basically a device for removing from the public payroll an independent counsel who has served his or her purpose, but is unwilling to acknowledge the fact. So construed, the Special Division's power to terminate does not pose a sufficient threat of judicial intrusion into matters that are more properly within the Executive's authority to require that the Act be invalidated as inconsistent with Article III. Nor do we believe, as appellees contend, that the Special Division's exercise of the various powers specifically granted to it under the Act poses any threat to the "impartial and independent federal adjudication of claims within the judicial power of the United States." Commodity Futures Trading Comm'n v. Schor, supra, at 478 U. S. 850 . We reach this conclusion for two reasons. First, the Act as it currently stands gives the Special Division itself no power to review any of the actions of the independent counsel or any of the actions of the Attorney General with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court. Second, the Act prevents members of the Special Division from participating in " any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless Page 487 U. S. 684 of whether such independent counsel is still serving in that office." 28 U.S.C. § 49(f) (1982 ed., Supp. V) (emphasis added); see also § 596(a)(3) (preventing members of the Special Division from participating in review of the Attorney General's decision to remove an independent counsel). We think both the special court and its judges are sufficiently isolated by these statutory provisions from the review of the activities of the independent counsel so as to avoid any taint of the independence of the judiciary such as would render the Act invalid under Article III. We emphasize, nevertheless, that the Special Division has no authority to take any action or undertake any duties that are not specifically authorized by the Act. The gradual expansion of the authority of the Special Division might, in another context, be a bureaucratic success story, but it would be one that would have serious constitutional ramifications. The record in other cases involving independent counsel indicate that the Special Division has at times given advisory opinions or issued orders that are not directly authorized by the Act. Two examples of this were cited by the Court of Appeals, which noted that the Special Division issued "orders" that ostensibly exempted the independent counsel from conflict of interest laws. See 267 U.S.App.D.C. at 216, and n. 60, 838 F.2d at 514, and n. 60 (citing In re Deaver, No. 86-2 (CADC Special Division, July 2, 1986) and In re Olson, No. 86-1 (CADC Special Division, June 18, 1986)). In another case, the Division reportedly ordered that a counsel postpone an investigation into certain allegations until the completion of related state criminal proceedings. See H.R.Rep. Conf. Rep. No. 100-452, p. 26 (1987). The propriety of the Special Division's actions in these instances is not before us as such, but we nonetheless think it appropriate to point out not only that there is no authorization for such actions in the Act itself, but that the Division's exercise of unauthorized Page 487 U. S. 685 powers risks the transgression of the constitutional limitations of Article III that we have just discussed. [ Footnote 22 ] V We now turn to consider whether the Act is invalid under the constitutional principle of separation of powers. Two related issues must be addressed: the first is whether the provision of the Act restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show "good cause," taken by itself, impermissibly interferes with the President's exercise of his constitutionally appointed functions. The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President's ability to control the prosecutorial powers wielded by the independent counsel. A Two Terms ago, we had occasion to consider whether it was consistent with the separation of powers for Congress to pass a statute that authorized a Government official who is removable only by Congress to participate in what we found to be "executive powers." Bowsher v. Synar, 478 U. S. 714 , 478 U. S. 730 (1986). We held in Bowsher that "Congress cannot reserve Page 487 U. S. 686 for itself the power of removal of an officer charged with the execution of the laws except by impeachment." Id. at 478 U. S. 726 . A primary antecedent for this ruling was our 1926 decision in Myers v. United States, 272 U. S. 52 . Myers had considered the propriety of a federal statute by which certain postmasters of the United States could be removed by the President only "by and with the advice and consent of the Senate." There too, Congress' attempt to involve itself in the removal of an executive official was found to be sufficient grounds to render the statute invalid. As we observed in Bowsher, the essence of the decision in Myers was the judgment that the Constitution prevents Congress from "draw[ing] to itself . . . the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of the [Appointments Clause] and to infringe the constitutional principle of the separation of governmental powers." Myers, supra, at 272 U. S. 161 . Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, "only by the personal action of the Attorney General, and only for good cause." § 596(a)(1). [ Footnote 23 ] There is no requirement of congressional approval of the Attorney General's removal decision, though the decision is subject to judicial review. § 596(a)(3). In our view, the removal provisions of the Act make this case more analogous to Humphrey's Executor v. United States, 295 U. S. 602 (1935), and Wiener v. United States, 357 U. S. 349 (1958), than to Myers or Bowsher. Page 487 U. S. 687 In Humphrey's Executor, the issue was whether a statute restricting the President's power to remove the commissioners of the Federal Trade Commission only for "inefficiency, neglect of duty, or malfeasance in office" was consistent with the Constitution. 295 U.S. at 295 U. S. 619 . We stated that whether Congress can "condition the [President's power of removal] by fixing a definite term and precluding a removal except for cause will depend upon the character of the office." Id. at 295 U. S. 631 . Contrary to the implication of some dicta in Myers, [ Footnote 24 ] the President's power to remove Government officials simply was not "all-inclusive in respect of civil officers with the exception of the judiciary provided for by the Constitution." 295 U.S. at 295 U. S. 629 . At least in regard to "quasi-legislative" and "quasi-judicial" agencies such as the FTC, [ Footnote 25 ] "[t]he authority of Congress, in creating [such] agencies, to require them to act in discharge of their duties independently of executive control . . . includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime." Ibid. In Humphrey's Executor, we found it "plain" that the Constitution did not give the President "illimitable power of removal" over the officers of independent agencies. Ibid. Were the President to have Page 487 U. S. 688 the power to remove FTC commissioners at will, the "coercive influence" of the removal power would "threate[n] the independence of [the] commission." Id. at 295 U. S. 630 . Similarly, in Wiener, we considered whether the President had unfettered discretion to remove a member of the War Claims Commission, which had been established by Congress in the War Claims Act of 1948, 62 Stat. 1240. The Commission's function was to receive and adjudicate certain claims for compensation from those who had suffered personal injury or property damage at the hands of the enemy during World War II. Commissioners were appointed by the President, with the advice and consent of the Senate, but the statute made no provision for the removal of officers, perhaps because the Commission itself was to have a limited existence. As in Humphrey's Executor, however, the Commissioners were entrusted by Congress with adjudicatory powers that were to be exercised free from executive control. In this context, "Congress did not wish to have hang over the Commission the Damocles' sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing." 357 U.S. at 357 U. S. 356 . Accordingly, we rejected the President's attempt to remove a Commissioner "merely because he wanted his own appointees on [the] Commission," stating that "no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute." Ibid. Appellees contend that Humphrey's Executor and Wiener are distinguishable from this case because they did not involve officials who performed a "core executive function." They argue that our decision in Humphrey's Executor rests on a distinction between "purely executive" officials and officials who exercise "quasi-legislative" and "quasi-judicial" powers. In their view, when a "purely executive" official is involved, the governing precedent is Myers, not Humphrey's Executor. See Humphrey's Executor, supra, at 295 U. S. 628 . And, under Myers, the President must have absolute discretion to Page 487 U. S. 689 discharge "purely" executive officials at will. See Myers, 272 U.S. at 272 U. S. 132 -134. [ Footnote 26 ] We undoubtedly did rely on the terms "quasi-legislative" and "quasi-judicial" to distinguish the officials involved in Humphrey's Executor and Wiener from those in Myers, but our present considered view is that the determination of whether the Constitution allows Congress to impose a "good cause"-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as "purely executive." [ Footnote 27 ] The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, [ Footnote 28 ] but to ensure that Congress does Page 487 U. S. 690 not interfere with the President's exercise of the "executive power" and his constitutionally appointed duty to "take care that the laws be faithfully executed" under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some "purely executive" officials who must be removable by the President at will if he is to be able to accomplish his constitutional role. [ Footnote 29 ] See 272 U.S. at 272 U. S. 132 -134. But as the Court noted in Wiener: "The assumption was short-lived that the Myers case recognized the President's inherent constitutional power to remove officials no matter what the relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding the nature of their tenure." 357 U.S. at 357 U. S. 352 . At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey's Executor and Wiener Page 487 U. S. 691 as "quasi-legislative" or "quasi-judicial" in large part reflected our judgment that it was not essential to the President's proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. [ Footnote 30 ] We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light. Considering for the moment the "good cause" removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a "good cause" standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are "executive" in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional Page 487 U. S. 692 law that the counsel be terminable at will by the President. [ Footnote 31 ] Nor do we think that the "good cause" removal provision at issue here impermissibly burdens the President's power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the "faithful execution" of the laws. Rather, because the independent counsel may be terminated for "good cause," the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act. [ Footnote 32 ] Although we need not decide in this case exactly what is encompassed within the term "good cause" under the Act, the legislative history of the removal provision also makes clear that the Attorney General may remove an independent counsel for "misconduct." See H.R.Conf.Rep. No. 100-452, p. 37 (1987). Here, as with the provision of the Act conferring the appointment authority of Page 487 U. S. 693 the independent counsel on the special court, the congressional determination to limit the removal power of the Attorney General was essential, in the view of Congress, to establish the necessary independence of the office. We do not think that this limitation as it presently stands sufficiently deprives the President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws. [ Footnote 33 ] B The final question to be addressed is whether the Act, taken as a whole, violates the principle of separation of powers by unduly interfering with the role of the Executive Branch. Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e.g., Bowsher v. Synar, 478 U.S. at 478 U. S. 725 (citing Humphrey's Executor, 295 U.S. at 295 U. S. 629 -630). As we stated in Buckley v. Valeo, 424 U. S. 1 (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as "a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Id. at 424 U. S. 122 . We have not hesitated to invalidate provisions of law which violate this principle. See id. at 424 U. S. 123 . On the other hand, we have never held that the Constitution requires that the three Page 487 U. S. 694 Branches of Government "operate with absolute independence." United States v. Nixon, 418 U.S. at 418 U. S. 707 ; see also Nixon v. Administrator of General Services, 433 U. S. 425 , 433 U. S. 442 (1977) (citing James Madison in The Federalist No. 47, and Joseph Story in 1 Commentaries on the Constitution § 525 (M. Bigelow, 5th ed.1905)). In the often-quoted words of Justice Jackson: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 635 (1952) (concurring opinion). We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. Cf. Commodity Futures Trading Comm'n v. Schor, 478 U.S. at 478 U. S. 856 . Unlike some of our previous cases, most recently Bowsher v. Synar, this case simply does not pose a "dange[r] of congressional usurpation of Executive Branch functions." 478 U.S. at 478 U. S. 727 ; see also INS v. Chadha, 462 U. S. 919 , 462 U. S. 958 (1983). Indeed, with the exception of the power of impeachment -- which applies to all officers of the United States -- Congress retained for itself no powers of control or supervision over an independent counsel. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. § 592(g). Other than that, Congress' role under the Act is limited to receiving reports or other information and oversight of the independent counsel's activities, § 595(a), functions that we have recognized generally as being incidental to the legislative function of Congress. See McGrain v. Daugherty, 273 U. S. 135 , 273 U. S. 174 (1927). Page 487 U. S. 695 Similarly, we do not think that the Act works any judicial usurpation of properly executive functions. As should be apparent from our discussion of the Appointments Clause above, the power to appoint inferior officers such as independent counsel is not, in itself, an "executive" function in the constitutional sense, at least when Congress has exercised its power to vest the appointment of an inferior office in the "courts of Law." We note nonetheless that, under the Act, the Special Division has no power to appoint an independent counsel sua sponte; it may only do so upon the specific request of the Attorney General, and the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment, § 592(f). In addition, once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel. As we pointed out in our discussion of the Special Division in relation to Article III, the various powers delegated by the statute to the Division are not supervisory or administrative, nor are they functions that the Constitution requires be performed by officials within the Executive Branch. The Act does give a federal court the power to review the Attorney General's decision to remove an independent counsel, but in our view this is a function that is well within the traditional power of the judiciary. Finally, we do not think that the Act "impermissibly undermine[s]" the powers of the Executive Branch, Schor supra, at 478 U. S. 856 , or "disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions," Nixon v. Administrator of General Services, supra, at 433 U. S. 443 . It is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity. The Attorney General is not allowed to appoint the individual of his choice; he does not determine the counsel's jurisdiction; and his Page 487 U. S. 696 power to remove a counsel is limited. [ Footnote 34 ] Nonetheless, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel. Most importantly, the Attorney General retains the power to remove the counsel for "good cause," a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are "faithfully executed" by an independent counsel. No independent counsel may be appointed without a specific request by the Attorney General, and the Attorney General's decision not to request appointment if he finds "no reasonable grounds to believe that further investigation is warranted" is committed to his unreviewable discretion. The Act thus gives the Executive a degree of control over the power to initiate an investigation by the independent counsel. In addition, the jurisdiction of the independent counsel is defined with reference to the facts submitted by the Attorney General, and once a counsel is appointed, the Act requires that the counsel abide by Justice Department policy unless it is not "possible" to do so. Notwithstanding the fact that the counsel is to some degree "independent" and free from Executive supervision to a greater extent than other federal prosecutors, in our view, these features of the Act give the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties. VI In sum, we conclude today that it does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division; that the powers exercised by the Special Division under the Act do not violate Page 487 U. S. 697 Article III; and that the Act does not violate the separation of powers principle by impermissibly interfering with the functions of the Executive Branch. The decision of the Court of Appeals is therefore Reversed. JUSTICE KENNEDY took no part in the consideration or decision of this case. [ Footnote 1 ] The Act was first enacted by Congress in 1978, Pub.L. 95-521, 92 Stat. 1867, and has been twice reenacted, with amendments. See Pub.L. 97-409, 96 Stat. 2039; Pub.L. 100-191, 101 Stat. 1293. The current version of the statute states that, with certain exceptions, it shall "cease to be effective five years after the date of the enactment of the Independent Counsel Reauthorization Act of 1987." 28 U.S.C. § 599 (1982 ed., Supp. V). [ Footnote 2 ] Under 28 U.S.C. § 591(a) (1982 ed., Supp. V), the statute applies to violations of "any Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction." See also § 591(c) ("any Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction"). Section 591(b) sets forth the individuals who may be the target of an investigation by the Attorney General, including the President and Vice President, Cabinet level officials, certain high ranking officials in the Executive Office of the President and the Justice Department, the Director and Deputy Director of Central Intelligence, the Commissioner of Internal Revenue, and certain officials involved in the President's national political campaign. Pursuant to § 591(c), the Attorney General may also conduct a preliminary investigation of persons not named in § 591(b) if an investigation by the Attorney General or other Department of Justice official "may result in a personal, financial, or political conflict of interest." [ Footnote 3 ] The Special Division is a division of the United States Court of Appeals for the District of Columbia Circuit. 28 U.S.C. § 49 (1982 ed., Supp. V). The court consists of three circuit court judges or justices appointed by the Chief Justice of the United States. One of the judges must be a judge of the United States Court of Appeals for the District of Columbia Circuit, and no two of the judges may be named to the Special Division from a particular court. The judges are appointed for 2-year terms, with any vacancy being filled only for the remainder of the 2-year period. Ibid. [ Footnote 4 ] The Act also requires the Attorney General to apply for the appointment of an independent counsel if 90 days elapse from the receipt of the information triggering the preliminary investigation without a determination by the Attorney General that there are no reasonable grounds to believe that further investigation or prosecution is warranted. § 592(c)(1). Pursuant to § 592(f), the Attorney General's decision to apply to the Special Division for the appointment of an independent counsel is not reviewable "in any court." [ Footnote 5 ] Upon request of the Attorney General, in lieu of appointing an independent counsel the Special Division may "expand the prosecutorial jurisdiction of an independent counsel." § 593(c). Section 593 also authorizes the Special Division to fill vacancies arising because of the death, resignation, or removal of an independent counsel. § 593(e). The court, in addition, is empowered to grant limited extensions of time for the Attorney General's preliminary investigation, § 592(a)(3), and to award attorney's fees to unindicted individuals who were the subject of an investigation by an independent counsel, § 593(f) (as amended by Pub.L. 101-191, 101 Stat. 1293). [ Footnote 6 ] The Attorney General, however, retains "direction or control as to those matters that specifically require the Attorney General's personal action under section 2516 of title 18." § 594(a). [ Footnote 7 ] The 1987 amendments to the Act specify that the Department of Justice "shall pay all costs relating to the establishment and operation of any office of independent counsel." The Attorney General must report to Congress regarding the amount expended on investigations and prosecutions by independent counsels. § 594(d)(2). In addition, the independent counsel must also file a report of major expenses with the Special Division every six months. § 594(h)(1)(A). [ Footnote 8 ] Under the Act as originally enacted, an independent counsel who was removed could obtain judicial review of the Attorney General's decision in a civil action commenced before the Special Division. If the removal was "based on error of law or fact," the court could order "reinstatement or other appropriate relief." 28 U.S.C. § 596(a)(3). [ Footnote 9 ] Sections 596(b)(1)(B) and 596(b)(2) also require that the independent counsel have filed a final report with the Special Division in compliance with § 594(h)(1)(B). [ Footnote 10 ] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub.L. 96-510, 94 Stat. 2767, 42 U.S.C. § 9601 et seq. [ Footnote 11 ] The Attorney General concluded that appellees Schmults and Dinkins lacked the requisite "criminal intent" to obstruct the Committee's investigation. See Report of Attorney General Pursuant to 28 U.S.C. § 592(c)(1) Regarding Allegations Against Department of Justice Officials in United States House Judiciary Committee Report 22, 45 (Apr. 10, 1986), filed in No. 86-1 (CADC) (Attorney General Report). [ Footnote 12 ] It is clear that appellant is an "officer" of the United States, not an "employee." See Buckley, 424 U.S. at 424 U. S. 126 , and n. 162. [ Footnote 13 ] Indeed, in light of judicial experience with prosecutors in criminal cases, it could be said that courts are especially well qualified to appoint prosecutors. This is not a case in which judges are given power to appoint an officer in an area in which they have no special knowledge or expertise, as in, for example, a statute authorizing the courts to appoint officials in the Department of Agriculture or the Federal Energy Regulatory Commission. [ Footnote 14 ] We note also the longstanding judicial practice of appointing defense attorneys for individuals who are unable to afford representation, see 18 U.S.C. § 3006A(b) (1982 ed., Supp. V), notwithstanding the possibility that the appointed attorney may appear in court before the judge who appointed him. [ Footnote 15 ] In several cases, the Court has indicated that Article III "judicial Power" does not extend to duties that are more properly performed by the Executive Branch. Hayburn's Case, for example, involved a statute empowering federal and state courts to set pensions for disabled veterans of the Revolutionary War. See Act of Mar. 23, 1792, ch. 11, 1 Stat. 243. The Act "undertook to devolve upon the Circuit Court of the United States the duty of examining proofs, of determining what amount of the monthly pay would be equivalent to the disability ascertained, and to certify the same to the Secretary of War." Muskrat, 219 U.S. at 219 U. S. 352 . The court's decision was to be reported to the Secretary of War, who had the discretion to either adopt or reject the court's findings. Ibid. This Court did not reach the constitutional issue in Hayburn's Case, but the opinions of several Circuit Courts were reported in the margins of the Court's decision in that case, and have since been taken to reflect a proper understanding of the role of the judiciary under the Constitution. See, e.g., Ferreira, 13 How. at 54 U. S. 50 -51. In Ferreira, Congress passed a statute authorizing a federal court in Florida to hear and adjudicate claims for losses for which the United States was to be held responsible under the 1819 treaty with Spain that ceded Florida to the United States. Id. at 54 U. S. 45 . As in Hayburn's Case, the results of the court proceeding were to be reported to an executive official, the Secretary of the Treasury, who would make the final determination whether to pay the claims. 13 How. at 54 U. S. 47 . The Court recognized that the powers conferred on the judge by the statute were "judicial in their nature," in that they involved "judgment and discretion." Id. at 54 U. S. 48 . Nonetheless, they were not "judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States." Ibid. Because the District Court's decision in Ferreira was not an exercise of Article III judicial power, the Court ruled that it had no jurisdiction to hear the appeal. Id. at 54 U. S. 51 -52. [ Footnote 16 ] We do not think that judicial exercise of the power to appoint, per se, is in any way inconsistent as a functional matter with the courts' exercise of their Article III powers. We note that courts have long participated in the appointment of court officials such as United States commissioners or magistrates, see Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931); 28 U.S.C. § 631(a), without disruption of normal judicial functions. And certainly the Court in Ex parte Hennen , 13 Pet. 230 (1839), deemed it entirely appropriate that a court should have the authority to appoint its own clerk. [ Footnote 17 ] Our conclusion that the power to define the counsel's jurisdiction is incidental to the power to appoint also applies to the Division's authority to expand the Jurisdiction of the counsel upon request of the Attorney General under § 593(c)(2). [ Footnote 18 ] In our view, this provision does not empower the court to expand the original scope of the counsel's jurisdiction; that may be done only upon request of the Attorney General pursuant to § 593(c)(2). At most, § 594(e) authorizes the court simply to refer matters that are "relate[d] to the independent counsel's prosecutorial jurisdiction" as already defined. [ Footnote 19 ] The Special Division must determine whether the Attorney General has shown "good cause" for his or her request for an extension of the time limit on his or her preliminary investigation, § 592(a)(3); the court must decide whether and to what extent it should release to the public the counsel's final report or the Attorney General's removal report, §§ 596(a)(2), (b)(2); and the court may consider the propriety of a request for attorney's fees, § 593(f). [ Footnote 20 ] By way of comparison, we also note that federal courts and judges have long performed a variety of functions that, like the functions involved here, do not necessarily or directly involve adversarial proceedings within a trial or appellate court. For example, federal courts have traditionally supervised grand juries and assisted in their "investigative function" by, if necessary, compelling the testimony of witnesses. See Brown v. United States, 359 U. S. 41 , 359 U. S. 49 (1959). Federal courts also participate in the issuance of search warrants, see Fed.Rule Crim.Proc. 41, and review applications for wiretaps, see 18 U.S.C. §§ 2516, 2518 (1982 ed. and Supp. IV), both of which may require a court to consider the nature and scope of criminal investigations on the basis of evidence or affidavits submitted in an ex parte proceeding. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U. S. 787 , 481 U. S. 793 -802 (1987), we recognized that federal courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, and this authority necessarily includes the ability to appoint a private attorney to prosecute the contempt. [ Footnote 21 ] As the dissenting opinion noted below, the termination provision was "intended to serve only as a measure of last resort." See In re Sealed Case, 267 U.S.App.D.C. 178, 224, n. 13, 838 F.2d 476, 522, n. 13 (1988). The Senate Report on the provision states: "This paragraph provides for the unlikely situation where a special prosecutor may try to remain as special prosecutor after his responsibilities under this chapter are completed. . . . The drastic remedy of terminating the office of special prosecutor without the consent of the special prosecutor should obviously be executed with caution." S.Rep. No. 95-170, p. 75 (1977). [ Footnote 22 ] We see no impropriety in the Special Division's actions with regard to its response to appellant's request for referral of additional matters in this case. See In re Olson, 260 U.S.App.D.C. 168, 818 F.2d 34 (Special Division 1987). The Division has statutory authority to respond to appellant's request pursuant to § 594(e), and it was only proper that it first consider whether it could exercise its statutory authority without running afoul of the Constitution. As to the Division's alleged "reinterpretation" of its original grant of jurisdiction, the power to "reinterpret" or clarify the original grant may be seen as incidental to the court's referral power. After all, in order to decide whether to refer a matter to the counsel, the court must be able to determine whether the matter falls within the scope of the original grant. See n 18, supra. We express no view on the merits of the Division's interpretation of the original grant or of its ruling in regard its power to refer matters that the Attorney General has previously refused to refer. [ Footnote 23 ] As noted, an independent counsel may also be removed through impeachment and conviction. In addition, the Attorney General may remove a counsel for "physical disability, mental incapacity, or any other condition that substantially impairs the performance" of his duties. § 596(a)(1). [ Footnote 24 ] The Court expressly disapproved of any statements in Myers that "are out of harmony" with the views expressed in Humphrey's Executor. 295 U.S. at 295 U. S. 626 . We recognized that the only issue actually decided in Myers was that "the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress." 295 U.S. at 295 U. S. 626 . [ Footnote 25 ] See id. at 295 U. S. 627 -628. We described the FTC as "an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid." Such an agency was not "an arm or an eye of the executive," and the commissioners were intended to perform their duties "without executive leave and . . . free from executive control." Id. at 295 U. S. 628 . As we put it at the time, the powers of the FTC were not "purely" executive, but were "quasi-legislative or quasi-judicial." Ibid. [ Footnote 26 ] This same argument was raised by the Solicitor General in Bowsher v. Synar, 478 U. S. 714 (1986), although, as JUSTICE WHITE noted in dissent in that case, the argument was clearly not accepted by the Court at that time. Id. at 478 U. S. 738 -739, and nn. 1-3. [ Footnote 27 ] Indeed, this Court has never held that the Constitution prevents Congress from imposing limitations on the President's power to remove all executive officials simply because they wield "executive" power. Myers itself expressly distinguished cases in which Congress had chosen to vest the appointment of "inferior" executive officials in the head of a department. See 272 U.S. at 272 U. S. 161 -163, 272 U. S. 164 . In such a situation, we saw no specific constitutional impediment to congressionally imposed restrictions on the President's removal powers. See also United States v. Perkins, 116 U. S. 483 , 116 U. S. 485 (1886) (" The constitutional authority in Congress to thus vest the appointment [of inferior officers in the heads of departments] implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed'") (quoting the Court of Claims' decision in the case). [ Footnote 28 ] The difficulty of defining such categories of "executive" or "quasi-legislative" officials is illustrated by a comparison of our decisions in cases such as Humphrey's Executor, Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 140 -141 (1976), and Bowsher, supra, at 478 U. S. 732 -734. In Buckley, we indicated that the functions of the Federal Election Commission are "administrative," and "more legislative and judicial in nature," and are "of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress." 424 U.S. at 424 U. S. 140 -141. In Bowsher, we found that the functions of the Comptroller General were "executive" in nature, in that he was required to "exercise judgment concerning facts that affect the application of the Act," and he must "interpret the provisions of the Act to determine precisely what budgetary calculations are required." 478 U.S. at 478 U. S. 733 . Compare this with the description of the FTC's powers in Humphrey's Executor, which we stated "occupie[d] no place in the executive department:" "The [FTC] is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid." 295 U.S. at 295 U. S. 628 . As JUSTICE WHITE noted in his dissent in Bowsher, it is hard to dispute that the powers of the FTC at the time of Humphrey's Executor would at the present time be considered "executive," at least to some degree. See 478 U.S. at 478 U. S. 761 , n. 3. [ Footnote 29 ] The dissent says that the language of Article II vesting the executive power of the United States in the President requires that every officer of the United States exercising any part of that power must serve at the pleasure of the President and be removable by him at will. Post at 487 U. S. 705 . This rigid demarcation -- a demarcation incapable of being altered by law in the slightest degree, and applicable to tens of thousands of holders of offices neither known nor foreseen by the Framers -- depends upon an extrapolation from general constitutional language which we think is more than the text will bear. It is also contrary to our holding in United States v. Perkins, supra, decided more than a century ago. [ Footnote 30 ] The terms also may be used to describe the circumstances in which Congress might be more inclined to find that a degree of independence from the Executive, such as that afforded by a "good cause" removal standard, is necessary to the proper functioning of the agency or official. It is not difficult to imagine situations in which Congress might desire that an official performing "quasi-judicial" functions, for example, would be free of executive or political control. [ Footnote 31 ] We note by way of comparison that various federal agencies whose officers are covered by "good cause" removal restrictions exercise civil enforcement powers that are analogous to the prosecutorial powers wielded by an independent counsel. See, e.g., 15 U.S.C. § 45(m) (giving the FTC the authority to bring civil actions to recover civil penalties for the violations of rules respecting unfair competition); 15 U.S.C. §§ 2061, 2071, 2076(b)(7)(A) (giving the Consumer Product Safety Commission the authority to obtain injunctions and apply for seizure of hazardous products). [ Footnote 32 ] Indeed, during the hearings on the 1982 amendments to the Act, a Justice Department official testified that the "good cause" standard contained in the amendments "would make the special prosecutor no more independent than officers of the many so-called independent agencies in the executive branch." Ethics in Government Act Amendments of 1982, Hearing before the Subcommittee on Oversight of Government Management of the Senate Committee on Governmental Affairs, 97th Cong., 2d Sess., 7 (1981) (Associate Attorney General Giuliani). [ Footnote 33 ] We see no constitutional problem in the fact that the Act provides for judicial review of the removal decision. § 596(a)(3). The purpose of such review is to ensure that an independent counsel is removed only in accordance with the will of Congress as expressed in the Act. The possibility of judicial review does not inject the Judicial Branch into the removal decision, nor does it, by itself, put any additional burden on the President's exercise of executive authority. Indeed, we note that the legislative history of the most recent amendment to the Act indicates that the scope of review to be exercised by the courts under § 596(a)(3) is to be "the standards established by existing case law on the removal of [other] officials" who are subject to "good cause" removal. H.R.Conf.Rep. No. 100-452, p. 37 (1987). [ Footnote 34 ] With these provisions, the degree of control exercised by the Executive Branch over an independent counsel is clearly diminished in relation to that exercised over other prosecutors, such as the United States Attorneys, who are appointed by the President and subject to termination at will. JUSTICE SCALIA, dissenting. It is the proud boast of our democracy that we have "a government of laws, and not of men." Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows: "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men." The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just government. In No. 47 of The Federalist, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 301 (C. Rossiter ed.1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours. The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United Page 487 U. S. 698 States, which shall consist of a Senate and House of Representatives." Article III, § 1, provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." And the provision at issue here, Art. II, § 1, cl. 1, provides that "[t]he executive Power shall be vested in a President of the United States of America." But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized "[t]he insufficiency of a mere parchment delineation of the boundaries" to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). "[T]he great security," wrote Madison, "against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Federalist No. 51, pp. 321-322. Madison continued: "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. . . . As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified." Id. at 322-323. The major "fortification" provided, of course, was the veto power. But in addition to providing fortification, the founders conspicuously and very consciously declined to sap the Executive's strength in the same way they had weakened Page 487 U. S. 699 the Legislature: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority, were rejected. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 66, 71-74, 88, 91-92 (rev. ed.1966); 2 id. at 335-337, 533, 537, 542. Thus, while "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," U.S.Const., Art. I, § 1 (emphasis added), "[t]he executive Power shall be vested in a President of the United States, " Art. II, § 1, cl. 1 (emphasis added). That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish -- so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf. I The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United States v. House of Representatives of United States, 556 F. Supp. 150 , 152 (DC 1983), which -- as is often the case with such interbranch conflicts -- became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the documents, Page 487 U. S. 700 see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protection Agency, reprinted in H.R.Rep. No. 99-435, pp. 1166-1167 (1985), and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, id. at 1168-1177. In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General). The House's response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. See 2 U.S.C. § 192. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. See ibid. The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two Branches to try "[c]ompromise and cooperation, rather than confrontation." 556 F. Supp. at 153 . After further haggling, the two Branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents. Congress did not, however, leave things there. Certain Members of the House remained angered by the confrontation, particularly by the role played by the Department of Justice. Specifically, the Committee remained disturbed by the possibility that the Department had persuaded the President to assert executive privilege despite reservations by the Page 487 U. S. 701 EPA; that the Department had "deliberately and unnecessarily precipitated a constitutional confrontation with Congress"; that the Department had not properly reviewed and selected the documents as to which executive privilege was asserted; that the Department had directed the United States Attorney not to present the contempt certification involving the EPA Administrator to a grand jury for prosecution; that the Department had made the decision to sue the House of Representatives; and that the Department had not adequately advised and represented the President, the EPA and the EPA Adminstrator. H.R.Rep. No. 99-435, p. 3 (1985) (describing unresolved "questions" that were the basis of the Judiciary Committee's investigation). Accordingly, staff counsel of the House Judiciary Committee were commissioned (apparently without the knowledge of many of the Committee's members, see id. at 731) to investigate the Justice Department's role in the controversy. That investigation lasted 2 1/2 years, and produced a 3,000-page report issued by the Committee over the vigorous dissent of all but one of its minority-party members. That report, which among other charges questioned the truthfulness of certain statements made by Assistant Attorney General Olson during testimony in front of the Committee during the early stages of its investigation, was sent to the Attorney General, along with a formal request that he appoint an independent counsel to investigate Mr. Olson and others. As a general matter, the Act before us here requires the Attorney General to apply for the appointment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that "there are no reasonable grounds to believe that further investigation or prosecution is warranted." 28 U.S.C. § 592(b)(1). As a practical matter, it would be surprising if the Attorney General had any choice (assuming this statute is constitutional) but to seek appointment of an independent counsel to pursue the charges against the principal object of the congressional Page 487 U. S. 702 request, Mr. Olson. Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. How could it not be, the public would ask, that a 3,000-page indictment drawn by our representatives over 2 1/2 years does not even establish "reasonable grounds to believe" that further investigation or prosecution is warranted with respect to at least the principal alleged culprit? But the Act establishes more than just practical compulsion. Although the Court's opinion asserts that the Attorney General had "no duty to comply with the [congressional] request," ante at 487 U. S. 694 , that is not entirely accurate. He had a duty to comply unless he could conclude that there were " no reasonable grounds to believe, " not that prosecution was warranted, but merely that " further investigation " was warranted, 28 U.S.C. § 592(b)(1) (1982 ed., Supp. V) (emphasis added), after a 90-day investigation in which he was prohibited from using such routine investigative techniques as grand juries, plea bargaining, grants of immunity or even subpoenas, see § 592(a)(2). The Court also makes much of the fact that "the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment, § 592(f)." Ante at 487 U. S. 695 . Yes, [ Footnote 2/1 ] but Congress is not prevented from reviewing it. The context of this statute is acrid with the smell of threatened impeachment. Where, as here, a request for appointment of an independent Page 487 U. S. 703 counsel has come from the Judiciary Committee of either House of Congress, the Attorney General must, if he decides not to seek appointment, explain to that Committee why. See also 28 U.S.C. § 595(c) (1982 ed., Supp. V) (independent counsel must report to the House of Representatives information "that may constitute grounds for an impeachment"). Thus, by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates. II If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical details as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers. As my prologue suggests, Page 487 U. S. 704 I think that has it backwards. Our opinions are full of the recognition that it is the principle of separation of powers, and the inseparable corollary that each department's "defense must . . . be made commensurate to the danger of attack," Federalist No. 51, p. 322 (J. Madison), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the removal power. Thus, while I will subsequently discuss why our appointments and removal jurisprudence does not support today's holding, I begin with a consideration of the fountainhead of that jurisprudence, the separation and equilibration of powers. First, however, I think it well to call to mind an important and unusual premise that underlies our deliberations, a premise not expressly contradicted by the Court's opinion, but in my view not faithfully observed. It is rare in a case dealing, as this one does, with the constitutionality of a statute passed by the Congress of the United States, not to find anywhere in the Court's opinion the usual, almost formulary caution that we owe great deference to Congress' view that what it has done is constitutional, see, e.g., Rostker v. Goldberg, 453 U. S. 57 , 453 U. S. 64 (1981); Fullilove v. Klutznick, 448 U. S. 448 , 448 U. S. 472 (1980) (opinion of Burger, C.J.); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 , 412 U. S. 102 (1973); United States v. National Dairy Products Corp., 372 U. S. 29 , 372 U. S. 32 (1963), and that we will decline to apply the statute only if the presumption of constitutionality can be overcome, see Fullilove, supra, at 448 U. S. 473 ; Columbia Broadcasting, supra, at 412 U. S. 103 . That caution is not recited by the Court in the present case, because it does not apply. Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers, Page 487 U. S. 705 and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: "The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers. . . ." Federalist No. 49, p. 314. The playingfield for the present case, in other words, is a level one. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt. To repeat, Article II, § 1, cl. 1, of the Constitution provides: "The executive Power shall be vested in a President of the United States." As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation of powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that, since the statute vests some purely executive power in a person who is not the President of the United States, it is void. The Court concedes that "[t]here is no real dispute that the functions performed by the independent counsel are executive'," though it qualifies that concession by adding "in the sense that they are `law enforcement' functions that typically have been undertaken by officials within the Executive Branch." Ante at 487 U. S. 691 . The qualifier adds nothing but atmosphere. Page 487 U. S. 706 In what other sense can one identify "the executive Power" that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere -- if conducted by government at all -- been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the independent counsel's functions fit this description. She is vested with the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General." 28 U.S.C. § 594(a) (1982 ed., Supp. V) (emphasis added). Governmental investigation and prosecution of crimes is a quintessentially executive function. See Heckler v. Chaney, 470 U. S. 821 , 470 U. S. 832 (1985); Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 138 (1976); United States v. Nixon, 418 U. S. 683 , 418 U. S. 693 (1974). As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: the Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that "some" Presidential control. "Most importan[t]" among these controls, the Court asserts, is the Attorney General's "power to remove the counsel for good cause.'" Ante at 487 U. S. 696 . This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey's Executor v. United States, 295 U. S. 602 (1935) -- indeed, what Humphrey's Executor was all about -- limiting removal power to "good cause" is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be "an agency of the legislative and judicial Page 487 U. S. 707 departments," and "wholly disconnected from the executive department," id. at 295 U. S. 630 , because "it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will." Id. at 295 U. S. 629 . What we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the "most importan[t]" means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the "good cause" limitation as "protecting the independent counsel's ability to act independently of the President's direct control," since it permits removal only for "misconduct." H.R. Conf Rep. 100-452, p. 37 (1987). Moving on to the presumably "less important" controls that the President retains, the Court notes that no independent counsel may be appointed without a specific request from the Attorney General. As I have discussed above, the condition that renders such a request mandatory (inability to find "no reasonable grounds to believe" that further investigation is warranted) is so insubstantial that the Attorney General's discretion is severely confined. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. See 28 U.S.C. § 593(b) (1982 ed., Supp. V). And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independent counsel exercises executive power free from the President's control. Finally, the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not "possible." See 28 U.S.C. § 594(f) (1982 ed., Supp. V). The exception alone shows this to be an empty promise. Even without that, however, one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial decisions Page 487 U. S. 708 -- including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted -- involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country. See N.Y. Times, May 29, 1987, p. A12, col. 1. Another preeminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary. The Justice Department and our intelligence agencies are often in disagreement on this point, and the Justice Department does not always win. The present Act even goes so far as specifically to take the resolution of that dispute away from the President and give it to the independent counsel. 28 U.S.C. § 594(a)(6) (1982 ed., Supp. V). In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. To take this away is to remove the core of the prosecutorial function, and not merely "some" Presidential control. As I have said, however, it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that "[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity." Ante at 487 U. S. 695 . It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether "the President's need to control the exercise of [the independent counsel's] Page 487 U. S. 709 discretion is so central to the functioning of the Executive Branch" as to require complete control, ante at 487 U. S. 691 (emphasis added), whether the conferral of his powers upon someone else " sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws," ante at 487 U. S. 693 (emphasis added), and whether "the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties," ante at 487 U. S. 696 (emphasis added). It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are. The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two Branches. Is it conceivable that, if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was " so central to the functioning of the Legislative Branch" as really to require complete control, or whether the statute gives Congress " sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties"? Of course we would have none of that. Once we determined that a purely legislative power was at issue, we would require it to be exercised, wholly and entirely, by Congress. Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts -- perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. Is there any doubt that we would not pause to inquire whether the matter was " so central to the Page 487 U. S. 710 functioning of the Judicial Branch" as really to require complete control, or whether we retained " sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties"? We would say that our "constitutionally assigned duties" include complete control over all exercises of the judicial power -- or, as the plurality opinion said in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 , 458 U. S. 58 -59 (1982), that "[t]he inexorable command of [Article III] is clear and definite: the judicial power of the United States must be exercised by courts having the attributes prescribed in Art. III." We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States. Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United States v. Will, 449 U. S. 200 , 449 U. S. 211 -217 (1980). A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Coy v. Iowa, post at 487 U. S. 1020 . While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty. Page 487 U. S. 711 The checks against any branch's abuse of its exclusive powers are twofold: first, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes, cf. United States v. Lovett, 328 U. S. 303 (1946); and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors -- for Teapot Dome and for Watergate, for example -- long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6; 38 Fed.Reg. 30738 (1973). The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a "balancing test." What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? Many countries of the world get along with an executive that is much weaker than ours -- in fact, entirely dependent upon the continued support of the legislature. Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court's opinion is that it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President's closest advisers, and indeed the President himself, is not "so central to the functioning of the Executive Branch" as to be constitutionally required to be within the President's control. Apparently that is so because we say it is so. Having abandoned as the basis for our decisionmaking the text of Article II that "the executive Power" must be vested in the President, the Court does not even attempt to craft a substitute criterion -- a "justiciable standard," see, e.g., 369 U. S. Carr, Page 487 U. S. 712 369 U. S. 186 , 369 U. S. 210 (1962); Coleman v. Miller, 307 U. S. 433 , 307 U. S. 454 -455 (1939), however remote from the Constitution -- that today governs, and in the future will govern, the decision of such questions. Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all. In my view, moreover, even as an ad hoc, standardless judgment, the Court's conclusion must be wrong. Before this statute was passed, the President, in taking action disagreeable to the Congress, or an executive officer giving advice to the President or testifying before Congress concerning one of those many matters on which the two Branches are from time to time at odds, could be assured that his acts and motives would be adjudged -- insofar as the decision whether to conduct a criminal investigation and to prosecute is concerned -- in the Executive Branch, that is, in a forum attuned to the interests and the policies of the Presidency. That was one of the natural advantages the Constitution gave to the Presidency, just as it gave Members of Congress (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities. See U.S.Const., Art. I, § 6, cl. 1; Gravel v. United States, 408 U. S. 606 (1972). It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Unless it can honestly be said that there are "no reasonable grounds to believe" that further investigation is warranted, further investigation must ensue; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person neither selected by nor subject to the control of the President -- who will in turn assemble a staff by finding out, presumably, who is willing to put aside whatever else they are doing, for an indeterminate period of time, in order to investigate and prosecute the President or a particular named individual in his administration. The prospect is frightening (as I will discuss Page 487 U. S. 713 at some greater length at the conclusion of this opinion) even outside the context of a bitter, interbranch political dispute. Perhaps the boldness of the President himself will not be affected -- though I am not even sure of that. (How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds -- or, for that matter, how easy it is for one of the President's political foes outside of Congress -- simply to trigger a debilitating criminal investigation of the Chief Executive under this law.) But as for the President's high-level assistants, who typically have no political base of support, it is as utterly unrealistic to think that they will not be intimidated by this prospect, and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected, as it would be to think that the Members of Congress and their staffs would be unaffected by replacing the Speech or Debate Clause with a similar provision. It deeply wounds the President, by substantially reducing the President's ability to protect himself and his staff. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed. Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it Page 487 U. S. 714 cannot be said that there are "no reasonable grounds to believe" they are called for. The statute's highly visible procedures assure, moreover, that, unlike most investigations, these will be widely known and prominently displayed. Thus, in the 10 years since the institution of the independent counsel was established by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. That they could not remotely be described as merely the application of "normal" investigatory and prosecutory standards is demonstrated by, in addition to the language of the statute ("no reasonable grounds to believe"), the following facts: Congress appropriates approximately $50 million annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Department of Justice, Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (1988) (DOJ Budget Request). This money is used to support "[f]ederal appellate activity," "[o]rganized crime prosecution," "[p]ublic integrity" and "[f]raud" matters, "[n]arcotic & dangerous drug prosecution," "[i]nternal security," "[g]eneral litigation and legal advice," "special investigations," "[p]rosecution support," "[o]rganized crime drug enforcement," and "[m]anagement & administration." Id. at 284. By comparison, between May, 1986, and August, 1987, four independent counsel (not all of whom were operating for that entire period of time) spent almost $5 million (one-tenth of the amount annually appropriated to the entire Criminal Division), spending almost $1 million in the month of August, 1987, alone. See Washington Post, Oct. 21, 1987, p. A21, col. 5. For fiscal year 1989, the Department of Justice has requested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, id. at 25. In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the Page 487 U. S. 715 independent counsel, and it does substantially affect the balance of powers. That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President, and the folly of the new system of standardless judicial allocation of powers we adopt today. III As I indicated earlier, the basic separation of powers principles I have discussed are what give life and content to our jurisprudence concerning the President's power to appoint and remove officers. The same result of unconstitutionality is therefore plainly indicated by our case law in these areas. Article II, § 2, cl. 2, of the Constitution provides as follows: "[The President] shall nominate, and by and with the Advice and Consent of the the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Because appellant (who all parties and the Court agree is an officer of the United States, ante at 487 U. S. 671 , n. 12) was not appointed by the President with the advice and consent of the Senate, but rather by the Special Division of the United States Court of Appeals, her appointment is constitutional only if (1) she is an "inferior" officer within the meaning of the above Clause, and (2) Congress may vest her appointment in a court of law. As to the first of these inquiries, the Court does not attempt to "decide exactly" what establishes the line between Page 487 U. S. 716 principal and "inferior" officers, but is confident that, whatever the line may be, appellant "clearly falls on the inferior officer' side" of it. Ante at 487 U. S. 671 . The Court gives three reasons: first, she "is subject to removal by a higher Executive Branch official," namely, the Attorney General. Ibid. Second, she is "empowered by the Act to perform only certain, limited duties." Ibid. Third, her office is "limited in jurisdiction" and "limited in tenure." Ante at 487 U. S. 672 . The first of these lends no support to the view that appellant is an inferior officer. Appellant is removable only for "good cause" or physical or mental incapacity. 28 U.S.C. § 596(a)(1) (1982 ed., Supp. V). By contrast, most (if not all) principal officers in the Executive Branch may be removed by the President at will. I fail to see how the fact that appellant is more difficult to remove than most principal officers helps to establish that she is an inferior officer. And I do not see how it could possibly make any difference to her superior or inferior status that the President's limited power to remove her must be exercised through the Attorney General. If she were removable at will by the Attorney General, then she would be subordinate to him, and thus properly designated as inferior; but the Court essentially admits that she is not subordinate. See ante at 487 U. S. 671 . If it were common usage to refer to someone as "inferior" who is subject to removal for cause by another, then one would say that the President is "inferior" to Congress. The second reason offered by the Court -- that appellant performs only certain, limited duties -- may be relevant to whether she is an inferior officer, but it mischaracterizes the extent of her powers. As the Court states: "Admittedly, the Act delegates to appellant [the] ' full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice. '" Ibid., quoting 28 U.S.C. § 594(a) (1982 ed., Supp. V) (emphasis Page 487 U. S. 717 added). [ Footnote 2/2 ] Moreover, in addition to this general grant of power, she is given a broad range of specifically enumerated powers, including a power not even the Attorney General possesses: to "contes[t] in court . . . any claim of privilege or attempt to withhold evidence on grounds of national security." § 594(a)(6). [ Footnote 2/3 ] Once all of this is "admitted," it seems Page 487 U. S. 718 to me impossible to maintain that appellant's authority is so "limited" as to render her an inferior officer. The Court seeks to brush this away by asserting that the independent counsel's power does not include any authority to "formulate policy for the Government or the Executive Branch." Ante at 487 U. S. 671 . But the same could be said for all officers of the Government, with the single exception of the President. All of them only formulate policy within their respective spheres of responsibility -- as does the independent counsel, who must comply with the policies of the Department of Justice only to the extent possible. § 594(f). The final set of reasons given by the Court for why the independent counsel clearly is an inferior officer emphasizes the limited nature of her jurisdiction and tenure. Taking the latter first, I find nothing unusually limited about the independent counsel's tenure. To the contrary, unlike most high ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. See §§ 596(b)(1), (b)(2). This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). But within it, she exercises more than the full power of the Attorney General. The Ambassador to Luxembourg is not anything less than a principal officer simply because Luxembourg is small. And the federal judge who sits in a small district is not for that reason "inferior in rank and authority." If the mere fragmentation of executive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General's responsibilities among a number of "lesser" functionaries. Page 487 U. S. 719 More fundamentally, however, it is not clear from the Court's opinion why the factors it discusses -- even if applied correctly to the facts of this case -- are determinative of the question of inferior officer status. The apparent source of these factors is a statement in United States v. Germaine, 99 U. S. 508 , 99 U. S. 511 (1879) (discussing United States v. Hartwell , 6 Wall. 385, 73 U. S. 393 (1868)), that "the term [officer] embraces the ideas of tenure, duration, emolument, and duties." See ante at 487 U. S. 672 . Besides the fact that this was dictum, it was dictum in a case where the distinguishing characteristics of inferior officers versus superior officers were in no way relevant, but rather only the distinguishing characteristics of an "officer of the United States" (to which the criminal statute at issue applied), as opposed to a mere employee. Rather than erect a theory of who is an inferior officer on the foundation of such an irrelevancy, I think it preferable to look to the text of the Constitution and the division of power that it establishes. These demonstrate, I think, that the independent counsel is not an inferior officer, because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President). Dictionaries in use at the time of the Constitutional Convention gave the word "inferiour" two meanings which it still bears today: (1) "[l]ower in place, . . . station, . . . rank of life, . . . value or excellency," and (2) "[s]ubordinate." S. Johnson, Dictionary of the English Language (6th ed. 1785). In a document dealing with the structure (the constitution) of a government, one would naturally expect the word to bear the latter meaning -- indeed, in such a context, it would be unpardonably careless to use the word unless a relationship of subordination was intended. If what was meant was merely "lower in station or rank," one would use instead a term such as "lesser officers." At the only other point in the Constitution at which the word "inferior" appears, it plainly connotes a relationship of subordination. Article III vests the judicial Power of the United States in "one supreme Court, and in such inferior Courts as Page 487 U. S. 720 the Congress may from time to time ordain and establish." U.S.Const., Art. III, § 1 (emphasis added). In Federalist No. 81, Hamilton pauses to describe the "inferior" courts authorized by Article III as inferior in the sense that they are "subordinate" to the Supreme Court. See id. at 485, n., 490, n. That "inferior" means "subordinate" is also consistent with what little we know about the evolution of the Appointments Clause. As originally reported to the Committee on Style, the Appointments Clause provided no "exception" from the standard manner of appointment (President with the advice and consent of the Senate) for inferior officers. 2 M. Farrand, Records of the Federal Convention of 1787, pp. 498-499, 599 (rev. ed.1966). On September 15, 1787, the last day of the Convention before the proposed Constitution was signed, in the midst of a host of minor changes that were being considered, Gouverneur Morris moved to add the exceptions clause. Id. at 627. No great debate ensued; the only disagreement was over whether it was necessary at all. Id. at 627-628. Nobody thought that it was a fundamental change, excluding from the President's appointment power and the Senate's confirmation power a category of officers who might function on their own, outside the supervision of those appointed in the more cumbersome fashion. And it is significant that, in the very brief discussion, Madison mentions (as in apparent contrast to the "inferior officers" covered by the provision) "Superior Officers." Id. at 637. Of course, one is not a "superior officer" without some supervisory responsibility, just as, I suggest, one is not an "inferior officer" within the meaning of the provision under discussion unless one is subject to supervision by a "superior officer." It is perfectly obvious, therefore, both from the relative brevity of the discussion this addition received and from the content of that discussion, that it was intended merely to make clear (what Madison thought already was clear, see id. at 627) that those officers appointed by the President with Senate Page 487 U. S. 721 approval could on their own appoint their subordinates, who would, of course, by chain of command, still be under the direct control of the President. This interpretation is, moreover, consistent with our admittedly sketchy precedent in this area. For example, in United States v. Eaton, 169 U. S. 331 (1898), we held that the appointment by an Executive Branch official other than the President of a "vice-consul," charged with the duty of temporarily performing the function of the consul, did not violate the Appointments Clause. In doing so, we repeatedly referred to the "vice-consul" as a "subordinate" officer. Id. at 331 U. S. 343 . See also United States v. Germaine, supra, at 99 U. S. 511 (comparing "inferior" commissioners and bureau officers to heads of department, describing the former as "mere . . . subordinates") (dicta); United States v. Hartwell, supra, at 73 U. S. 394 (describing clerk appointed by Assistant Treasurer with approval of Secretary of the Treasury as a "subordinate office[r]") (dicta). More recently, in United States v. Nixon, 418 U. S. 683 (1974), we noted that the Attorney General's appointment of the Watergate Special Prosecutor was made pursuant to the Attorney General's "power to appoint subordinate officers to assist him in the discharge of his duties." Id. at 418 U. S. 694 (emphasis added). The Court's citation of Nixon as support for its view that the independent counsel is an inferior officer is simply not supported by a reading of the case. We explicitly stated that the Special Prosecutor was a "subordinate office[r]," ibid., because, in the end, the President or the Attorney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority. Id. at 418 U. S. 696 . Nor are any of the other cases cited by the Court in support of its view inconsistent with the natural reading that an inferior officer must at least be subordinate to another officer of the United States. In Ex parte Siebold, 100 U. S. 371 (1880), we upheld the appointment by a court of federal "Judges of Election," who were charged with various duties involving the overseeing Page 487 U. S. 722 of local congressional elections. Contrary to the Court's assertion, see ante at 487 U. S. 673 , we did not specifically find that these officials were inferior officers for purposes of the Appointments Clause, probably because no one had contended that they were principal officers. Nor can the case be said to represent even an assumption on our part that they were inferior without being subordinate. The power of assisting in the judging of elections that they were exercising was assuredly not a purely executive power, and, if we entertained any assumption, it was probably that they, like the marshals who assisted them, see id. at 380, were subordinate to the courts, see id. at 100 U. S. 397 . Similarly, in Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931), where we held that United States commissioners were inferior officers, we made plain that they were subordinate to the district courts which appointed them: "The commissioner acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time." Id. at 282 U. S. 354 . To be sure, it is not a sufficient condition for "inferior" officer status that one be subordinate to a principal officer. Even an officer who is subordinate to a department head can be a principal officer. That is clear from the brief exchange following Gouverneur Morris' suggestion of the addition of the excepting clause for inferior officers. Madison responded: "It does not go far enough if it be necessary at all -- Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices." 2 M. Farrand, Records of the Federal Convention, of 1787, p. 627 (rev. ed.1966) (emphasis added). But it is surely a necessary condition for inferior officer status that the officer be subordinate to another officer. The independent counsel is not even subordinate to the President. The Court essentially admits as much, noting that "appellant may not be 'subordinate' to the Attorney General Page 487 U. S. 723 (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act." Ante at 487 U. S. 671 . In fact, there is no doubt about it. As noted earlier, the Act specifically grants her the " full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice," 28 U.S.C. § 594(a) (1982 ed., Supp. V), and makes her removable only for "good cause," a limitation specifically intended to ensure that she be independent of, not subordinate to, the President and the Attorney General. See H.R. Conf Rep. No. 100-452, p. 37 (1987). Because appellant is not subordinate to another officer, she is not an "inferior" officer, and her appointment other than by the President with the advice and consent of the Senate is unconstitutional. IV I will not discuss at any length why the restrictions upon the removal of the independent counsel also violate our established precedent dealing with that specific subject. For most of it, I simply refer the reader to the scholarly opinion of Judge Silberman for the Court of Appeals below. See In re Sealed Case, 267 U.S.App.D.C. 178, 838 F.2d 476 (1988). I cannot avoid commenting, however, about the essence of what the Court has done to our removal jurisprudence today. There is of course no provision in the Constitution stating who may remove executive officers, except the provisions for removal by impeachment. Before the present decision, it was established, however, (1) that the President's power to remove principal officers who exercise purely executive powers could not be restricted, see Myers v. United States, 272 U. S. 52 , 272 U. S. 127 (1926), and (2) that his power to remove inferior officers who exercise purely executive powers, and whose appointment Congress had removed from the usual procedure of Presidential appointment with Senate consent, could be restricted, at least where the appointment had been made by Page 487 U. S. 724 an officer of the Executive Branch, see ibid.; United States v. Perkins, 116 U. S. 483 , 116 U. S. 485 (1886). [ Footnote 2/4 ] The Court could have resolved the removal power issue in this case by simply relying upon its erroneous conclusion that the independent counsel was an inferior officer, and then extending our holding that the removal of inferior officers appointed by the Executive can be restricted, to a new holding that even the removal of inferior officers appointed by the courts can be restricted. That would, in my view, be a considerable and unjustified extension, giving the Executive full discretion in neither the selection nor the removal of a purely executive officer. The course the Court has chosen, however, is even worse. Since our 1935 decision in Humphrey's Executor v. United States, 295 U. S. 602 -- which was considered by many at the time the product of an activist, anti-New Deal Court bent on reducing the power of President Franklin Roosevelt -- it has been established that the line of permissible restriction upon removal of principal officers lies at the point at which the powers exercised by those officers are no longer purely executive. Thus, removal restrictions have been generally regarded as lawful for so-called "independent regulatory Page 487 U. S. 725 agencies," such as the Federal Trade Commission, see ibid.; 15 U.S.C. § 41, the Interstate Commerce Commission, see 49 U.S.C. § 10301(c) (1982 ed., Supp. IV), and the Consumer Product Safety Commission, see 15 U.S.C. § 2053(a), which engage substantially in what has been called the "quasi-legislative activity" of rulemaking, and for members of Article I courts, such as the Court of Military Appeals, see 10 U.S.C. § 867(a)(2), who engage in the "quasi-judicial" function of adjudication. It has often been observed, correctly in my view, that the line between "purely executive" functions and "quasi-legislative" or "quasi-judicial" functions is not a clear one, or even a rational one. See ante at 487 U. S. 689 -691; Bowsher v. Synar, 478 U. S. 714 , 478 U. S. 761 , n. 3 (1986) (WHITE, J., dissenting); FTC v. Ruberoid Co., 343 U. S. 470 , 343 U. S. 487 -488 (1952) (Jackson, J., dissenting). But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. Congress had to be aware of that restriction in its legislation. Today, however, Humphrey's Executor is swept into the dustbin of repudiated constitutional principles. "[O]ur present considered view," the Court says, "is that the determination of whether the Constitution allows Congress to impose a 'good cause'-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as 'purely executive.'" Ante at 487 U. S. 689 . What Humphrey's Executor (and presumably Myers ) really means, we are now told, is not that there are any "rigid categories of those officials who may or may not be removed at will by the President," but simply that Congress cannot "interefere with the President's exercise of the 'executive power' and his constitutionally appointed duty to 'take care that the laws be faithfully executed,'" ante at 487 U. S. 689 -690. One can hardly grieve for the shoddy treatment given today to Humphrey's Executor, which, after all, accorded the same indignity (with much less justification) to Chief Justice Page 487 U. S. 726 Taft's opinion 10 years earlier in Myers v. United States, 272 U. S. 52 (1926) -- gutting, in six quick pages devoid of textual or historical precedent for the novel principle it set forth, a carefully researched and reasoned 70-page opinion. It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution. Humphrey's Executor at least had the decency formally to observe the constitutional principle that the President had to be the repository of all executive power, see 295 U.S. at 295 U. S. 627 -628, which, as Myers carefully explained, necessarily means that he must be able to discharge those who do not perform executive functions according to his liking. As we noted in Bowsher, once an officer is appointed "'it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.'" 478 U.S. at 478 U. S. 726 , quoting Synar v. United States, 626 F. Supp. 1374 , 1401 (DC 1986) (Scalia, Johnson, and Gasch, JJ.). By contrast, "our present considered view" is simply that any executive officer's removal can be restricted, so long as the President remains "able to accomplish his constitutional role." Ante at 487 U. S. 690 . There are now no lines. If the removal of a prosecutor, the virtual embodiment of the power to "take care that the laws be faithfully executed," can be restricted, what officer's removal cannot? This is an open invitation for Congress to experiment. What about a special Assistant Secretary of State, with responsibility for one very narrow area of foreign policy, who would not only have to be confirmed by the Senate but could also be removed only pursuant to certain carefully designed restrictions? Could this possibly render the President "[un]able to accomplish his constitutional role"? Or a special Assistant Secretary of Defense for Procurement? The possibilities are endless, and the Court does not understand what the separation of powers, what "[a]mbition . . . counteract[ing] ambition," Federalist No. 51, p. 322 (Madison), is all about if it does not expect Congress to try them. As far as I can discern from the Court's opinion, it is now Page 487 U. S. 727 open season upon the President's removal power for all executive officers, with not even the superficially principled restriction of Humphrey's Executor as cover. The Court essentially says to the President: "Trust us. We will make sure that you are able to accomplish your constitutional role." I think the Constitution gives the President -- and the people -- more protection than that. V The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive. Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows: "There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on Page 487 U. S. 728 any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain." "If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm -- in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself." R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940. Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected, and can be removed, by a President whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable Page 487 U. S. 729 sense of proportion, the President pays the cost in political damage to his administration. If federal prosecutors "pick people that [they] thin[k] [they] should get, rather than cases that need to be prosecuted," if they amass many more resources against a particular prominent individual, or against a particular class of political protesters, or against members of a particular political party, than the gravity of the alleged offenses or the record of successful prosecutions seems to warrant, the unfairness will come home to roost in the Oval Office. I leave it to the reader to recall the examples of this in recent years. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, "[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility." Federalist No. 70, p. 424. The President is directly dependent on the people, and, since there is only one President, he is responsible. The people know whom to blame, whereas "one of the weightiest objections to a plurality in the executive . . . is that it tends to conceal faults and destroy responsibility." Id. at 427. That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive-Branch officials? If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions), the Attorney General must give it his attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are "no reasonable grounds to believe" that further investigation is warranted, a process is set in motion that is not in the full control of persons "dependent on the people," and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a Page 487 U. S. 730 panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a sure-fire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things, this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the Executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad -- and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, whereupon the whole process would recommence and, if there was "reasonable basis to believe" that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same Page 487 U. S. 731 independent counsel. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result -- the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration -- there would be no one accountable to the public to whom the blame could be assigned. I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution -- a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished. The above-described possibilities of irresponsible conduct must, as I say, be considered in judging the constitutional acceptability of this process. But they will rarely occur, and, in the average case, the threat to fairness is quite different. As described in the brief filed on behalf of three ex-Attorneys General from each of the last three administrations: "The problem is less spectacular, but much more worrisome. It is that the institutional environment of the Independent Counsel -- specifically, her isolation from the Executive Branch and the internal checks and balances it supplies -- is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests." Brief for Edward Page 487 U. S. 732 H. Levi, Griffin B. Bell, and William French Smith as Amici Curiae 11. It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile -- with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it. * * * * The notion that every violation of law should be prosecuted, including -- indeed, especially -- every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it Page 487 U. S. 733 was with the hope that we would be able to acknowledge and apply such realities that the Constitution spared us, by life tenure, the necessity of election campaigns. I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far outweighed by its harmful effect upon our system of government, and even upon the nature of justice received by those men and women who agree to serve in the Executive Branch. But it is difficult to vote not to enact, and even more difficult to vote to repeal, a statute called, appropriately enough, the Ethics in Government Act. If Congress is controlled by the party other than the one to which the President belongs, it has little incentive to repeal it; if it is controlled by the same party, it dare not. By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm. Worse than what it has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the "totality of the circumstances" mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President, we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. We will describe, as we have today (though I hope more accurately) the effects of the provision in question, and will authoritatively announce: "The President's need to control the exercise of the [subject officer's] discretion is so central to the functioning of the Executive Branch as to require complete control." This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that -- as the text of Page 487 U. S. 734 the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed -- all purely executive power must be under the control of the President. The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States." [ Footnote 2/1 ] I agree with the Court on this point, but not because of the section of the statute that it cites, § 592(f). What that provides is that "[t]he Attorney General's determination . . . to apply to the division of the court for the appointment of an independent counsel shall not be reviewable in any court. " Quite obviously, the determination to apply is not the same as the determination not to apply. In other contexts, we have sternly avoided "construing" a statute to mean what it plainly does not say, merely in order to avoid constitutional problems. See Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833 , 478 U. S. 841 (1986). In my view, however, the Attorney General's decision not to refer would in any event be nonreviewable as the exercise of prosecutorial discretion. See Heckler v. Chaney, 470 U. S. 821 (1985). [ Footnote 2/2 ] The Court omits the further provision that the independent counsel exercises within her sphere the "full power" of " the Attorney General, [with one minor exception relating to wiretap authorizations] and any other officer or employee of the Department of Justice[.]" § 594(a). This is, of course, quite difficult to square with the Court's assertion that appellant is " inferior' in rank and authority" to the Attorney General. Ante at 487 U. S. 671 . [ Footnote 2/3 ] The independent counsel's specifically enumerated powers include the following: "(1) conducting proceedings before grand juries and other investigations;" "(2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that [the] independent counsel deems necessary;" "(3) appealing any decision of a court in any case or proceeding in which [the] independent counsel participates in an official capacity;" "(4) reviewing all documentary evidence available from any source;" "(5) determining whether to contest the assertion of any testimonial privilege;" "(6) receiving appropriate national security clearances and, if necessary contesting in court . . . any claim of privilege or attempt to withhold evidence on grounds of national security;" "(7) making applications to any Federal court for a grant of immunity to any witness . . . or for warrants, subpoenas, or other court orders, and for purposes of sections 6003, 6004, and 6005 of title 18, exercising the authority vested in a United States attorney or the Attorney General;" "(8) inspecting, obtaining, or using the original or a copy of any tax return. . . ;" "(9) initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case filed in the name of the United States; and" "(10) consulting with the United States Attorney for the district in which the violation was alleged to have occurred." §§ 594(a)(1)-(10). In addition, the statute empowers the independent counsel to hire a staff of a size as large as she "deems necessary," § 594(c), and to enlist and receive "where necessary to perform [her] duties" the assistance, personnel and resources of the Department of Justice, § 594(d). [ Footnote 2/4 ] The Court misunderstands my opinion to say that "every officer of the United States exercising any part of [the executive] power must serve at the pleasure of the President and be removable by him at will." Ante at 487 U. S. 690 , n. 29. Of course, as my discussion here demonstrates, that has never been the law, and I do not assert otherwise. What I do assert -- and what the Constitution seems plainly to prescribe -- is that the President must have control over all exercises of the executive power. See supra at 487 U. S. 705 . That requires that he have plenary power to remove principal officers such as the independent counsel, but it does not require that he have plenary power to remove inferior officers. Since the latter are, as I have described, subordinate to, i.e., subject to the supervision of, principal officers who (being removable at will) have the President's complete confidence, it is enough -- at least if they have been appointed by the President or by a principal officer -- that they be removable for cause, which would include, of course, the failure to accept supervision. Thus, Perkins is in no way inconsistent with my views.

In Morrison v. Olson, the Supreme Court upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. The case arose from an investigation by the House Judiciary Committee into the Justice Department's handling of a subpoenaed document controversy between the House and the EPA. The independent counsel was appointed to investigate allegations of false testimony and obstruction of justice against three officials in the Attorney General's Office. The key issues in the case were the Appointments Clause, Article III limitations, and the separation of powers principle. The Court ruled that the independent counsel had the authority to investigate and prosecute any violations of federal law related to the case, including conspiracy charges. The Court also upheld the broad powers granted to the independent counsel, including the ability to hire staff, receive assistance from the Department of Justice, and initiate prosecutions. This case established the role and powers of the independent counsel in investigating and prosecuting alleged wrongdoing by government officials.

Separation of Powers

Youngstown Sheet & Tube Co. v. Sawyer

https://supreme.justia.com/cases/federal/us/343/579/

U.S. Supreme Court Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) Youngstown Sheet & Tube Co. v. Sawyer Argued May 12-13, 1952 Decided June 2, 1952 343 U.S. 579 ast|>* 343 U.S. 579 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus To avert a nationwide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority, but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress; but Congress took no action. It had provided other methods of dealing with such situations, and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed. Held: 1. Although this case has proceeded no further than the preliminary injunction stage, it is ripe for determination of the constitutional validity of the Executive Order on the record presented. Pp. 343 U. S. 584 -585. (a) Under prior decisions of this Court, there is doubt as to the right to recover in the Court of Claims on account of properties unlawfully taken by government officials for public use. P. 343 U. S. 585 . (b) Seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement. P. 343 U. S. 585 . Page 343 U. S. 580 2. The Executive Order was not authorized by the Constitution or laws of the United States, and it cannot stand. Pp. 343 U. S. 585 -589. (a) There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here. Pp. 343 U. S. 585 -586. (b) In its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. P. 343 U. S. 586 . (c) Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution. Pp. 343 U. S. 587 -589. (d) The Order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. P. 343 U. S. 587 . (e) Nor can the Order be sustained because of the several provisions of Article II which grant executive power to the President. Pp. 343 U. S. 587 -589. (f) The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times. Pp. 343 U. S. 587 -589. (g) Even if it be true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress has not thereby lost its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof." Pp. 343 U. S. 588 -589. 103 F. Supp. 569 , affirmed. For concurring opinion of MR. JUSTICE FRANKFURTER, see post, p. 343 U. S. 593 . For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 343 U. S. 629 . For concurring opinion of MR. JUSTICE JACKSON, see post, p. 343 U. S. 634 . For concurring opinion of MR. JUSTICE BURTON, see post, p. 343 U. S. 655 . For opinion of MR. JUSTICE CLARK, concurring in the judgment of the Court, see post, p. 343 U. S. 660 . For dissenting opinion of MR. CHIEF JUSTICE VINSON, joined by MR. JUSTICE REED and MR. JUSTICE MINTON, see post, p. 343 U. S. 667 . The District Court issued a preliminary injunction restraining the Secretary of Commerce from carrying out the terms of Executive Order No. 10340, 16 Fed.Reg. Page 343 U. S. 581 3503. 103 F. Supp. 569 . The Court of Appeals issued a stay. 90 U.S.App.D.C. ___, 197 F.2d 582. This Court granted certiorari. 343 U. S. 937 . The judgment of the District Court is affirmed, p. 343 U. S. 589 . Page 343 U. S. 582 MR. JUSTICE BLACK delivered the opinion of the Court. We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. The mill owners argue that the President's order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress, and not to the President. The Government's position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that, in meeting this grave emergency, the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States. The issue emerges here from the following series of events: In the latter part of 1951, a dispute arose between the steel companies and their employees over terms and conditions that should be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the employees' representative, United Steelworkers of America, CIO, gave notice of an intention to strike when the existing bargaining agreements expired on December 31. The Federal Mediation and Conciliation Service then intervened in an effort to get labor and management to agree. This failing, the President on December 22, 1951, referred the dispute to the Federal Wage Stabilization Page 343 U. S. 583 Board [ Footnote 1 ] to investigate and make recommendations for fair and equitable terms of settlement. This Board's report resulted in no settlement. On April 4, 1952, the Union gave notice of a nationwide strike called to begin at 12:01 a.m. April 9. The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting these considerations for his action, the President, a few hours before the strike was to begin, issued Executive Order 10340, a copy of which is attached as an appendix, post, p. 343 U. S. 589 . The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own possessory orders, calling upon the presidents of the various seized companies to serve as operating managers for the United States. They were directed to carry on their activities in accordance with regulations and directions of the Secretary. The next morning the President sent a message to Congress reporting his action. Cong.Rec. April 9, 1952, p. 3962. Twelve days later, he sent a second message. Cong.Rec. April 21, 1952, p. 4192. Congress has taken no action. Obeying the Secretary's orders under protest, the companies brought proceedings against him in the District Court. Their complaints charged that the seizure was not authorized by an act of Congress or by any constitutional provisions. The District Court was asked to declare the orders of the President and the Secretary invalid and to issue preliminary and permanent injunctions restraining their enforcement. Opposing the motion for preliminary Page 343 U. S. 584 injunction, the United States asserted that a strike disrupting steel production for even a brief period would so endanger the wellbeing and safety of the Nation that the President had "inherent power" to do what he had done -- power "supported by the Constitution, by historical precedent, and by court decisions." The Government also contended that, in any event, no preliminary injunction should be issued, because the companies had made no showing that their available legal remedies were inadequate or that their injuries from seizure would be irreparable. Holding against the Government on all points, the District Court, on April 30, issued a preliminary injunction restraining the Secretary from "continuing the seizure and possession of the plants . . . and from acting under the purported authority of Executive Order No. 10340." 103 F. Supp. 569 . On the same day, the Court of Appeals stayed the District Court's injunction. 90 U.S.App.D.C. ___, 197 F.2d 582. Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. 343 U. S. 937 . Two crucial issues have developed: First. Should final determination of the constitutional validity of the President's order be made in this case which has proceeded no further than the preliminary injunction stage? Second. If so, is the seizure order within the constitutional power of the President? I It is urged that there were nonconstitutional grounds upon which the District Court could have denied the preliminary injunction, and thus have followed the customary judicial practice of declining to reach and decide constitutional questions until compelled to do so. On this basis, it is argued that equity's extraordinary injunctive relief should have been denied because (a) seizure of the companies' properties did not inflict irreparable damages, Page 343 U. S. 585 and (b) there were available legal remedies adequate to afford compensation for any possible damages which they might suffer. While separately argued by the Government, these two contentions are here closely related, if not identical. Arguments as to both rest in large part on the Government's claim that, should the seizure ultimately be held unlawful, the companies could recover full compensation in the Court of Claims for the unlawful taking. Prior cases in this Court have cast doubt on the right to recover in the Court of Claims on account of properties unlawfully taken by government officials for public use as these properties were alleged to have been. See e.g., Hooe v. United States, 218 U. S. 322 , 218 U. S. 335 -336; United States v. North American Co., 253 U. S. 330 , 253 U. S. 333 . But see Larson v. Domestic & Foreign Corp., 337 U. S. 682 , 337 U. S. 701 -702. Moreover, seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement. Viewing the case this way, and in the light of the facts presented, the District Court saw no reason for delaying decision of the constitutional validity of the orders. We agree with the District Court, and can see no reason why that question was not ripe for determination on the record presented. We shall therefore consider and determine that question now. II The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. There are two statutes which do authorize the President Page 343 U. S. 586 to take both personal and real property under certain conditions. [ Footnote 2 ] However, the Government admits that these conditions were not met, and that the President's order was not rooted in either of the statutes. The Government refers to the seizure provisions of one of these statutes (§ 201(b) of the Defense Production Act) as "much too cumbersome, involved, and time-consuming for the crisis which was at hand." Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. [ Footnote 3 ] Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. [ Footnote 4 ] Consequently, the plan Congress adopted in that Act did not provide for seizure under any circumstances. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports. In some instances, temporary injunctions were authorized to provide cooling-off periods. All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers' final settlement offer. [ Footnote 5 ] Page 343 U. S. 587 It is clear that, if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . ."; that "he shall take Care that the Laws be faithfully executed", and that he "shall be Commander in Chief of the Army and Navy of the United States." The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The Page 343 U. S. 588 first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. . . ." After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress -- it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control. It is said that other Presidents, without congressional authority, have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution Page 343 U. S. 589 "in the Government of the United States, or any Department or Officer thereof." The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. The judgment of the District Court is Affirmed. * Together with No. 745, Sawyer, Secretary of Commerce v. Youngstown Sheet & Tube Co. et al., also on certiorari to the same court. [ Footnote 1 ] This Board was established under Executive Order 10233, 16 Fed.Reg. 3503. [ Footnote 2 ] The Selective Service Act of 1948, 62 Stat. 604, 625-627, 50 U.S.C. App (Supp. IV) § 468; the Defense Production Act of 1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 132. [ Footnote 3 ] 93 Cong.Rec. 3637-3645. [ Footnote 4 ] 93 Cong.Rec. 3835-3836. [ Footnote 5 ] Labor Management Relations Act, 1947, 61 Stat. 136, 152-156, 29 U.S.C. (Supp.IV) §§ 141, 171-180. MR. JUSTICE FRANKFURTER. Although the considerations relevant to the legal enforcement of the principle of separation of powers seem to me more complicated and flexible than may appear from what MR. JUSTICE BLACK has written, I join his opinion because I thoroughly agree with the application of the principle to the circumstances of this case. Even though such differences in attitude toward this principle may be merely differences in emphasis and nuance, they can hardly be reflected by a single opinion for the Court. Individual expression of views in reaching a common result is therefore important. | 343 U.S. 579 app| APPENDIX TO OPINION OF THE COURT EXECUTIVE ORDER Directing the Secretary of Commerce to Take Possession of and Operate the Plants and Facilities of Certain Steel Companies WHEREAS, on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national Page 343 U. S. 590 security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and WHEREAS American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against aggression; and WHEREAS the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and WHEREAS steel is likewise indispensable to the carrying out of programs of the Atomic Energy Commission of vital importance to our defense efforts; and WHEREAS a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our military strength depends; and WHEREAS a controversy has arisen between certain companies in the United States producing and fabricating steel and the elements thereof and certain of their workers represented by the United Steel Workers of America, CIO, regarding terms and conditions of employment; and WHEREAS the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pursuant to Executive Order No. 10233, and a strike has been called for 12:01 A. M., April 9, 1952; and WHEREAS a work stoppage would immediately jeopardize and imperil our national defense and the defense Page 343 U. S. 591 of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and WHEREAS, in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided: NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows: 1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense, and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation. 2. In carrying out this order, the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate, and all Federal agencies shall cooperate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order. 3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties possession of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recognize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, adjustment of grievances, or other mutual aid or protection, provided Page 343 U. S. 592 that such activities do not interfere with the operation of such plants, facilities, and other properties. 4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the managements of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies. 5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, debentures, and other obligations, and expenditures may be made for other ordinary corporate or business purposes. 6. Whenever, in the judgment of the Secretary of Commerce, further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national defense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility, or other property to the company in possession and control thereof at the time possession was taken under this order. 7. The Secretary of Commerce is authorized to prescribe and issue such regulations and orders not inconsistent herewith as he may deem necessary or desirable for carrying out the purposes of this order, and he may delegate and authorize subdelegation of such of his functions under this order as he may deem desirable. rj: Harry S. Truman. lj: The White House, April 8, 1952. Page 343 U. S. 593 MR. JUSTICE FRANKFURTER, concurring. Before the cares of the White House were his own, President Harding is reported to have said that government, after all, is a very simple thing. He must have said that, if he said it, as a fleeting inhabitant of fairyland. The opposite is the truth. A constitutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed. To that end, they rested the structure of our central government on the system of checks and balances. For them, the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago, it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded -- too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. Page 343 U. S. 594 The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority. The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States, and refused to lodge such powers in this Court. Judicial power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers constitute "Cases" or "Controversies." Even as to questions that were the staple of judicial business, it is not for the courts to pass upon them unless they are indispensably involved in a conventional litigation -- and then only to the extent that they are so involved. Rigorous adherence to the narrow scope of the judicial function is especially demanded in controversies that arouse appeals to the Constitution. The attitude with which this Court must approach its duty when confronted with such issues is precisely the opposite of that normally manifested by the general public. So-called constitutional questions seem to exercise a mesmeric influence over the popular mind. This eagerness to settle -- preferably forever -- a specific problem on the basis of the broadest possible constitutional pronouncements may not unfairly be called one of our minor national traits. An English observer of our scene has acutely described it: "At the first sound of a new argument over the United States Constitution and its interpretation, the hearts of Americans leap with a fearful joy. The blood stirs powerfully in their veins, and a new lustre brightens their eyes. Like King Harry's men before Harfleur, they stand like greyhounds in the slips, straining upon the start." The Economist, May 10, 1952, p. 370. Page 343 U. S. 595 The path of duty for this Court, it bears repetition, lies in the opposite direction. Due regard for the implications of the distribution of powers in our Constitution and for the nature of the judicial process as the ultimate authority in interpreting the Constitution, has not only confined the Court within the narrow domain of appropriate adjudication. It has also led to "a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Brandeis, J., in Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 341 , 346. A basic rule is the duty of the Court not to pass on a constitutional issue at all, however narrowly it may be confined, if the case may, as a matter of intellectual honesty, be decided without even considering delicate problems of power under the Constitution. It ought to be, but apparently is not, a matter of common understanding that clashes between different branches of the government should be avoided if a legal ground of less explosive potentialities is properly available. Constitutional adjudications are apt, by exposing differences, to exacerbate them. So here, our first inquiry must be not into the powers of the President, but into the powers of a District Judge to issue a temporary injunction in the circumstances of this case. Familiar as that remedy is, it remains an extraordinary remedy. To start with a consideration of the relation between the President's powers and those of Congress -- a most delicate matter that has occupied the thoughts of statesmen and judges since the Nation was founded and will continue to occupy their thoughts as long as our democracy lasts -- is to start at the wrong end. A plaintiff is not entitled to an injunction if money damages would fairly compensate him for any wrong he may have suffered. The same considerations by which the Steelworkers, in their brief amicus, demonstrate, from the seizure here in controversy, consequences Page 343 U. S. 596 that cannot be translated into dollars and cents, preclude a holding that only compensable damage for the plaintiffs is involved. Again, a court of equity ought not to issue an injunction, even though a plaintiff otherwise makes out a case for it, if the plaintiff's right to an injunction is overborne by a commanding public interest against it. One need not resort to a large epigrammatic generalization that the evils of industrial dislocation are to be preferred to allowing illegality to go unchecked. To deny inquiry into the President's power in a case like this, because of the damage to the public interest to be feared from upsetting its exercise by him, would, in effect, always preclude inquiry into challenged power, which presumably only avowed great public interest brings into action. And so, with the utmost unwillingness, with every desire to avoid judicial inquiry into the powers and duties of the other two branches of the government, I cannot escape consideration of the legality of Executive Order No. 10340. The pole-star for constitutional adjudications is John Marshall's greatest judicial utterance, that "it is a constitution we are expounding." McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 407 . That requires both a spacious view in applying an instrument of government "made for an undefined and expanding future," Hurtado v. California, 110 U. S. 516 , 110 U. S. 530 , and as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pronouncements today. Marshall's admonition that "it is a constitution we are expounding" is especially relevant when the Court is required to give legal sanctions to an underlying principle of the Constitution -- that of separation of powers. Page 343 U. S. 597 "The great ordinances of the Constitution do not establish and divide fields of black and white." Holmes, J., dissenting in Springer v. Philippine Islands, 277 U. S. 189 , 277 U. S. 209 . The issue before us can be met, and therefore should be, without attempting to define the President's powers comprehensively. I shall not attempt to delineate what belongs to him by virtue of his office beyond the power even of Congress to contract; what authority belongs to him until Congress acts; what kind of problems may be dealt with either by the Congress or by the President, or by both, cf. La Abra Silver Mng. Co. v. United States, 175 U. S. 423 ; what power must be exercised by the Congress and cannot be delegated to the President. It is as unprofitable to lump together in an undiscriminating hotch-potch past presidential actions claimed to be derived from occupancy of the office as it is to conjure up hypothetical future cases. The judiciary may, as this case proves, have to intervene in determining where authority lies as between the democratic forces in our scheme of government. But, in doing so, we should be wary and humble. Such is the teaching of this Court's role in the history of the country. It is in this mood and with this perspective that the issue before the Court must be approached. We must therefore put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given. These and other questions, like or unlike, are not now here. I would exceed my authority were I to say anything about them. The question before the Court comes in this setting. Congress has frequently -- at least 16 times since 1916 -- Page 343 U. S. 598 specifically provided for executive seizure of production, transportation, communications, or storage facilities. In every case, it has qualified this grant of power with limitations and safeguards. This body of enactments -- summarized in tabular form in Appendix I, post, p. 343 U. S. 615 -- demonstrates that Congress deemed seizure so drastic a power as to require that it be carefully circumscribed whenever the President was vested with this extraordinary authority. The power to seize has uniformly been given only for a limited period or for a defined emergency, or has been repealed after a short period. Its exercise has been restricted to particular circumstances such as "time of war or when war is imminent," the needs of "public safety" or of "national security or defense," or "urgent and impending need." The period of governmental operation has been limited, as, for instance, to "sixty days after the restoration of productive efficiency." Seizure statutes usually make executive action dependent on detailed conditions: for example, (a) failure or refusal of the owner of a plant to meet governmental supply needs or (b) failure of voluntary negotiations with the owner for the use of a plant necessary for great public ends. Congress often has specified the particular executive agency which should seize or operate the plants or whose judgment would appropriately test the need for seizure. Congress also has not left to implication that just compensation be paid; it has usually legislated in detail regarding enforcement of this litigation-breeding general requirement. ( See Appendix I, post, p. 343 U. S. 615 .) Congress, in 1947, was again called upon to consider whether governmental seizure should be used to avoid serious industrial shutdowns. Congress decided against conferring such power generally and in advance, without special Congressional enactment to meet each particular need. Under the urgency of telephone and coal strikes in Page 343 U. S. 599 the winter of 1946, Congress addressed itself to the problems raised by "national emergency" strikes and lockouts. [ Footnote 2/1 ] The termination of wartime seizure powers on December 31, 1946, brought these matters to the attention of Congress with vivid impact. A proposal that the President be given powers to seize plants to avert a shutdown where the "health or safety" of the Nation was endangered was thoroughly canvassed by Congress, and rejected. No room for doubt remains that the proponents as well as the opponents of the bill which became the Labor Management Relations Act of 1947 clearly understood that, as a result of that legislation, the only recourse for preventing a shutdown in any basic industry, after failure of mediation, was Congress. [ Footnote 2/2 ] Authorization for seizure as Page 343 U. S. 600 an available remedy for potential dangers was unequivocally put aside. The Senate Labor Committee, through its Chairman, explicitly reported to the Senate that a general grant of seizure powers had been considered and rejected in favor of reliance on ad hoc legislation, as a particular emergency might call for it. [ Footnote 2/3 ] An amendment presented in the House providing that, where necessary "to preserve and protect the public health and security," the President might seize any industry in which there is Page 343 U. S. 601 an impending curtailment of production, was voted down after debate, by a vote of more than three to one. [ Footnote 2/4 ] In adopting the provisions which it did, by the Labor Management Relations Act of 1947, for dealing with a "national emergency" arising out of a breakdown in peaceful industrial relations, Congress was very familiar with Governmental seizure as a protective measure. On a balance of considerations, Congress chose not to lodge this power in the President. It chose not to make available in advance a remedy to which both industry and labor were fiercely hostile. [ Footnote 2/5 ] In deciding that authority to seize should be given to the President only after full consideration of the particular situation should show such legislation to be necessary, Congress presumably acted on experience with similar industrial conflicts in the past. It evidently assumed that industrial shutdowns in basic industries are not instances of spontaneous generation, Page 343 U. S. 602 and that danger warnings are sufficiently plain before the event to give ample opportunity to start the legislative process into action. In any event, nothing can be plainer than that Congress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative responsibility for choice. In formulating legislation for dealing with industrial conflicts, Congress could not more clearly and emphatically have withheld authority than it did in 1947. Perhaps as much so as is true of any piece of modern legislation, Congress acted with full consciousness of what it was doing, and in the light of much recent history. Previous seizure legislation had subjected the powers granted to the President to restrictions of varying degrees of stringency. Instead of giving him even limited powers, Congress, in 1947, deemed it wise to require the President, upon failure of attempts to reach a voluntary settlement, to report to Congress if he deemed the power of seizure a needed shot for his locker. The President could not ignore the specific limitations of prior seizure statutes. No more could he act in disregard of the limitation put upon seizure by the 1947 Act. It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation. Congress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into §§ 206-210 of the Labor Management Relations Act of 1947. Only the other day, we treated the Congressional gloss upon those sections as part of the Act. Bus Employees v. Wisconsin Board, 340 U. S. 383 , 340 U. S. 395 -396. Page 343 U. S. 603 Grafting upon the words a purpose of Congress thus unequivocally expressed is the regular legislative mode for defining the scope of an Act of Congress. It would be not merely infelicitous draftsmanship, but almost offensive gaucherie, to write such a restriction upon the President's power, in terms, into a statute, rather than to have it authoritatively expounded, as it was, by controlling legislative history. By the Labor Management Relations Act of 1947, Congress said to the President, "You may not seize. Please report to us and ask for seizure power if you think it is needed in a specific situation." This, of course, calls for a report on the unsuccessful efforts to reach a voluntary settlement, as a basis for discharge by Congress of its responsibility -- which it has unequivocally reserved -- to fashion further remedies than it provided. [ Footnote 2/6 ] But it is now claimed that the President has seizure power by virtue of the Defense Production Act of 1950 and its Amendments. [ Footnote 2/7 ] And the claim is based on the occurrence of new events -- Korea and the need for stabilization, etc. -- although it was well known that seizure power was withheld by the Act of 1947, and although the President, whose specific requests for other authority were, in the main, granted by Congress, never suggested that, in view of the new events, he needed the power of seizure which Congress in its judgment had decided to withhold from him. The utmost that the Korean conflict may imply is that it may have been desirable to have given the President further authority, a freer hand in these matters. Absence of authority in the President to deal with a crisis does not Page 343 U. S. 604 imply want of power in the Government. Conversely, the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law. No authority that has since been given to the President can, by any fair process of statutory construction, be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enactments, culminating in the Labor Management Relations Act of 1947. Title V of the Defense Production Act, entitled "Settlement of Labor Disputes," pronounced the will of Congress "that there be effective procedures for the settlement of labor disputes affecting national defense," and that "primary reliance" be placed "upon the parties to any labor dispute to make every effort, through negotiation and collective bargaining and the full use of mediation and conciliation facilities, to effect a settlement in the national interest. [ Footnote 2/8 ]" Section 502 authorized the President to hold voluntary conferences of labor, industry, and public and government representatives and to "take such action as may be agreed upon in any such conference and appropriate to carry out the provisions of this title," provided that no action was taken inconsistent with the Labor Management Relations Act of 1947. [ Footnote 2/9 ] This provision [ Footnote 2/10 ] was said by the Senate Committee Page 343 U. S. 605 on Banking and Currency to contemplate a board similar to the War Labor Board of World War II and "a national labor-management conference such as was held during World War II, when a "no strike, no lock-out" pledge was obtained." [ Footnote 2/11 ] Section 502 was believed necessary Page 343 U. S. 606 in addition to existing means for settling disputes voluntarily because the Federal Mediation and Conciliation Service could not enter a labor dispute unless requested by one party. [ Footnote 2/12 ] Similar explanations of Title V were given in the Conference Report and by Senator Ives, a member of the Senate Committee to whom Chairman Maybank during the debates on the Senate floor referred questions relating to Title V. [ Footnote 2/13 ] Senator Ives said: "It should be remembered in this connection that, during the period of the present emergency, it is expected that the Congress will not adjourn, but, at most, will recess only for very limited periods of time. If, therefore, any serious work stoppage should arise or even be threatened, in spite of the terms of the Labor-Management Relations Act of 1947, the Congress would be readily available to pass such legislation as might be needed to meet the difficulty. [ Footnote 2/14 ] " Page 343 U. S. 607 The Defense Production Act affords no ground for the suggestion that the 1947 denial to the President of seizure powers has been impliedly repealed, and its legislative history contradicts such a suggestion. Although the proponents of that Act recognized that the President would have a choice of alternative methods of seeking a mediated settlement, they also recognized that Congress alone retained the ultimate coercive power to meet the threat of "any serious work stoppage." That conclusion is not changed by what occurred after the passage of the 1950 Act. Seven and a half months later, on April 21, 1951, the President, by Executive Order 10233, gave the reconstituted Wage Stabilization Board authority to investigate labor disputes either (1) submitted voluntarily by the parties, or (2) referred to it by the President. [ Footnote 2/15 ] The Board can only make "recommendations to the parties as to fair and equitable terms of settlement," unless the parties agree to be bound by the Board's recommendations. About a month thereafter, Subcommittees of both the House and Senate Labor Committees began hearings on the newly assigned disputes functions of the Board. [ Footnote 2/16 ] Amendments to deny the Page 343 U. S. 608 Board these functions were voted down in the House, [ Footnote 2/17 ] and Congress extended the Defense Production Act without changing Title V in relevant part. [ Footnote 2/18 ] The legislative history of the Defense Production Act and its Amendments in 1951 cannot possibly be vouched for more than Congressional awareness and tacit approval that the President had charged the Wage Stabilization Board with authority to seek voluntary settlement of labor disputes. The most favorable interpretation of the statements in the committee reports can make them mean no more than "[w]e are glad to have all the machinery possible for the voluntary settlement of labor disputes." In considering the Defense Production Act Amendments, Congress was never asked to approve -- and there is not the slightest indication that the responsible committees ever had in mind -- seizure of plants to coerce settlement of disputes. Page 343 U. S. 609 We are not even confronted by an inconsistency between the authority conferred on the Wage Board, as formulated by the Executive Order, and the denial of Presidential seizure powers under the 1947 legislation. The Board has been given merely mediatory powers similar to those of agencies created by the Taft-Hartley Act and elsewhere, with no other sanctions for acceptance of its recommendations than are offered by its own moral authority and the pressure of public opinion. The Defense Production Act and the disputes-mediating agencies created subsequent to it still leave for solution elsewhere the question what action can be taken when attempts at voluntary settlement fail. To draw implied approval of seizure power from this history is to make something out of nothing. It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress. The legislative history here canvassed is relevant to yet another of the issues before us, namely, the Government's argument that overriding public interest prevents the issuance of the injunction despite the illegality of the seizure. I cannot accept that contention. "Balancing the equities" when considering whether an injunction should issue, is lawyers' jargon for choosing between conflicting public interests. When Congress itself has struck Page 343 U. S. 610 the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion. Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that "he shall take Care that the Laws be faithfully executed. . . ." Art. II, § 3. The nature of that authority has, for me, been comprehensively indicated by Mr. Justice Holmes. "The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." Myers v. United States, 272 U. S. 52 , 272 U. S. 177 . The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to undefined provisions in the frame of our government. To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore, the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part Page 343 U. S. 611 of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by § 1 of Art. II. Such was the case of United States v. Midwest Oil Co., 236 U. S. 459 . The contrast between the circumstances of that case and this one helps to draw a clear line between authority not explicitly conferred yet authorized to be exercised by the President and the denial of such authority. In both instances, it was the concern of Congress under express constitutional grant to make rules and regulations for the problems with which the President dealt. In the one case, he was dealing with the protection of property belonging to the United States; in the other, with the enforcement of the Commerce Clause and with raising and supporting armies and maintaining the Navy. In the Midwest Oil case, lands which Congress had opened for entry were, over a period of 80 years and in 252 instances, and by Presidents learned and unlearned in the law, temporarily withdrawn from entry so as to enable Congress to deal with such withdrawals. No remotely comparable practice can be vouched for executive seizure of property at a time when this country was not at war, in the only constitutional way in which it can be at war. It would pursue the irrelevant to reopen the controversy over the constitutionality of some acts of Lincoln during the Civil War. See J. G. Randall, Constitutional Problems under Lincoln (Revised ed.1951). Suffice it to say that he seized railroads in territory where armed hostilities had already interrupted the movement of troops to the beleaguered Capital, and his order was ratified by the Congress. The only other instances of seizures are those during the periods of the first and second World Wars. [ Footnote 2/19 ] In his eleven seizures of industrial facilities, President Wilson Page 343 U. S. 612 acted, or at least purported to act, [ Footnote 2/20 ] under authority granted by Congress. Thus, his seizures cannot be adduced as interpretations by a President of his own powers in the absence of statute. Down to the World War II period, then, the record is barren of instances comparable to the one before us. Of twelve seizures by President Roosevelt prior to the enactment of the War Labor Disputes Act in June, 1943, three were sanctioned by existing law, and six others Page 343 U. S. 613 were effected after Congress, on December 8, 1941, had declared the existence of a state of war. In this case, reliance on the powers that flow from declared war has been commendably disclaimed by the Solicitor General. Thus, the list of executive assertions of the power of seizure in circumstances comparable to the present reduces to three in the six-month period from June to December of 1941. We need not split hairs in comparing those actions to the one before us, though much might be said by way of differentiation. Without passing on their validity, as we are not called upon to do, it suffices to say that these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution revealed in the Midwest Oil case. Nor do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers. A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event, our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this subject than those of Mr. Justice Brandeis: "The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, Page 343 U. S. 614 by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy." Myers v. United States, 272 U. S. 52 , 272 U. S. 240 , 272 U. S. 293 . It is not a pleasant judicial duty to find that the President has exceeded his powers, and still less so when his purposes were dictated by concern for the Nation's wellbeing, in the assured conviction that he acted to avert danger. But it would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world. When, at a moment of utmost anxiety, President Washington turned to this Court for advice, and he had to be denied it as beyond the Court's competence to give, Chief Justice Jay, on behalf of the Court, wrote thus to the Father of his Country: "We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States." Letter of August 8, 1793, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 489. In reaching the conclusion that conscience compels, I too derive consolation from the reflection that the President and the Congress, between them, will continue to safeguard the heritage which comes to them straight from George Washington. Page 343 U. S. 620 [pp. 343 U. S. 615 et seq. - Appendix I (table)] [ Footnote 2/1 ] The power to seize plants under the War Labor Disputes Act ended with the termination of hostilities, proclaimed on Dec. 31, 1946, prior to the incoming of the Eightieth Congress, and the power to operate previously seized plants ended on June 30, 1947, only a week after the enactment of the Labor Management Relations Act over the President's veto. 57 Stat. 163, 165, 50 U.S.C.App. (1946 ed.) § 1503. See 2 Legislative History of the Labor Management Relations Act, 1947 (published by National Labor Relations Board, 1948), 1145, 1519, 1626. [ Footnote 2/2 ] Some of the more directly relevant statements are the following: "In most instances, the force of public opinion should make itself sufficiently felt in this 80-day period to bring about a peaceful termination of the controversy. Should this expectation fail, the bill provides for the President's laying the matter before Congress for whatever legislation seems necessary to preserve the health and safety of the Nation in the crisis." Senate Report No. 105, 80th Cong., 1st Sess. 15. "We believe it would be most unwise for the Congress to attempt to adopt laws relating to any single dispute between private parties." Senate Minority Report, id. Part 2, at 17. In the debates, Senator H. Alexander Smith, a member of the Senate Committee on Labor and Public Welfare, said, "In the event of a deadlock and a strike is not ended, the matter is referred to the President, who can use his discretion as to whether he will present the matter to the Congress, whether or not the situation is such that emergency legislation is required." "Nothing has been done with respect to the Smith-Connally Act. There is no provision for taking over property or running plants by the Government. We simply provide a procedure which we hope will be effective in 99 out of 100 cases where the health or safety of the people may be affected, and still leave a loophole for congressional action." 93 Cong.Rec. 4281. The President in his veto message said, ". . . it would be mandatory for the President to transfer the whole problem to the Congress, even if it were not in session. Thus, major economic disputes between employers and their workers over contract terms might ultimately be thrown into the political arena for disposition. One could scarcely devise a less effective method for discouraging critical strikes." 93 Cong.Rec. 7487. [ Footnote 2/3 ] Senator Taft said: "If there finally develops a complete national emergency threatening the safety and health of the people of the United States, Congress can pass an emergency law to cover the particular emergency. . . ." "We have felt that, perhaps in the case of a general strike, or in the case of other serious strikes, after the termination of every possible effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose." ". . . But while such a bill [for seizure of plants and union funds] might be prepared, I should be unwilling to place such a law on the books until we actually face such an emergency, and Congress applies the remedy for the particular emergency only. Eighty days will provide plenty of time within which to consider the possibility of what should be done, and we believe very strongly that there should not be anything in this law which prohibits finally the right to strike." 93 Cong.Rec. 3835-3836. [ Footnote 2/4 ] 93 Cong.Rec. 3637-3645. [ Footnote 2/5 ] See, for instance, the statements of James B. Carey, Secretary of the CIO, in opposition to S. 2054, 77th Cong., 1st Sess., which eventually became the War Labor Disputes Act. Central to that Act, of course, was the temporary grant of the seizure power to the President. Mr. Carey then said: "Senator BURTON. If this would continue forever, it might mean the nationalization of industry?" "Mr. CAREY. Let us consider it on a temporary basis. How is the law borne by labor? Here is the Government-sponsored strike-breaking agency, and nothing more." " * * * *" "Our suggestion of a voluntary agreement of the representatives of industry and labor and Government, participating in calling a conference, is a democratic way. The other one is the imposition of force, the other is the imposition of seizure of certain things for a temporary period; the destruction of collective bargaining, and it would break down labor relations that may have been built up over a long period." Hearing before a Subcommittee of the Senate Committee on the Judiciary on S. 2054, 77th Cong., 1st Sess. 132. [ Footnote 2/6 ] Clearly, the President's message of April 9 and his further letter to the President of the Senate on April 21 do not satisfy this requirement. Cong.Rec. April 9, 1952, pp. 3962-3963; id., April 21, 1952, p. 4192. [ Footnote 2/7 ] 64 Stat. 798 et seq. , 65 Stat. 131 et seq. , 50 U.S.C. App. § 2061 et seq. [ Footnote 2/8 ] §§ 501, 502, 64 Stat. 798, 812, 50 U.S.C.App. §§ 2121, 2122. [ Footnote 2/9 ] §§ 502, 503, 64 Stat. 798, 812, 50 U.S.C.App. §§ 2122, 2123. [ Footnote 2/10 ] The provision of § 502 in S. 3936, as reported by the Senate Committee on Banking and Currency, read as follows: "The President is authorized, after consultation with labor and management, to establish such principles and procedures and to take such action as he deems appropriate for the settlement of labor disputes affecting national defense, including the designation of such persons, boards or commissions as he may deem appropriate to carry out the provisions of this title." That language was superseded in the Conference Report by the language that was finally enacted. H.R.Rep. No. 3042, 81st Cong., 2d Sess. 16, 35. The change made by the Conference Committee was for the purpose of emphasizing the voluntary nature of the cooperation sought from he public, labor, and management; as Senator Ives explained under repeated questioning, "If any group were to hold out, there would be no agreement [on action to carry out the provisions of this title]." 96 Cong.Rec. 14071. Chairman Maybank of the Senate Committee on Banking and Currency said, "The labor disputes title of the Senate was accepted by the House with amendment which merely indicates more specific avenues through which the President may bring labor and management together." Id. at 14073. [ Footnote 2/11 ] S.Rep. No. 2250, 81st Cong., 2d Sess. 41; H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35. It is hardly necessary to note that Congressional authorization of an agency similar to the War Labor Board does not imply a Congressional grant of seizure power similar to that given the President specifically by § 3 of the War Labor Disputes Act of 1943. The War Labor Board, created by § 7 of the 1943 Act, had only administrative sanctions. See 57 Stat. 163, 166167; see Report of Senate Committee on Labor and Public Welfare, The Disputes Functions of the Wage Stabilization Board, 1951, S.Rep. No. 1037, 82d Cong., 1st Sess. 6. The seizure power given by Congress in § 3 of the 1943 Act was given to the President, not to the War Labor Board, and was needed only when the War Labor Board reported it had failed; the seizure power was separate and apart from the War Labor Board machinery for settling disputes. At most, the Defense Production Act does what § 7 of the War Labor Disputes Act did; the omission of any grant of seizure power similar to § 3 is too obvious not to have been conscious. At any rate, the Wage Stabilization Board differs substantially from the earlier War Labor Board. In 1951 the Senate Committee studying the disputes functions of the Wage Stabilization Board pointed out the substantial differences between that Board and its predecessor, and concluded that "The new Wage Stabilization Board . . . does not rely on title V of the Defense Production Act for its authority." S.Rep. No. 1037, 82d Cong., 1st Sess., supra, at 4-6. [ Footnote 2/12 ] S.Rep. No. 2250, 81st Cong., 2d Sess. 41. [ Footnote 2/13 ] See 96 Cong.Rec. 14071. [ Footnote 2/14 ] Id. at 12275. Just before the paragraph quoted in the text, Senator Ives had said: "In fact, the courts have upheld the constitutionality of the national emergency provisions of the Labor-Management Relations Act of 1947, which can require that workers stay on the job for at least 80 days when a strike would seriously threaten the national health and safety in peacetime." "By the terms of the pending bill, the Labor-Management Relations Act of 1947 would be controlling in matters affecting the relationship between labor and management, including collective bargaining. It seems to me, however, that this is as far as we should go in legislation of this type." [ Footnote 2/15 ] 16 Fed.Reg. 3503. The disputes functions were not given to the Wage Stabilization Board under Title V, see 343 U.S. 579 fn2/11|>note 11, supra, but apparently under the more general Title IV, entitled "Price and Wage Stabilization." [ Footnote 2/16 ] See Hearings before a Subcommittee of the House Committee on Education and Labor, Disputes Functions of Wage Stabilization Board, 82d Cong., 1st Sess. (May 28-June 15, 1951); Hearings before the Subcommittee on Labor and Labor-Management Relations of Senate Committee on Labor and Public Welfare, Wage Stabilization and Disputes Program, 82d Cong., 1st Sess. (May 17-June 7, 1951). The resulting Report of the Senate Committee, S.Rep. No. 1037, 82d Cong., 1st Sess. 9, recommended that "Title V of the Defense Production Act be retained," and that "[n]o statutory limitations be imposed on the President's authority to deal with disputes through voluntary machinery; such limitations, we believe, would infringe on the President's constitutional power." (Emphasis added.) The Committee found, id. at 10, that the "Wage Stabilization Board relies completely on voluntary means for settling disputes and is, therefore, an extension of free collective bargaining. The Board has no powers of legal compulsion." "Executive Order No. 10233," the Committee found further, "does not in any way run counter to the . . . Taft-Hartley Act. It is simply an additional tool, not a substitute for these laws." Of particular relevance to the present case, the Committee declared: "The recommendations of the Wage Stabilization Board in disputes certified by the President have no compulsive force. The parties are free to disregard recommendations of the Wage Stabilization Board. . . ." "There is, of course, the President's authority to seize plants under the Selective Service Act [a power not here used], but this is an authority which exists independently of the Wage Stabilization Board and its disputes-handling functions. In any case, seizure is an extraordinary remedy, and the authority to seize, operates whether or not there is a disputes-handling machinery." Id. at 5. [ Footnote 2/17 ] 97 Cong.Rec. 8390-8415. [ Footnote 2/18 ] 65 Stat. 131. [ Footnote 2/19 ] Instances of seizure by the President are summarized in Appendix II, post, p. 343 U. S. 620 . [ Footnote 2/20 ] One of President Wilson's seizures has given rise to controversy. In his testimony in justification of the Montgomery Ward seizure during World War II, Attorney General Biddle argued that the World War I seizure of Smith & Wesson could not be supported under any of the World War I statutes authorizing seizure. He thus adduced it in support of the claim of so-called inherent Presidential power of seizure. See Hearings before House Select Committee to Investigate the Seizure of Montgomery Ward, 78th Cong., 2d Sess. 167-168. In so doing, he followed the ardor of advocates in claiming everything. In his own opinion to the President, he rested the power to seize Montgomery Ward on the statutory authority of the War Labor Disputes Act, see 40 Op.Atty.Gen. 312 (1944), and the Court of Appeals decision upholding the Montgomery Ward seizure confined itself to that ground. United States v. Montgomery Ward & Co., 150 F.2d 369. What Attorney General Biddle said about Smith & Wesson was, of course, post litem motam. Whether or not the World War I statutes were broad enough to justify that seizure, it is clear that the taking officers conceived themselves as moving within the scope of statute law. See Letter from Administrative Div., Advisory Sec. to War Dep't. Bd. of Appraisers, National Archives, Records of the War Department, Office of the Chief of Ordnance, O.O. 004.002/194 Smith & Wesson, Apr. 2, 1919; n. 3, Appendix II, post, p. 343 U. S. 620 . Thus, whether or not that seizure was within the statute, it cannot properly be cited as a precedent for the one before us. On this general subject, compare Attorney General Knox's opinion advising President Theodore Roosevelt against the so-called "stewardship" theory of the Presidency. National Archives, Opinions of the Attorney General, Book 31, Oct. 10, 1902 (R.G. 60); Theodore Roosevelt, Autobiography, 388-389; 3 Morison, The Letters of Theodore Roosevelt, 323-366. Page 343 U. S. 615 bwm: APPENDIX I SYNOPTIC ANALYSIS OF LEGISLATION AUTHORIZING SEIZURE OF INDUSTRIAL PROPERTY --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- TERMS AND CONDITIONS OF LIMITATIONS ON ITS EMPLOYMENT DURING STATUTE DURATION SCOPE OF AUTHORITY EXERCISE SEIZURE COMPENSATION --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- As extended or As enacted repealed --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 1. Railroad and Telegraph Not "in force any President may "take possession a. "When in his [the President's] None. President shall appoint three Act of 1862, 12 Stat. 334. longer than is of" telegraph lines and rail- judgment the public safety commissioners to assess com- necessary for the roads; prescribe rules for their may require it." pensation to which the com- Enacted 1/31/62; suppression of operation; and place all officers b. President may not "engage pany is entitled and to report amended, 12 Stat. 625, this rebellion." and employees under military in any work of railroad con- to Congress for its action. 7/14/62. control. struction." --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 2. § 120 of National No time limit. President, through the head of a. Exercisable "in time of war None. Compensation "shall be fair and Defense Act of 1916, 39 any department, may seize or when war is imminent." just." Stat. 166, 213, 50 U.S.C. any plant and may operate b. Plant is equipped for making § 80, as amended. plants through the Army Ord- "necessary supplies or equip- nance Department. ment for the Army" or "in Enacted 6/3/16. the opinion of the Secretary of War" can be transformed readily to such use. c. Owner refuses to give govern- ment order precedence or to perform. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 3. Army Appropriations No time limit. President, through Secretary of Exercisable "in time of war."* None. Compensation "shall be fair Act of 1916, 39 Stat. 619, War, may take possession of and just." 645, 10 U.S.C. § 1361. and utilize any system or part of any system of transporta- Enacted 8/29/16. tion. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 4. Naval Emergency Fund No time limit. President may Exercisable "in time of war" (or None. Act of 1917, 39 Stat. 1. "take over for use or opera- of national emergency deter- 1168, 1192-1195, 50 tion" any factory "whether mined by the President before U.S.C. § 82. [or not] the United States 3/1/18). has . . . agreement with President shall determine "just Enacted 3/4/17. Cf. the owner or occupier." compensation"; if the claimant Emergency Shipping is dissatisfied, he shall be paid Fund Act of 1917, infra. ) 2. "take immediate possession a. Owner fails or refuses to give None. 50 percent of the amount de- of any factory" producing precedence to an order for termined by the President and ships or war material for "ships or war material as the may sue, subject to existing the Navy. necessities of the Govern- law, in the district courts and ment"; refuses to deliver or to the Court of Claims for the comply with a contract as rest of "just compensation." modified by President. b. Exercisable within "the limits of the amounts appropriated therefor." Page 343 U. S. 616 --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 5. Emergency Shipping To 6 months after Repealed after 3 President may Exercisable "within the limits None. Fund Act of 1917, 40 peace with the years, § 2(a) 1. "take over for use or opera- of the amounts herein author- Same as next above, except that Stat. 182. German Empire, (1), 41 Stat. tion" any plant, "whether ized." the prepaid percentage when 40 Stat. 182, 183. 988, 6/5/20. [or not] United States has the owner is dissatisfied is Enacted 6/15/17. . . . agreement with the 75 percent. owner or occupier." 2. "take immediate possession Failure or refusal of owner of None. of any . . . plant" "equipped ship-building plant to give for the building or produc- Government orders preced- tion of ships or material." ence or to comply with order. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 6. 1918 Amendments to To 6 months after Repealed after 2 President may a. The street railroad is neces- None. Emergency Shipping peace with the years, 41 Stat. 1. "take possession of . . . sary for transporting em- Fund Act of 1917. German Empire. 988, 6/5/20. any street railroad." ployees of plants which are or may be hereafter engaged A. 40 Stat. 535. in "construction of ships or equipment therefor for the Enacted 4/22/18. United States. b. Exercisable "within the limits Same as next above. of the amounts herein author- ized." B. 40 Stat. 1020, 1022 To 6 months after Repealed after 2. extend seized plants con- Exercisable "within the limits of None peace with the 1 1/2 years, 41 structing ships or materials the amounts herein author- German Empire. Stat. 988, 6/5/ therefor and requisition land ized." 20. for use in extensions. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 7. Food and Fuel Act of To end of World President may The requisitioning is "necessary None. President "shall ascertain and 1917, 40 Stat. 276. War I with Ger- 1. requisition foods, fuels, to the support of the Army or pay a just compensation"; if many. feeds, etc., and storage the . . . Navy, or any other the owner is dissatisfied, he Enacted 8/10/17. facilities for them. public use connected with the shall be paid 75 percent of the common defense." amount determined by the § 10, 40 Stat. 276, 279. President and may sue in the district courts, which are here- by given jurisdiction, for the rest of "just compensation." § 12, 40 Stat. 276, 279. 2. take over any factory, a. President finds "it necessary President may make regulations packing house, oil pipe line, to secure an adequate supply for "the employment, control, mine, or other plant where of necessaries for . . . the and compensation of em- any necessaries are or may Army or . . . the Navy, or ployees." be "produced, prepared, or for any other public use con- mined, and to operate the nected with the common Same as in the Emergency Ship- same." defense." ping Fund Act of 1917, supra. b. President must turn facility back as soon as further Gov- ernment operation "is not essential for the national security or defense." Page 343 U. S. 617 § 25, 40 Stat. 276. 284 To end of World 3. "requisition and take over Producer or dealer President may "prescribe . . . Same as next above. War I with Ger- the plant, business, and all a. Fails to conform to prices regulations . . . for the em- many. appurtenances thereof be- or regulations set by the ployment, control, and com- longing to such producer Federal Trade Commission pensation of the employees." or dealer" of coal and coke, under the direction of the and may operate it through President, who deems it an agency of his choice. "necessary for the efficient prosecution of the war," or b. Fails to operate efficiently, or conducts business in a way "prejudicial to the public interest." --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 8. Joint Resolution of July "during the con- Terminated on President may "take possession President deems "it necessary None. Same as next above. 16, 1918, 40 Stat. 904 tinuance of the 7/31/10 by re- . . . of [and operate] any for the national security or present war." peal, 7/11/19, telegraph, telephone, marine defense." 41 Stat. 157. cable or radio system." --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 9. § 16 of Federal Water No time limit. President may take possession a. President believes, as "evi- None. Owner shall be paid "just and Power Act of 1920, 41 of any project, dams, power denced by a written order fair compensation for the use Stat. 1063, 1072, 16 houses, transmission lines, addressed to the holder of any of said property as may be fixed U.S.C. § 809. etc., constructed or operated license hereunder [that] the by the [Federal Power] commis- under a license from the Fed- safety of the United States sion upon the basis of a reason- Enacted 6/10/20. eral Power Commission and demands it." able profit in time of peace, and may operate them. b. Seizure is "for the purpose the cost of restoring said of manufacturing nitrates, property to as good condition explosives, or munitions of as existed at the time of the war, or for any other purpose taking over thereof, less the involving the safety of the reasonable value of any im- United States." provements . . . made thereto c. Control is limited to the "length by the United States and of time as may appear to the which are valuable and service- President to be necessary to able to the [owner]." accomplish said purposes." --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 10. § 606 of Communica- No time limit. President may "use or control a. President proclaims that there None. President shall ascertain just tions Act of 1934, 48 Stat. . . . any such station and/or exists compensation and certify it to 1064, 1104, 47 U.S.C. its apparatus and equipment (1) war or threat of war or Congress for appropriation; if § 606(c). by any department of the (2) a state of public peril, or the owner is dissatisfied, he shall Government under such regu- disaster or other national be paid 75 percent of the Enacted 6/19/34. lations as he may prescribe." emergency, amount determined by the or President and may sue, sub- b. It is necessary to preserve ject to existing law, in the the neutrality of the United district courts and the Court of States. Claims for the rest of "just compensation." Page 343 U. S. 618 11. Amendments to Com- No time limit. Same power as in § 606(c), Com- a. President proclaims a state or None. Same as next above. munications Act, 56 Stat. munications Act of 1934, next threat of war. 18, 47 U.S.C. § 606(d). above. b. President "deems it neces- sary in the interest of the na- Enacted 1/26/42. tional security and defense." c. Power to seize and use prop- erty continues to "not later than six months after the termination of such state or threat of war" or than a date set by concurrent resolution of Congress. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 12. § 8(b) of National De- No time limit. Repealed in less Secretary of Navy, under Presi- a. Secretary of Navy deems any Secretary of Navy may operate Secretary of Navy may "fix the fense Act of 1940, 54 than 3 months, dent's direction, may "take existing plant necessary for the plant "either by Govern- compensation." Stat. 676, 680. 9/16/40, 54 over and operate such plant the national defense. ment personnel or by contract Stat. 885, 893 or facility." b. He is unable to reach agree- with private firms." ment with its owner for its use or operation. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 13. §9 of Selective Training To 5/15/45, 54 Extended to President may "take immedi- a. Plant is equipped for or None. "The compensation . . . shall be and Service Act of 1940, Stat. 885, 897. 3/31/47, 60 ate possession of any such capable of being readily trans- fair and just." 54 Stat. 885, 892, 50 Stat. 341, 342. plant." (Extended by formed for the manufacture of U.S.C.App. (1946 ed.) amendment to "any plant, necessary supplies. § 309. mine, or facility" capable of b. Owner refuses to give Govern- producing "any articles or ment order precedence or to Enacted 9/16/40; amend- materials which may be re- fill it. ed by War Labor Dis- quired . . . or which may be putes Act, 57 Stat. 163, useful" for the war effort. 164, q.v., infra. 57 Stat. 163, 164.) --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 14. § 3 of War Labor Dis- To termination of President may "take immedi- a. Finding and proclamation Same "terms and conditions of Same as next above. putes Act of 1943, 57 this Act by con- ate possession" of "any plant, by the President that employment which were in Stat. 163, 164, 50 U.S.C. current resolu- mine, or facility equipped for (1) there is an interruption effect at the time [of taking] App. (1946 ed.) § 1503. tion by Congress the manufacture, production, on account of a labor dis- possession," except that terms or of hostilities. or mining of any articles or turbance, and conditions might be Enacted 6/25/43. Plants seized pre- materials which may be re- (2) the war effort will be un- changed by order of the War viously may be quired . . . or which may be duly impeded, Labor Board, on application. operated until 6 useful" for the war effort. (3) seizure is necessary to in- §§ 4, 5, 57 Stat. 163, 165. months after sure operation. termination of b. Plant must be returned to hostilities. owner within 60 days "after the restoration of the produc- tive efficiency." Page 343 U. S. 619 --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 15. Title VIII, Repricing To termination of President may "take immediate a. The Secretary of a Depart- None. Same as next above. of War Contracts," of hostilities. possession of the plant of ment deems the price of an Revenue Act of 1943, 58 plants . . . and . . . operate article or service required di- Stat. 21, 92, 50 U.S.C. them in accordance with sec- rectly or indirectly by the App. (1946 ed.) § 1192. tion 9 of the Selective Train- Department is unreasonable. ing and Service Act of 1940, b. The Secretary, after the re- Enacted 2/25/44, as amended. fusal of the person furnishing the article or service to agree to a price, sets a price. c. The person "wilfully refuses, or wilfully fails" to furnish the articles or services at the price fixed by the Secretary. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 16. Selective Service Act of No time limit. President may "take immediate a. President with advice of the None. "Fair and just compensation 1948, 62 Stat. 604, 625 possession of any plant, mine, National Security Resources shall be paid." 626, 50 U.S.C.App. or other facility . . . and to Board determines prompt de- § 468. operate it . . . and to livery of articles or materials tion of such articles or mate- is "in the interest of the na- Enacted 6/24/48. rials." tional security." b. Procurement "has been au- thorized by the Congress exclu- sively for the use of the armed forces. or the A.E.C. c. Owner refuses or fails to give precedence to Government order placed with notice that it is made pursuant to this section, or to fill the order properly. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 17. § 201(a) of Defense To 6/30/51. But Extended to President may "requisition" President determines that None. President shall determine just Production Act, 64 Stat. see § 716(a), 64 7/31/51, 65 "equipment, supplies or com- a. its use is "needed for na- compensation as of the time 798, 799, 50 U.S.C.App. Stat. 798, 822. Stat. 110, ponent parts thereof, or mate- tional defense," the property is taken; if owner § 2081(a). Extended to rials or facilities necessary for b. the need is "immediate and is dissatisfied, he shall be 6/30/52, § 111, the manufacture, servicing, impending," "will not ad- promptly paid 75 percent of Enacted 9/8/50; 65 Stat. 131, or operation of such equip- mit of delay or resort to the amount determined by the amendment, 65 Stat. 131, 144. ment, supplies, or component any other source of supply," President and may sue within 132, q.v., infra. parts." 64 Stat. 798, 799. c. other reasonable means of three years in the district Restricted in the main to obtaining use of the prop- courts or the Court of Claims, personal property by § 102(b), erty have been exhausted regardless of the amount in- 65 Stat. 132 volved, for the rest of "just compensation." 18. § 102(b)(2) of Defense To 6/30/52, 65 Court condemnation of real President deems the real prop- None. Under existing statutes for con- Production Act Amend- Stat. 131, 144. property in accordance with erty "necessary in the interest demnation. Immediate pos- ments of 1951, 65 Stat. existing statutes. of national defense." session given only upon deposit 131, 132, 50 U.S.C.App. of amount "estimated to be just § 2081(b). compensation," 75 percent of which is immediately paid Enacted 7/31/51. without prejudice to the owner. Page 343 U. S. 620 -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- APPENDIX II SUMMARY OF SEIZURES OF INDUSTRIAL PLANTS AND FACILITIES BY THE PRESIDENT Civil War Period ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- DURATION OF PLANT OR FACILITY SEIZED SEIZURE ORDER EFFECTING SEIZURE AUTHORITY CITED REASON FOR SEIZURE OPERATIONS DURING SEIZURE ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- From To ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Railroads and telegraph lines 4/27/61 (?) Order of Secretary of War dated 4/27/61 None. Communications between Washington and Northern troops guarded railway and tele- between Washington and appointing Thomas A. Scott officer in the North were interrupted by bands of graph facilities; they were repaired and Annapolis, Md.{1} charge. War of the Rebellion, Official southern sympathizers who destroyed restored to operation under orders of the Records of the Union and Confederate railway and telegraph facilities. Secretary of War. Armies, Ser. I, Vol. II, 603. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Telegraph lines. 2/26/62 (?) Order of Secretary of War dated 2/25/62 "by virtue of the act of Congress" (presum- To insure effective transmission and secur- Lines operated under military supervision; appointing Anson Stager officer in charge. ably Railroad and Telegraph Act of 1862, ity of military communications. censorship of messages; lines extended and Richardson, Messages and Papers of the 12 Stat. 334). completed subject to limitations of Joint Resolution of July 14, 1862, 12 Stat. 625. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Railroads. 5/25/62 8/8/65 Order of Secretary of War dated 5/25/62. "by virtue of the authority vested by act of To insure effective priority to movement of Railways operated under military supervi- Richardson, Messages and Papers of the Congress" (presumably Railroad and troops and supplies. sion; lines extended and completed subject Presidents, Lincoln, Order of May 25, Telegraph Act of 1862, 12 Stat. 334). to limitations of Joint Resolution of 1862. July 14, 1862, 12 Stat. 625; interruption of regular passenger and freight traffic. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- World War I Period{2} ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Bigelow-Hartford Carpet Co., 12/27/17 12/31/19 Order of Secretary of War, Req. 20A/C, Constitution and laws.{3} Requisitioned for use of United States Car- Lowell, Mass. Ord. No. 62, dated 12/27/17. tridge Co. for cartridge manufacture. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Railroads. 12/28/17 3/1/20 Presidential proclamation, 40 Stat. 1733 Joint Resolution of April 6, 1917. Labor difficulties; congestion; ineffective Wage increase; changes in operating prac- Joint Resolution of Dec. 7, 1917. operation in terms of war effort. tices and procedures. Act of Aug. 29, 1916. "all other powers thereto me enabling." ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Liberty Ordnance Co., Bridge- 1/7/18 5/20/19 Order of Secretary of War, Req. 26 A/C, Constitution and laws.{3} Inadequate financing and other difficulties Turned over to American Can Co. for oper- port, Conn. Ord. No. 27, dated 1/5/18. leading to failure to perform contract for ation. manufacture of 75 mm. guns. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Hoboken Land & Improvement 2/28/18 4/1/19 Order of Secretary of War, Req. 37 A/C, Constitution and laws.{3} Requisitioned for use of Remington Arms- Co., Hoboken, N.J. Ord. No. 516, dated 2/28/18. U.M.C. Co. for cartridge manufacture. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Bijur Motor Appliance Co., 4/1/18 5/1/19 Order of Secretary of War, Req. 37 A/C, Constitution and laws.{3} Requisitioned for use of Remington Arms- Hoboken, N.J. 8/15/18 Ord. No. 516, dated 2/28/18. U.M.C. Co. for cartridge manufacture. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Jewel Tea Co., Hoboken, N.J. 4/1/18 9/2/19 Order of Secretary of War, Req. 37 A/C, Constitution and laws.{3} Requisitioned for use of Remington Arms- U.M.C. Co. for cartridge manufacture. [343 U.S. 621] ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Telegraph lines. 7/25/18 7/31/19 Presidential proclamation, 40 Stat. 1807. Joint Resolution of July 16, 1918. Labor difficulties. Anti- union discrimination terminated. "all other powers thereto me enabling." ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Smith & Wesson, Springfield, 9/13/18 1/31/19 Order of Secretary of War, Req. 709 B/C, Constitution and laws.{3} Labor difficulties. Anti-union discrimination terminated; Mass. Ord. No. 604, dated 8/31/18. operation by the National Operating Co., a Government corporation. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Federal Enameling & Stamp- 9/23/18 12/13/18 Order of Secretary of War, Req. 738 B/C, Constitution and laws.{3} Failure to fill compulsory order. ing Co., McKees Rocks, Pa. Ord. No. 609, dated 9/11/18. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Mosler Safe Co., Hamilton, 9/23/19 2/25/19 Order of Secretary of War, Req. 781 B/C, Constitution and laws.{3} Failure to fill compulsory order. Ohio. Ord. No. 612, dated 9/23/18. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Bush Terminal Co., Brooklyn, (?) (?) (?) Act of Aug. 29, 1916. (?) (?) N.Y. Food and Fuel Act of 1917. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- World War {4} -- Seizures Connected With Labor Disputes 1. Before Pearl Harbor. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- CHANGES IN CONDITIONS OF DURATION OF EXECUTIVE DURATION OF EMPLOYMENT DURING REPORTED LEGAL PLANT OR FACILITY SEIZED SEIZURE ORDER STATUTORY AUTHORITY CITED{5} STOPPAGE SEIZURE{7} BASIS FOR CHANGES ACTION{8} ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- From To From To{6} ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- North American Aviation, Inc., 6/9/41 7/2/71 8773. None. (Order cites contracts of com- 6/5/41 6/10/41 Property returned on agreement Agreement of parties on Na- Inglewood, Calif. 6 Fed.Reg. 2777 pany with Government and ownership of parties to wage increase and tional Defense Mediation by Government of machinery, mate- maintenance of membership. Board recommendation. rials and work in progress in plant.) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Federal Shipbuilding & Drydock 8/23/41 1/6/42 8868. None. (Order cites contracts of com- 8/6/41 8/23/41 Maintenance off membership National Defense Mediation Co., Kearny, N.J. 6 Fed.Reg. 4349. pany with Government and ownership during period of seizure. Board recommendation. by Government of vessels under con- struction, materials and equipment in yard.) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Air Associates, Inc., Bendix, N.J. 10/30/41 12/29/41 8928. None. (Order cites contracts of com- 7/11/41 7/27/41 Strikers reinstated over replace- Agreement of parties on Na- 6 Fed.Reg. 5559. pany with Government and ownership ments hired by company prior tional Defense Mediation by Government of facilities in plant.) 9/30/41 10/24/41 to seizure. Board recommendation. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- [343 U.S. 621] 2. Between Pearl Harbor and the Passage of the War Labor Disputes Act, June 25, 1943. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Toledo, P. & W. R. Co. 3/21/42 10/1/45 9108 None. 12/28/41 3/21/42 Wage increase during period of War Labor Board recommenda- Toledo P. & W. R. Co. v. Stover, 7 Fed.Reg. 2201 seizure. tion. 60 F. Supp. 587 (S.D.Ill.1945). ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- General Cable Co., Bayonne, N.J., 8/13/42 8/20/42 9220 None. 8/10/42 8/13/42 None. War Labor Board recommenda- plant. 7 Fed.Reg. 6413 tion. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- S. A. Woods Machine Co., South 8/19/42 8/25/45 9225. None. None. None. Maintenance of membership. War Labor Board recommenda- Boston, Mass. 7 Fed.Reg. 6627 tion. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Coal Mines. 5/2/43 10/12/43 9340. None. 4/22/43 5/2/43 Six-day week; eight-hour day. Order of the Secretary of In- GO>United States v. Pewee Coal Co., 8 Fed.Reg. 5695. (To increase take-home pay.) terior. 341 U. S. 114 ; NLRB v. West Ky. 6/1/43 6/7/43* Coal Co., 152 F.2d 198 (6th Cir. 1945); Glen Alden Coal Co. v. 6/20/43 (?)* NLRB, 141 F.2d 47 (3d Cir. 1944). ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- American R. Co. of Porto Rico. 5/13/43 7/1/44 9341 None. 5/12/43 5/13/43 Wage increase. War Labor Board recommenda- 8 Fed.Reg. 6323. tion. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 3. Between June 25, 1943, and VJ Day. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Atlantic Basin Iron Works, Brook- 9/3/43 9/22/43 9375. War Labor Disputes Act. None. None. Maintenance of membership. War Labor Board recommenda- lyn, N.Y. 8 Fed.Reg. 12253. tion. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Coal Mines. 11/1/43 6/21/44 9393. War Labor Disputes Act. 10/12/43 11/4/43* Changes in wages and hours. Agreement with Secretary of 8 Fed.Reg. 14877. 11/1/43 Interior. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Leather Manufacturers in Salem, 11/20/43 12/13/43 9395B. None. 9/25/43 11/24/43* None. (Jurisdictional strike.) None. Peabody, and Danvers, Mass. 8 Fed.Reg. 16957. (sporadic) (sporadic) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Western Electric Co., Point Breeze 12/19/43 3/23/44 9408. War Labor Disputes Act. 12/14/43 12/19/43 None. (Strike in protest of War None. plant, Baltimore, Md. 8 Fed.Reg. 16958. Labor Board nonsegregation ruling.) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Railroads. 12/30/45 1/18/44 9412. Act of Aug. 29, 1916. None. None. Control relinquished when par- Presidential arbitration based Thorne v. Washington Terminal Co., 8 Fed.Reg. 16958 ties accepted Presidential com- on Railway Labor Act Emer- 55 F. Supp. 139 (D.D.C.1944) promise of wage demands. gency Board recommendations. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Fall River, Mass., Textile Plants. 2/7/44 2/28/44 9420. War Labor Disputes Act. 12/13/43 2/14/44* Property returned upon agree- War Labor Board recommenda- 9 Fed.Reg. 1563. ment by parties on seniority tion. provisions. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- [343 U.S. 623] Department of Water and Power, 2/23/44 2/29/44 9426. War Labor Disputes Act. 2/14/44 2/24/44 None. None. Los Angeles, Calif. 9 Fed.Reg. 2113. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Jenkins Bros., Inc., Bridgeport, 4/13/44 6/15/44 9435. § 9, Selective Service Act of 1940 as None. None. Wage increase. War Labor Board recommenda- In re Jenkins Bros., Inc., 15 Conn. 9 Fed.Reg. 2113. amended. tion. W.L.R. 719 (D.D.C.1944).** ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Ken-Rad Tube & Lamp Co., 4/13/44 6/15/44 9436. § 9, Selective Service Act of 1940 as None. None. Changes in wage scales; main- War Labor Board recommenda- Ken-Rad Tube & Lamp Corp. v. Owensboro, Ky. 9 Fed.Reg. 4063. amended. tenance of membership. tion. Badeau, 55 F. Supp. 193 (W.D.Ky. 1944).** ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Montgomery Ward & Co., Chi- 4/25/44 5/9/44 9438. None. None. None. None. (Government extended War Labor Board recommenda- United States v. Montgomery Ward & cago, Ill., facilities. 9 Fed.Reg. 4459. expired contract pending tion. Co., 150 F.2d 369 NLRB election to determine (7th Cir.1945).** bargaining representative.) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Montgomery Ward & Co., Hum- 5/21/44 7/2/45 9443. § 9, Selective Service Act of 1940 as 5/5/44 5/21/44 Maintenance of membership; War Labor Board recommenda- mer Mfg. division, Springfield, 9 Fed.Reg. 5395 amended. voluntary check-off. tion. Ill. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Philadelphia Transportation Co., 8/3/44 8/17/44 9459. Act of Aug. 29, 1916. 8/1/44 8/7/44* None. (Strike is protest of None United States v. McMenamin, 58 F. Philadelphia, Pa. 9 Fed.Reg. 9878. First War Powers Act of 1941. WLB nonsegregation ruling.) Supp. 478 (E.D.Pa.1944).** § 9 of Selective Service Act of 1940, as amended. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Midwest Trucking Operators. 8/11/44 1/1/45 9462. Act of Aug. 29, 1916. 8/4/44 8/11/44 Wage increase. War Labor Board recommen- 11/1/45 9 Fed.Reg. 10071. First War Powers Act of 1941. dation. § 9, Selective Service Act of 1940, as amended by the War Labor Disputes Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- San Francisco, Calif., Machine 8/14/44 9/14/45 9463. § 9, Selective Service Act of 1940 as Sporadic. Sporadic. Union agreed not to discipline War Labor Board recommend- San Francisco Lodge No. 68 IAM v. Shops. 8/19/44 9 Fed.Reg. 9879. amended. employees who worked over- dation. Forrestal, 58 F. Supp. 466 9466. time. Cancellation of em- (N.D.Calif. 1944). 9 Fed.Reg. 10139. ployee draft deferments, gas rations, and job referral rights. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Anthracite Coal Mines. 8/23/44 2/24/45 9469.{9} § 9, Selective Service Act of 1940 as 6/29/44 8/23/44 None. None. 9/19/44 9 Fed.Reg. 10343. amended by the War Labor Disputes Act. 8/?/44 9/?/44{10} ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- International Nickel Co., Hunt- 8/29/44 10/14/44 9473. § 9, Selective Service Act of 1940 as 8/18/44 8/29/44 None. None. ington, W.Va., plant. 9 Fed.Reg. 10613. amended. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- [343 U.S. 624] Hughes Tool Co., Houston Tex., 9/2/44 8/29/45 9475A. § 9, Selective Service Act of 1940 as None. None. Maintenance of membership War Labor Board recommenda- facilities. 9 Fed.Reg. 10943. amended. during period of seizure. dation. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Cleveland Graphite Bronze Co., 9/5/44 11/8/44 9477. § 9, Selective Service Act of 1940 as 8/31/44 9/5/44 Union agreed to arbitrate griev- War Labor Board recommenda- Cleveland, Ohio. 9 Fed.Reg. 10941. amended by the War Labor Disputes ance which had precipitated dation. Act. the strike. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Twentieth Century Brass Works, 9/9/44 2/17/45 9480. § 9, Selective Service Act of 1940 as 8/21/44 9/9/44 Wage increase. War Labor Board recommenda- Inc., Minneapolis, Minn. 9 Fed.Reg. 11143. amended. tion. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Farrell Cheeck Steel Co., Sandus- 9/23/44 8/28/45 9484. § 9, Selective Service Act of 1940 as 9/11/44 9/23/44 Wage increase; maintenance of War Labor Board recommenda- ky, Ohio. 9 Fed.Reg. 11731 amended by the War Labor Disputes membership during period of tion. Act. seizure. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Toledo, Ohio, Machine Shops. 11/4/44 11/6/44 9496. § 9, Selective Service Act of 1940 as 10/27/44 11/5/44 None. (Jurisdictional strike.) None. 9 Fed.Reg. 13187. amended by the War Labor Disputes Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Cudahy Bros. Co., Cudahy, Wis. 12/6/44 8/31/45 9505. § 9, Selective Service Act of 1940 as None. None. Maintenance of membership; War Labor Board recommenda- 9 Fed.Reg. 14473. amended by the War Labor Disputes voluntary check-off. tion. Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Montgomery Ward & Co., Detroit, 12,27/44 10/18/45 9508. War Labor Disputes Act. 12/9/44 12/27/44 Maintenance of membership and War Labor Board recommenda- National War Labor Board v. Mont- Mich., and other facilities. 9 Fed.Reg. 15079. § 9, Selective Service Act of 1940 as voluntary check-off during tion. gomery Ward & Co., 144 F.2d 528 amended. period of seizure. (D.C.Cir.1944). ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Cleveland Electric Illuminating 1/13/45 1/15/45 9511. § 9, Selective Service Act of 1940 as 1/12/45 1/13/45 None. None. Co., Cleveland, Ohio. 10 Fed.Reg. 549. amended. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Bingham & Garfield R.R., Utah. 1/24/45 8/29/45 9516. Act of Aug. 29, 1916. 1/23/45 1/24/45 Property returned upon agree- Railway Labor Act Emergency 10 Fed.Reg. 1313. First War Powers Act of 1941. ment by parties on wage scale Board recommendation. War Labor Disputes Act. for certain positions. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- American Enka Corp., Enka, N.C. 2/18/45 6/6/45 9523. War Labor Disputes Act. 2/7/45 2/18/45 None. (Strike over question of War Labor Board recommenda- 10 Fed.Reg. 2133. Selective Service Act as amended. contract interpretation sub- tion. mitted to arbitration.) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Coal Mines: Bituminous. 4/10/45 5/12/45 9536. 4/1/45 4/11/45 Wage increase. Agreement of parties. 10/25/45 10 Fed.Reg. 3939. § 9, Selective Service Act as amended by the War Labor Disputes Act. Anthracite. 5/3/45 6/23/45 9548. 5/1/45 6/24/45* Wage increase. Agreement of parties. 10 Fed.Reg. 5025. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Cities Service Refining Corp., 4/17/45 12/23/45 9540. § 9, Selective Service Act of 1940 as (?) 4/17/45 None. (Strike over housing None. Lake Charles, La., plant. 10 Fed.Reg. 4193. amended by the War Labor Disputes conditions.) Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- United Engineering Co., Ltd., 4/25/45 8/31/45 9542. § 9, Selective Service Act of 1940 as 4/12/45 (?)* Union's privileges under con- War Labor Board recommenda- San Francisco, Calif. 10 Fed.Reg. 4591. amended by the War Labor Disputes tract revoked. tion. Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Cocker Machine & Foundry Co., 5/20/45 8/31/45 9552. § 9, Selective Service Act of 1940 as (?) 5/20/45 Wage increase; maintenance of War Labor Board recommenda- Gastonia, N.C. 10 Fed.Reg. 5757. amended by the War Labor Disputes membership during period of tion. Act. seizure. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Chicago, Ill., Motor Carriers. 5/23/45 8/16/45 9554. § 9, Selective Service Act of 1940 as 5/19/45 5/24/45 Wage increase. War Labor Board recommenda- 10 Fed.Reg. 5981. amended by the War Labor Disputes tion. Act. 6/16/45 6/27/45* Act of Aug. 29, 1916. First War Powers Act of 1941. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Gaffney Mfg. Co., Gaffney, S.C. 5/28/45 9/9/45 9559. § 9, Selective Service Act of 1940 as (?) 5/28/45 Wage increase and maintenance War Labor Board recommenda- 10 Fed.Reg. 6287. amended by the War Labor Disputes of membership during period tion. Act. of seizure. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Mary-Leila Cotton Mills, Greens- 6/1/45 8/31/45 9560. § 9, Selective Service Act of 1940 as 4/1/45 6/1/45 Contract extension; mainte- War Labor Board recommenda- boro, Ga. 10 Fed.Reg. 6547. amended by the War Labor Disputes nance of membership and vol- tion. Act. untary check-off during period of seizure. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Humble Oil & Refining Co., Ingle- 6/5/45 8/3/45 9564. § 9, Selective Service Act of 1940 as None. None. Maintenance of membership War Labor Board recommenda- Eighth Regional War Labor Bd. v. side, Tex., plant. 10 Fed.Reg. 6791. amended by the War Labor Disputes during period of seizure. tion. Humble Oil & Refining Co., 145 Act. F.2d 462 (5th Cir.1945).** ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Pure Oil Co., Cabin Creek oil 6/6/45 9/10/45 9565. § 9, Selective Service Act of 1940 as 5/14/45 6/6/45 Maintenance of membership War Labor Board recommenda- field, Dawes, W.Va., facilities. 10 Fed.Reg. 6792. amended by the War Labor Disputes during period of seizure. tion. Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Scranton Transit Co., Scranton, 6/14/45 7/8/45 9570. § 9, Selective Service Act of 1940 as 5/20/45 6/14/45 None. None. Pa. 10 Fed.Reg. 6792. amended by § 3 of the War Labor Dis- putes Act. Act of Aug. 20, 1916. First War Powers Act of 1941. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Diamond Alkali Co., Painesville, 6/19/45 7/19/45 9574. § 9, Selective Service Act of 1940 as 6/15/45 6/19/45 Property returned upon agree- None. Ohio. 10 Fed.Reg. 7435. amended by the War Labor Disputes ment by parties to wage in- Act. crease. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Texas Co., Port Arthur, Tex., 7/1/45 9/10/45 9577A. § 9, Selective Service Act of 1940 as 6/29/45 7/1/45 None. (Strike over racial dis- plant. 10 Fed.Reg. 8090. amended by the War Labor Disputes crimination.) Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Goodyear Tire & Rubber Co., 7/4/45 8/30/45 9585. § 9, Selective Service Act of 1940 as 6/20/45 7/4/45 Agreement by union to submit (?). Akron, Ohio. 10 Fed.Reg. 8335. amended by the War Labor Disputes future disputes to federal Act. agency. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Sinclair Rubber Co., Houston, 7/19/45 11/19/45 9589A. § 9, Selective Service Act of 1940 as None. None. Change in union security ar- War Labor Board recommenda- Tex., butadiene plant. 10 Fed.Reg. 8949. amended by the War Labor Disputes rangements. tions. Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Springfield Plywood Co., Spring- 7/25/45 8/30/45 9593. § 9, Selective Service Act of 1940 as (?) 7/25/45 None. None. field, Oreg. 10 Fed.Reg. 9379. amended by the War Labor Disputes Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- U.S. Rubber Co., Detroit, Mich., 7/31/45 10/10/45 9595. § 9, Selective Service Act of 1940 as 7/14/45 7/31/45 None. None. facilities. 10 Fed.Reg. 9571. amended by the War Labor Disputes Act. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 4. Between VJ Day and the Expiration of the War Labor Disputes Act Seizure Powers, Dec. 31, 1946. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Illinois Central R. Co. 8/23/45 5/27/46 9602. § 9, Selective Service Act of 1940 as None. None. None. (Jurisdictional strike) Railway Labor Act Emergency 10 Fed.Reg. 10957. amended by § 3 of the War Labor Board recommended against Disputes Act. change. Act of Aug. 29, 1916. First War Powers Act of 1941. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Petroleum Refineries and Pipe- 10/4/45 12/12/45 9639. § 9, Selective Service Act of 1940 as 9/16/45 10/5/45 Plants returned on agreement of Ad hoc factfinding board recom- lines. (One-half national re- 2/?/46 10 Fed.Reg. 12592. amended by the War Labor Disputes owners to 18 percent wage mendation. fining capacity.) Act. increase. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Capital Transit Co., Washington, 11/21/45 1/7/46 9658. § 9, Selective Service Act of 1940 as 11/6/45 11/7/45 Facilities returned when parties Ad hoc arbitration board award. D.C. 10 Fed.Reg. 14351. amended by § 3 of the War Labor agreed to arbitration award. Disputes Act. 11/20/45 11/21/45 on wages. Act of Aug. 29, 1916. First War Powers Act of 1941. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Great Lakes Towing Co., Cleve- 11/29/45 12/18/46 9661. § 9. Selective Service Act of 1940 as 9/4/45 11/29/45 Wage increase. National Wage Stabilization land, Ohio. 10 Fed.Reg. 14591. amended by § 3 of the War Labor 11/1/45 Board recommendation. Disputes Act. Act. of Aug. 29, 1916. First War Powers Act of 1941. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Meatpacking Industry. 1/24/46 3/12/46 9685. § 9, Selective Service Act of 1940 as 1/16/46 1/28/46* Plants returned as companies Ad hoc factfinding board recom- 5/22/46 11 Fed.Reg. 989. amended by the War Labor Disputes agreed to wage increase rec- mendation approved by Na- 9690. Act. ommended by factfinding tional Wage Stabilization 11 Fed.Reg. 1337. board. Board. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- [343 U.S. 627] New York Harbor Tugboat Com- 2/5/46 3/3/46 9693. § 9, Selective Service Act of 1940 as 2/4/46 2/13/46* Properties returned after agree- None. panies. 11 Fed.Reg. 1421. amended by § 3 of the War Labor dis- ment of parties to arbitrate putes Act. dispute. Act of Aug. 29, 1916. First War Powers Act of 1941. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Railroads. 5/17/46 5/26/46 9727. § 9, Selective Service Act of 1940 as 5/23/46 5/25/46* Properties returned after unions Railway Labor Act Emergency 11 Fed.Reg. 5461. amended by § 3 of the War Labor Dis- agreed to Presidential com- Board recommendation as putes Act. promise of wage demands. modified by President. Act of Aug. 29, 1916. First War Powers Act of 1941. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Bituminous Coal Mines. 5/21/46 6/30/47 9728. § 9, Selective Service Act of 1940 as 4/1/46 5/11/46 Wage increase, welfare and re- Contract between union and United States v. United Mine 11 Fed.Reg. 5593. amended by the War Labor Disputes tirement fund, mine safety Secretary of Interior. Workers, 330 U. S. 258 , Jones & Act. 5/23/46 5/25/46* provisions, and recognition of Laughlin Steel Co. v. UMW, 159 UMW as representative of F.2d 18 (D.C.Cir.1946); Krug v. supervisory employees during Fox, 161 F.2d 1013 (4th Cir. period of seizure. 1947).** ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Monongahela Connecting R. Co., 6/14/46 8/12/46 9736. § 8, Selective Service Act of 1940 as 6/10/46 6/14/46 None. (Property returned on None. Pittsburgh, Pa. 11 Fed.Reg. 6661. amended by § 3 of the War Labor Dis- recession of union from wage putes Act. demands.) Act of Aug. 29, 1916. First War Powers Act of 1941. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 5. Since the expiration of the War Labor Disputes Act Seizure Powers, Dec. 31, 1946. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Railroads. 5/10/48 7/9/48 9957. Act of Aug. 29, 1916. None. None. Property returned on agreement Railway Labor Act Emergency United States v. Brotherhood of 13 Fed.Reg. 2502. of parties to wage increase. Board recommendation as Locomotive Engineers, 79 F.Supp. modified. 485 (D.D.C.1948). ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Chicago, Rock Island & Pacific 7/8/50 5/23/52 10141. Act of Aug. 29, 1916. 6/25/50 7/8/50 Property returned on agreement Railway Labor Act Emergency R.Co. 15 Fed.Reg. 4363. of parties to wage increase. Board recommendation as modified. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Railroads. 8/27/50 5/23/52 10155. Act of Aug. 29, 1916. 12/10/50 12/15/50 Agreement reached by carriers Railway Labor Act Emergency 15 Fed.Reg. 5785. and some of the Brotherhoods Board recommendation as 1/29/51 2/19/51 put into effect. Property re- modified. turned on agreement of parties 3/9/52 3/12/52 to wage increase. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- [343 U.S. 628] World War II Period{4} -- Seizures Unconnected with Labor Disputes ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- DURATION OF EXECUTIVE PLANT OR FACILITY SEIZED SEIZURE ORDER STATUTORY AUTHORITY CITED{5} REASONS FOR SEIZURE CHANGES INSTITUTED DURING SEIZURE ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- From To ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Grand River Dam Authority, Okla- 11/19/41 7/41/46 8944. § 16, Federal Power Act. This was a State power project, financed by federal Federal Works Administrator replaced management homa. 6 Fed.Reg. 5947. loan and grant. Seizure was based on (1) State de- and completed the project. Transferred to Depart- fault on loan interest; (2) refusal of State legislature ment of Interior, Executive Order No. 9373, 8 Fed. to issue bonds to complete financing; (3) failure to Reg. 12001, 8/30/43. Returned pursuant to Act of meet scheduled completion date in power-short de- July 31, 1946, 60 Stat. 743. fense ares. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Brewster Aeronautical Corp., Long 4/18/42 5/20/42 9141. None. (1) Inefficient management; (2) failure to operate at New board of directors and officers installed; majority Island City, N.U., Newark, 7 Fed.Reg. 2961. full capacity; (3) failure to maintain delivery sched- shareholders established 2 1/2-year voting trust in favor N.J., Johnsville, Pa. ules on Army and Navy aircraft. (Congressional of new president. investigation suggested labor difficulties as well, due to employment of enemy aliens.) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Triumph Explosives, Inc., Mary- 10/12/42 2/28/43 9254. None. Overpayments (presumably bribes) of $1,400,000 to New board of directors and officers; indictments against land and Delaware plants. 6/5/43 7 Fed.Reg. 8333. procurement officers. former officials. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Howarth Pivoted Bearings Co., 6/14/43 8/25/45 9351. None. Inefficient management. Designees of Secretary of Navy operated plant for Philadelphia, Pa. 8 Fed.Reg. 8097. duration of war. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Remington Rand, Inc., Southport, 11/23/43 9/30/44 9399. § 9, Selective Service Act of 1940 as (1) Norden bombsight parts production of unaccept- Designees of Secretary of Navy supervised operations N.Y., plant. 8 Fed.Reg. 16269. amended. able quality; (2) deliveries behind schedule. for duration of seizure. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Los Angeles Shipbuilding & Dry- 12/8/43 8/25/45 9400. § 9, Selective Service Act of 1940 as (1) Excessive costs; (2) production behind schedule. Operated by contractor (Todd Shipyard Co.) for dura- dock Corp., Los Angeles, Calif. 8 Fed.Reg. 16641. amended. tion of war. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- York Safe & Lock Co., York, Pa. 1/23/44 3/15/45 9416. § 9, Selective Service Act of 1940 as (1) Inefficient management; (2) deliveries behind Designees of Secretary of Navy operated company for 9 Fed.Reg.936. amended. schedule. duration of war, except for a portion which was con- demned and transferred to Blaw-Knox Co. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Lord Mfg. Co., Erie, Pa.{11} 10/24/45 8/25/45 9493. Tit. VIII, Revenue Act of 1943. Refusal to deliver items at "fair and reasonable Designees of Secretary of Navy operated company for 9 Fed.Reg. 12860. § 9, Selective Service Act of 1940 as prices" fixed by the Secretary of the Navy in con- duration of war. amended. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ewm: APPENDIX FOOTNOTES * Governmental possession of the Nation's railroads taken on December 28, 1917, was specifically terminated by statute on March 1, 1920, prior to the end of the "war." See § 200 of the Transportation Act of 1920, 41 Stat. 456, 457. 1. Clyde B. Aitchison states that, on March 31, 1861, the Federal authorities took "under military control the Philadelphia, Wilmington & Baltimore Railway to insure uninterrupted communication between the North Atlantic States and Washington." Aitchison, War Time Control of American Railways, 26 Va.L.Rev. 847, 856 (1940). He adds that the return of the road to its private owners followed "shortly thereafter." Ibid. Original documents on this seizure are unavailable, and it has, therefore, not been included in this table. 2. The material in this table is taken from original documents in the National Archives and Hearings before the Senate Special Committee Investigating the Munitions Industry, 73d Cong., Part 17, 4270-4271 (1934). 3. Although no specific statutory authority was cited in the seizing order, it is clear from correspondence and reports in connection with the administration of the program that the seizure was effected under wartime legislation. See, e.g., Davisson, History of the Advisory Section, Administrative Division, Ordnance Office in connection with the Commandeering of Private Property, National Archives, Records of the War Department, Office of the Chief of Ordnance, O.O. 023/1362, Nov. 1920; Letter from Ordnance Office, Administrative Division to The Adjutant General, National Archives, Records of the War Department, Office of The Adjutant General, AG 386.2, Jan. 7, 1919. 4. The material in this table is summarized from a number of sources, chief of which are the War Labor Reports, contemporary accounts in the New York Times, United States National Wage Stabilization Board, Research and statics report No. 2 (1946), and Johnson, Government Seizures and Labor Disputes (Philadelphia, Pa., 1948) (unpublished doctoral dissertation at the University of Pennsylvania). Question marks appear in the tables in instances where no satisfactory information on the particular point was available. 5. Each of the Executive Orders uses the stock phrase "the Constitution and laws" as authority for the President's action, as well as his position as Commander in Chief. Only specific statutory authority relied upon is given in this table. The form of reference of the particular Executive Order is used. Statutes referred to in the table are analyzed in Appendix I, supra, p. 343 U. S. 615 . For convenience, their citations are repeated here: (1) Army Appropriations Act of Aug. 29, 1916, 39 Stat. 619, 645, 10 U.S.C. § 1361. (2) Federal Water Power Act of 1920, § 16, 41 Stat. 1063, 1072, 16 U.S.C. § 809. (3) Selective Training and Service Act of 1940, § 9, 54 Stat. 885, 892. (4) War Labor Disputes Act, § 3, 57 Stat. 163, 164. (5) Revenue Act of 1943, Tit. VIII, "Repricing of War Contracts," 58 Stat. 21, 92. When seizures of transportation facilities were effected through agencies other than the War Department, the First War Powers Act of 1941, 55 Stat. 838, was cited. Title I of that Act permitted the President to shift certain functions among executive agencies in aid of the war effort. The Act of Aug. 29, 1916, authorizing seizure of transportation facilities, specified that it should be accomplished through the Secretary of War. 6. Stoppages continuing during seizure are indicated by an asterisk (*). 7. Unless otherwise indicated, changes in conditions of employment instituted during seizure were continued by management upon the return of the facilities to its control. 8. Validity of seizure was challenged in comparatively few cases. Most litigation concerned the consequences of seizure. Cases in which the validity of the seizure was attacked are indicated by double asterisks (**). 9. This order was followed by a series drawn in the same terms extending the seizure to additional mines. The Executive Orders were: No. 9474; 9 Fed.Reg. 10815; No. 9476, 9 Fed.Reg. 10817; No. 9478, 9 Fed.Reg. 11045; No. 9481, 9 Fed.Reg. 11387; No. 9482, 9 Fed.Reg. 11459; No. 9483, 9 Fed.Reg. 11601. 10. A series of strikes for recognition by supervisory employees at the various mines were usually, though not always, terminated on seizure of the affected property. 11. See Lord Mfg. Co. v. Collisson, 62 F. Supp. 79 (W.D.Pa. 1945). Page 343 U. S. 629 MR. JUSTICE DOUGLAS, concurring. There can be no doubt that the emergency which caused the President to seize these steel plants was one that bore heavily on the country. But the emergency did not create power; it merely marked an occasion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act. The Congress, as well as the President, is trustee of the national welfare. The President can act more quickly than the Congress. The President, with the armed services at his disposal, can move with force, as well as with speed. All executive power -- from the reign of ancient kings to the rule of modern dictators -- has the outward appearance of efficiency. Legislative power, by contrast, is slower to exercise. There must be delay while the ponderous machinery of committees, hearings, and debates is put into motion. That takes time, and, while the Congress slowly moves into action, the emergency may take its toll in wages, consumer goods, war production, the standard of living of the people, and perhaps even lives. Legislative action may indeed often be cumbersome, time-consuming, and apparently inefficient. But, as Mr. Justice Brandeis stated in his dissent in Myers v. United States, 272 U. S. 52 , 272 U. S. 293 : "The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. " Page 343 U. S. 630 We therefore cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution. That, in turn, requires an analysis of the conditions giving rise to the seizure, and of the seizure itself. The relations between labor and industry are one of the crucial problems of the era. Their solution will doubtless entail many methods -- education of labor leaders and business executives; the encouragement of mediation and conciliation by the President and the use of his great office in the cause of industrial peace, and the passage of laws. Laws entail sanctions -- penalties for their violation. One type of sanction is fine and imprisonment. Another is seizure of property. An industry may become so lawless, so irresponsible, as to endanger the whole economy. Seizure of the industry may be the only wise and practical solution. The method by which industrial peace is achieved is of vital importance not only to the parties, but to society as well. A determination that sanctions should be applied, that the hand of the law should be placed upon the parties, and that the force of the courts should be directed against them is an exercise of legislative power. In some nations, that power is entrusted to the executive branch as a matter of course or in case of emergencies. We chose another course. We chose to place the legislative power of the Federal Government in the Congress. The language of the Constitution is not ambiguous or qualified. It places not some legislative power in the Congress; Article I, Section 1 says "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The legislative nature of the action taken by the President seems to me to be clear. When the United States Page 343 U. S. 631 takes over an industrial plant to settle a labor controversy, it is condemning property. The seizure of the plant is a taking in the constitutional sense. United States v Pewee Coal Co., 341 U. S. 114 . A permanent taking would amount to the nationalization of the industry. A temporary taking falls short of that goal. But though the seizure is only for a week or a month, the condemnation is complete, and the United States must pay compensation for the temporary possession. United States v. General Motors Corp., 323 U. S. 373 ; United States v. Pewee Coal Co., supra. The power of the Federal Government to condemn property is well established. Kohl v. United States, 91 U. S. 367 . It can condemn for any public purpose, and I have no doubt but that condemnation of a plant, factory, or industry in order to promote industrial peace would be constitutional. But there is a duty to pay for all property taken by the Government. The command of the Fifth Amendment is that no "private property be taken for public use, without just compensation." That constitutional requirement has an important bearing on the present case. The President has no power to raise revenues. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize, and the Congress, by subsequent action, might ratify the seizure. [ Footnote 3/1 ] But, until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that Page 343 U. S. 632 the President has effected. [ Footnote 3/2 ] That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment. It squares with the theory of checks and balances expounded by MR. JUSTICE BLACK in the opinion of the Court, in which I join. If we sanctioned the present exercise of power by the President, we would be expanding Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency. Article II, which vests the "executive Power" in the President, defines that power with particularity. Article II, Section 2, makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. Article II, Section 3 provides that the President shall, "from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend, and that it is the function of the Congress to legislate. Article II, Page 343 U. S. 633 Section 3, also provides that the President "shall take Care that the Laws be faithfully executed." But, as MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER point out, the power to execute the laws starts and ends with the laws Congress has enacted. The great office of President is not a weak and powerless one. The President represents the people, and is their spokesman in domestic and foreign affairs. The office is respected more than any other in the land. It gives a position of leadership that is unique. The power to formulate policies and mould opinion inheres in the Presidency and conditions our national life. The impact of the man and the philosophy he represents may at times be thwarted by the Congress. Stalemates may occur when emergencies mount and the Nation suffers for lack of harmonious, reciprocal action between the White House and Capitol Hill. That is a risk inherent in our system of separation of powers. The tragedy of such stalemates might be avoided by allowing the President the use of some legislative authority. The Framers with memories of the tyrannies produced by a blending of executive and legislative power rejected that political arrangement. Some future generation may, however, deem it so urgent that the President have legislative authority that the Constitution will be amended. We could not sanction the seizures and condemnations of the steel plants in this case without reading Article II as giving the President not only the power to execute the laws, but to make some. Such a step would most assuredly alter the pattern of the Constitution. We pay a price for our system of checks and balances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many. Today, a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomorrow, another Page 343 U. S. 634 President might use the same power to prevent a wage increase, to curb trade unionists, to regiment labor as oppressively as industry thinks it has been regimented by this seizure. [ Footnote 3/1 ] What a President may do as a matter of expediency or extremity may never reach a definitive constitutional decision. For example, President Lincoln suspended the writ of habeas corpus, claiming the constitutional right to do so. See Ex parte Merryman, 17 Fed.Cas. No. 9,487. Congress ratified his action by the Act of March 3, 1863. 12 Stat. 755. [ Footnote 3/2 ] Mr. Justice Brandeis, speaking for the Court in United States v. North American Co., 253 U. S. 330 , 253 U. S. 333 , stated that the basis of the Government's liability for a taking of property was legislative authority: "In order that the Government shall be liable, it must appear that the officer who has physically taken possession of the property was duly authorized so to do, either directly by Congress or by the official upon whom Congress conferred the power." That theory explains cases like United States v. Causby, 328 U. S. 256 , where the acts of the officials resulting in a taking were acts authorized by the Congress, though the Congress had not treated the acts as one of appropriation of private property. Wartime seizures by the military in connection with military operations ( cf. 80 U. S. Russell, 13 Wall. 623) are also in a different category. MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court. That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But, as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies -- such as wages or stabilization -- and lose sight of enduring consequences upon the balanced power structure of our Republic. A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from Page 343 U. S. 635 respected sources on each side of any question. They largely cancel each other. [ Footnote 4/1 ] And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way. The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [ Footnote 4/2 ] In these circumstances, Page 343 U. S. 636 and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, Page 343 U. S. 637 as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [ Footnote 4/3 ] 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling Page 343 U. S. 638 the Congress from acting upon the subject. [ Footnote 4/4 ] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category. [ Footnote 4/5 ] Page 343 U. S. 639 Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class, because Congress has not left seizure of private property an open field, but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government; [ Footnote 4/6 ] another, condemnation of facilities, including temporary use under the power of eminent domain. [ Footnote 4/7 ] The third is applicable where it is the general economy of the country that is to be protected, rather than exclusive governmental interests. [ Footnote 4/8 ] None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. Page 343 U. S. 640 This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court's first review of such seizures occurs under circumstances which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures. I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications, instead of the rigidity dictated by a doctrinaire textualism. The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, "The executive Power shall be vested in a President of the United States of America." Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: "In our view, this clause constitutes a grant of all the executive powers of which the Government is capable." If that be true, it is difficult to see why the Page 343 U. S. 641 forefathers bothered to add several specific items, including some trifling ones. [ Footnote 4/9 ] The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And, if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power, but regard it as an allocation to the presidential office of the generic powers thereafter stated. The clause on which the Government next relies is that "The President shall be Commander in Chief of the Army and Navy of the United States. . . ." These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued presidential advisers who would not waive or narrow it by nonassertion, yet cannot say where it begins or ends. It undoubtedly puts the Nation's armed forces under presidential command. Hence, this loose appellation is sometimes advanced as support for any presidential action, internal or external, involving use of force, the Page 343 U. S. 642 idea being that it vests power to do anything, anywhere, that can be done with an army or navy. That seems to be the logic of an argument tendered at our bar -- that the President having, on his own responsibility, sent American troops abroad derives from that act "affirmative power" to seize the means of producing a supply of steel for them. To quote, "Perhaps the most forceful illustration of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President's constitutional powers." Thus, it is said, he has invested himself with "war powers." I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may, in fact, exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. [ Footnote 4/10 ] Page 343 U. S. 643 I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it. Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander in Chief to seize industries he thinks necessary to supply our army? The Constitution expressly places in Congress power "to raise and support Armies" and "to provide and maintain a Navy." (Emphasis supplied.) This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation, and may determine in what manner and by what means they shall be spent for military and naval procurement. I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Congress sees fit to rely on free private enterprise collectively bargaining with free labor for support and maintenance of our armed forces, can the Executive, because of lawful disagreements incidental to that process, seize the facility for operation upon Government-imposed terms? There are indications that the Constitution did not contemplate that the title Commander in Chief of the Page 343 U. S. 644 Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval Forces," by which it may, to some unknown extent, impinge upon even command functions. That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now, in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. . . ." [ Footnote 4/11 ] Such a limitation on the command power, written at a time when the militia, rather than a standing army, was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy. Congress, fulfilling that function, has authorized the President to use the army to enforce certain civil rights. [ Footnote 4/12 ] On the other hand, Congress has forbidden him to use the army for the purpose Page 343 U. S. 645 of executing general laws except when expressly authorized by the Constitution or by Act of Congress. [ Footnote 4/13 ] While broad claims under this rubric often have been made, advice to the President in specific matters usually has carried overtones that powers, even under this head, are measured by the command functions usual to the topmost officer of the army and navy. Even then, heed has been taken of any efforts of Congress to negative his authority. [ Footnote 4/14 ] We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch Page 343 U. S. 646 is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment. The third clause in which the Solicitor General finds seizure powers is that "he shall take Care that the Laws be faithfully executed. . . . [ Footnote 4/15 ] That authority must be matched against words of the Fifth Amendment that "No person shall be . . . deprived of life, liberty or property, without due process of law. . . ." One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules. The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted, but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law. Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. Page 343 U. S. 647 "Inherent" powers, "implied" powers, "incidental" powers, "plenary" powers, "war" powers and "emergency" powers are used, often interchangeably and without fixed or ascertainable meanings. The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test. [ Footnote 4/16 ] Page 343 U. S. 648 The Solicitor General, acknowledging that Congress has never authorized the seizure here, says practice of prior Presidents has authorized it. He seeks color of legality from claimed executive precedents, chief of which is President Roosevelt's seizure, on June 9, 1941, of the California plant of the North American Aviation Company. Its superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it Page 343 U. S. 649 cannot be regarded as even a precedent, much less an authority for the present seizure. [ Footnote 4/17 ] The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although Page 343 U. S. 650 it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, [ Footnote 4/18 ] they made no express provision for exercise of extraordinary authority because of a crisis. [ Footnote 4/19 ] I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. Page 343 U. S. 651 Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers. Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and, in 13 years, suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored. [ Footnote 4/20 ] The French Republic provided for a very different kind of emergency government known as the "state of siege." It differed from the German emergency dictatorship, particularly in that emergency powers could not be assumed at will by the Executive, but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or abrogation of law, but was a legal institution governed by special legal rules and terminable by parliamentary authority. [ Footnote 4/21 ] Great Britain also has fought both World Wars under a sort of temporary dictatorship created by legislation. [ Footnote 4/22 ] As Parliament is not bound by written constitutional limitations, it established a crisis government simply by Page 343 U. S. 652 delegation to its Ministers of a larger measure than usual of its own unlimited power, which is exercised under its supervision by Ministers whom it may dismiss. This has been called the "high-water mark in the voluntary surrender of liberty," but, as Churchill put it, "Parliament stands custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our perseverance. [ Footnote 4/23 ]" Thus, parliamentary control made emergency powers compatible with freedom. This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the "inherent powers" formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience. In the practical working of our Government, we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. In 1939, upon congressional request, the Attorney General listed ninety-nine such separate statutory grants by Congress of emergency or wartime executive powers. [ Footnote 4/24 ] They were invoked from time to time as need appeared. Under this procedure, we retain Government Page 343 U. S. 653 by law -- special, temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers that can be asserted, and persons affected may be informed from the statute of their rights and duties. In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction. As to whether there is imperative necessity for such powers, it is relevant to note the gap that exists between the President's paper powers and his real powers. The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. Vast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential activity. Subtle shifts take place in the centers of real power that do not show on the face of the Constitution. Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality, his decisions so far overshadow any others that, almost alone, he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion, he exerts a leverage upon those who are supposed Page 343 U. S. 654 to check and balance his power which often cancels their effectiveness. Moreover, rise of the party system has made a significant extraconstitutional supplement to real executive power. No appraisal of his necessities is realistic which overlooks that he heads a political system, as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of government other than his own, and he often may win, as a political leader, what he cannot command under the Constitution. Indeed, Woodrow Wilson, commenting on the President as leader both of his party and of the Nation, observed, "If he rightly interpret the national thought and boldly insist upon it, he is irresistible. . . . His office is anything he has the sagacity and force to make it. [ Footnote 4/25 ]" I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, [ Footnote 4/26 ] at the expense of Congress. But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. The essence of our free Government is "leave to live by no man's leave, underneath the law" -- to be governed by those impersonal forces which we call law. Our Government Page 343 U. S. 655 is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up. [ Footnote 4/27 ] [ Footnote 4/1 ] A Hamilton may be matched against a Madison. 7 The Works of Alexander Hamilton, 76-117; 1 Madison, Letters and Other Writings, 611-654. Professor Taft is counterbalanced by Theodore Roosevelt. Taft, Our Chief Magistrate and His Powers, 139-140; Theodore Roosevelt, Autobiography, 388-389. It even seems that President Taft cancels out Professor Taft. Compare his "Temporary Petroleum Withdrawal No. 5" of September 27, 1909, United States v. Midwest Oil Co., 236 U. S. 459 , 236 U. S. 467 , 468, with his appraisal of executive power in "Our Chief Magistrate and His Powers" 139-140. [ Footnote 4/2 ] It is in this class of cases that we find the broadest recent statements of presidential power, including those relied on here. United States v. Curtiss-Wright Corp., 299 U. S. 304 , involved not the question of the President's power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court's opinion is dictum, but the ratio decidendi is contained in the following language: "When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action -- or, indeed, whether he shall act at all -- may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U. S. 299 , 239 U. S. 311 ," "As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality, it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers. " "(Italics supplied.)" Id. at 239 U. S. 321 -322. That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs. It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress. Other examples of wide definition of presidential powers under statutory authorization are Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U. S. 103 , and Hirabayashi v. United States, 320 U. S. 81 . But see, 54 U. S. Montgomery, 13 How. 498, 54 U. S. 515 ; United States v. Western Union Telegraph Co., 272 F. 311; aff'd, 272 F. 893; rev'd on consent of the parties, 260 U.S. 754; United States Harness Co. v. Graham, 288 F. 929. [ Footnote 4/3 ] Since the Constitution implies that the writ of habeas corpus may be suspended in certain circumstances, but does not say by whom, President Lincoln asserted and maintained it as an executive function in the face of judicial challenge and doubt. Ex parte Merryman, 17 Fed.Cas. 144; Ex parte Milligan , 4 Wall. 2, 71 U. S. 125 ; See Ex parte Bollman , 4 Cranch 75, 8 U. S. 101 . Congress eventually ratified his action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21 Col.L.Rev. 526. Compare Myers v. United States, 272 U. S. 52 , with Humphrey's Executor v. United States, 295 U. S. 602 , and Hirabayashi v. United States, 320 U. S. 81 , with the case at bar. Also compare 68 U. S. 1 Wall. 243, with Ex parte Milligan, supra. [ Footnote 4/4 ] President Roosevelt's effort to remove a Federal Trade Commissioner was found to be contrary to the policy of Congress and impinging upon an area of congressional control, and so his removal power was cut down accordingly. Humphrey's Executor v. United States, 295 U. S. 602 . However, his exclusive power of removal in executive agencies, affirmed in Myers v. United States, 272 U. S. 52 , continued to be asserted and maintained. Morgan v. Tennessee Valley Authority, 115 F.2d 990, cert. denied, 312 U.S. 701; In re Power to Remove Members of the Tennessee Valley Authority, 39 Op.Atty.Gen. 145; President Roosevelt's Message to Congress of March 23, 1938, The Public Papers and Addresses of Franklin D. Roosevelt, 1938 (Rosenman), 151. [ Footnote 4/5 ] The oft-cited Louisiana Purchase had nothing to do with the separation of powers as between the President and Congress, but only with state and federal power. The Louisiana Purchase was subject to rather academic criticism not upon the ground that Mr. Jefferson acted without authority from Congress, but that neither had express authority to expand the boundaries of the United States by purchase or annexation. Mr. Jefferson himself had strongly opposed the doctrine that the States' delegation of powers to the Federal Government could be enlarged by resort to implied powers. Afterwards, in a letter to John Breckenridge dated August 12, 1803, he declared: "The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The executive, in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature, in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them, unauthorized, what we know they would have done for themselves had they been in a situation to do it." 10 The Writings of Thomas Jefferson 407, 411. [ Footnote 4/6 ] Selective Service Act of 1948, § 18, 62 Stat. 625, 50 U.S.C.App. (Supp. IV) § 468(c). [ Footnote 4/7 ] Defense Production Act of 1950, § 201, 64 Stat. 799, amended, 65 Stat. 132, 50 U.S.C.App. (Supp. IV) § 2081. For the latitude of the condemnation power which underlies this Act, see United States v. Westinghouse Co., 339 U. S. 261 , and cases therein cited. [ Footnote 4/8 ] Labor Management Relations Act, 1947, §§ 206-210, 61 Stat. 136, 155, 156, 29 U.S.C. (Supp. IV) §§ 141, 176-180. The analysis, history and application of this Act are fully covered by the opinion of the Court, supplemented by that of MR. JUSTICE FRANKFURTER and of MR. JUSTICE BURTON, in which I concur. [ Footnote 4/9 ] ". . . he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices. . . ." U.S.Const., Art. II, § 2. He ". . . shall Commission all the Officers of the United States." U.S.Const., Art. II, § 3. Matters such as those would seem to be inherent in the Executive, if anything is. [ Footnote 4/10 ] How widely this doctrine espoused by the President's counsel departs from the early view of presidential power is shown by a comparison. President Jefferson, without authority from Congress, sent the American fleet into the Mediterranean, where it engaged in a naval battle with the Tripolitan fleet. He sent a message to Congress on December 8, 1801, in which he said: "Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean . . . with orders to protect our commerce against the threatened attack. . . . Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. . . . One of the Tripolitan cruisers having fallen in with and engaged the small schooner Enterprise, . . . was captured, after a heavy slaughter of her men. . . . Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense, the vessel, being disabled from committing further hostilities, was liberated with its crew. The Legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that, in the exercise of this important function confided by the Constitution to the Legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight." I Richardson, Messages and Papers of the Presidents, 314. [ Footnote 4/11 ] U.S.Const., Art. I, § 8, cl. 15. [ Footnote 4/12 ] 14 Stat. 29, 16 Stat. 143, 8 U.S.C. § 55. [ Footnote 4/13 ] 20 Stat. 152, 10 U.S. C § 15 [ Footnote 4/14 ] In 1940, President Roosevelt proposed to transfer to Great Britain certain overage destroyers and small patrol boats then under construction. He did not presume to rely upon any claim of constitutional power as Commander in Chief. On the contrary, he was advised that such destroyers -- if certified not to be essential to the defense of the United States -- could be "transferred, exchanged, sold, or otherwise disposed of," because Congress had so authorized him. Accordingly, the destroyers were exchanged for air bases. In the same opinion, he was advised that Congress had prohibited the release or transfer of the so-called "mosquito boats" then under construction, so those boats were not transferred. Acquisition of Naval and Air Bases in Exchange for Over-age Destroyers, 39 Op.Atty.Gen. 484. See also Training of British Flying Students in the United States, 40 Op.Atty.Gen. 58. [ Footnote 4/15 ] U.S.Const., Art. II, § 3. [ Footnote 4/16 ] President Wilson, just before our entrance into World War I, went before the Congress and asked its approval of his decision to authorize merchant ships to carry defensive weapons. He said: "No doubt I already possess that authority without special warrant of law, by the plain implication of my constitutional duties and powers; but I prefer, in the present circumstances, not to act upon general implication. I wish to feel that the authority and the power of the Congress are behind me in whatever it may become necessary for me to do. We are jointly the servants of the people, and must act together and in their spirit, so far as we can divine and interpret it." XVII Richardson, op. cit., 8211. When our Government was itself in need of shipping whilst ships flying the flags of nations overrun by Hitler, as well as belligerent merchantmen, were immobilized in American harbors where they had taken refuge, President Roosevelt did not assume that it was in his power to seize such foreign vessels to make up our own deficit. He informed Congress: "I am satisfied, after consultation with the heads of the interested departments and agencies of the Government, that we should have statutory authority to take over any such vessels as our needs may require. . . ." 87 Cong.Rec. 3072 (77th Cong., 1st Sess.); The Public Papers and Addresses of Franklin D. Roosevelt, 1941 (Rosenman), 94. The necessary statutory authority was shortly forthcoming. 55 Stat. 242. In his first inaugural address, President Roosevelt pointed out two courses to obtain legislative remedies, one being to enact measures he was prepared to recommend, the other to enact measures "the Congress may build out of its experience and wisdom." He continued, "But in the event that the Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis -- broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were, in fact, invaded by a foreign foe." (Emphasis supplied.) The Public Papers and Addresses of Franklin D. Roosevelt, 1933 (Rosenman), 15. On March 6, 1933, President Roosevelt proclaimed the Bank Holiday. The Proclamation did not invoke constitutional powers of the Executive, but expressly and solely relied upon the Act of Congress of October 6, 1917, 40 Stat. 411, § 5(b), as amended. He relied steadily on legislation to empower him to deal with economic emergency. The Public Papers and Addresses of Franklin D. Roosevelt, 1933 (Rosenman), 24. It is interesting to note Holdsworth's comment on the powers of legislation by proclamation when in the hands of the Tudors. "The extent to which they could be legally used was never finally settled in this century, because the Tudors made so tactful a use of their powers that no demand for the settlement of this question was raised." 4 Holdsworth, History of English Law, 104. [ Footnote 4/17 ] The North American Aviation Company was under direct and binding contracts to supply defense items to the Government. No such contracts are claimed to exist here. Seizure of plants which refused to comply with Government orders had been expressly authorized by Congress in § 9 of the Selective Service Act of 1940, 54 Stat. 885, 892, so that the seizure of the North American plant was entirely consistent with congressional policy. The company might have objected on technical grounds to the seizure, but it was taken over with acquiescence, amounting to all but consent, of the owners, who had admitted that the situation was beyond their control. The strike involved in the North American case was in violation of the union's collective agreement, and the national labor leaders approved the seizure to end the strike. It was described as in the nature of an insurrection, a Communist-led political strike against the Government's lend lease policy. Here we have only a loyal, lawful, but regrettable economic disagreement between management and labor. The North American plant contained government-owned machinery, material and goods in the process of production to which workmen were forcibly denied access by picketing strikers. Here, no Government property is protected by the seizure. See New York Times of June 10, 1941, pp. 1, 14 and 16, for substantially accurate account of the proceedings and the conditions of violence at the North American plant. The North American seizure was regarded as an execution of congressional policy. I do not regard it as a precedent for this, but, even if I did, I should not bind present judicial judgment by earlier partisan advocacy. Statements from a letter by the Attorney General to the Chairman of the Senate Committee on Labor and Public Welfare, dated February 2, 1949, with reference to pending labor legislation, while not cited by any of the parties here, are sometimes quoted as being in support of the "inherent" powers of the President. The proposed bill contained a mandatory provision that, during certain investigations, the disputants in a labor dispute should continue operations under the terms and conditions of employment existing prior to the beginning of the dispute. It made no provision as to how continuance should be enforced, and specified no penalty for disobedience. The Attorney General advised that, in appropriate circumstances, the United States would have access to the courts to protect the national health, safety and welfare. This was the rule laid down by this Court in Texas & N.O. R. Co. v. Brotherhood of Railway Clerks, 281 U. S. 548 . The Attorney General observed: "However, with regard to the question of the power of the Government under Title III, I might point out that the inherent power of the President to deal with emergencies that affect the health, safety and welfare of the entire Nation is exceedingly great. See Opinion of Attorney General Murphy of October 4, 1939 (39 Op.A.G. 344, 347); United States v. United Mine Workers of America, 330 U. S. 258 (1947)." See Hearings before the Senate Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st Sess. 263. Regardless of the general reference to "inherent powers," the citations were instances of congressional authorization. I do not suppose it is open to doubt that power to see that the laws are faithfully executed was ample basis for the specific advice given by the Attorney General in this letter. [ Footnote 4/18 ] U.S. Const., Art. I, § 9, cl. 2. [ Footnote 4/19 ] I exclude, as in a very limited category by itself, the establishment of martial law. Cf. 71 U. S. 4 Wall. 2; Duncan v. Kahanamoku, 327 U. S. 304 . [ Footnote 4/20 ] 1 Nazi Conspiracy and Aggression 126-127; Rossiter, Constitutional Dictatorship, 33-61; Brecht, Prelude to Silence, 138. [ Footnote 4/21 ] Rossiter, Constitutional Dictatorship, 117-129. [ Footnote 4/22 ] Defence of the Realm Act, 1914, 4 & 5 Geo. V, c. 29, as amended, c. 63; Emergency Powers (Defence) Act, 1939, 2 & 3 Geo. VI, c. 62; Rossiter, Constitutional Dictatorship, 135-184. [ Footnote 4/23 ] Churchill, The Unrelenting Struggle, 13. See also id. at 279-281. [ Footnote 4/24 ] 39 Op.Atty.Gen. 348. [ Footnote 4/25 ] Wilson, Constitutional Government in the United States, 669. [ Footnote 4/26 ] Rossiter, The Supreme Court and the Commander in Chief, 126-132. [ Footnote 4/27 ] We follow the judicial tradition instituted on a memorable Sunday in 1612 when King James took offense at the independence of his judges and, in rage, declared: "Then I am to be under the law -- which it is treason to affirm." Chief Justice Coke replied to his King: "Thus, wrote Bracton, The King ought not to be under any man, but he is under God and the Law.'" 12 Coke 65 (as to its verity, 18 Eng.Hist.Rev. 664-675); 1 Campbell, Lives of the Chief Justices (1849), 272. MR. JUSTICE BURTON, concurring in both the opinion and judgment of the Court. My position may be summarized as follows: The validity of the President's order of seizure is at issue and ripe for decision. Its validity turns upon its relation to the constitutional division of governmental power between Congress and the President. Page 343 U. S. 656 The Constitution has delegated to Congress power to authorize action to meet a national emergency of the kind we face. [ Footnote 5/1 ] Aware of this responsibility, Congress has responded to it. It has provided at least two procedures for the use of the President. It has outlined one in the Labor Management Relations Act, 1947, better known as the Taft-Hartley Act. The accuracy with which Congress there describes the present emergency demonstrates its applicability. It says: "Whenever in the opinion of the President of the United States, a threatened or actual strike or lockout affecting an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce, will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him within such time as he shall prescribe. . . . [ Footnote 5/2 ] " Page 343 U. S. 657 In that situation, Congress has authorized not only negotiation, conciliation and impartial inquiry, but also a 60-day cooling-off period under injunction, followed by 20 days for a secret ballot upon the final offer of settlement and then by recommendations from the President to Congress. [ Footnote 5/3 ] For the purposes of this case, the most significant feature of that Act is its omission of authority to seize an affected industry. The debate preceding its passage demonstrated the significance of that omission. Collective bargaining, rather than governmental seizure, was to be relied upon. Seizure was not to be resorted to without specific congressional authority. Congress reserved to itself the opportunity to authorize seizure to meet particular emergencies. [ Footnote 5/4 ] Page 343 U. S. 658 The President, however, chose not to use the Taft-Hartley procedure. He chose another course, also authorized by Congress. He referred he controversy to the Wage Stabilization Board. [ Footnote 5/5 ] If that course had led to a settlement of the labor dispute, it would have avoided the need for other action. It, however, did not do so. Now it is contended that, although the President did not follow the procedure authorized by the Taft-Hartley Act, his substituted procedure served the same purpose, and must be accepted as its equivalent. Without appraising that equivalence, it is enough to point out that neither procedure carried statutory authority for the seizure of private industries in the manner now at issue. [ Footnote 5/6 ] The exhaustion of both procedures fails to cloud the Page 343 U. S. 659 clarity of the congressional reservation of seizure for its own consideration. The foregoing circumstances distinguish this emergency from one in which Congress takes no action and outlines no governmental policy. In the case before us, Congress authorized a procedure which the President declined to follow. Instead, he followed another procedure which he hoped might eliminate the need for the first. Upon its failure, he issued an executive order to seize the steel properties in the face of the reserved right of Congress to adopt or reject that course as a matter of legislative policy. This brings us to a further crucial question. Does the President, in such a situation, have inherent constitutional power to seize private property which makes congressional action in relation thereto unnecessary? We find no such power available to him under the present circumstances. The present situation is not comparable to that of an imminent invasion or threatened attack. We do not face the issue of what might be the President's constitutional power to meet such catastrophic situations. Nor is it claimed that the current seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threatened with, total war. [ Footnote 5/7 ] Page 343 U. S. 660 The controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency. Congress has reserved to itself the right to determine where and when to authorize the seizure of property in meeting such an emergency. Under these circumstances, the President's order of April 8 invaded the jurisdiction of Congress. It violated the essence of the principle of the separation of governmental powers. Accordingly, the injunction against its effectiveness should be sustained. [ Footnote 5/1 ] " Article I" "Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States. . . ." " * * * *" "Section. 8. The Congress shall have Power . . . ;" " * * * *" "To regulate Commerce with foreign Nations, and among the several States . . . ;" " * * * *" "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." [ Footnote 5/2 ] 61 Stat. 155, 29 U.S.C. (Supp. IV) § 176. [ Footnote 5/3 ] 361 Stat. 155-156, 29 U.S.C. (Supp. IV) §§ 176-180. [ Footnote 5/4 ] The Chairman of the Senate Committee sponsoring the bill said in the Senate: "We did not feel that we should put into the law, as a part of the collective bargaining machinery, an ultimate resort to compulsory arbitration, or to seizure, or to any other action. We feel that it would interfere with the whole process of collective bargaining. If such a remedy is available as a routine remedy, there will always be pressure to resort to it by whichever party thinks it will receive better treatment through such a process than it would receive in collective bargaining, and it will back out of collective bargaining. It will not make a bona-fide attempt to settle if it thinks it will receive a better deal under the final arbitration which may be provided." "We have felt that perhaps in the case of a general strike, or in the case of other serious strikes, after the termination of every possible effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose." "I have had in mind drafting such a bill, giving power to seize the plants and other necessary facilities, to seize the unions, their money, and their treasury, and requisition trucks and other equipment; in fact, to do everything that the British did in their general strike of 1926. But while such a bill might be prepared, I should be unwilling to place such a law on the books until we actually face such an emergency, and Congress applies the remedy for the particular emergency only. Eighty days will provide plenty of time within which to consider the possibility of what should be done, and we believe very strongly that there should not be anything in this law which prohibits finally the right to strike." 93 Cong.Rec. 3835-3836. Part of this quotation was relied upon by this Court in Bus Employees v. Wisconsin Board, 340 U. S. 383 , 340 U. S. 396 , note 21. [ Footnote 5/5 ] Under Titles IV and V of the Defense Production Act of 1950, 64 Stat. 803-812, 50 U.S.C. App. (Supp. IV) §§ 2101-2123, and see Exec.Order No. 10233, 16 Fed.Reg. 3503. [ Footnote 5/6 ] Congress has authorized other types of seizure under conditions not present here. Section 201 of the Defense Production Act authorizes the President to acquire specific "real property, including facilities, temporary use thereof, or other interest therein . . . " by condemnation. 64 Stat. 799, as amended, 65 Stat. 132, see 50 U.S.C.App. (Supp. IV) § 2081. There have been no declarations of taking or condemnation proceedings in relation to any of the properties involved here. Section 18 of the Selective Service Act of 1948 authorizes the President to take possession of a plant or other facility failing to fill certain defense orders placed with it in the manner there prescribed. 62 Stat. 625, 50 U.S.C.App. (Supp. IV) § 468. No orders have been so placed with the steel plants seized. [ Footnote 5/7 ] The President and Congress have recognized the termination of the major hostilities in the total wars in which the Nation has been engaged. Many wartime procedures have expired or been terminated. The War Labor Disputes Act, 57 Stat. 163 et seq., 50 U.S.C.App. §§ 1501-1511, expired June 30, 1947, six months after the President's declaration of the end of hostilities, 3 CFR, 1946 Supp., p. 77. The Japanese Peace Treaty was approved by the Senate March 20, 1952, Cong.Rec. Mar. 20, 1952, p. 2635, and proclaimed by the President April 28, 1952, 17 Fed.Reg. 3813. MR. JUSTICE CLARK, concurring in the judgment of the Court. One of this Court's first pronouncements upon the powers of the President under the Constitution was made by Mr. Chief Justice John Marshall some one hundred and fifty years ago. In Little v. Barreme, [ Footnote 6/1 ] he used this characteristically clear language in discussing the power of the President to instruct the seizure of the Flying Fish, a vessel bound from a French port: "It is by no means clear that the president of the United States whose high duty it is to 'take care that the laws be faithfully executed' and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then-existing state of things, have empowered the officers commanding the armed vessels of the United States to seize, and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that [an act of Congress] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed that Page 343 U. S. 661 the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port. [ Footnote 6/2 ]" Accordingly, a unanimous Court held that the President's instructions had been issued without authority, and that they could not "legalize an act which, without those instructions, would have been a plain trespass." I know of no subsequent holding of this Court to the contrary. [ Footnote 6/3 ] The limits of presidential power are obscure. However, Article II, no less than Article I, is part of "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." [ Footnote 6/4 ] Some of our Presidents, such as Lincoln, "felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation. [ Footnote 6/5 ] " Page 343 U. S. 662 Others, such as Theodore Roosevelt, thought the President to be capable, as a "steward" of the people, of exerting all power save that which is specifically prohibited by the Constitution or the Congress. [ Footnote 6/6 ] In my view -- taught me not only by the decision of Mr. Chief Justice Marshall in Little v. Barreme, but also by a score of other pronouncements of distinguished members of this bench -- the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be necessary to the very existence of the Constitution itself. As Lincoln aptly said, "[is] it possible to lose the nation and yet preserve the Constitution? [ Footnote 6/7 ] In describing this authority, I care not whether one calls it "residual," "inherent," "moral," "implied," "aggregate," "emergency," or otherwise. I am of the conviction that those who have had the gratifying experience of being the President's lawyer have used one or more of these adjectives only with the utmost of sincerity and the highest of purpose. I conclude that, where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that, in the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand. Page 343 U. S. 663 Three statutory procedures were available: those provided in the Defense Production Act of 1950, the Labor Management Relations Act, and the Selective Service Act of 1948. In this case, the President invoked the first of these procedures; he did not invoke the other two. The Defense Production Act of 1950 provides for mediation of labor disputes affecting national defense. Under this statutory authorization, the President has established the Wage Stabilization Board. The Defense Production Act, however, grants the President no power to seize real property except through ordinary condemnation proceedings, which were not used here, and creates no sanctions for the settlement of labor disputes. The Labor Management Relations Act, commonly known as the Taft-Hartley Act, includes provisions adopted for the purpose of dealing with nationwide strikes. They establish a procedure whereby the President may appoint a board of inquiry and thereafter, in proper cases, seek injunctive relief for an 80-day period against a threatened work stoppage. The President can invoke that procedure whenever, in his opinion, "a threatened or actual strike . . . affecting an entire industry . . . will, if permitted to occur or to continue, imperil the national health or safety. [ Footnote 6/8 ]" At the time that Act was passed, Congress specifically rejected a proposal to empower the President to seize any "plant, mine, or facility" in which a threatened work stoppage would, in his judgment, "imperil the public health or security." [ Footnote 6/9 ] Instead, the Taft-Hartley Act directed the President, in the event a strike had not been settled during the 80-day injunction period, to submit to Congress "a full and comprehensive report . . . together with such recommendations as he may see fit to make for consideration and Page 343 U. S. 664 appropriate action." [ Footnote 6/10 ] The legislative history of the Act demonstrates Congress' belief that the 80-day period would afford it adequate opportunity to determine whether special legislation should be enacted to meet the emergency at hand. [ Footnote 6/11 ] The Selective Service Act of 1948 gives the President specific authority to seize plants which fail to produce goods required by the armed forces or the Atomic Energy Commission for national defense purposes. The Act provides that, when a producer from whom the President has ordered such goods "refuses or fails" to fill the order within a period of time prescribed by the President, the President may take immediate possession of the producer's plant. [ Footnote 6/12 ] This language is significantly broader than Page 343 U. S. 665 that used in the National Defense Act of 1916 and the Selective Training and Service Act of 1940, which provided for seizure when a producer "refused" to supply essential defense materials, but not when he "failed" to do so. [ Footnote 6/13 ] These three statutes furnish the guideposts for decision in this case. Prior to seizing the steel mills on April 8, the President had exhausted the mediation procedures of the Defense Production Act through the Wage Stabilization Board. Use of those procedures had failed to avert the impending crisis; however, it had resulted in a 99-day postponement of the strike. The Government argues that this accomplished more than the maximum 80-day waiting period possible under the sanctions of the Taft-Hartley Act, and therefore amounted to compliance with the substance of that Act. Even if one were to accept this somewhat hyperbolic conclusion, the hard fact remains that neither the Defense Production Act nor Taft-Hartley authorized the seizure challenged here, and the Government made no effort to comply with the procedures Page 343 U. S. 666 established by the Selective Service Act of 1948, a statute which expressly authorizes seizures when producers fail to supply necessary defense materiel. [ Footnote 6/14 ] For these reasons, I concur in the judgment of the Court. As Mr. Justice Story once said: "For the executive department of the government, this court entertain the most entire respect, and, amidst the multiplicity of cares in that department, it may, without any violation of decorum, be presumed, that sometimes there may be an inaccurate construction of a law. It is our duty to expound the laws as we find them in the records of state; Page 343 U. S. 667 and we cannot, when called upon by the citizens of the country, refuse our opinion, however it may differ from that of very great authorities.' [ Footnote 6/15 ]" [ Footnote 6/1 ] 6 U. S. 2 Cranch 170 (1804). [ Footnote 6/2 ] Id. at 6 U. S. 177 -178 (emphasis changed). [ Footnote 6/3 ] Decisions of this Court which have upheld the exercise of presidential power include the following: Prize Cases , 2 Black 635 (1863) (subsequent ratification of President's acts by Congress); In re Neagle, 135 U. S. 1 (1890) (protection of federal officials from personal violence while performing official duties); In re Debs, 158 U. S. 564 (1895) (injunction to prevent forcible obstruction of interstate commerce and the mails); United States v. Midwest Oil Co., 236 U. S. 459 (1915) (acquiescence by Congress in more than 250 instances of exercise of same power by various Presidents over period of 80 years); Myers v. United States, 272 U. S. 52 (1926) (control over subordinate officials in executive department) [ but see Humphrey's Executor v. United States, 295 U. S. 602 , 295 U. S. 626 -628 (1935)]; Hirabayashi v. United States, 320 U. S. 81 (1943), and Korematsu v. United States, 323 U. S. 214 (1944) (express congressional authorization); cf. 80 U. S. Russell, 13 Wall. 623 (1871) (imperative military necessity in area of combat during war); United States v. Curtiss-Wright Export Corp., 299 U. S. 304 (1936) (power to negotiate with foreign governments); United States v. United Mine Workers, 330 U. S. 258 (1947) (seizure under specific statutory authorization). [ Footnote 6/4 ] Mr. Chief Justice Marshall, in McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 415 (1819). [ Footnote 6/5 ] Letter of April 4, 1864, to A.G. Hodges, in 10 Complete Works of Abraham Lincoln (Nicolay and Hay ed. 1894), 66. [ Footnote 6/6 ] Roosevelt, Autobiography (1914 ed.), 371-372. [ Footnote 6/7 ] Letter of April 4, 1864, to A.G. Hodges, in 10 Complete Works of Abraham Lincoln (Nicolay and Hay ed. 1894), 66. [ Footnote 6/8 ] 61 Stat. 155, 29 U.S.C. (Supp. IV) § 176. [ Footnote 6/9 ] 93 Cong.Rec. 3637-3645; cf. id. at 3835-3836. [ Footnote 6/10 ] 61 Stat. 156, 29 U.S.C. (Supp. IV) § 180. [ Footnote 6/11 ] E.g., S.Rep. No. 105, 80th Cong., 1st Sess. 15; 93 Cong.Rec. 3835-3836; id. at 4281. [ Footnote 6/12 ] The producer must have been notified that the order was placed pursuant to the Act. The Act provides in pertinent part as follows: "(a) Whenever the President after consultation with and receiving advice from the National Security Resources Board determines that it is in the interest of the national security for the Government to obtain prompt delivery of any articles or materials the procurement of which has been authorized by the Congress exclusively for the use of the armed forces of the United States, or for the use of the Atomic Energy Commission, he is authorized, through the head of any Government agency, to place with any person operating a plant, mine, or other facility capable of producing such articles or materials an order for such quantity of such articles or materials as the President deems appropriate. Any person with whom an order is placed pursuant to the provisions of this section shall be advised that such order is placed pursuant to the provisions of this section." " * * * *" "(c) In case any person with whom an order is placed pursuant to the provisions of subsection (a) refuses or fails -- " " * * * *" "(2) to fill such order within the period of time prescribed by the President or as soon thereafter as possible as determined by the President;" "(3) to produce the kind or quality of articles or materials ordered; or" "(4) to furnish the quantity, kind, and quality of articles or materials ordered at such price as shall be negotiated between such person and the Government agency concerned; or in the event of failure to negotiate a price, to furnish the quantity, kind, and quality of articles or materials ordered at such price as he may subsequently be determined to be entitled to receive under subsection (d);" "the President is authorized to take immediate possession of any plant, mine, or other facility of such person and to operate it, through any Government agency, for the production of such articles or materials as may be required by the Government." 62 Stat. 625, 50 U.S.C.App. (Supp. IV) § 468. The Act was amended in 1951 and redesignated the Universal Military Training and Service Act, but no change was made in this section. 65 Stat. 75. [ Footnote 6/13 ] 39 Stat. 213; 54 Stat. 892. [ Footnote 6/14 ] The Government has offered no explanation, in the record, the briefs, or the oral argument, as to why it could not have made both a literal and timely compliance with the provisions of that Act. Apparently the Government could have placed orders with the steel companies for the various types of steel needed for defense purposes, and instructed the steel companies to ship the materiel directly to producers of planes, tanks, and munitions. The Act does not require that government orders cover the entire capacity of a producer's plant before the President has power to seize. Our experience during World War I demonstrates the speed with which the Government can invoke the remedy of seizing plants which fail to fill compulsory orders. The Federal Enameling & Stamping Co., of McKees Rocks, Pa. was served with a compulsory order on September 13, 1918, and seized on the same day. The Smith & Wesson plant at Springfield, Mass. was seized on September 13, 1918, after the company had failed to make deliveries under a compulsory order issued the preceding week. Communication from Ordnance Office to War Department Board of Appraisers, entitled "Report on Plants Commandeered by the Ordnance Office," Dec.19, 1918, pp. 3, 4, in National Archives, Records of the War Department, Office of the Chief of Ordnance, O.O. 004.002/260. Apparently the Mosler Safe Co., of Hamilton, Ohio, was seized on the same day on which a compulsory order was issued. Id. at 2; Letter from counsel for Mosler Safe Co. to Major General George W. Goethals, Director of Purchase, Storage and Traffic, War Department, Dec. 9, 1918, p. 1, in National Archives, Records of the War Department, Office of the General Staff, PST Division 400.1202. [ Footnote 6/15 ] The Orono, 18 Fed.Cas. No. 10,585 (Cir. Ct. D. Mass. 1812). MR CHIEF JUSTICE VINSON, with whom MR. JUSTICE REED and MR. JUSTICE MINTON join, dissenting. The President of the United States directed the Secretary of Commerce to take temporary possession of the Nation's steel mills during the existing emergency because "a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field." The District Court ordered the mills returned to their private owners on the ground that the President's action was beyond his powers under the Constitution. This Court affirms. Some members of the Court are of the view that the President is without power to act in time of crisis in the absence of express statutory authorization. Other members of the Court affirm on the basis of their reading of certain statutes. Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions presented not only in this critical litigation, but also to the powers of the President and of future Presidents to act in time of crisis, we are compelled to register this dissent. I In passing upon the question of Presidential powers in this case, we must first consider the context in which those powers were exercised. Page 343 U. S. 668 Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict. Accepting in full measure its responsibility in the world community, the United States was instrumental in securing adoption of the United Nations Charter, approved by the Senate by a vote of 89 to 2. The first purpose of the United Nations is to "maintain international peace and security, and, to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace. . . . [ Footnote 7/1 ]" In 1950, when the United Nations called upon member nations "to render every assistance" to repel aggression in Korea, the United States furnished its vigorous support. [ Footnote 7/2 ] For almost two full years, our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. The "determination of the United Nations to continue its action in Korea to meet the aggression" has been reaffirmed. [ Footnote 7/3 ] Congressional support of the action in Korea has been manifested by provisions for increased military manpower and equipment and for economic stabilization, as hereinafter described. Further efforts to protect the free world from aggression are found in the congressional enactments of the Truman Plan for assistance to Greece and Turkey [ Footnote 7/4 ] and Page 343 U. S. 669 the Marshall Plan for economic aid needed to build up the strength of our friends in Western Europe. [ Footnote 7/5 ] In 1949, the Senate approved the North Atlantic Treaty under which each member nation agrees that an armed attack against one is an armed attack against all. [ Footnote 7/6 ] Congress immediately implemented the North Atlantic Treaty by authorizing military assistance to nations dedicated to the principles of mutual security under the United Nations Charter. [ Footnote 7/7 ] The concept of mutual security recently has been extended by treaty to friends in the Pacific. [ Footnote 7/8 ] Our treaties represent not merely legal obligations, but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale. The need for mutual security is shown by the very size of the armed forces outside the free world. Defendant's brief informs us that the Soviet Union maintains the largest air force in the world, and maintains ground forces much larger than those presently available to the United States and the countries joined with us in mutual security arrangements. Constant international tensions are cited to demonstrate how precarious is the peace. Even this brief review of our responsibilities in the world community discloses the enormity of our undertaking. Success of these measures may, as has often been Page 343 U. S. 670 observed, dramatically influence the lives of many generations of the world's peoples yet unborn. Alert to our responsibilities, which coincide with our own self-preservation through mutual security, Congress has enacted a large body of implementing legislation. As an illustration of the magnitude of the over-all program, Congress has appropriated $130 billion for our own defense and for military assistance to our allies since the June, 1950, attack in Korea. In the Mutual Security Act of 1951, Congress authorized "military, economic, and technical assistance to friendly countries to strengthen the mutual security and individual and collective defenses of the free world. . . . [ Footnote 7/9 ]" Over $5 1/2 billion were appropriated for military assistance for fiscal year 1952, the bulk of that amount to be devoted to purchase of military equipment. [ Footnote 7/10 ] A request for over $7 billion for the same purpose for fiscal year 1953 is currently pending in Congress. [ Footnote 7/11 ] In addition to direct shipment of military equipment to nations of the free world, defense production in those countries relies upon shipment of machine tools and allocation of steel tonnage from the United States. [ Footnote 7/12 ] Congress also directed the President to build up our own defenses. Congress, recognizing the "grim fact . . . that the United States is now engaged in a struggle for survival" and that "it is imperative that we now take those necessary steps to make our strength equal to the peril of the hour," granted authority to draft men into Page 343 U. S. 671 the armed forces. [ Footnote 7/13 ] As a result, we now have over 3,500,000 men in our armed forces. [ Footnote 7/14 ] Appropriations for the Department of Defense; which had averaged less than $13 billion per year for the three years before attack in Korea, were increased by Congress to $48 billion for fiscal year 1951 and to $60 billion for fiscal year 1952. [ Footnote 7/15 ] A request for $51 billion for the Department of Defense for fiscal year 1953 is currently pending in Congress. [ Footnote 7/16 ] The bulk of the increase is for military equipment and supplies -- guns, tanks, ships, planes and ammunition -- all of which require steel. Other defense programs requiring great quantities of steel include the large scale expansion of facilities for the Atomic Energy Commission [ Footnote 7/17 ] and the expansion of the Nation's productive capacity affirmatively encouraged by Congress. [ Footnote 7/18 ] Congress recognized the impact of these defense programs upon the economy. Following the attack in Korea, the President asked for authority to requisition property and to allocate and fix priorities for scarce goods. In the Defense Production Act of 1950, Congress granted the powers requested and, in addition, granted power to stabilize prices and wages and to provide for settlement Page 343 U. S. 672 of labor disputes arising in the defense program. [ Footnote 7/19 ] The Defense Production Act was extended in 1951, a Senate Committee noting that, in the dislocation caused by the programs for purchase of military equipment "lies the seed of an economic disaster that might well destroy the military might we are straining to build." [ Footnote 7/20 ] Significantly, the Committee examined the problem "in terms of just one commodity, steel," and found "a graphic picture of the over-all inflationary danger growing out of reduced civilian supplies and rising incomes." Even before Korea, steel production at levels above theoretical 100% capacity was not capable of supplying civilian needs alone. Since Korea, the tremendous military demand for steel has far exceeded the increases in productive capacity. This Committee emphasized that the shortage of steel, even with the mills operating at full capacity, coupled with increased civilian purchasing power, presented grave danger of disastrous inflation. [ Footnote 7/21 ] The President has the duty to execute the foregoing legislative programs. Their successful execution depends upon continued production of steel and stabilized prices for steel. Accordingly, when the collective bargaining agreements between the Nation's steel producers and their employees, represented by the United Steel Workers, were due to expire on December 31, 1951, and a strike shutting down the entire basic steel industry was threatened, the President acted to avert a complete shutdown of steel production. On December 22, 1951, he certified the dispute to the Wage Stabilization Board, requesting that the Board investigate the dispute and promptly report its recommendation as to fair and equitable terms of settlement. The Union complied with the President's Page 343 U. S. 673 request and delayed its threatened strike while the dispute was before the Board. After a special Board panel had conducted hearings and submitted a report, the full Wage Stabilization Board submitted its report and recommendations to the President on March 20, 1952. The Board's report was acceptable to the Union, but was rejected by plaintiffs. The Union gave notice of its intention to strike as of 12:01 a.m., April 9, 1952, but bargaining between the parties continued with hope of settlement until the evening of April 8, 1952. After bargaining had failed to avert the threatened shutdown of steel production, the President issued the following Executive Order: "WHEREAS on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and" "WHEREAS American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against aggression; and" "WHEREAS the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and " Page 343 U. S. 674 "WHEREAS steel is likewise indispensable to the carrying out of programs of the Atomic Energy Commission of vital importance to our defense efforts; and" "WHEREAS a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our military strength depends; and" "WHEREAS a controversy has arisen between certain companies in the United States producing and fabricating steel and the elements thereof and certain of their workers represented by the United Steel Workers of America, CIO, regarding terms and conditions of employment; and" "WHEREAS the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pursuant to Executive Order No. 10233, and a strike has been called for 12:01 A. M., April 9, 1952; and" "WHEREAS a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and" "WHEREAS in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided: " "NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the Page 343 U. S. 675 United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows: " "1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense, and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation. . . . [ Footnote 7/22 ]" The next morning, April 9, 1952, the President addressed the following Message to Congress: To the Congress of the United States: "The Congress is undoubtedly aware of the recent events which have taken place in connection with the management-labor dispute in the steel industry. These events culminated in the action which was taken last night to provide for temporary operation of the steel mills by the Government." "I took this action with the utmost reluctance. The idea of Government operation of the steel mills is thoroughly distasteful to me, and I want to see it ended as soon as possible. However, in the situation which confronted me yesterday, I felt that I could make no other choice. The other alternatives appeared to be even worse -- so much worse that I could not accept them." "One alternative would have been to permit a shutdown in the steel industry. The effects of such a shut-down would have been so immediate and damaging with respect to our efforts to support our Armed Forces and to protect our national security that it made this alternative unthinkable. " Page 343 U. S. 676 "The only way that I know of, other than Government operation, by which a steel shut-down could have been avoided was to grant the demands of the steel industry for a large price increase. I believed and the officials in charge of our stabilization agencies believed that this would have wrecked our stabilization program. I was unwilling to accept the incalculable damage which might be done to our country by following such a course." "Accordingly, it was my judgment that Government operation of the steel mills for a temporary period was the least undesirable of the courses of action which lay open. In the circumstances, I believed it to be, and now believe it to be, my duty and within my powers as President to follow that course of action." "It may be that the Congress will deem some other course to be wiser. It may be that the Congress will feel we should give in to the demands of the steel industry for an exorbitant price increase and take the consequences so far as resulting inflation is concerned." "It may be that the Congress will feel the Government should try to force the steel workers to continue to work for the steel companies for another long period, without a contract, even though the steel workers have already voluntarily remained at work without a contract for 100 days in an effort to reach an orderly settlement of their differences with management." "It may even be that the Congress will feel that we should permit a shut-down of the steel industry, although that would immediately endanger the safety of our fighting forces abroad and weaken the whole structure of our national security. " Page 343 U. S. 677 "I do not believe the Congress will favor any of these courses of action, but that is a matter for the Congress to determine." "It may be, on the other hand, that the Congress will wish to pass legislation establishing specific terms and conditions with reference to the operation of the steel mills by the Government. Sound legislation of this character might be very desirable." "On the basis of the facts that are known to me at this time, I do not believe that immediate congressional action is essential; but I would, of course, be glad to cooperate in developing any legislative proposals which the Congress may wish to consider." "If the Congress does not deem it necessary to act at this time, I shall continue to do all that is within my power to keep the steel industry operating and at the same time make every effort to bring about a settlement of the dispute so the mills can be returned to their private owners as soon as possible. [ Footnote 7/23 ]" Twelve days passed without action by Congress. On April 21, 1952, the President sent a letter to the President of the Senate in which he again described the purpose and need for his action and again stated his position that "The Congress can, if it wishes, reject the course of action I have followed in this matter." [ Footnote 7/24 ] Congress has not so acted to this date. Meanwhile, plaintiffs instituted this action in the District Court to compel defendant to return possession of the steel mills seized under Executive Order 10340. In this litigation for return of plaintiffs' properties, we assume that defendant Charles Sawyer is not immune from judicial restraint, and that plaintiffs are entitled to equitable relief if we find that the Executive Order Page 343 U. S. 678 under which defendant acts is unconstitutional. We also assume without deciding that the courts may go behind a President's finding of fact that an emergency exists. But there is not the slightest basis for suggesting that the President's finding in this case can be undermined. Plaintiffs moved for a preliminary injunction before answer or hearing. Defendant opposed the motion, filing uncontroverted affidavits of Government officials describing the facts underlying the President's order. Secretary of Defense Lovett swore that "a work stoppage in the steel industry will result immediately in serious curtailment of production of essential weapons and munitions of all kinds." He illustrated by showing that 84% of the national production of certain alloy steel is currently used for production of military-end items and that 35% of total production of another form of steel goes into ammunition, 80% of such ammunition now going to Korea. The Secretary of Defense stated that: "We are holding the line [in Korea] with ammunition, and not with the lives of our troops." Affidavits of the Chairman of the Atomic Energy Commission, the Secretary of the Interior, defendant as Secretary of Commerce, and the Administrators of the Defense Production Administration, the National Production Authority, the General Services Administration and the Defense Transport Administration were also filed in the District Court. These affidavits disclose an enormous demand for steel in such vital defense programs as the expansion of facilities in atomic energy, petroleum, power, transportation and industrial production, including steel production. Those charged with administering allocations and priorities swore to the vital part steel production plays in our economy. The affidavits emphasize the critical need for steel in our defense program, Page 343 U. S. 679 the absence of appreciable inventories of steel, and the drastic results of any interruption in steel production. One is not here called upon even to consider the possibility of executive seizure of a farm, a corner grocery store or even a single industrial plant. Such considerations arise only when one ignores the central fact of this case -- that the Nation's entire basic steel production would have shut down completely if there had been no Government seizure. Even ignoring for the moment whatever confidential information the President may possess as "the Nation's organ for foreign affairs," [ Footnote 7/25 ] the uncontroverted affidavits in this record amply support the finding that "a work stoppage would immediately jeopardize and imperil our national defense." Plaintiffs do not remotely suggest any basis for rejecting the President's finding that any stoppage of steel production would immediately place the Nation in peril. Moreover, even self-generated doubts that any stoppage of steel production constitutes an emergency are of little comfort here. The Union and the plaintiffs bargained for 6 months with over 100 issues in dispute -- issues not limited to wage demands, but including the union shop and other matters of principle between the parties. At the time of seizure, there was not, and there is not now, the slightest evidence to justify the belief that any strike will be of short duration. The Union and the steel companies may well engage in a lengthy struggle. Plaintiffs' counsel tells us that "sooner or later" the mills will operate again. That may satisfy the steel companies and, perhaps, the Union. But our soldiers and our allies will hardly be cheered with the assurance that the ammunition upon which their lives depend will be forthcoming -- "sooner or later," or, in other words, "too little and too late." Page 343 U. S. 680 Accordingly, if the President has any power under the Constitution to meet a critical situation in the absence of express statutory authorization, there is no basis whatever for criticizing the exercise of such power in this case. II The steel mills were seized for a public use. The power of eminent domain, invoked in this case, is an essential attribute of sovereignty, and has long been recognized as a power of the Federal Government. Kohl v. United States, 91 U. S. 367 (1876). Plaintiffs cannot complain that any provision in the Constitution prohibits the exercise of the power of eminent domain in this case. The Fifth Amendment provides: "nor shall private property be taken for public use, without just compensation." It is no bar to this seizure for, if the taking is not otherwise unlawful, plaintiffs are assured of receiving the required just compensation. United States v. Pewee Coal Co., 341 U. S. 114 (1951). Admitting that the Government could seize the mills, plaintiffs claim that the implied power of eminent domain can be exercised only under an Act of Congress; under no circumstances, they say, can that power be exercised by the President unless he can point to an express provision in enabling legislation. This was the view adopted by the District Judge when he granted the preliminary injunction. Without an answer, without hearing evidence, he determined the issue on the basis of his "fixed conclusion . . . that defendant's acts are illegal" because the President's only course in the face of an emergency is to present the matter to Congress and await the final passage of legislation which will enable the Government to cope with threatened disaster. Under this view, the President is left powerless at the very moment when the need for action may be most pressing and when no one, other than he, is immediately Page 343 U. S. 681 capable of action. Under this view, he is left powerless because a power not expressly given to Congress is nevertheless found to rest exclusively with Congress'. Consideration of this view of executive impotence calls for further examination of the nature of the separation of powers under our tripartite system of Government. The Constitution provides: Art. I, Section 1. "All legislative Powers herein granted shall be vested in a Congress of the United States. . . ." Art. II, Section 1. "The executive Power shall be vested in a President of the United States of America. . . ." Section 2. "The President shall be Commander in Chief of the Army and Navy of the United States. . . ." "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; . . ." Section 3. "He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; . . . The shall take Care that the Laws be faithfully executed. . . ." Art. III, Section 1. "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The whole of the "executive Power" is vested in the President. Before entering office, the President swears that he "will faithfully execute the Office of President of the Page 343 U. S. 682 United States, and will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States." Art. II, § 1. This comprehensive grant of the executive power to a single person was bestowed soon after the country had thrown the yoke of monarchy. Only by instilling initiative and vigor in all of the three departments of Government, declared Madison, could tyranny in any form be avoided. [ Footnote 7/26 ] Hamilton added: "Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. [ Footnote 7/27 ]" It is thus apparent that the Presidency was deliberately fashioned as an office of power and independence. Of course, the Framers created no autocrat capable of arrogating any power unto himself at any time. But neither did they create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake. In passing upon the grave constitutional question presented in this case, we must never forget, as Chief Justice Marshall admonished, that the Constitution is "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs," and that "[i]ts means are adequate to its ends." [ Footnote 7/28 ] Cases do arise presenting questions which could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new situations. [ Footnote 7/29 ] Page 343 U. S. 683 But we are not called upon today to expand the Constitution to meet a new situation. For, in this case, we need only look to history and time-honored principles of constitutional law -- principles that have been applied consistently by all branches of the Government throughout our history. It is those who assert the invalidity of the Executive Order who seek to amend the Constitution in this case. III A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to "take Care that the Laws be faithfully executed." With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval. Our first President displayed at once the leadership contemplated by the Framers. When the national revenue laws were openly flouted in some sections of Pennsylvania, President Washington, without waiting for a call from the state government, summoned the militia and took decisive steps to secure the faithful execution of the laws. [ Footnote 7/30 ] When international disputes engendered by the French revolution threatened to involve this country in war, and while congressional policy remained uncertain, Washington issued his Proclamation of Neutrality. Hamilton, whose defense of the Proclamation Page 343 U. S. 684 has endured the test of time, invoked the argument that the Executive has the duty to do that which will preserve peace until Congress acts and, in addition, pointed to the need for keeping the Nation informed of the requirements of existing laws and treaties as part of the faithful execution of the laws. [ Footnote 7/31 ] President John Adams issued a warrant for the arrest of Jonathan Robbins in order to execute the extradition provisions of a treaty. This action was challenged in Congress on the ground that no specific statute prescribed the method to be used in executing the treaty. John Marshall, then a member of the House of Representatives, made the following argument in support of the President's action: "The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive department to execute the contract by any means it possesses. [ Footnote 7/32 ]" Efforts in Congress to discredit the President for his action failed. [ Footnote 7/33 ] Almost a century later, this Court had Page 343 U. S. 685 occasion to give its express approval to "the masterly and conclusive argument of John Marshall." [ Footnote 7/34 ] Jefferson's initiative in the Louisiana Purchase, the Monroe Doctrine, and Jackson's removal of Government deposits from the Bank of the United States further serve to demonstrate by deed what the Framers described by word when they vested the whole of the executive power in the President. Without declaration of war, President Lincoln took energetic action with the outbreak of the War Between the States. He summoned troops and paid them out of the Treasury without appropriation therefor. He proclaimed a naval blockade of the Confederacy and seized ships violating that blockade. Congress, far from denying the validity of these acts, gave them express approval. The most striking action of President Lincoln was the Emancipation Proclamation, issued in aid of the successful prosecution of the War Between the States, but wholly without statutory authority. [ Footnote 7/35 ] In an action furnishing a most apt precedent for this case, President Lincoln, without statutory authority, directed the seizure of rail and telegraph lines leading to Washington. [ Footnote 7/36 ] Many months later, Congress recognized and confirmed the power of the President to seize railroads and telegraph lines and provided criminal penalties for interference with Government operation. [ Footnote 7/37 ] This Act did not confer on the President any additional powers of seizure. Congress plainly rejected the view that the President's acts had been without legal sanction until Page 343 U. S. 686 ratified by the legislature. Sponsors of the bill declared that its purpose was only to confirm the power which the President already possessed. [ Footnote 7/38 ] Opponents insisted a statute authorizing seizure was unnecessary, and might even be construed as limiting existing Presidential powers. [ Footnote 7/39 ] Other seizures of private property occurred during the War Between the States, just as they had occurred during previous wars. [ Footnote 7/40 ] In United States v. Russell , 13 Wall. 623 (1872), three river steamers were seized by Army Quartermasters on the ground of "imperative military necessity." This Court affirmed an award of compensation, stating: "Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner." " * * * *" "Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, Page 343 U. S. 687 and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and, when shown, the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner. [ Footnote 7/41 ]" In In re Neagle, 135 U. S. 1 (1890), this Court held that a federal officer had acted in line of duty when he was guarding a Justice of this Court riding circuit. It was conceded that there was no specific statute authorizing the President to assign such a guard. In holding that such a statute was not necessary, the Court broadly stated the question as follows: "[The President] is enabled to fulfil the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed.'" "Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution? [ Footnote 7/42 ]" The latter approach was emphatically adopted by the Court. President Hayes authorized the widespread use of federal troops during the Railroad Strike of 1877. [ Footnote 7/43 ] President Cleveland also used the troops in the Pullman Strike, Page 343 U. S. 688 of 1895 and his action is of special significance. No statute authorized this action. No call for help had issued from the Governor of Illinois; indeed Governor Altgeld disclaimed the need for supplemental forces. But the President's concern was that federal laws relating to the free flow of interstate commerce and the mails be continuously and faithfully executed without interruption. [ Footnote 7/44 ] To further this aim, his agents sought and obtained the injunction upheld by this Court in In re Debs, 158 U. S. 564 (1895). The Court scrutinized each of the steps taken by the President to insure execution of the "mass of legislation" dealing with commerce and the mails and gave his conduct full approval. Congress likewise took note of this use of Presidential power to forestall apparent obstacles to the faithful execution of the laws. By separate resolutions, both the Senate and the House commended the Executive's action. [ Footnote 7/45 ] President Theodore Roosevelt seriously contemplated seizure of Pennsylvania coal mines if a coal shortage necessitated such action. [ Footnote 7/46 ] In his autobiography, President Roosevelt expounded the "Stewardship Theory" of Presidential power, stating that "the executive as subject only to the people, and, under the Constitution, bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the service. [ Footnote 7/47 ]" Because the contemplated seizure of the coal mines was based on this theory, then ex-President Taft criticized President Roosevelt in a passage in his book relied upon by the District Court in this case. Taft, Our Chief Magistrate and His Powers (1916), 139-147. In the same book, however, President Taft agreed that Page 343 U. S. 689 such powers of the President as the duty to "take Care that the Laws be faithfully executed" could not be confined to "express Congressional statutes." Id. at 88. In re Neagle, supra, and In re Debs, supra, were cited as conforming with Taft's concept of the office, id. at pp. 88-94, as they were later to be cited with approval in his opinion as Chief Justice in Myers v. United States, 272 U. S. 52 , 272 U. S. 133 (1926). [ Footnote 7/48 ] In 1909, President Taft was informed that government-owned oil lands were being patented by private parties at such a rate that public oil lands would be depleted in a matter of months. Although Congress had explicitly provided that these lands were open to purchase by United States citizens, 29 Stat. 526 (1897), the President nevertheless ordered the lands withdrawn from sale "[i]n aid of proposed legislation." In United States v. Midwest Oil Co., 236 U. S. 459 (1915), the President's action was sustained as consistent with executive practice throughout our history. An excellent brief was filed in the case by the Solicitor General, Mr. John W. Davis, together with Assistant Attorney General Knaebel, later Reporter for this Court. In this brief, the situation confronting President Taft was described as "an emergency; there was no time to wait for the action of Congress." The brief then discusses the powers of the President under the Constitution in such a case: "Ours is a self-sufficient Government within its sphere. ( Ex parte Siebold, 100 U. S. 371 , 100 U. S. 395 ; In re Debs, 158 U. S. 564 , 158 U. S. 578 .) 'Its means are adequate to its ends' ( McCulloch v. Maryland , 4 Page 343 U. S. 690 Wheat. 316, 17 U. S. 424 ), and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Government of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive cannot exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent not of Congress, but of the Nation. As such, he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the United States, deriving all his powers from them and responsible directly to them. In no Page 343 U. S. 691 sense is he the agent of Congress. He obeys and executes the laws of Congress not because Congress is enthroned in authority over him, but because the Constitution directs him to do so." "Therefore it follows that, in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have seldom been challenged in the courts. We are able, however, to present a number of apposite cases which were subjected to judicial inquiry." The brief then quotes from such cases as In re Debs, supra, and In re Neagle, supra, and continues: "As we understand the doctrine of the Neagle case, and the cases therein cited, it is clearly this: the Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government. This does not mean an authority to disregard the wishes of Congress on the subject when that subject lies within its control and when those wishes have been expressed, and it certainly does not involve the slightest semblance of a power to legislate, much less to 'suspend' legislation already passed by Congress. It involves the performance of specific acts not of a Page 343 U. S. 692 legislative but purely of an executive character -- acts which are not in themselves laws, but which presuppose a 'law' authorizing him to perform them. This law is not expressed either in the Constitution or in the enactments of Congress, but reason and necessity compel that it be implied from the exigencies of the situation." "In none of the cases which we have mentioned, nor in the cases cited in the extracts taken from the Neagle case, was it possible to say that the action of the President was directed, expressly or impliedly, by Congress. The situations dealt with had never been covered by any act of Congress, and there was no ground whatever for a contention that the possibility of their occurrence had ever been specifically considered by the legislative mind. In none of those cases did the action of the President amount merely to the execution of some specific law." "Neither does any of them stand apart in principle from the case at bar, as involving the exercise of specific constitutional powers of the President in a degree in which this case does not involve them. Taken collectively, the provisions of the Constitution which designate the President as the official who must represent us in foreign relations, in commanding the Army and Navy, in keeping Congress informed of the state of the Union, in insuring the faithful execution of the laws and in recommending new ones, considered in connection with the sweeping declaration that the executive power shall be vested in him, completely demonstrate that his is the watchful eye, the active hand, the overseeing dynamic force of the United States. [ Footnote 7/49 ] " Page 343 U. S. 693 This brief is valuable not alone because of the caliber of its authors, but because it lays bare in succinct reasoning the basis of the executive practice which this Court approved in the Midwest Oil case. During World War I, President Wilson established a War Labor Board without awaiting specific direction by Congress. [ Footnote 7/50 ] With William Howard Taft and Frank P. Walsh as co-chairmen, the Board had as its purpose the prevention of strikes and lockouts interfering with the production of goods needed to meet the emergency. Effectiveness of War Labor Board decision was accomplished by Presidential action, including seizure of industrial plants. [ Footnote 7/51 ] Seizure of the Nation's railroads was also ordered by President Wilson. [ Footnote 7/52 ] Beginning with the Bank Holiday Proclamation [ Footnote 7/53 ] and continuing through World War II, executive leadership and initiative were characteristic of President Franklin D. Roosevelt's administration. In 1939, upon the outbreak Page 343 U. S. 694 of war in Europe, the President proclaimed a limited national emergency for the purpose of strengthening our national defense. [ Footnote 7/54 ] In May of 1941, the danger from the Axis belligerents having become clear, the President proclaimed "an unlimited national emergency" calling for mobilization of the Nation's defenses to repel aggression. [ Footnote 7/55 ] The President took the initiative in strengthening our defenses by acquiring rights from the British Government to establish air bases in exchange for over-age destroyers. [ Footnote 7/56 ] In 1941, President Roosevelt acted to protect Iceland from attack by Axis powers, when British forces were withdrawn, by sending our forces to occupy Iceland. Congress was informed of this action on the same day that our forces reached Iceland. [ Footnote 7/57 ] The occupation of Iceland was but one of "at least 125 incidents" in our history in which Presidents, "without congressional authorization, and in the absence of a declaration of war, [have] ordered the Armed Forces to take action or maintain positions abroad. [ Footnote 7/58 ]" Some six months before Pearl Harbor, a dispute at a single aviation plant at Inglewood, California, interrupted a segment of the production of military aircraft. In spite of the comparative insignificance of this work stoppage to total defense production, as contrasted with the complete paralysis now threatened by a shutdown of the entire basic steel industry, and even though Page 343 U. S. 695 our armed forces were not then engaged in combat, President Roosevelt ordered the seizure of the plant "pursuant to the powers vested in [him] by the Constitution and laws of the United States, as President of the United States of America and Commander in Chief of the Army and Navy of the United States. [ Footnote 7/59 ]" The Attorney General (Jackson) vigorously proclaimed that the President had the moral duty to keep this Nation's defense effort a "going concern." His ringing moral justification was coupled with a legal justification equally well stated: "The Presidential proclamation rests upon the aggregate of the Presidential powers derived from the Constitution itself and from statutes enacted by the Congress." "The Constitution lays upon the President the duty 'to take care that the laws be faithfully executed.' Among the laws which he is required to find means to execute are those which direct him to equip an enlarged army, to provide for a strengthened navy, to protect Government property, to protect those who are engaged in carrying out the business of the Government, and to carry out the provisions of the Lend-Lease Act. For the faithful execution of such laws, the President has back of him not only each general law enforcement power conferred by the various acts of Congress, but the aggregate of all such laws plus that wide discretion as to method vested in him by the Constitution for the purpose of executing the laws." "The Constitution also places on the President the responsibility and vests in him the powers of Commander in Chief of the Army and of the Navy. These weapons for the protection of the continued existence of the Nation are placed in his sole command Page 343 U. S. 696 and the implication is clear that he should not allow them to become paralyzed by failure to obtain supplies for which Congress has appropriated the money and which it has directed the President to obtain. [ Footnote 7/60 ]" At this time, Senator Connally proposed amending the Selective Training and Service Act to authorize the President to seize any plant where an interruption of production would unduly impede the defense effort. [ Footnote 7/61 ] Proponents of the measure in no way implied that the legislation would add to the powers already possessed by the President, [ Footnote 7/62 ] and the amendment was opposed as unnecessary, since the President already had the power. [ Footnote 7/63 ] The amendment relating to plant seizures was not approved at that session of Congress. [ Footnote 7/64 ] Meanwhile, and also prior to Pearl Harbor, the President ordered the seizure of a shipbuilding company and an aircraft parts plant. [ Footnote 7/65 ] Following the declaration of war, but prior to the Smith-Connally Act of 1943, five additional industrial concerns were seized to avert interruption Page 343 U. S. 697 of needed production. [ Footnote 7/66 ] During the same period, the President directed seizure of the Nation's coal mines to remove an obstruction to the effective prosecution of the war. [ Footnote 7/67 ] The procedures adopted by President Roosevelt closely resembled the methods employed by President Wilson. A National War Labor Board, like its predecessor of World War I, was created by Executive Order to deal effectively and fairly with disputes affecting defense production. [ Footnote 7/68 ] Seizures were considered necessary, upon disobedience of War Labor Board orders, to assure that the mobilization effort remained a "going concern," and to enforce the economic stabilization program. At the time of the seizure of the coal mines, Senator Connally's bill to provide a statutory basis for seizures and for the War Labor Board was again before Congress. As stated by its sponsor, the purpose of the bill was not to augment Presidential power, but to "let the country know that the Congress is squarely behind the President." [ Footnote 7/69 ] As in the case of the legislative recognition of President Lincoln's power to seize, Congress again recognized that the President already had the necessary power, for there was no intention to "ratify" past actions of doubtful validity. Indeed, when Senator Tydings offered an amendment to the Connally bill expressly to confirm and validate the seizure of the coal mines, sponsors of the bill Page 343 U. S. 698 opposed the amendment as casting doubt on the legality of the seizure, and the amendment was defeated. [ Footnote 7/70 ] When the Connally bill, S. 796, came before the House, all parts after the enacting clause were stricken, and a bill introduced by Representative Smith of Virginia was substituted and passed. This action in the House is significant because the Smith bill did not contain the provisions authorizing seizure by the President, but did contain provisions controlling and regulating activities in respect to properties seized by the Government under statute "or otherwise." [ Footnote 7/71 ] After a conference, the seizure provisions of the Connally bill, enacted as the Smith-Connally or War Labor Disputes Act of 1943, 57 Stat. 163, were agreed to by the House. Following passage of the Smith-Connally Act, seizures to assure continued production on the basis of terms recommended by the War Labor Board were based upon that Act as well as upon the President's power under the Constitution and the laws generally. A question did arise as to whether the statutory language relating to "any plant, mine, or facility equipped for the manufacture, production, or mining of any articles or materials" [ Footnote 7/72 ] authorized the seizure of properties of Montgomery Ward & Co., a retail department store and mail-order concern. The Attorney General (Biddle) issued an opinion that the President possessed the power to seize Montgomery Ward properties to prevent a work stoppage whether or not the terms of the Smith-Connally Act authorized such a seizure. [ Footnote 7/73 ] This opinion was in line with Page 343 U. S. 699 the views on Presidential powers maintained by the Attorney General's predecessors (Murphy [ Footnote 7/74 ] and Jackson [ Footnote 7/75 ]) and his successor (Clark [ Footnote 7/76 ]). Accordingly, the President ordered seizure of the Chicago properties of Montgomery Ward in April, 1944, when that company refused to obey a War Labor Board order concerning the bargaining representative of its employees in Chicago. [ Footnote 7/77 ] In Congress, a Select Committee to Investigate Seizure of the Property of Montgomery Ward & Co., assuming that the terms of the Smith-Connally Act did not cover this seizure, concluded that the seizure "was not only within the constitutional power, but was the plain duty of the President." [ Footnote 7/78 ] Thereafter, an election determined the bargaining representative for the Chicago employees and the properties were returned to Montgomery Ward & Co. In December, 1944, after continued defiance of a series of War Labor Board orders, President Roosevelt ordered the seizure of Montgomery Ward properties throughout the country. [ Footnote 7/79 ] The Court of Appeals for the Seventh Circuit upheld this seizure on statutory grounds, and also indicated its disapproval of a lower court's denial of seizure power apart from express statute. [ Footnote 7/80 ] Page 343 U. S. 700 More recently, President Truman acted to repel aggression by employing our armed forces in Korea. [ Footnote 7/81 ] Upon the intervention of the Chinese Communists, the President proclaimed the existence of an unlimited national emergency requiring the speedy build-up of our defense establishment. [ Footnote 7/82 ] Congress responded by providing for increased manpower and weapons for our own armed forces, by increasing military aid under the Mutual Security Program, and by enacting economic stabilization measures, as previously described. This is but a cursory summary of executive leadership. But it amply demonstrates that Presidents have taken prompt action to enforce the laws and protect the country whether or not Congress happened to provide in advance for the particular method of execution. At the minimum, the executive actions reviewed herein sustain the action of the President in this case. And many of the cited examples of Presidential practice go far beyond the extent of power necessary to sustain the President's order to seize the steel mills. The fact that temporary executive seizures of industrial plants to meet an emergency have not been directly tested in this Court furnishes not the slightest suggestion that such actions have been illegal. Rather, the fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history. History bears out the genius of the Founding Fathers, who created a Government subject to law but not left subject to inertia when vigor and initiative are required. Page 343 U. S. 701 IV Focusing now on the situation confronting the President on the night of April 8, 1952, we cannot but conclude that the President was performing his duty under the Constitution to "take Care that the Laws be faithfully executed" -- a duty described by President Benjamin Harrison as "the central idea of the office." [ Footnote 7/83 ] The President reported to Congress the morning after the seizure that he acted because a work stoppage in steel production would immediately imperil the safety of the Nation by preventing execution of the legislative programs for procurement of military equipment. And, while a shutdown could be averted by granting the price concessions requested by plaintiffs, granting such concessions would disrupt the price stabilization program also enacted by Congress. Rather than fail to execute either legislative program, the President acted to execute both. Much of the argument in this case has been directed at straw men. We do not now have before us the case of a President acting solely on the basis of his own notions of the public welfare. Nor is there any question of unlimited executive power in this case. The President himself closed the door to any such claim when he sent his Message to Congress stating his purpose to abide by any action of Congress, whether approving or disapproving his seizure action. Here, the President immediately made sure that Congress was fully informed of the temporary action he had taken only to preserve the legislative programs from destruction until Congress could act. The absence of a specific statute authorizing seizure of the steel mills as a mode of executing the laws -- both the military procurement program and the anti-inflation program -- has not until today been thought to prevent Page 343 U. S. 702 the President from executing the laws. Unlike an administrative commission confined to the enforcement of the statute under which it was created, or the head of a department when administering a particular statute, the President is a constitutional officer charged with taking care that a "mass of legislation" be executed. Flexibility as to mode of execution to meet critical situations is a matter of practical necessity. This practical construction of the "Take Care" clause, advocated by John Marshall, was adopted by this Court in In re Neagle, In re Debs and other cases cited supra. See also Ex parte Quirin, 317 U. S. 1 , 317 U. S. 26 (1942). Although more restrictive views of executive power, advocated in dissenting opinions of Justices Holmes, McReynolds and Brandeis, were emphatically rejected by this Court in Myers v. United States, supra, members of today's majority treat these dissenting views as authoritative. There is no statute prohibiting seizure as a method of enforcing legislative programs. Congress has in no wise indicated that its legislation is not to be executed by the taking of private property (subject, of course, to the payment of just compensation) if its legislation cannot otherwise be executed. Indeed, the Universal Military Training and Service Act authorizes the seizure of any plant that fails to fill a Government contract [ Footnote 7/84 ] or the properties of any steel producer that fails to allocate steel as directed for defense production. [ Footnote 7/85 ] And the Defense Production Act authorizes the President to requisition equipment and condemn real property needed without delay in the defense effort. [ Footnote 7/86 ] Where Congress authorizes seizure in instances not necessarily crucial to the defense Page 343 U. S. 703 program, it can hardly be said to have disclosed an intention to prohibit seizures where essential to the execution of that legislative program. Whatever the extent of Presidential power on more tranquil occasions, and whatever the right of the President to execute legislative programs as he sees fit without reporting the mode of execution to Congress, the single Presidential purpose disclosed on this record is to faithfully execute the laws by acting in an emergency to maintain the status quo, thereby preventing collapse of the legislative programs until Congress could act. The President's action served the same purposes as a judicial stay entered to maintain the status quo in order to preserve the jurisdiction of a court. In his Message to Congress immediately following the seizure, the President explained the necessity of his action in executing the military procurement and anti-inflation legislative programs and expressed his desire to cooperate with any legislative proposals approving, regulating or rejecting the seizure of the steel mills. Consequently, there is no evidence whatever of any Presidential purpose to defy Congress or act in any way inconsistent with the legislative will. In United States v. Midwest Oil Co., supra, this Court approved executive action where, as here, the President acted to preserve an important matter until Congress could act -- even though his action in that case was contrary to an express statute. In this case, there is no statute prohibiting the action taken by the President in a matter not merely important, but threatening the very safety of the Nation. Executive inaction in such a situation, courting national disaster, is foreign to the concept of energy and initiative in the Executive as created by the Founding Fathers. The Constitution was itself "adopted in a period of grave emergency. . . . While emergency does not create power, emergency may furnish Page 343 U. S. 704 the occasion for the exercise of power. [ Footnote 7/87 ]" The Framers knew, as we should know in these times of peril, that there is real danger in Executive weakness. There is no cause to fear Executive tyranny so long as the laws of Congress are being faithfully executed. Certainly there is no basis for fear of dictatorship when the Executive acts, as he did in this case, only to save the situation until Congress could act. V Plaintiffs place their primary emphasis on the Labor Management Relations Act of 1947, hereinafter referred to as the Taft-Hartley Act, but do not contend that that Act contains any provision prohibiting seizure. Under the Taft-Hartley Act, as under the Wagner Act, collective bargaining and the right to strike are at the heart of our national labor policy. Taft-Hartley preserves the right to strike in any emergency, however serious, subject only to an 80-day delay in cases of strikes imperiling the national health and safety. [ Footnote 7/88 ] In such a case, the President may appoint a board of inquiry to report the facts of the labor dispute. Upon receiving that report, the President may direct the Attorney General to petition a District Court to enjoin the strike. If the injunction is granted, it may continue in effect for no more than 80 days, during which time the board of inquiry makes further report and efforts are made to settle the dispute. When the injunction is dissolved, the President is directed to submit a report to Congress together with his recommendations. [ Footnote 7/89 ] Enacted after World War II, Taft-Hartley restricts the right to strike against private employers only to a limited Page 343 U. S. 705 extent and for the sole purpose of affording an additional period of time within which to settle the dispute. Taft-Hartley in no way curbs strikes before an injunction can be obtained and after an 80-day injunction is dissolved. Plaintiffs admit that the emergency procedures of Taft-Hartley are not mandatory. Nevertheless, plaintiffs apparently argue that, since Congress did provide the 80-day injunction method for dealing with emergency strikes, the President cannot claim that an emergency exists until the procedures of Taft-Hartley have been exhausted. This argument was not the basis of the District Court's opinion, and, whatever merit the argument might have had following the enactment of Taft-Hartley, it loses all force when viewed in light of the statutory pattern confronting the President in this case. In Title V of the Defense Production Act of 1950, [ Footnote 7/90 ] Congress stated: "It is the intent of Congress, in order to provide for effective price and wage stabilization pursuant to title IV of this Act and to maintain uninterrupted production, that there be effective procedures for the settlement of labor disputes affecting national defense." (§ 501.) Title V authorized the President to initiate labor-management conferences and to take action appropriate to carrying out the recommendations of such conferences and the provisions of Title V. (§ 502.) Due regard is to be given to collective bargaining practice and stabilization policies, and no action taken is to be inconsistent with Taft-Hartley and other laws. (§ 503.) The purpose of these provisions was to authorize the President "to establish a board, commission or other agency, similar Page 343 U. S. 706 to the War Labor Board of World War II, to carry out the title." [ Footnote 7/91 ] The President authorized the Wage Stabilization Board (WSB), which administers the wage stabilization functions of Title IV of the Defense Production Act, also to deal with labor disputes affecting the defense program. [ Footnote 7/92 ] When extension of the Defense Production Act was before Congress in 1951, the Chairman of the Wage Stabilization Board described in detail the relationship between the Taft-Hartley procedures applicable to labor disputes imperiling the national health and safety and the new WSB disputes procedures especially devised for settlement of labor disputes growing out of the needs of the defense program. [ Footnote 7/93 ] Aware that a technique separate from Taft-Hartley had been devised, members of Congress attempted to divest the WSB of its disputes powers. These attempts were defeated in the House, were not brought to a vote in the Senate, and the Defense Production Act was extended through June 30, 1952, without change in the disputes powers of the WSB. [ Footnote 7/94 ] Page 343 U. S. 707 Certainly this legislative creation of a new procedure for dealing with defense disputes negatives any notion that Congress intended the earlier and discretionary Taft-Hartley procedure to be an exclusive procedure. Accordingly, as of December 22, 1951, the President had a choice between alternate procedures for settling the threatened strike in the steel mills: one route created to deal with peacetime disputes; the other route specially created to deal with disputes growing out of the defense and stabilization program. There is no question of bypassing a statutory procedure, because both of the routes available to the President in December were based upon statutory authorization. Both routes were available in the steel dispute. The Union, by refusing to abide by the defense and stabilization program, could have forced the President to invoke Taft-Hartley at that time to delay the strike a maximum of 80 days. Instead, the Union agreed to cooperate with the defense program and submit the dispute to the Wage Stabilization Board. Plaintiffs had no objection whatever at that time to the President's choice of the WSB route. As a result, the strike was postponed, a WSB panel held hearings and reported the position of the parties and the WSB recommended the terms of a settlement which it found were fair and equitable. Moreover, the WSB performed a function which the board of inquiry contemplated by Taft-Hartley could not have accomplished when it checked the recommended wage settlement against its own wage stabilization regulations issued pursuant to its stabilization functions under Title IV of the Defense Production Act. Thereafter, the parties bargained on the basis of the WSB recommendation. When the President acted on April 8, he had exhausted the procedures for settlement available to him. Taft-Hartley was a route parallel to, not connected with, the WSB procedure. The strike had been delayed 99 Page 343 U. S. 708 days, as contrasted with the maximum delay of 80 days under Taft-Hartley. There had been a hearing on the issues in dispute and bargaining which promised settlement up to the very hour before seizure had broken down. Faced with immediate national peril through stoppage in steel production, on the one hand, and faced with destruction of the wage and price legislative programs, on the other, the President took temporary possession of the steel mills as the only course open to him consistent with his duty to take care that the laws be faithfully executed. Plaintiffs' property was taken and placed in the possession of the Secretary of Commerce to prevent any interruption in steel production. It made no difference whether the stoppage was caused by a union-management dispute over terms and conditions of employment, a union-Government dispute over wage stabilization, or a management-Government dispute over price stabilization. The President's action has thus far been effective not in settling the dispute, but in saving the various legislative programs at stake from destruction until Congress could act in the matter. VI The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency, and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court. The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of Page 343 U. S. 709 the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was, in fact, no basis for the President's finding of the existence of an emergency [ Footnote 7/95 ] for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law. Seizure of plaintiffs' property is not a pleasant undertaking. Similarly unpleasant to a free country are the draft which disrupts the home and military procurement which causes economic dislocation and compels adoption of price controls, wage stabilization and allocation of materials. The President informed Congress that even a temporary Government operation of plaintiffs' properties was "thoroughly distasteful" to him, but was necessary to prevent immediate paralysis of the mobilization program. Presidents have been in the past, and any man worthy of the Office should be in the future, free to take at least interim action necessary to execute legislative programs essential to survival of the Nation. A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to "take Care that the Laws be faithfully executed." As the District Judge stated, this is no time for "timorous" judicial action. But neither is this a time for timorous executive action. Faced with the duty of executing the defense programs which Congress had enacted and the disastrous effects that any stoppage in steel production would have on those programs, the President acted to preserve those programs by seizing the steel mills. Page 343 U. S. 710 There is no question that the possession was other than temporary in character, and subject to congressional direction -- either approving, disapproving, or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Congress of his action, and clearly stated his intention to abide by the legislative will. No basis for claims of arbitrary action, unlimited powers, or dictatorial usurpation of congressional power appears from the facts of this case. On the contrary, judicial, legislative and executive precedents throughout our history demonstrate that, in this case, the President acted in full conformity with his duties under the Constitution. Accordingly, we would reverse the order of the District Court. [ Footnote 7/1 ] 59 Stat. 1031, 1037 (1945); 91 Cong.Rec. 8190 (1945). [ Footnote 7/2 ] U.N. Security Council, U.N. Doc. S/1501 (1950); Statement by the President, June 26, 1950, United States Policy in the Korean Crisis, Dept. of State Pub. (1950), 16. [ Footnote 7/3 ] U.N. General Assembly, U.N. Doc. A/1771 (1951). [ Footnote 7/4 ] 61 Stat. 103 (1947) [ Footnote 7/5 ] 62 Stat. 137 (1948), as amended, 63 Stat. 50 (1949), 64 Stat. 98 (1950). [ Footnote 7/6 ] 63 stat. 2241, 2252 (1949), extended to Greece and Turkey, S.Exec. E, 82d cong., 2d Sess. (1952), advice and consent of the Senate granted. 98 Cong.Rec. 930. [ Footnote 7/7 ] 63 Stat. 714 (1949). [ Footnote 7/8 ] S.Execs. A, B, C and D, 82d cong., 2d Sess. (1952), advice and consent of the senate granted. 98 Cong.Rec. 2594, 2595, 2605. [ Footnote 7/9 ] 65 Stat. 373 (1951). [ Footnote 7/10 ] 65 Stat. 730 (1951); see H.R.Doc. No. 147, 82d Cong., 1st Sess. 3 (1951). [ Footnote 7/11 ] See H.R.Doc. No. 382, 82d Cong., 2d Sess. (1952). [ Footnote 7/12 ] Hearings before Senate Committee on Foreign Relations on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 565-566 (1952); Hearings before House Committee on Foreign Affairs on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 370 (1952). [ Footnote 7/13 ] 65 Stat. 75 (1951); S.Rep. No. 117, 82d Cong., 1st Sess. 3 (1951). [ Footnote 7/14 ] Address by Secretary of Defense Lovett before the American Society of Newspaper Editors, Washington, April 18, 1952. [ Footnote 7/15 ] Fiscal Year 1952, 65 Stat. 423, 760 (1951); F.Y. 1951, 64 Stat. 595, 1044, 1223, 65 Stat. 48 (1950-1951); F.Y. 1950, 63 Stat. 869, 973, 987 (1949); F.Y. 1949, 62 Stat. 647 (1948); F.Y. 1948, 61 Stat. 551 (1947). [ Footnote 7/16 ] See H.R.Rep. No. 1685, 82d Cong., 2d Sess. 2 (1952), on H.R. 7391. [ Footnote 7/17 ] See H.R.Rep. No. 384, 82d Cong., 1st Sess. 5 (1951); 97 Cong.Rec. 13647-13649. [ Footnote 7/18 ] Defense Production Act, Tit. III. 64 Stat. 798, 800 (1950), 65 Stat. 138 (1951). [ Footnote 7/19 ] 343 U.S. 579 fn7/18|>Note 18, supra, Tits. IV and V. [ Footnote 7/20 ] S.Rep. No. 470, 82d Cong., 1st Sess. 8 (1951). [ Footnote 7/21 ] Id. at 8-9. [ Footnote 7/22 ] Exec.Order 10340, 17 Fed.Reg. 3139 (1952). [ Footnote 7/23 ] Cong.Rec. April 9, 1952, pp. 3962-3963. [ Footnote 7/24 ] Cong.Rec. April 21, 1952, p. 4192. [ Footnote 7/25 ] Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U. S. 103 , 333 U. S. 111 (1948), and cases cited. [ Footnote 7/26 ] The Federalist, No. XLVIII. [ Footnote 7/27 ] The Federalist, No. LXX. [ Footnote 7/28 ] McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 415 , 17 U. S. 424 (1819). [ Footnote 7/29 ] United States v. Classic, 313 U. S. 299 , 313 U. S. 315 -316 (1941); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 , 290 U. S. 442 443 (1934). [ Footnote 7/30 ] 4 Annals of Congress 1411, 1413 (1794). [ Footnote 7/31 ] IV Works of Hamilton (Lodge ed.1904) 432-444. [ Footnote 7/32 ] 10 Annals of Congress 596, 613-614 (1800); also printed in 5 Wheat. App. pp. 3, 27 (1820). [ Footnote 7/33 ] 10 Annals of Congress 619 (1800). [ Footnote 7/34 ] Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 714 (1893). [ Footnote 7/35 ] See Prize Cases , 2 Black 635 (1863); Randall, Constitutional Problems Under Lincoln (1926); Corwin, The President: Office and Powers (1948 ed.), 277-281. [ Footnote 7/36 ] War of the Rebellion, Official Records of the Union and Confederate Armies, Series I, Vol. II (1880), pp.603-604. [ Footnote 7/37 ] 12 Stat. 334 (1862) [ Footnote 7/38 ] Senator Wade, Cong.Globe, 37th Cong., 2d Sess. 509 (1862); Rep. Blair, id. at 548. [ Footnote 7/39 ] Senators Browning, Fessenden, Cowan, Grimes, id. at 510, 512, 516, 520. [ Footnote 7/40 ] In 1818, the House Committee on Military Affairs recommended payment of compensation for vessels seized by the Army during the War of 1812. American State Papers, Claims (1834), 649. Mitchell v. Harmony , 13 How. 115, 54 U. S. 134 (1852), involving seizure of a wagon train by an Army officer during the Mexican War, noted that such executive seizure was proper in case of emergency, but affirmed a personal judgment against the officer on the ground that no emergency had been found to exist. The judgment was paid by the United States pursuant to Act of Congress. 10 Stat. 727 (1852). [ Footnote 7/41 ] 13 Wall. at 80 U. S. 627 -628. Such a compensable taking was soon distinguished from the noncompensable taking and destruction of property during the extreme exigencies of a military campaign. United States v. Pacific R. Co., 120 U. S. 227 (1887). [ Footnote 7/42 ] 135 U.S. at 135 U. S. 64 . [ Footnote 7/43 ] Rich, The Presidents and Civil Disorder (1941), 72-86. [ Footnote 7/44 ] Cleveland, The Government in the Chicago Strike of 1894 (1913). [ Footnote 7/45 ] 26 Cong.Rec. 7281-7284, 7544-7546 (1894). [ Footnote 7/46 ] Theodore Roosevelt, Autobiography (1916 ed.), 479-491. [ Footnote 7/47 ] Id. at 378. [ Footnote 7/48 ] Humphrey's Executor v. United States, 295 U. S. 602 , 295 U. S. 626 (1935), disapproved expressions in the Myers opinion only to the extent that they related to the President's power to remove members of quasi -legislative and quasi -judicial commissions as contrasted with executive employees. [ Footnote 7/49 ] Brief for the United States, No. 278, October Term, 1914, pp. 11, 75-77, 88-90. [ Footnote 7/50 ] National War Labor Board. Bureau of Labor Statistics, Bull. 287 (1921). [ Footnote 7/51 ] Id. at 24 25, 32-34. See also 2 Official U.S.Bull. (1918), No. 412; 8 Baker, Woodrow Wilson, Life & Letters (1939), 400-402; Berman, Labor Disputes and the President (1924), 125-153; Pringle, The Life and Times of William Howard Taft (1939), 915-925. [ Footnote 7/52 ] 39 Stat. 619, 645 (1916), provides that the President may take possession of any system of transportation in time of war. Following seizure of the railroads by President Wilson, Congress enacted detailed legislation regulating the mode of federal control. 40 Stat. 451 (1918). When Congress was considering the statute authorizing the President to seize communications systems whenever he deemed such action necessary during the war, 40 Stat. 904 (1918), Senator (later President) Harding opposed on the ground that there was no need for such stand-by powers because, in event of a present necessity, the Chief Executive "ought to" seize communications lines, "else he would be unfaithful to his duties as such Chief Executive." 56 Cong.Rec. 9064 (1918). [ Footnote 7/53 ] 48 Stat. 1689 (1933). [ Footnote 7/54 ] 54 Stat. 2643 (1939). [ Footnote 7/55 ] 55 Stat. 1647 (1941). [ Footnote 7/56 ] 86 Cong.Rec. 11354 (1940) (Message of the President). See 39 Op.Atty.Gen. 484 (1940). Attorney General Jackson's opinion did not extend to the transfer of "mosquito boats," solely because an express statutory prohibition on transfer was applicable. [ Footnote 7/57 ] 87 Cong.Rec. 5868 (1941) (Message of the President). [ Footnote 7/58 ] Powers of the President to Send the Armed Forces Outside the United States, Report prepared by executive department for use of joint committee of Senate Committees on Foreign Relations and Armed Services, 82d Cong., 1st Sess., Committee Print, 2 (1951). [ Footnote 7/59 ] Exec.Order 8773, 6 Fed.Reg. 2777 (1941). [ Footnote 7/60 ] See 89 Cong.Rec. 3992 (1943). The Attorney General also noted that the dispute at North American Aviation was Communist-inspired, and more nearly resembled an insurrection than a labor strike. The relative size of North American Aviation and the impact of an interruption in production upon our defense effort were not described. [ Footnote 7/61 ] 87 Cong.Rec. 4932 (1941). See also S. 1600 and S. 2054, 77th Cong., 1st Sess. (1941). [ Footnote 7/62 ] Reps. May, Whittington; 87 Cong.Rec. 5895, 5972 (1941). [ Footnote 7/63 ] Reps. Dworshak, Feddis, Harter, Dirksen, Hook; 87 Cong.Rec. 5901, 5910, 5974, 5975 (1941). [ Footnote 7/64 ] The plant seizure amendment passed the Senate, but was rejected in the House after a Conference Committee adopted the amendment. 87 Cong.Rec. 6424 (1941). [ Footnote 7/65 ] Exec.Order 8868, 6 Fed.Reg. 4349 (1941); Exec.Order 8928, 6 Fed.Reg. 5559 (1941). [ Footnote 7/66 ] Exec.Order 9141, 7 Fed.Reg. 2961 (1942); Exec.Order 9220 7 Fed.Reg. 6413 (1942); Exec.Order 9225, 7 Fed.Reg. 6627 (1942), Exec.Order 9254, 7 Fed.Reg. 8333 (1942); Exec.Order 9351, 8 Fed.Reg. 8097 (1943). [ Footnote 7/67 ] Exec.Order 9340, 8 Fed.Reg. 5695 (1943). [ Footnote 7/68 ] Exec.Order 9017, 7 Fed.Reg. 237 (1942); 1 Termination Report of the National War Labor Board 5-11. [ Footnote 7/69 ] 89 Cong.Rec. 3807 (1943). Similar views of the President's existing power were expressed by Senators Lucas, Wheeler, Austin and Barkley. Id. at 3885-3887, 3896, 3992. [ Footnote 7/70 ] 89 cong. Rec. 3989-3992 (1943). [ Footnote 7/71 ] S. 796, 78th cong., 1st Sess., §§ 12, 13 (1943), as passed by the House. [ Footnote 7/72 ] 57 stat. 163, 164 (1943). [ Footnote 7/73 ] 40 Op.Atty.Gen. 312 (1944). See also Hearings before House Select committee to Investigate Seizure of Montgomery Ward & Co., 78th Cong., 2d Sess. 117-132 (1944). [ Footnote 7/74 ] 39 Op.Atty.Gen. 343, 347 (1939) [ Footnote 7/75 ] 343 U.S. 579 fn7/60|>Note 60, supra. [ Footnote 7/76 ] Letter introduced in Hearings before Senate Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st Sess. 232 (1949) pointing to the "exceedingly great" powers of the President to deal with emergencies even before the Korean crisis. [ Footnote 7/77 ] Exec.Order 9438, 9 Fed.Reg. 4459 (1944). [ Footnote 7/78 ] H.R.Rep. No.1904, 78th Cong., 2d Sess. 25 (1944) (the Committee divided along party lines). [ Footnote 7/79 ] Exec.Order 9508, 9 Fed.Reg. 15079 (1944). [ Footnote 7/80 ] United States v. Montgomery Ward & Co., 150 F.2d 369 (c A. 7th Cir.1945), reversing 58 F. Supp. 408 (N.D.Ill.1945). See also Ken-Rad Tube & Lamp Corp. v. Badeau, 55 F. Supp. 193 , 197-199 (W. D. Ky.1944), where the court held that a seizure was proper with or without express statutory authorization. [ Footnote 7/81 ] United States Policy in the Korean Crisis (1950), Dept. of State Pub. 3922. [ Footnote 7/82 ] 15 Fed.Reg. 9029 (1950). [ Footnote 7/83 ] Harrison, This Country of Ours (1897), 98. [ Footnote 7/84 ] 62 Stat. 604, 626 (1948), 50 U.S.C. App. (Supp. IV) § 468(c). [ Footnote 7/85 ] 62 Stat. 604, 627 (1948), 50 U.S.C. App. (Supp. IV) § 468(h)(1). [ Footnote 7/86 ] Tit. II, 64 Stat. 798, 799 (1950), as amended, 65 Stat. 138 (1951). [ Footnote 7/87 ] Home Building Loan Assn. v. Blaisdell, 290 U. S. 398 , 290 U. S. 425 426 (1934). [ Footnote 7/88 ] See Bus Employees v. Wisconsin Board, 340 U. S. 383 (1951). [ Footnote 7/89 ] §§ 206-210, Labor Management Relations Act of 1947. 29 U.S.C. (Supp.IV) §§ 176-180. [ Footnote 7/90 ] 64 Stat. 812, 65 Stat. 132 (1950). [ Footnote 7/91 ] H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35 (1950) (Conference Report). See also S.Rep. No. 2250, 81st Cong., 2d Sess. 41 (1950). [ Footnote 7/92 ] Exec.Order 10161, 15 Fed.Reg. 6105 (1950), as amended, Exec.Order 10233, 16 Fed.Reg. 3503 (1951). [ Footnote 7/93 ] Hearings before the House Committee on Banking and Currency on Defense Production Act Amendments of 1951, 82d Cong., 1st Sess. 305-306, 312-313 (1951). [ Footnote 7/94 ] The Lucas Amendment to abolish the disputes function of the WSB was debated at length in the House, the sponsor of the amendment pointing out the similarity of the WSB functions to those of the War Labor Board and noting the seizures that occurred when War Labor Board orders were not obeyed. 97 Cong.Rec. 8390-8415. The amendment was rejected by a vote of 217 to 113. Id. at 8415. A similar amendment introduced in the Senate was withdrawn. 97 Cong.Rec. 7373-7374. The Defense Production Act was extended without amending Tit. V or otherwise affecting the disputes functions of the WSB. 65 Stat. 132 (1951). [ Footnote 7/95 ] Compare Sterling v. Constantin, 287 U. S. 378 , 287 U. S. 399 -401 (1932).

In Youngstown Sheet & Tube Co. v. Sawyer (1952), the US Supreme Court ruled that President Truman's seizure of steel mills during a labor dispute was unconstitutional. The Court held that the President's power to act must come from either explicit or implied Congressional authorization, neither of which was present in this case. This decision limited the President's authority to act without clear legislative backing.

Separation of Powers

Mistretta v. U.S.

https://supreme.justia.com/cases/federal/us/488/361/

U.S. Supreme Court Mistretta v. United States, 488 U.S. 361 (1989) Mistretta v. United States No. 87-7028 Argued October 5, 1988 Decided January 18, 1989 488 U.S. 361 ast|>* 488 U.S. 361 CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Because the existing indeterminate sentencing system resulted in serious disparities among the sentences imposed by federal judges upon similarly situated offenders and in uncertainty as to an offender's actual date of release by Executive Branch parole officials, Congress passed the Sentencing Reform Act of 1984 (Act), which, inter alia, created the United States Sentencing Commission as an independent body in the Judicial Branch with power to promulgate binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants according to specific and detailed factors. After the District Court upheld the constitutionality of the Commission's resulting Guidelines against claims by petitioner Mistretta, who was under indictment on three counts centering in a cocaine sale, that the Commission was constituted in violation of the separation-of-powers principle, and that Congress had delegated excessive authority to the Commission to structure the Guidelines, Mistretta pleaded guilty to a conspiracy-to-distribute count, was sentenced under the Guidelines to 18 months' imprisonment and other penalties, and filed a notice of appeal. This Court granted his petition and that of the United States for certiorari before judgment in the Court of Appeals in order to consider the. Guidelines' constitutionality. Held: The Sentencing Guidelines are constitutional, since Congress neither (1) delegated excessive legislative power to the Commission nor (2) violated the separation-of-powers principle by placing the Commission in the Judicial Branch, by requiring federal judges to serve on the Commission and to share their authority with nonjudges, or by empowering the President to appoint Commission members and to remove them for cause. The Constitution's structural protections do not prohibit Congress from delegating to an expert body within the Judicial Branch the intricate task of formulating sentencing guidelines consistent with such significant statutory direction as is present here, nor from calling upon the accumulated wisdom and experience of the Judicial Branch in creating policy on a matter uniquely within the ken of judges. Pp. 488 U. S. 371 -412. 682 F. Supp. 1033 , affirmed. Page 488 U. S. 362 BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, O'CONNOR, and KENNEDY, JJ., joined, and in all but n. 11 of which BRENNAN, J., joined. SCALIA, J., filed a dissenting opinion, post, p. 488 U. S. 413 . JUSTICE BLACKMUN delivered the opinion of the Court. In this litigation, we granted certiorari before judgment in the United States Court of Appeals for the Eighth Circuit in order to consider the constitutionality of the Sentencing Guidelines promulgated by the United States Sentencing Commission. The Commission is a body created under the Sentencing Reform Act of 1984 (Act), as amended, 18 U.S.C. § 3551 et seq. (1982 ed., Supp. IV), and 28 U.S.C. §§ 991-998 (1982 ed., Supp. IV). [ Footnote 1 ] The United States District Court for the Western District of Missouri ruled that the Guidelines Page 488 U. S. 363 were constitutional. United States v. Johnson, 682 F. Supp. 1033 (1988). [ Footnote 2 ] I A Background For almost a century, the Federal Government employed in criminal cases a system of indeterminate sentencing. Statutes specified the penalties for crimes, but nearly always gave the sentencing judge wide discretion to decide whether the offender should be incarcerated and for how long, whether restraint, such as probation, should be imposed instead of imprisonment or fine. This indeterminate sentencing system was supplemented by the utilization of parole, by which an offender was returned to society under the "guidance and control" of a parole officer. See Zerbst v. Kidwell, 304 U. S. 359 , 304 U. S. 363 (1938). Both indeterminate sentencing and parole were based on concepts of the offender's possible, indeed probable, rehabilitation, a view that it was realistic to attempt to rehabilitate the inmate, and thereby to minimize the risk that he would resume criminal activity upon his return to society. It obviously required the judge and the parole officer to make their respective sentencing and release decisions upon their own assessments of the offender's amenability to rehabilitation. As a result, the court and the officer were in positions to exercise, and usually did exercise, very broad discretion. See Kadish, The Advocate and the Expert -- Counsel in the Pen-Correctional Process, 45 Minn.L.Rev. 803, 812-813 (1961). Page 488 U. S. 364 This led almost inevitably to the conclusion on the part of a reviewing court that the sentencing judge "sees more and senses more" than the appellate court; thus, the judge enjoyed the "superiority of his nether position," for that court's determination as to what sentence was appropriate met with virtually unconditional deference on appeal. See Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L.Rev. 635, 663 (1971). See Dorszynski v. United States, 418 U. S. 424 , 418 U. S. 431 (1974). The decision whether to parole was also "predictive and discretionary." Morrissey v. Brewer, 408 U. S. 471 , 408 U. S. 480 (1972). The correction official possessed almost absolute discretion over the parole decision. See, e.g., Brest v. Ciccone, 371 F.2d 981, 982-983 (CA8 1967); Rifai v. United States Parole Comm'n, 586 F.2d 695 (CA9 1978). Historically, federal sentencing -- the function of determining the scope and extent of punishment -- never has been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government. Congress, of course, has the power to fix the sentence for a federal crime, United States v. Wiltberger , 5 Wheat. 76 (1820), and the scope of judicial discretion with respect to a sentence is subject to congressional control. Ex parte United States, 242 U. S. 27 (1916). Congress early abandoned fixed sentence rigidity, however, and put in place a system of ranges within which the sentencer could choose the precise punishment. See United States v. Grayson, 438 U. S. 41 , 438 U. S. 45 -46 (1978). Congress delegated almost unfettered discretion to the sentencing judge to determine what the sentence should be within the customarily wide range so selected. This broad discretion was further enhanced by the power later granted the judge to suspend the sentence and by the resulting growth of an elaborate probation system. Also, with the advent of parole, Congress moved toward a "three-way sharing" of sentencing responsibility by granting corrections personnel in the Executive Branch the discretion Page 488 U. S. 365 to release a prisoner before the expiration of the sentence imposed by the judge. Thus, under the indeterminate sentence system, Congress defined the maximum, the judge imposed a sentence within the statutory range (which he usually could replace with probation), and the Executive Branch's parole official eventually determined the actual duration of imprisonment. See Williams v. New York, 337 U. S. 241 , 337 U. S. 248 (1949). See also Geraghty v. United States Parole Comm'n, 719 F.2d 1199, 1211 (CA3 1983), cert. denied, 465 U.S. 1103 (1984); United States v. Addonizio, 442 U. S. 178 , 442 U. S. 190 (1979); United States v. Brown, 381 U. S. 437 , 381 U. S. 443 (1965) ("[I]f a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will"). Serious disparities in sentences, however, were common. Rehabilitation, as a sound penological theory, came to be questioned and, in any event, was regarded by some as an unattainable goal for most cases. See N. Morris, The Future of Imprisonment 24-43 (1974); F. Allen, The Decline of the Rehabilitative Ideal (1981). In 1958, Congress authorized the creation of judicial sentencing institutes and joint councils, see 28 U.S.C. § 334, to formulate standards and criteria for sentencing. In 1973, the United States Parole Board adopted guidelines that established a "customary range" of confinement. See United States Parole Comm'n v. Geraghty, 445 U. S. 388 , 445 U. S. 391 (1980). Congress in 1976 endorsed this initiative through the Parole Commission and Reorganization Act, 18 U.S.C. §§ 4201-4218, an attempt to envision for the Parole Commission a role, at least in part, "to moderate the disparities in the sentencing practices of individual judges." United States v. Addonizio, 442 U.S. at 442 U. S. 189 . That Act, however, did not disturb the division of sentencing responsibility among the three Branches. The judge continued to exercise discretion and to set the sentence within the statutory range fixed by Congress, while the prisoner's Page 488 U. S. 366 actual release date generally was set by the Parole Commission. This proved to be no more than a waystation. Fundamental and widespread dissatisfaction with the uncertainties and the disparities continued to be expressed. Congress had wrestled with the problem for more than a decade when, in 1984, it enacted the sweeping reforms that are at issue here. Helpful in our consideration and analysis of the statute is the Senate Report on the 1984 legislation, S.Rep. No. 98-225 (1983) (Report). [ Footnote 3 ] The Report referred to the "outmoded rehabilitation model" for federal criminal sentencing, and recognized that the efforts of the criminal justice system to achieve rehabilitation of offenders had failed. Id. at 38. It observed that the indeterminate sentencing system had two "unjustifi[ed]" and "shameful" consequences. Id. at 38, 65. The first was the great variation among sentences imposed by different judges upon similarly situated offenders. The second was the uncertainty as to the time the offender would spend in prison. Each was a serious impediment to an evenhanded and effective operation of the criminal justice system. The Report went on to note that parole was an inadequate device for overcoming these undesirable consequences. This was due to the division of authority between the sentencing judge and the parole officer, who often worked at cross-purposes; to the fact that the Parole Commission's own guidelines did not take into account factors Congress regarded as important in sentencing, such as the sophistication of the offender and the role the offender played in an offense committed with others, id. at 48; and to the fact that the Parole Commission had only limited power to adjust a sentence imposed by the court. Id. at 47. Page 488 U. S. 367 Before settling on a mandatory guideline system, Congress considered other competing proposals for sentencing reform. It rejected strict determinate sentencing, because it concluded that a guideline system would be successful in reducing sentence disparities while retaining the flexibility needed to adjust for unanticipated factors arising in a particular case. Id. at 78-79, 62. The Judiciary Committee rejected a proposal that would have made the sentencing guidelines only advisory. Id. at 79. B The Act The Act, as adopted, revises the old sentencing process in several ways: 1. It rejects imprisonment as a means of promoting rehabilitation, 28 U.S.C. § 994(k), and it states that punishment should serve retributive, educational, deterrent, and incapacitative goals, 18 U.S.C. § 3553(a)(2). 2. It consolidates the power that had been exercised by the sentencing judge and the Parole Commission to decide what punishment an offender should suffer. This is done by creating the United States Sentencing Commission, directing that Commission to devise guidelines to be used for sentencing, and prospectively abolishing the Parole Commission. 28 U.S.C. §§ 991, 994, and 995(a)(1). 3. It makes all sentences basically determinate. A prisoner is to be released at the completion of his sentence reduced only by any credit earned by good behavior while in custody. 18 U.S.C. §§ 3624(a) and (b). 4. It makes the Sentencing Commission's guidelines binding on the courts, although it preserves for the judge the discretion to depart from the guideline applicable to a particular case if the judge finds an aggravating or mitigating factor present that the Commission did not adequately consider when formulating guidelines. §§ 3553(a) and (b). The Act also requires the court to state its reasons for the sentence Page 488 U. S. 368 imposed, and to give "the specific reason" for imposing a sentence different from that described in the guideline. § 3553(c). 5. It authorizes limited appellate review of the sentence. It permits a defendant to appeal a sentence that is above the defined range, and it permits the Government to appeal a sentence that is below that range. It also permits either side to appeal an incorrect application of the guideline. §§ 3742(a) and (b). Thus, guidelines were meant to establish a range of determinate sentences for categories of offenses and defendants according to various specified factors, "among others." 28 U.S.C. §§ 994(b), (c), and (d). The maximum of the range ordinarily may not exceed the minimum by more than the greater of 25% or six months, and each sentence is to be within the limit provided by existing law. §§ 994(a) and (b)(2). C The Sentencing Commission The Commission is established "as an independent commission in the judicial branch of the United States." § 991(a). It has seven voting members (one of whom is the Chairman) appointed by the President "by and with the advice and consent of the Senate." "At least three of the members shall be Federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States." Ibid. No more than four members of the Commission shall be members of the same political party. The Attorney General, or his designee, is an ex officio nonvoting member. The Chairman and other members of the Commission are subject to removal by the President "only for neglect of duty or malfeasance in office or for other good cause shown." Ibid. Except for initial staggering of terms, Page 488 U. S. 369 a voting member serves for six years, and may not serve more than two full terms. §§ 992(a) and (b). [ Footnote 4 ] D The Responsibilities of the Commission In addition to the duty the Commission has to promulgate determinative sentence guidelines, it is under an obligation periodically to "review and revise" the guidelines. § 994(o). It is to "consult with authorities on, and individual and institutional representatives of, various aspects of the Federal criminal justice system." Ibid. It must report to Congress "any amendments of the guidelines." § 994(p). It is to make recommendations to Congress whether the grades or maximum penalties should be modified. § 994(r). It must submit to Congress at least annually an analysis of the operation of the guidelines. § 994(w). It is to issue "general policy statements" regarding their application. § 994(a)(2). And it has the power to "establish general policies . . . as are necessary to carry out the purposes" of the legislation, § 995(a)(1); to "monitor the performance of probation officers" with respect to the guidelines, § 995(a)(9); to "devise and conduct periodic training programs of instruction in sentencing techniques for judicial and probation personnel" and others, § 995(a)(18); and to "perform such other functions as are required to permit Federal courts to meet their responsibilities" as to sentencing, § 995(a)(22). We note, in passing, that the monitoring function is not without its burden. Every year, with respect to each of more than 40,000 sentences, the federal courts must forward, and the Commission must review, the presentence report, Page 488 U. S. 370 the guideline worksheets, the tribunal's sentencing statement, and any written plea agreement. II This Litigation On December 10, 1987, John M. Mistretta (petitioner) and another were indicted in the United States District Court for the Western District of Missouri on three counts centering in a cocaine sale. See App. to Pet. for Cert. in No. 87-1904, p. 16a. Mistretta moved to have the promulgated Guidelines ruled unconstitutional on the grounds that the Sentencing Commission was constituted in violation of the established doctrine of separation of powers, and that Congress delegated excessive authority to the Commission to structure the Guidelines. As has been noted, the District Court was not persuaded by these contentions. [ Footnote 5 ] The District Court rejected petitioner's delegation argument on the ground that, despite the language of the statute, the Sentencing Commission "should be judicially characterized as having Executive Branch status," 682 F. Supp. at 1035, and that the Guidelines are similar to substantive rules promulgated by other agencies. Id. at 1034-1035. The court also rejected petitioner's claim that the Act is unconstitutional because it requires Article III federal judges to serve on the Commission. Id. at 1035. The court stated, however, that its opinion "does not imply that I have no serious doubts about some parts of the Sentencing Guidelines and the legality of their anticipated operation." Ibid. Petitioner then pleaded guilty to the first count of his indictment (conspiracy and agreement to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)). The Government thereupon moved to dismiss the remaining counts. Page 488 U. S. 371 That motion was granted. App. to Pet. for Cert. in No. 87-1904, p. 33a. Petitioner was sentenced under the Guidelines to 18 months' imprisonment, to be followed by a 3-year term of supervised release. Id. at 30a, 35a, 37a. The court also imposed a $1,000 fine and a $50 special assessment. Id. at 31a, 40a. Petitioner filed a notice of appeal to the Eighth Circuit, but both petitioner and the United States, pursuant to this Court's Rule 18, petitioned for certiorari before judgment. Because of the "imperative public importance" of the issue, as prescribed by the Rule, and because of the disarray among the Federal District Courts, [ Footnote 6 ] we granted those petitions. 486 U.S. 1054 (1988). III Delegation of Power Petitioner argues that, in delegating the power to promulgate sentencing guidelines for every federal criminal offense to an independent Sentencing Commission, Congress has granted the Commission excessive legislative discretion in violation of the constitutionally based nondelegation doctrine. We do not agree. The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," U.S.Const., Art. I, § 1, and we long have insisted that "the integrity and maintenance of Page 488 U. S. 372 the system of government ordained by the Constitution" mandate that Congress generally cannot delegate its legislative power to another Branch. Field v. Clark, 143 U. S. 649 , 143 U. S. 692 (1892). We also have recognized, however, that the separation of powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach to such cooperative ventures: "In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government coordination." J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394 , 276 U. S. 406 (1928). So long as Congress "shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power." Id. at 276 U. S. 409 . Applying this "intelligible principle" test to congressional delegations, our jurisprudence has been driven by a practical understanding that, in our increasingly complex society, replete with ever-changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. See Opp Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of Labor, 312 U. S. 126 , 312 U. S. 145 (1941) ("In an increasingly complex society, Congress obviously could not perform its functions if it were obliged to find all the facts subsidiary to the basic conclusions which support the defined legislative policy"); see also United States v. Robel, 389 U. S. 258 , 389 U. S. 274 (1967) (opinion concurring in result). "The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function." Panama Refining Co. v. Ryan, 293 U. S. 388 , 293 U. S. 421 (1935). Accordingly, this Court has deemed it "constitutionally sufficient if Congress clearly Page 488 U. S. 373 delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." American Power & Light Co. v. SEC, 329 U. S. 90 , 329 U. S. 105 (1946). Until 1935, this Court never struck down a challenged statute on delegation grounds. See Synar v. United States, 626 F. Supp. 1374 , 1383 (DC) (three-judge court), aff'd sub nom. Bowsher v. Synar, 478 U. S. 714 (1986). After invalidating in 1935 two statutes as excessive delegations, see A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 , and Panama Refining Co. v. Ryan, supra, we have upheld, again without deviation, Congress' ability to delegate power under broad standards. [ Footnote 7 ] See, e.g., Lichter v. United States, 334 U. S. 742 , 334 U. S. 785 -786 (1948) (upholding delegation of authority to determine excessive profits); American Power & Light Co. v. SEC, 329 U.S. at 329 U. S. 105 (upholding delegation of authority to Securities and Exchange Commission to prevent unfair or inequitable distribution of voting power among security holders); Yakus v. United States, 321 U. S. 414 , 321 U. S. 426 (1944) (upholding delegation to administrator to fix commodity prices that would be fair and equitable, and would effectuate the purposes of the Emergency Price Control Act of 1942); FPC v. Hope Natural Gas Co., 320 U. S. 591 , 320 U. S. 600 (1944) (upholding delegation to Federal Power Commission to determine Page 488 U. S. 374 just and reasonable rates); National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 225 -226 (1943) (upholding delegation to Federal Communications Commission to regulate broadcast licensing "as public interest, convenience, or necessity" require). In light of our approval of these broad delegations, we harbor no doubt that Congress' delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Congress charged the Commission with three goals: to "assure the meeting of the purposes of sentencing as set forth" in the Act; to "provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records . . . while maintaining sufficient flexibility to permit individualized sentences," where appropriate; and to "reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process." 28 U.S.C. § 991(b)(1). Congress further specified four "purposes" of sentencing that the Commission must pursue in carrying out its mandate: "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense"; "to afford adequate deterrence to criminal conduct"; "to protect the public from further crimes of the defendant"; and "to provide the defendant with needed . . . correctional treatment." 18 U.S.C. § 3553(a)(2). In addition, Congress prescribed the specific tool -- the guidelines system -- for the Commission to use in regulating sentencing. More particularly, Congress directed the Commission to develop a system of "sentencing ranges" applicable "for each category of offense involving each category of defendant." 28 U.S.C. § 994(b). [ Footnote 8 ] Congress instructed the Page 488 U. S. 375 Commission that these sentencing ranges must be consistent with pertinent provisions of Title 18 of the United States Code, and could not include sentences in excess of the statutory maxima. Congress also required that, for sentences of imprisonment, "the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment." § 994(b)(2). Moreover, Congress directed the Commission to use current average sentences "as a starting point" for its structuring of the sentencing ranges. § 994(m). To guide the Commission in its formulation of offense categories, Congress directed it to consider seven factors: the grade of the offense; the aggravating and mitigating circumstances of the crime; the nature and degree of the harm caused by the crime; the community view of the gravity of the offense; the public concern generated by the crime; the deterrent effect that a particular sentence may have on others; and the current incidence of the offense. §§ 994(c)(1)(7). [ Footnote 9 ] Congress set forth 11 factors for the Commission to Page 488 U. S. 376 consider in establishing categories of defendants. These include the offender's age, education, vocational skills, mental and emotional condition, physical condition (including drug dependence), previous employment record, family ties and responsibilities, community ties, role in the offense, criminal history, and degree of dependence upon crime for a livelihood. § 994(d)(1)-(11). [ Footnote 10 ] Congress also prohibited the Commission from considering the "race, sex, national origin, creed, and socioeconomic status of offenders," § 994(d), and instructed that the guidelines should reflect the "general inappropriateness" of considering certain other factors, such as current unemployment, that might serve as proxies for forbidden factors, § 994(e). In addition to these overarching constraints, Congress provided even more detailed guidance to the Commission about categories of offenses and offender characteristics. Congress directed that guidelines require a term of confinement at or near the statutory maximum for certain crimes of violence and for drug offenses, particularly when committed by recidivists. § 994(h). Congress further directed that the Commission assure a substantial term of imprisonment for an offense constituting a third felony conviction, for a career Page 488 U. S. 377 felon, for one convicted of a managerial role in a racketeering enterprise, for a crime of violence by an offender on release from a prior felony conviction, and for an offense involving a substantial quantity of narcotics. § 994(i). Congress also instructed "that the guidelines reflect . . . the general appropriateness of imposing a term of imprisonment" for a crime of violence that resulted in serious bodily injury. On the other hand, Congress directed that guidelines reflect the general inappropriateness of imposing a sentence of imprisonment "in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense." § 994(j). Congress also enumerated various aggravating and mitigating circumstances, such as, respectively, multiple offenses or substantial assistance to the Government, to be reflected in the guidelines. §§ 994(l) and (n). In other words, although Congress granted the Commission substantial discretion in formulating guidelines, in actuality it legislated a full hierarchy of punishment -- from near maximum imprisonment, to substantial imprisonment, to some imprisonment, to alternatives -- and stipulated the most important offense and offender characteristics to place defendants within these categories. We cannot dispute petitioner's contention that the Commission enjoys significant discretion in formulating guidelines. The Commission does have discretionary authority to determine the relative severity of federal crimes and to assess the relative weight of the offender characteristics that Congress listed for the Commission to consider. See §§ 994(c) and (d) (Commission instructed to consider enumerated factors as it deems them to be relevant). The Commission also has significant discretion to determine which crimes have been punished too leniently, and which too severely. § 994(m). Congress has called upon the Commission to exercise its judgment about which types of crimes and which Page 488 U. S. 378 types of criminals are to be considered similar for the purposes of sentencing. [ Footnote 11 ] But our cases do not at all suggest that delegations of this type may not carry with them the need to exercise judgment on matters of policy. In Yakus v. United States, 321 U. S. 414 (1944), the Court upheld a delegation to the Price Administrator to fix commodity prices that "in his judgment will be generally fair and equitable and will effectuate the purposes of this Act" to stabilize prices and avert speculation. See id. at 321 U. S. 420 . In National Broadcasting Co. v. United States, 319 U. S. 190 (1943), we upheld a delegation to the Federal Communications Commission granting it the authority to promulgate regulations in accordance with its view of the "public interest." In Yakus, the Court laid down the applicable principle: "It is no objection that the determination of facts and the" inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise Page 488 U. S. 379 of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework. . . . " * * * *" ". . . Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose. . . ." 321 U.S. at 321 U. S. 425 -426. Congress has met that standard here. The Act sets forth more than merely an "intelligible principle" or minimal standards. One court has aptly put it: "The statute outlines the policies which prompted establishment of the Commission, explains what the Commission should do and how it should do it, and sets out specific directives to govern particular situations." United States v. Chambless, 680 F. Supp. 793 , 796 (ED La.1988). Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate. Although Congress has delegated significant discretion to the Commission to draw judgments from its analysis of existing sentencing practice and alternative sentencing models, "Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers." Yakus v. United States, 321 U.S. at 321 U. S. 425 -426. We have no doubt that, in the hands of the Commission, "the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose" of the Act. Sunshine Coal Co. v. Adkins, 310 U. S. 381 , 310 U. S. 398 (1940). Page 488 U. S. 380 IV Separation of Powers Having determined that Congress has set forth sufficient standards for the exercise of the Commission's delegated authority, we turn to Mistretta's claim that the Act violates the constitutional principle of separation of powers. This Court consistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty. See, e.g., Morrison v. Olson, 487 U. S. 654 , 487 U. S. 685 -696 (1988); Bowsher v. Synar, 478 U.S. at 478 U. S. 725 . Madison, in writing about the principle of separated powers, said: "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 324 (J. Cooke ed.1961). In applying the principle of separated powers in our jurisprudence, we have sought to give life to Madison's view of the appropriate relationship among the three coequal Branches. Accordingly, we have recognized, as Madison admonished at the founding, that, while our Constitution mandates that "each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others," Humphrey's Executor v. United States, 295 U. S. 602 , 295 U. S. 629 (1935), the Framers did not require -- and indeed rejected -- the notion that the three Branches must be entirely separate and distinct. See, e.g., Nixon v. Administrator of General Services, 433 U. S. 425 , 433 U. S. 443 (1977) (rejecting as archaic complete division of authority between the three Branches); United States v. Nixon, 418 U. S. 683 (1974) (affirming Madison's flexible approach to separation of powers). Madison, defending the Constitution against charges that it established insufficiently separate Branches, addressed the point directly. Separation of powers, he wrote, "d[oes] not mean that these [three] Page 488 U. S. 381 departments ought to have no partial agency in, or no controul over the acts of each other," but rather "that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted." The Federalist No. 47, pp. 325-326 (J. Cooke ed.1961) (emphasis in original). See Nixon v. Administrator of General Services, 433 U.S. at 433 U. S. 442 , n. 5. Madison recognized that our constitutional system imposes upon the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which "would preclude the establishment of a Nation capable of governing itself effectively." Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 121 (1976). In a passage now commonplace in our cases, Justice Jackson summarized the pragmatic, flexible view of differentiated governmental power to which we are heir: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 635 (1952) (concurring opinion). In adopting this flexible understanding of separation of powers, we simply have recognized Madison's teaching that the greatest security against tyranny -- the accumulation of excessive authority in a single Branch -- lies not in a hermetic division between the Branches, but in a carefully crafted system of checked and balanced power within each Branch. "[T]he greatest security," wrote Madison, "against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others." The Federalist No. 51, p. 349 (J. Cooke ed.1961). Accordingly, as we have noted Page 488 U. S. 382 many times, the Framers "built into the tripartite Federal Government . . . a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. at 424 U. S. 122 . See also INS v. Chadha, 462 U. S. 919 , 462 U. S. 951 (1983). It is this concern of encroachment and aggrandizement that has animated our separation of powers jurisprudence and aroused our vigilance against the "hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power." Ibid. Accordingly, we have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch. For example, just as the Framers recognized the particular danger of the Legislative Branch's accreting to itself judicial or executive power, [ Footnote 12 ] so too have we invalidated attempts by Congress to exercise the responsibilities of other Branches or to reassign powers vested by the Constitution in either the Judicial Branch or the Executive Branch. Bowsher v. Synar, 478 U. S. 714 (1986) (Congress may not exercise removal power over officer performing executive functions); INS v. Chadha, supra, (Congress may not control execution of laws except through Art. I procedures); Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982) (Congress may not confer Art. III power on Art. I judge). By the same token, we have upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment. Morrison v. Olson, 487 U. S. 654 (1988) (upholding judicial appointment of independent counsel); Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833 (1986) (upholding Page 488 U. S. 383 agency's assumption of jurisdiction over state law counterclaims). In Nixon v. Administrator of General Services, supra, upholding, against a separation of powers challenge, legislation providing for the General Services Administration to control Presidential papers after resignation, we described our separation of powers inquiry as focusing "on the extent to which [a provision of law] prevents the Executive Branch from accomplishing its constitutionally assigned functions." 433 U.S. at 433 U. S. 443 (citing United States v. Nixon, 418 U.S. at 418 U. S. 711 -712.) [ Footnote 13 ] In cases specifically involving the Judicial Branch, we have expressed our vigilance against two dangers: first, that the Judicial Branch neither be assigned nor allowed "tasks that are more properly accomplished by [other] branches," Morrison v. Olson, 487 U.S. at 487 U. S. 680 -681, and, second, that no provision of law "impermissibly threatens the institutional integrity of the Judicial Branch." Commodity Futures Trading Comm'n v. Schor, 478 U.S. at 478 U. S. 851 . Mistretta argues that the Act suffers from each of these constitutional infirmities. He argues that Congress, in constituting the Commission as it did, effected an unconstitutional accumulation of power within the Judicial Branch while at the same time undermining the Judiciary's independence and integrity. Specifically, petitioner claims that, in delegating to an independent agency within the Judicial Branch the power to promulgate sentencing guidelines, Congress unconstitutionally has required the Branch, and individual Article III judges, to exercise not only their judicial authority, but legislative authority -- the making of sentencing policy -- as well. Such rulemaking authority, petitioner contends, may be exercised by Congress, or delegated by Congress to the Page 488 U. S. 384 Executive, but may not be delegated to or exercised by the Judiciary. Brief for Petitioner 21. At the same time, petitioner asserts, Congress unconstitutionally eroded the integrity and independence of the Judiciary by requiring Article III judges to sit on the Commission, by requiring that those judges share their rulemaking authority with nonjudges, and by subjecting the Commission's members to appointment and removal by the President. According to petitioner, Congress, consistent with the separation of powers, may not upset the balance among the Branches by co-opting federal judges into the quintessentially political work of establishing sentencing guidelines, by subjecting those judges to the political whims of the Chief Executive, and by forcing judges to share their power with nonjudges. Id. at 15-35. "When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons." Bowsher v. Synar, 478 U.S. at 478 U. S. 736 (opinion concurring in judgment). Although the unique composition and responsibilities of the Sentencing Commission give rise to serious concerns about a disruption of the appropriate balance of governmental power among the coordinate Branches, we conclude, upon close inspection, that petitioner's fears for the fundamental structural protections of the Constitution prove, at least in this case, to be "more smoke than fire," and do not compel us to invalidate Congress' considered scheme for resolving the seemingly intractable dilemma of excessive disparity in criminal sentencing. A Location of the Commission The Sentencing Commission unquestionably is a peculiar institution within the framework of our Government. Although placed by the Act in the Judicial Branch, it is not a Page 488 U. S. 385 court, and does not exercise judicial power. Rather, the Commission is an "independent" body comprised of seven voting members, including at least three federal judges, entrusted by Congress with the primary task of promulgating sentencing guidelines. 28 U.S.C. § 991(a). Our constitutional principles of separated powers are not violated, however, by mere anomaly or innovation. Setting to one side, for the moment, the question whether the composition of the Sentencing Commission violates the separation of powers, we observe that Congress' decision to create an independent rulemaking body to promulgate sentencing guidelines and to locate that body within the Judicial Branch is not unconstitutional unless Congress has vested in the Commission powers that are more appropriately performed by the other Branches or that undermine the integrity of the Judiciary. According to express provision of Article III, the judicial power of the United States is limited to "Cases" and "Controversies." See Muskrat v. United States, 219 U. S. 346 , 219 U. S. 356 (1911). In implementing this limited grant of power, we have refused to issue advisory opinions or to resolve disputes that are not justiciable. See, e.g., Flast v. Cohen, 392 U. S. 83 (1968); United States v. Ferreira , 13 How. 40 (1852). These doctrines help to ensure the independence of the Judicial Branch by precluding debilitating entanglements between the Judiciary and the two political Branches, and prevent the Judiciary from encroaching into areas reserved for the other Branches by extending judicial power to matters beyond those disputes "traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. at 392 U. S. 97 ; see also United States Parole Comm'n v. Geraghty, 445 U.S. at 445 U. S. 396 . As a general principle, we stated as recently as last Term that " executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.'" Morrison v. Olson, 487 U.S. at 487 U. S. 677 , quoting Buckley v. Valeo, 424 U.S. at 424 U. S. 123 , citing in turn United States v. Ferreira, supra, and Hayburn's Case , 2 Dall. 409 (1792). Page 488 U. S. 386 Nonetheless, we have recognized significant exceptions to this general rule, and have approved the assumption of some nonadjudicatory activities by the Judicial Branch. In keeping with Justice Jackson's Youngstown admonition that the separation of powers contemplates the integration of dispersed powers into a workable Government, we have recognized the constitutionality of a "twilight area" in which the activities of the separate Branches merge. In his dissent in Myers v. United States, 272 U. S. 52 (1926), Justice Brandeis explained that the separation of powers "left to each [Branch] power to exercise, in some respects, functions in their nature executive, legislative and judicial." Id. at 272 U. S. 291 . That judicial rulemaking, at least with respect to some subjects, falls within this twilight area is no longer an issue for dispute. None of our cases indicate that rulemaking per se is a function that may not be performed by an entity within the Judicial Branch, either because rulemaking is inherently nonjudicial or because it is a function exclusively committed to the Executive Branch. [ Footnote 14 ] On the contrary, we specifically Page 488 U. S. 387 have held that Congress, in some circumstances, may confer rulemaking authority on the Judicial Branch. In Sibbach v. Wilson & Co., 312 U. S. 1 (1941), we upheld a challenge to certain rules promulgated under the Rules Enabling Act of 1934, which conferred upon the Judiciary the power to promulgate federal rules of civil procedure. See 28 U.S.C. § 2072. We observed: "Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States." 312 U.S. at 312 U. S. 9 -10 (footnote omitted). This passage in Sibbach simply echoed what had been our view since Wayman v. Southard , 10 Wheat. 1, 23 U. S. 43 (1825), decided more than a century earlier, where Chief Justice Marshall wrote for the Court that rulemaking power pertaining to the Judicial Branch may be "conferred on the judicial department." Discussing this delegation of rulemaking power, the Court found Congress authorized "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. The judicial department is invested with jurisdiction in certain specified cases, in all which it has power to render judgment. " Page 488 U. S. 388 "That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly conferred by this clause, seems to be one of those plain propositions which reasoning cannot render plainer." Id. at 23 U. S. 22 . See also Hanna v. Plumer, 380 U. S. 460 (1965). Pursuant to this power to delegate rulemaking authority to the Judicial Branch, Congress expressly has authorized this Court to establish rules for the conduct of its own business and to prescribe rules of procedure for lower federal courts in bankruptcy cases, in other civil cases, and in criminal cases, and to revise the Federal Rules of Evidence. See generally J. Weinstein, Reform of Court Rule-Making Procedures (1977). Our approach to other nonadjudicatory activities that Congress has vested either in federal courts or in auxiliary bodies within the Judicial Branch has been identical to our approach to judicial rulemaking: consistent with the separation of powers, Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary. Following this approach, we specifically have upheld not only Congress' power to confer on the Judicial Branch the rulemaking authority contemplated in the various enabling acts, but also to vest in judicial councils authority to "make all necessary orders for the effective and expeditious administration of the business of the courts.'" Chandler v. Judicial Council, 398 U. S. 74 , 398 U. S. 86 , n. 7 (1970), quoting 28 U.S.C. § 332 (1970 ed.). Though not the subject of constitutional challenge, by established practice we have recognized Congress' power to create the Judicial Conference of the United States, the Rules Advisory Committees that it oversees, and the Administrative Office of the United States Courts, whose myriad responsibilities Page 488 U. S. 389 include the administration of the entire probation service. [ Footnote 15 ] These entities, some of which are comprised of judges, others of judges and nonjudges, still others of nonjudges only, do not exercise judicial power in the constitutional sense of deciding cases and controversies, but they share the common purpose of providing for the fair and efficient fulfillment of responsibilities that are properly the province of the Judiciary. Thus, although the judicial power of the United States is limited by express provision of Article III to "Cases" and "Controversies," we have never held, and have clearly disavowed in practice, that the Constitution prohibits Congress from assigning to courts or auxiliary bodies within the Judicial Branch administrative or rulemaking duties that, in the words of Chief Justice Marshall, are "necessary and proper . . . for carrying into execution all the judgments which the judicial department has power to pronounce." Wayman v. Southard, 10 Wheat. at 22. [ Footnote 16 ] Because of their Page 488 U. S. 390 close relation to the central mission of the Judicial Branch, such extrajudicial activities are consonant with the integrity of the Branch, and are not more appropriate for another Branch. In light of this precedent and practice, we can discern no separation of powers impediment to the placement of the Sentencing Commission within the Judicial Branch. As we described at the outset, the sentencing function long has been a peculiarly shared responsibility among the Branches of Government, and has never been thought of as the exclusive constitutional province of any one Branch. See, e.g., United States v. Addonizio, 442 U.S. at 442 U. S. 188 -189. For more than a century, federal judges have enjoyed wide discretion to determine the appropriate sentence in individual cases, and have exercised special authority to determine the sentencing factors to be applied in any given case. Indeed, the legislative history of the Act makes clear that Congress' decision to place the Commission within the Judicial Branch reflected Congress"'strong feeling" that sentencing has been and should remain "primarily a judicial function." Report, at 159. That Congress should vest such rulemaking in the Judicial Branch, far from being "incongruous" or vesting within the Judiciary responsibilities that more appropriately belong to another Branch, simply acknowledges the role that Page 488 U. S. 391 the Judiciary always has played, and continues to play, in sentencing. [ Footnote 17 ] Given the consistent responsibility of federal judges to pronounce sentence within the statutory range established by Congress, we find that the role of the Commission in promulgating guidelines for the exercise of that judicial function bears considerable similarity to the role of this Court in establishing rules of procedure under the various enabling Acts. Such guidelines, like the Federal Rules of Criminal and Civil Procedure, are court rules -- rules, to paraphrase Chief Justice Marshall's language in Wayman, for carrying into execution judgments that the Judiciary has the power to pronounce. Just as the rules of procedure bind judges and courts in the proper management of the cases before them, so the Guidelines bind judges and courts in the exercise of their uncontested responsibility to pass sentence in criminal cases. In other words, the Commission's functions, like this Court's function in promulgating procedural rules, are clearly attendant to a central element of the historically acknowledged mission of the Judicial Branch. Petitioner nonetheless objects that the analogy between the Guidelines and the rules of procedure is flawed: although the Judicial Branch may participate in rulemaking and administrative work that is "procedural" in nature, it may not assume, it is said, the "substantive" authority over sentencing Page 488 U. S. 392 policy that Congress, has delegated to the Commission. Such substantive decisionmaking, petitioner contends, entangles the Judicial Branch in essentially political work of the other Branches, and unites both judicial and legislative power in the Judicial Branch. We agree with petitioner that the nature of the Commission's rulemaking power is not strictly analogous to this Court's rulemaking power under the enabling Acts. Although we are loathe to enter the logical morass of distinguishing between substantive and procedural rules, see Sun Oil Co. v. Wortman, 486 U. S. 717 (1988) (distinction between substance and procedure depends on context), and although we have recognized that the Federal Rules of Civil Procedure regulate matters "falling within the uncertain area between substance and procedure, [and] are rationally capable of classification as either," Hanna v. Plumer, 380 U.S. at 380 U. S. 472 , we recognize that the task of promulgating rules regulating practice and pleading before federal courts does not involve the degree of Page 488 U. S. 393 political judgment integral to the Commission's formulation of sentencing guidelines. [ Footnote 18 ] To be sure, all rulemaking is nonjudicial in the sense that rules impose standards of general application divorced from the individual fact situation which ordinarily forms the predicate for judicial action. Also, this Court's rulemaking under the enabling Acts has been substantive and political in the sense that the rules of procedure have important effects on the substantive rights of litigants. [ Footnote 19 ] Nonetheless, the degree of political judgment about crime and criminality exercised by the Commission and the scope of the substantive effects of its work does to some extent set its rulemaking powers apart from prior judicial rulemaking. Cf. Miller v. Florida, 482 U. S. 423 (1987) (state sentencing guidelines not procedural). We do not believe, however, that the significantly political nature of the Commission's work renders unconstitutional its placement within the Judicial Branch. Our separation of powers analysis does not turn on the labeling of an activity as "substantive," as opposed to "procedural," or "political," as opposed to "judicial." See Bowsher v. Synar, 478 U.S. at 478 U. S. 749 ("[G]overnmental power cannot always be readily characterized with only one . . . labe[l]") (opinion concurring in judgment). Rather, our inquiry is focused on the "unique aspects of the congressional plan at issue and its practical consequences in light of the larger concerns that underlie Article III." Commodity Futures Trading Comm'n v. Schor, 478 U.S. at 478 U. S. 857 . In this case, the "practical consequences" of locating the Commission within the Judicial Branch pose no threat of undermining the integrity of the Judicial Branch or of expanding the powers of the Judiciary beyond constitutional bounds by uniting within the Branch the political or quasi-legislative power of the Commission with the judicial power of the courts. First, although the Commission is located in the Judicial Branch, its powers are not united with the powers of the Judiciary in a way that has meaning for separation of powers analysis. Whatever constitutional problems might arise if the powers of the Commission were vested in a court, the Commission is not a court, does not exercise judicial power, and is not controlled by or accountable to members of the Judicial Branch. The Commission, on which members of the Judiciary may be a minority, is an independent agency in every relevant sense. In contrast to a court's exercising judicial power, the Commission is fully accountable to Congress, which can revoke or amend any or all of the Guidelines Page 488 U. S. 394 as it sees fit, either within the 180-day waiting period, see § 235(a)(1)(B)(ii)(III) of the Act, 98 Stat. 2032, or at any time. In contrast to a court, the Commission's members are subject to the President's limited powers of removal. In contrast to a court, its rulemaking is subject to the notice and comment requirements of the Administrative Procedure Act, 28 U.S.C. § 994(x). While we recognize the continuing vitality of Montesquieu's admonition: " Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul,'" The Federalist No. 47, p. 326 (J. Cooke ed.1961) (Madison), quoting Montesquieu, because Congress vested the power to promulgate sentencing guidelines in an independent agency, not a court, there can be no serious argument that Congress combined legislative and judicial power within the Judicial Branch. [ Footnote 20 ] Page 488 U. S. 395 Second, although the Commission wields rulemaking power and not the adjudicatory power exercised by individual judges when passing sentence, the placement of the Sentencing Commission in the Judicial Branch has not increased the Branch's authority. Prior to the passage of the Act, the Judicial Branch, as an aggregate, decided precisely the questions assigned to the Commission: what sentence is appropriate to what criminal conduct under what circumstances. It was the everyday business of judges, taken collectively, to evaluate and weigh the various aims of sentencing and to apply those aims to the individual cases that came before them. The Sentencing Commission does no more than this, albeit basically through the methodology of sentencing guidelines, rather than entirely individualized sentencing determinations. Accordingly, in placing the Commission in the Judicial Branch, Congress cannot be said to have aggrandized the authority of that Branch or to have deprived the Executive Branch of a power it once possessed. Indeed, because the Guidelines have the effect of promoting sentencing within a narrower range than was previously applied, the power of the Judicial Branch is, if anything, somewhat diminished by the Act. And, since Congress did not unconstitutionally delegate its own authority, the Act does not unconstitutionally diminish Congress' authority. Thus, although Congress has authorized the Commission to exercise a greater degree of political judgment than has been exercised in the past by any one entity within the Judicial Branch, in the unique context of sentencing, this authorization does nothing to upset the balance of power among the Branches. What Mistretta's argument comes down to, then, is not that the substantive responsibilities of the Commission aggrandize the Judicial Branch, but that that Branch is inevitably weakened by its participation in policymaking. We do not believe, however, that the placement within the Judicial Page 488 U. S. 396 Branch of an independent agency charged with the promulgation of sentencing guidelines can possibly be construed as preventing the Judicial Branch "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Services, 433 U.S. at 433 U. S. 443 . Despite the substantive nature of its work, the Commission is not incongruous or inappropriate to the Branch. As already noted, sentencing is a field in which the Judicial Branch long has exercised substantive or political judgment. What we said in Morrison when upholding the power of the Special Division to appoint independent counsels applies with even greater force here: "This is not a case in which judges are given power . . . in an area in which they have no special knowledge or expertise." 487 U.S. at 487 U. S. 676 , n. 13. On the contrary, Congress placed the Commission in the Judicial Branch precisely because of the Judiciary's special knowledge and expertise. Nor do the Guidelines, though substantive, involve a degree of political authority inappropriate for a nonpolitical Branch. Although the Guidelines are intended to have substantive effects on public behavior (as do the rules of procedure), they do not bind or regulate the primary conduct of the public or vest in the Judicial Branch the legislative responsibility for establishing minimum and maximum penalties for every crime. They do no more than fetter the discretion of sentencing judges to do what they have done for generations -- impose sentences within the broad limits established by Congress. Given their limited reach, the special role of the Judicial Branch in the field of sentencing, and the fact that the Guidelines are promulgated by an independent agency and not a court, it follows that, as a matter of "practical consequences," the location of the Sentencing Commission within the Judicial Branch simply leaves with the Judiciary what long has belonged to it. In sum, since substantive judgment in the field of sentencing has been and remains appropriate Page 488 U. S. 397 to the Judicial Branch, and the methodology of rulemaking has been and remains appropriate to that Branch, Congress' considered decision to combine these function in an independent Sentencing Commission and to locate that Commission within the Judicial Branch does not violate the principle of separation of powers. B Composition of the Commission We now turn to petitioner's claim that Congress' decision to require at least three federal judges to serve on the Commission and to require those judges to share their authority with nonjudges undermines the integrity of the Judicial Branch. The Act provides in part: "At least three of [the Commission's] members shall be Federal judges selected [by the President] after considering a list of six judges recommended to the President by the Judicial Conference of the United States." 28 U.S.C. § 991(a). Petitioner urges us to strike down the Act on the ground that its requirement of judicial participation on the Commission unconstitutionally conscripts individual federal judges for political service, and thereby undermines the essential impartiality of the Judicial Branch. We find Congress' requirement of judicial service somewhat troublesome, but we do not believe that the Act impermissibly interferes with the functioning of the Judiciary. The text of the Constitution contains no prohibition against the service of active federal judges on independent commissions such as that established by the Act. The Constitution does include an Incompatibility Clause applicable to national legislators: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Page 488 U. S. 398 Member of either House during his Continuance in Office." U.S.Const., Art. I, § 6, cl. 2. No comparable restriction applies to judges, and we find it at least inferentially meaningful that, at the Constitutional Convention, two prohibitions against plural office-holding by members of the Judiciary were proposed, but did not reach the floor of the Convention for a vote. [ Footnote 21 ] Our inferential reading that the Constitution does not prohibit Article III judges from undertaking extrajudicial duties finds support in the historical practice of the Founders after ratification. Our early history indicates that the Framers themselves did not read the Constitution as forbidding extrajudicial service by federal judges. The first Chief Justice, John Jay, served simultaneously as Page 488 U. S. 399 Chief Justice and as Ambassador to England, where he negotiated the treaty that bears his name. Oliver Ellsworth served simultaneously as Chief Justice and as Minister to France. While he was Chief Justice, John Marshall served briefly as Secretary of State, and was a member of the Sinking Fund Commission with responsibility for refunding the Revolutionary War debt. All these appointments were made by the President with the "Advice and Consent" of the Senate. Thus, at a minimum, both the Executive and Legislative Branches acquiesced in the assumption of extrajudicial duties by judges. In addition, although the records of Congress contain no reference to the confirmation debate, Charles Warren, in his history of this Court, reports that the Senate specifically rejected by a vote of 18-8 a resolution proposed during the debate over Jay's nomination to the effect that such extrajudicial service was "contrary to the spirit of the Constitution." 1 C. Warren, The Supreme Court in United States History 119 (rev. ed.1937). This contemporaneous practice by the Founders themselves is significant evidence that the constitutional principle of separation of powers does not absolutely prohibit extrajudicial service. See Bowsher v. Synar, 478 U.S. at 478 U. S. 723 -724 (actions by members of the First Congress provide contemporaneous and weighty evidence about the meaning of the Constitution). [ Footnote 22 ] Page 488 U. S. 400 Subsequent history, moreover, reveals a frequent and continuing, albeit controversial, practice of extrajudicial service. [ Footnote 23 ] In 1877, five Justices served on the Election Commission that resolved the hotly contested Presidential election of 1876, where Samuel J. Tilden and Rutherford B. Hayes were the contenders. Justices Nelson, Fuller, Brewer, Hughes, Day, Roberts, and Van Devanter served on various arbitral commissions. Justice Roberts was a member of the commission organized to investigate the attack on Pearl Harbor. Justice Jackson was one of the prosecutors at the Nuremberg trials; and Chief Justice Warren presided over the commission investigating the assassination of President Kennedy. [ Footnote 24 ] Such service has been no less a practice among lower court federal judges. [ Footnote 25 ] While these extrajudicial activities spawned spirited Page 488 U. S. 401 discussion and frequent criticism, and although some of the judges who undertook these duties sometimes did so with reservation, and may have looked back on their service with regret, "traditional ways of conducting government . . . give meaning" to the Constitution. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S. 610 (concurring opinion). Our 200-year tradition of extrajudicial service is additional evidence that the doctrine of separated powers does not prohibit judicial participation in certain extrajudicial activity. [ Footnote 26 ] Page 488 U. S. 402 Furthermore, although we have not specifically addressed the constitutionality of extrajudicial service, two of our precedents reflect at least an early understanding by this Court that the Constitution does not preclude judges from assuming extrajudicial duties in their individual capacities. In Hayburn's Case , 2 Dall. 409 (1792), the Court considered a request for a writ of mandamus ordering a Circuit Court to execute a statute empowering federal and state courts to set pensions for disabled Revolutionary War veterans. The statute authorized the courts to determine monthly disability payments, but it made those determinations reviewable by the Secretary of War. Because Congress, by an amendment of the statute, rendered the case moot, the Court did not pass on the constitutional issue. Mr. Dallas, in reporting the case, included in the margin three Circuit Court rulings on the statute. All three concluded that the powers conferred could not be performed by an Article III court. The "judicial Power" of the United States did not extend to duties more properly performed by the Executive. See Morrison v. Olson, 487 U.S. at 487 U. S. 677 -678, n. 15 (characterizing Hayburn's Case ). As this Court later observed in United States v. Ferreira , 13 How. 40 (1852), however, the New York Circuit, in 1791, with a bench consisting of Chief Justice Jay, Justice Cushing, and District Judge Duane, believed that individual judges, acting not in their judicial capacities, but as individual commissioners, could exercise the duties conferred upon them by the statute. Neither of the other two courts expressed a definitive view whether judges acting as commissioners could make disability determinations reviewable by the Secretary of War. In Ferreira, however, this Court concluded that, although the Circuit Courts were not fully in agreement as to whether the statute could be construed as conferring the duties on the judges as commissioners, if the statute was subject to that construction, "there seems to have been no doubt, Page 488 U. S. 403 at that time, but that they might constitutionally exercise it, and the Secretary constitutionally revise their decisions." Id. at 54 U. S. 50 . Ferreira itself concerned a statute authorizing a Federal District Court in Florida to adjudicate claims for losses for which the United States was responsible under the 1819 treaty by which Spain ceded Florida to the United States. As in Hayburn's Case, the court's determination was to be reported to an executive officer, the Secretary of the Treasury, who would exercise final judgment as to whether the claims should be paid. 13 How. at 54 U. S. 45 -47. This Court recognized that the powers conferred on the District Court were "judicial in their nature," in the sense that they called for "judgment and discretion." Id. at 54 U. S. 48 . Nonetheless, we concluded that those powers were not "judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States." Ibid. Because the District Court's decision was not an exercise of judicial power, this Court found itself without jurisdiction to hear the appeal. Id. at 54 U. S. 51 -52. We did not conclude in Ferreira, however, that Congress could not confer on a federal judge the function of resolving administrative claims. On the contrary, we expressed general agreement with the view of some of the judges in Hayburn's Case that, while such administrative duties could not be assigned to a court, or to judges acting as part of a court, such duties could be assigned to judges acting individually as commissioners. Although we did not decide the question, we expressed reservation about whether the District Judge in Florida could act legitimately as a commissioner, since he was not appointed as such by the President pursuant to his Article II power to appoint officers of the United States. 13 How. at 54 U. S. 51 . In sum, Ferreira, like Hayburn's Case, suggests that Congress may authorize a federal judge, in an individual capacity, to perform an executive function without violating the separation of powers. Page 488 U. S. 404 Accord, United States v. Yale Todd (1794) (unreported decision discussed in the margin of the opinion in Ferreira, 13 How. at 54 U. S. 52 -53). In light of the foregoing history and precedent, we conclude that the principle of separation of powers does not absolutely prohibit Article III judges from serving on commissions such as that created by the Act. The judges serve on the Sentencing Commission not pursuant to their status and authority as Article III judges, but solely because of their appointment by the President as the Act directs. Such power as these judges wield as Commissioners is not judicial power; it is administrative power derived from the enabling legislation. Just as the nonjudicial members of the Commission act as administrators, bringing their experience and wisdom to bear on the problems of sentencing disparity, so too the judges, uniquely qualified on the subject of sentencing, assume a wholly administrative role upon entering into the deliberations of the Commission. In other words, the Constitution, at least as a per se matter, does not forbid judges from wearing two hats; it merely forbids them from wearing both hats at the same time. This is not to suggest, of course, that every kind of extrajudicial service under every circumstance necessarily accords with the Constitution. That the Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties does not mean that every extrajudicial service would be compatible with, or appropriate to, continuing service on the bench; nor does it mean that Congress may require a federal judge to assume extrajudicial duties as long as the judge is assigned those duties in an individual, not judicial, capacity. The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch. [ Footnote 27 ] Page 488 U. S. 405 With respect to the Sentencing Commission, we understand petitioner to argue that the service required of at least three judges presents two distinct threats to the integrity of the Judicial Branch. Regardless of constitutionality, this mandatory service, it is said, diminishes the independence of the Judiciary. See Brief for Petitioner 28. It is further claimed that the participation of judges on the Commission improperly lends judicial prestige and an aura of judicial impartiality to the Commission's political work. The involvement of Article III judges in the process of policymaking, petitioner asserts, " [w]eakens confidence in the disinterestedness of the judicatory functions.'" Ibid., quoting F. Frankfurter, Advisory Opinions, in 1 Encyclopedia of the Social Sciences 475, 478 (1930). In our view, petitioner significantly overstates the mandatory nature of Congress' directive that at least three members of the Commission shall be federal judges, as well as the effect of this service on the practical operation of the Judicial Branch. Service on the Commission by any particular judge is voluntary. The Act does not conscript judges for the Commission. No Commission member to date has been appointed without his consent, and we have no reason to believe that the Act confers upon the President any authority to Page 488 U. S. 406 force a judge to serve on the Commission against his will. [ Footnote 28 ] Accordingly, we simply do not face the question whether Congress may require a particular judge to undertake the extrajudicial duty of serving on the Commission. In Chandler v. Judicial Council, 398 U. S. 74 (1970), we found "no constitutional obstacle preventing Congress from vesting in the Circuit Judicial Councils, as administrative bodies," authority to administer " the business of the courts within [each] circuit.'" Id. at 398 U. S. 86 , n. 7, quoting 28 U.S.C. § 332 (1970 ed.). [ Footnote 29 ] Indeed, Congress has created numerous nonadjudicatory bodies, such as the Judicial Conference, that are composed entirely, or in part, of federal judges. See 28 U.S.C. §§ 331, 332; see generally Meador, The Federal Judiciary and Its Future Administration, 65 Va.L.Rev. 1031 (1979). Accordingly, absent a more specific threat to judicial independence, the fact that Congress has included federal judges on the Commission does not itself threaten the integrity of the Judicial Branch. Moreover, we cannot see how the service of federal judges on the Commission will have a constitutionally significant practical effect on the operation of the Judicial Branch. We see no reason why service on the Commission should result in widespread judicial recusals. That federal judges participate Page 488 U. S. 407 in the promulgation of guidelines does not affect their or other judges' ability impartially to adjudicate sentencing issues. Cf. Mississippi Publishing Corp. v. Murphree, 326 U. S. 438 (1946) (that this Court promulgated the Federal Rules of Civil Procedure did not foreclose its consideration of challenges to their validity). While, in the abstract, a proliferation of commissions with congressionally mandated judiciary participation might threaten judicial independence by exhausting the resources of the Judicial Branch, that danger is far too remote for consideration here. We are somewhat more troubled by petitioner's argument that the Judiciary's entanglement in the political work of the Commission undermines public confidence in the disinterestedness of the Judicial Branch. While the problem of individual bias is usually cured through recusal, no such mechanism can overcome the appearance of institutional partiality that may arise from judiciary involvement in the making of policy. The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action. Although it is a judgment that is not without difficulty, we conclude that the participation of federal judges on the Sentencing Commission does not threaten, either in fact or in appearance, the impartiality of the Judicial Branch. We are drawn to this conclusion by one paramount consideration: that the Sentencing Commission is devoted exclusively to the development of rules to rationalize a process that has been, and will continue to be, performed exclusively by the Judicial Branch. In our view, this is an essentially neutral endeavor, and one in which judicial participation is peculiarly appropriate. Judicial contribution to the enterprise of creating rules to limit the discretion of sentencing judges does not enlist the resources or reputation of the Judicial Branch in either the legislative business of determining what conduct should be criminalized or the executive business of enforcing the law. Page 488 U. S. 408 Rather, judicial participation on the Commission ensures that judicial experience and expertise will inform the promulgation of rules for the exercise of the Judicial Branch's own business -- that of passing sentence on every criminal defendant. To this end, Congress has provided, not inappropriately, for a significant judicial voice on the Commission. Justice Jackson underscored in Youngstown that the Constitution anticipates "reciprocity" among the Branches. 343 U.S. at 343 U. S. 635 . As part of that reciprocity, and as part of the integration of dispersed powers into a workable government, Congress may enlist the assistance of judges in the creation of rules to govern the Judicial Branch. Our principle of separation of powers anticipates that the coordinate Branches will converse with each other on matters of vital common interest. While we have some reservation that Congress required such a dialogue in this case, the Constitution does not prohibit Congress from enlisting federal judges to present a uniquely judicial view on the uniquely judicial subject of sentencing. In this case, at least, where the subject lies so close to the heart of the judicial function and where purposes of the Commission are not inherently partisan, such enlistment is not coercion or co-optation, but merely assurance of judicial participation. Finally, we reject petitioner's argument that the mixed nature of the Commission violates the Constitution by requiring Article III judges to share judicial power with nonjudges. As noted earlier, the Commission is not a court, and exercises no judicial power. Thus, the Act does not vest Article III power in nonjudges or require Article III judges to share their power with nonjudges. C Presidential Control The Act empowers the President to appoint all seven members of the Commission with the advice and consent of the Senate. The Act further provides that the President shall make his choice of judicial appointees to the Commission after considering a list of six judges recommended by the Judicial Page 488 U. S. 409 Conference of the United States. The Act also grants the President authority to remove members of the Commission, although "only for neglect of duty or malfeasance in office or for other good cause shown." 28 U.S.C. § 991(a). Mistretta argues that this power of Presidential appointment and removal prevents the Judicial Branch from performing its constitutionally assigned functions. [ Footnote 30 ] See Nixon v. Administrator of General Services, 433 U.S. at 433 U. S. 443 . Although we agree with petitioner that the independence of the Judicial Branch must be "jealously guarded" against outside interference, see Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. at 458 U. S. 60 , and that, as Madison admonished at the founding, "neither of [the Branches] ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers," The Federalist No. 48, p. 332 (J. Cooke ed.1961), we do not believe that the President's appointment and removal powers over the Commission afford him influence over the functions of the Judicial Branch or undue sway over its members. The notion that the President's power to appoint federal judges to the Commission somehow gives him influence over the Judicial Branch or prevents, even potentially, the Judicial Branch from performing its constitutionally assigned functions is fanciful. We have never considered it incompatible with the functioning of the Judicial Branch that the President has the power to elevate federal judges from one level to another or to tempt judges away from the bench with Executive Branch positions. The mere fact that the President, within his appointment portfolio, has positions that may be attractive to federal judges does not, of itself, corrupt the integrity of the Judiciary. Were the impartiality of the Judicial Page 488 U. S. 410 Branch so easily subverted, our constitutional system of tripartite Government would have failed long ago. We simply cannot imagine that federal judges will comport their actions to the wishes of the President for the purpose of receiving an appointment to the Sentencing Commission. [ Footnote 31 ] The President's removal power over Commission members poses a similarly negligible threat to judicial independence. The Act does not, and could not under the Constitution, authorize the President to remove, or in any way diminish the status of Article III judges, as judges. Even if removed from the Commission, a federal judge appointed to the Commission would continue, absent impeachment, to enjoy tenure "during good Behaviour" and a full judicial salary. U.S.Const., Art. III, § l. [ Footnote 32 ] Also, the President's removal power under the Act is limited. In order to safeguard the independence of the Commission from executive control, Congress specified in the Act that the President may remove the Commission members only for good cause. [ Footnote 33 ] Such Page 488 U. S. 411 congressional limitation on the President's removal power, like the removal provisions upheld in Morrison v. Olson, 487 U. S. 654 (1988), and Humphrey's Executor v. United States, 295 U. S. 602 (1935), is specifically crafted to prevent the President from exercising "coercive influence" over independent agencies. See Morrison, 487 U.S. at 487 U. S. 688 ; Humphrey's Executor, 295 U.S. at 295 U. S. 630 . In other words, since the President has no power to affect the tenure or compensation of Article III judges, even if the Act authorized him to remove judges from the Commission at will, he would have no power to coerce the judges in the exercise of their judicial duties. [ Footnote 34 ] In any case, Congress did not grant the President unfettered authority to remove Commission members. Instead, precisely to ensure that they would not be subject to coercion even in the exercise of their nonjudicial duties, Congress insulated the members from Presidential removal except for good cause. Under these circumstances, we see no risk that the President's limited removal power will compromise the impartiality of Article III judges serving on the Commission and, consequently, no risk that the Act's removal provision will prevent the Judicial Branch from performing its constitutionally assigned function of fairly adjudicating cases and controversies. [ Footnote 35 ] Page 488 U. S. 412 V We conclude that, in creating the Sentencing Commission -- an unusual hybrid in structure and authority -- Congress neither delegated excessive legislative power nor upset the constitutionally mandated balance of powers among the coordinate Branches. The Constitution's structural protections do not prohibit Congress from delegating to an expert body located within the Judicial Branch the intricate task of formulating sentencing guidelines consistent with such significant statutory direction as is present here. Nor does our system of checked and balanced authority prohibit Congress from calling upon the accumulated wisdom and experience of the Judicial Branch in creating policy on a matter uniquely within the ken of judges. Accordingly, we hold that the Act is constitutional. The judgment of United States District Court for the Western District of Missouri is affirmed. It is so ordered. Page 488 U. S. 413 * Together with No. 87-1904, United States v. Mistretta, also on certiorari before judgment to the same court. [ Footnote 1 ] Hereinafter, for simplicity in citation, each reference to the Act is directed to Supplement IV to the 1982 edition of the United States Code. [ Footnote 2 ] The District Court's memorandum, written by Judge Howard F. Sachs, states that his conclusion that "the Guidelines are not subject to valid challenge" by claims based on the Commission's lack of constitutional status or on a theory of unconstitutional delegation of legislative power, 682 F. Supp. at 1033 -1034, is shared by District Judges Elmo B. Hunter, D. Brook Bartlett, and Dean Whipple of the Western District. Id. at 1033, n. 1. Chief District Judge Scott O. Wright wrote in dissent. Id. at 1035. [ Footnote 3 ] The corresponding Report in the House of Representatives was filed a year later. See H.R.Rep. No. 98-1017 (1984). The House bill (H.R. 6012, 98th Cong., 2d Sess. (1984)) eventually was set aside in favor of the Senate bill. The House Report however, reveals that the Senate's rationale underlying sentencing reform was shared in the House. [ Footnote 4 ] Until the Parole Commission ceases to exist in 1992, as provided by §§ 218(a)(5) and 235(a)(1) of the Act, 98 Stat. 2027 and 2031, the Chairman of that Commission serves as an ex officio nonvoting member of the Sentencing Commission. § 235(b)(5), 98 Stat. 2033. [ Footnote 5 ] Petitioner's claims were identical to those raised by defendants in other cases in the Western District of Missouri. Argument on petitioner's motion was presented to a panel of sentencing judges. The result is described in n 2, supra. [ Footnote 6 ] The disarray is revealed by the District Court decisions cited in the Petition for Certiorari in No. 87-1904, pp. 9-10, nn. 10 and 11. Since certiorari was granted, a panel of the United States Court of Appeals for the Ninth Circuit, by a divided vote, has invalidated the Guidelines on separation of powers grounds, Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (1988), cert. pending sub nom. United States v. Chavez-Sanchez, No. 88-550, and a panel of the Third Circuit (one judge, in dissent, did not reach the constitutional issue) has upheld them, United States v. Frank, 864 F.2d 992 (1988). [ Footnote 7 ] In Schechter and Panama Refining , the Court concluded that Congress had failed to articulate any policy or standard that would serve to confine the discretion of the authorities to whom Congress had delegated power. No delegation of the kind at issue in those cases is present here. The Act does not make crimes of acts never before criminalized, see Fahey v. Mallonee, 332 U. S. 245 , 332 U. S. 249 (1947) (analyzing Panama Refining ), or delegate regulatory power to private individuals, see Yakus v. United States, 321 U. S. 414 , 321 U. S. 424 (1944) (analyzing Schechter ). In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional. See, e.g., Industrial Union Dept. v. American Petroleum Institute, 448 U. S. 607 , 448 U. S. 646 (1980); National Cable Television Assn. v. United States, 415 U. S. 336 , 415 U. S. 342 (1974). [ Footnote 8 ] Congress mandated that the guidelines include: "(A) a determination whether to impose a sentence to probation, a fine, or a term of imprisonment;" "(B) a determination as to the appropriate amount of a fine or the appropriate length of a term of probation or a term of imprisonment;" "(C) a determination whether a sentence to a term of imprisonment should include a requirement that the defendant be placed on a term of supervised release after imprisonment, and, if so, the appropriate length of such a term; and" "(D) a determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively." 28 U.S.C. § 994(a)(1). [ Footnote 9 ] The Senate Report on the legislation elaborated on the purpose to be served by each factor. See S.Rep. No. 98-225 (1983). The Report noted, for example, that the reference to the community view of the gravity of an offense was "not intended to mean that a sentence might be enhanced because of public outcry about a single offense," but "to suggest that changed community norms concerning certain particular criminal behavior might be justification for increasing or decreasing the recommended penalties for the offense." Id. at 170. The Report, moreover, gave specific examples of areas in which prevailing sentences might be too lenient, including the treatment of major white-collar criminals. Id. at 177. [ Footnote 10 ] Again, the legislative history provides additional guidance for the Commission's consideration of the statutory factors. For example, the history indicates Congress' intent that the "criminal history . . . factor includes not only the number of prior criminal acts -- whether or not they resulted in convictions -- the defendant has engaged in, but their seriousness, their recentness or remoteness, and their indication whether the defendant is a 'career criminal' or a manager of a criminal enterprise." Id. at 174. This legislative history, together with Congress' directive that the Commission begin its consideration of the sentencing ranges by ascertaining the average sentence imposed in each category in the past, and Congress' explicit requirement that the Commission consult with authorities in the field of criminal sentencing provide a factual background and statutory context that give content to the mandate of the Commission. See American Power & Light Co. v. SEC, 329 U. S. 90 , 329 U. S. 104 -105 (1946). [ Footnote 11 ] Petitioner argues that the excessive breadth of Congress' delegation to the Commission is particularly apparent in the Commission's considering whether to "reinstate" the death penalty for some or all of those crimes for which capital punishment is still authorized in the Federal Criminal Code. See Brief for Petitioner 51-52. Whether, in fact, the Act confers upon the Commission the power to develop guidelines and procedures to bring current death penalty provisions into line with decisions of this Court is a matter of intense debate between the Executive Branch and some members of Congress, including the Chairman of the Senate Judiciary Committee. See Gubiensio-Ortiz v. Kanahele, 857 F.2d at 1256. We assume, without deciding, that the Commission was assigned the power to effectuate the death penalty provisions of the Criminal Code. That the Commission may have this authority (but has not exercised it) does not affect our analysis. Congress did not authorize the Commission to enact a federal death penalty for any offense. As for every other offense within the Commission's jurisdiction, the Commission could include the death penalty within the guidelines only if that punishment was authorized in the first instance by Congress, and only if such inclusion comported with the substantial guidance Congress gave the Commission in fulfilling its assignments. JUSTICE BRENNAN does not join this footnote. [ Footnote 12 ] Madison admonished: "In republican government the legislative authority, necessarily, predominates." The Federalist No. 51, p. 350 (J. Cooke ed.1961). [ Footnote 13 ] If the potential for disruption is present, we then determine "whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." Nixon v. Administrator of General Services, 433 U.S. at 433 U. S. 443 . [ Footnote 14 ] Our recent cases cast no doubt on the continuing vitality of the view that rulemaking is not a function exclusively committed to the Executive Branch. Although in INS v. Chadha, 462 U. S. 919 (1983), we characterized rulemaking as "Executive action" not governed by the Presentment Clauses, we did so as part of our effort to distinguish the rulemaking of administrative agencies from "lawmaking" by Congress which is subject to the presentment requirements of Article I. Id. at 462 U. S. 953 , n. 16. Plainly, this reference to rulemaking as an executive function was not intended to undermine our recognition in previous cases and in over 150 years of practice that rulemaking pursuant to a legislative delegation is not the exclusive prerogative of the Executive. See, e.g., Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 138 (1976) (distinguishing between Federal Election Commission's exclusively executive enforcement power and its other powers, including rulemaking); see also Humphrey's Executor v. United States, 295 U. S. 602 , 617 [argument of counsel -- not included in electronic version] (1935). On the contrary, rulemaking power originates in the Legislative Branch and becomes an executive function only when delegated by the Legislature to the Executive Branch. More generally, it hardly can be argued in this case that Congress has impaired the functioning of the Executive Branch. In the field of sentencing, the Executive Branch never has exercised the kind of authority that Congress has vested in the Commission. Moreover, since Congress has empowered the President to appoint and remove Commission members, the President's relationship to the Commission is functionally no different from what it would have been had Congress not located the Commission in the Judicial Branch. Indeed, since the Act grants ex officio membership on the Commission to the Attorney General or his designee, 28 U.S.C. § 991(a), the Executive Branch's involvement in the Commission is greater than in other independent agencies, such as the Securities and Exchange Commission, not located in the Judicial Branch. [ Footnote 15 ] The Judicial Conference of the United States is charged with "promot[ing] uniformity of management procedures and the expeditious conduct of court business," in part by "a continuous study of the operation and effect of the general rules of practice and procedure," and recommending changes "to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay." 28 U.S.C. § 331 (1982 ed. and Supp. IV). Similarly, the Administrative Office of the United States Courts handles the administrative and personnel matters of the courts, matters essential to the effective and efficient operation of the judicial system. § 604 (1982 ed. and Supp. IV). Congress also has established the Federal Judicial Center, which studies improvements in judicial administration. §§ 620-628 (1982 ed. and Supp. IV). [ Footnote 16 ] We also have upheld Congress' power under the Appointments Clause to vest appointment power in the Judicial Branch, concluding that the power of appointment, though not judicial, was not "inconsistent as a functional matter with the Court's exercise of their Article III powers." Morrison v. Olson, 487 U. S. 654 , 487 U. S. 679 , n. 16 (1988). See also Ex parte Siebold, 100 U. S. 371 (1880) (appointment power not incongruous to Judiciary). In Morrison, we noted that Article III courts perform a variety of functions not necessarily or directly connected to adversarial proceedings in a trial or appellate court. Federal courts supervise grand juries and compel the testimony of witnesses before those juries, see Brown v. United States, 359 U. S. 41 , 359 U. S. 49 (1959), participate in the issuance of search warrants, see Fed.Rule Crim.Proc. 41, and review wiretap applications, see 18 U.S.C. §§ 2516, 2518 (1982 ed. and Supp. IV). In the interest of effectuating their judgments, federal courts also possess inherent authority to initiate a contempt proceeding and to appoint a private attorney to prosecute the contempt. Young v. United States ex rel. Vuitton et Fils S.A., 481 U. S. 787 (1987). See also In re Certain Complaints Under Investigation, 783 F.2d 1488, 1505 (CA11) (upholding statute authorizing judicial council to investigate improper conduct by federal judge), cert. denied sub nom. Hastings v. Godbold, 477 U.S. 904 (1986). [ Footnote 17 ] Indeed, had Congress decided to confer responsibility for promulgating sentencing guidelines on the Executive Branch, we might face the constitutional questions whether Congress unconstitutionally had assigned judicial responsibilities to the Executive or unconstitutionally had united the power to prosecute and the power to sentence within one Branch. Ronald L. Gainer, Acting Deputy Assistant Attorney General, Department of Justice, testified before the Senate to this very effect: "If guidelines were to be promulgated by an agency outside the judicial branch, it might be viewed as an encroachment on a judicial function. . . ." Reform of the Federal Criminal Laws, Hearing on S. 1437 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 95th Cong., 1st Sess., pt. 13, p. 9005 (1977). [ Footnote 18 ] Under its mandate, the Commission must make judgments about the relative importance of such considerations as the "circumstances under which the offense was committed," the "community view of the gravity of the offense," and the "deterrent effect a particular sentence may have on the commission of the offense by others." 28 U.S.C. § 994(c)(2), (4), (6). [ Footnote 19 ] Rule 23 of the Federal Rules of Civil Procedure, for example, has inspired a controversy over the philosophical, social, and economic merits and demerits of class actions. See Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the "Class Action Problem," 92 Harv.L.Rev. 664 (1979). [ Footnote 20 ] We express no opinion about whether, under the principles of separation of powers, Congress may confer on a court rulemaking authority such as that exercised by the Sentencing Commission. Our precedents and customs draw no clear distinction between nonadjudicatory activity that may be undertaken by auxiliary bodies within the Judicial Branch, but not by courts. We note, however, that the constitutional calculus is different for considering nonadjudicatory activities performed by bodies that exercise judicial power and enjoy the constitutionally mandated autonomy of courts from what it is for considering the nonadjudicatory activities of independent nonadjudicatory agencies that Congress merely has located within the Judicial Branch pursuant to its powers under the Necessary and Proper Clause. We make no attempt here to define the nonadjudicatory duties that are appropriate for auxiliary bodies within the Judicial Branch, but not for courts. Nonetheless, it is clear to us that an independent agency located within the Judicial Branch may undertake without constitutional consequences policy judgments pursuant to a legitimate congressional delegation of authority that, if undertaken by a court, might be incongruous to or destructive of the central adjudicatory mission of the Branch. See United States v. Ferreira , 13 How. 40 (1852). In this sense, the issue we face here is different from the issue we faced in Morrison v. Olson, 487 U. S. 654 (1988), where we considered the constitutionality of the nonadjudicatory functions assigned to the "Special Division" court created by the Ethics in Government Act of 1978, 28 U.S.C. §§ 49, 591 et seq. (1982 ed. and Supp. IV) or the issue we faced in Hayburn's Case , 2 Dall. 409 (1792), and in Ferreira, in which Article III courts were asked to render judgments that were reviewable by an executive officer. [ Footnote 21 ] One such prohibition appeared in the New Jersey Plan's judiciary provision, see 1 M. Farrand, The Records of the Federal Convention of 1787, p. 244 (1911); the other, proposed by Charles Pinckney, a delegate from South Carolina, was not reported out of the Committee on Detail to which he submitted it, see 2 id. at 341-342. See also Wheeler, Extrajudicial Activities of the Early Supreme Court, 1973 S.Ct.Rev. 123. Concededly, it is also true that the delegates at the Convention rejected two proposals that would have institutionalized extrajudicial service. Despite support from Madison, the Framers rejected a proposed "Council of Revision," comprised of, among others, a "convenient number of the National Judiciary," 1 Farrand, supra, at 21, that would have exercised veto power over proposed legislation. Similarly, the Framers rejected a proposed Council of State, of which the Chief Justice was to be a member, that would have acted as advisor to the President in a fashion similar to the modern cabinet. See Lerner, The Supreme Court as Republican Schoolmaster, 1967 S.Ct.Rev. 127, 174-177. At least one commentator has observed that a number of the opponents of the Council of Revision and the Council of State believed that judges individually could assume extrajudicial service. Wheeler, supra, at 127-130. We do not pretend to discern a clear intent on the part of the Framers with respect to this issue, but glean from the Constitution and the events at the Convention simply an inference that the Framers did not intend to forbid judges from holding extrajudicial positions. See United States v. Nixon, 418 U. S. 683 , 418 U. S. 705 -706, n. 16 (1974). [ Footnote 22 ] It would be naive history, however, to suggest that the Framers, including the Justices who accepted extrajudicial service, were of one mind on the issue, or believed that such service was in all cases appropriate and constitutional. Chief Justice Jay, in draft correspondence to President Washington, explained that he was "far from thinking it illegal or unconstitutional" for the Executive to use individual judges for extrajudicial service, so long as the extrajudicial service was "consistent and compatible" with "the judicial function." Draft of a letter by Jay, intended for President Washington, enclosed with a letter dated September 15, 1790, from Jay to Justice Iredell, reproduced in 2 G. McRee, Life and Correspondence of James Iredell 293, 294 (1949). Chief Justice Marshall stepped down from his post as Secretary of State when appointed to the bench, agreeing to stay on only until a replacement could be found. Chief Justice Ellsworth accepted his posting to France with reluctance, and his appointment was unsuccessfully opposed on constitutional grounds by Jefferson, Madison, and Pinckney. But that some judges have turned down extrajudicial service or have expressed reservations about the practice, see Mason, Extra-Judicial Work for Judges: The Views of Chief Justice Stone, 67 Harv.L.Rev.193 (1953), does not detract from the fact that judges have continued to assume extrajudicial duties, and efforts to curb the practice as contrary to the letter or spirit of the Constitution have not succeeded. But see Note, The Constitutional Infirmities of the United States Sentencing Commission, 96 Yale L.J. 1363, 1381-1385 (1987). [ Footnote 23 ] Compendia of extrajudicial activities may be found in several sources. See Mason, supra; McKay, The Judiciary and Nonjudicial Activities, 35 Law & Contemp. Prob. 9 (1970); Slonim, Extrajudicial Activities and the Principle of the Separation of Powers, 49 Conn.B.J. 391 (1975). See also In re President's Comm'n on Organized Crime, 783 F.2d 370 (CA3 1986). [ Footnote 24 ] Article III judges, and the Chief Justice in particular, also have served and continue to serve on numerous cultural commissions. The Chief Justice, by statute, is a member of the Board of Regents of the Smithsonian Institution, Rev.Stat. § 5580, as amended, 20 U.S.C. § 42, and a trustee of the National Gallery of Art, 50 Stat. 52, 20 U.S.C. § 72(a). Four Justices, pursuant to 44 U.S.C. § 2501, have served successively as the judiciary member of the National Historical Publications and Records Commission. And Chief Justice Burger began his service as Chairman of the Commission on the Bicentennial of the United States Constitution before he assumed retirement status. See Pub.L. 98-101, 97 Stat. 719. [ Footnote 25 ] For example, Judges A. Leon Higginbotham, Jr., James B. Parsons, Luther W. Youngdahl, George C. Edwards, Jr., James M. Carter, and Thomas J. MacBride, and others, have served on various Presidential and national commissions. See Brief for United States 48, n. 40. [ Footnote 26 ] Extrajudicial activity has been the subject of extensive testimony in Congress from federal judges, academics, legislators, and members of the legal community. See Nonjudicial Activities of Supreme Court Justices and other Federal Judges, Hearings before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 91st Cong., 1st Sess. (1969). Although many participants were critical of extrajudicial service, the testimony shed little light on what types of service were not merely unwise, but unconstitutional. Perhaps the most interesting lament on the subject comes from Chief Justice Warren, reflecting on his initial refusal to participate in the Commission looking into President Kennedy's death: "First, it is not in the spirit of constitutional separation of powers to have a member of the Supreme Court serve on a presidential commission; second, it would distract a Justice from the work of the Court, which had a heavy docket; and, third, it was impossible to foresee what litigation such a commission might spawn, with resulting disqualification of the Justice from sitting in such cases. I then told them that, historically, the acceptance of diplomatic posts by Chief Justices Jay and Ellsworth had not contributed to the welfare of the Court, that the service of five Justices on the Hayes-Tilden Commission had demeaned it, that the appointment of Justice Roberts as chairman to investigate the Pearl Harbor disaster had served no good purpose, and that the action of Justice Robert Jackson in leaving Court for a year to become chief prosecutor at Nurnberg after World War II had resulted in divisiveness and internal bitterness on the Court." E. Warren, The Memoirs of Earl Warren 356 (1977). Despite his initial reservations, the Chief Justice served as Chairman of the Commission, and endured criticism for so doing. [ Footnote 27 ] The effect of extrajudicial service on the functioning of the Judicial Branch is not solely a constitutional concern. The Code of Conduct for United States Judges, approved by the Judicial Conference of the United States, is intended to ensure that a judge does not accept extrajudicial service incompatible with the performance of judicial duties or that might compromise the integrity of the Branch as a whole. Canon 5(G) provides: "A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice, unless appointment of a judge is required by Act of Congress. A judge should not, in any event, accept such an appointment if the judge's governmental duties would interfere with the performance of judicial duties or tend to undermine the public confidence in the integrity, impartiality, or independence of the judiciary. . . ." Administrative Office of U.S. Courts, Code of Judicial Conduct for United States Judges (1987). [ Footnote 28 ] Certainly nothing in the Act creates any coercive power over members of the Judicial Branch, and we construe the statute as affording none. "[I]t is the duty of federal courts to construe a statute in order to save it from constitutional infirmities, see, e.g., Commodities Futures Trading Comm'n v. Schor, 478 U. S. 833 , 478 U. S. 841 (1986)." Morrison v. Olson, 487 U.S. at 487 U. S. 682 . [ Footnote 29 ] Notably, the statutory provision creating the Judicial Councils of the Circuits that we found constitutionally unobjectionable in Chandler requires the Chief Judge of each Court of Appeals to preside over his Circuit's Judicial Council. 28 U.S.C. § 332. The statutory provision creating the Judicial Conference of the United States also requires the service of the Chief Judge of each Court of Appeals. 28 U.S.C. § 331 (1982 ed. and Supp. IV). Thus, we have given at least tacit approval to this degree of congressionally mandated judicial service on nonadjudicatory bodies. [ Footnote 30 ] Petitioner does not raise the issue central to our most recent opinions discussing removal power, namely, whether Congress unconstitutionally has limited the President's authority to remove officials engaged in executive functions or has reserved for itself excessive removal power over such officials. See Morrison v. Olson, 487 U. S. 654 (1988); Bowsher v. Synar, 478 U. S. 714 (1986). [ Footnote 31 ] Moreover, as has been noted, the Act limits the President's power to use his appointments to the Commission for political purposes by explicitly requiring that he consider a list of six judges submitted by the Judicial Conference before making his selections. Senator Hart explained that this provision provided "greater assurance that a broad range of interests will be represented." 124 Cong.Rec. 378 (1978). [ Footnote 32 ] The textual requirements of Article III that judges shall enjoy tenure and be paid an irreducible compensation "were incorporated into the Constitution to ensure the independence of the Judiciary from control of the Executive and Legislative Branches of government." Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U. S. 50 , 458 U. S. 59 (1982). These inviolable guarantees are untrammeled by the Act. Concededly, since Commission members receive a salary equal to that of a court of appeals judge, 28 U.S.C. § 992(c), district court judges appointed to the Commission receive an increase in salary. We do not address the hypothetical constitutional question whether, under the Compensation Clause of Article III, a district judge removed from the Commission must continue to be paid the higher salary. [ Footnote 33 ] This removal provision is precisely the kind that was at issue in Humphrey's Executor v. United States, where we wrote: "The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which [commissioners] shall continue in office, and to forbid their removal except for cause in the meantime." 295 U.S. at 295 U. S. 629 . [ Footnote 34 ] Although removal from the Sentencing Commission conceivably could involve some embarrassment or even damage to reputation, each judge made potentially subject to these injuries will have undertaken the risk voluntarily by accepting the President's appointment to serve. [ Footnote 35 ] Bowsher v. Synar, 478 U. S. 714 (1986), is not to the contrary. In Bowsher, we held that "Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment." Id. at 478 U. S. 726 . To permit Congress to remove an officer performing executive functions whenever Congress might find the performance of his duties unsatisfactory would, in essence, give Congress veto power over executive action. In light of the special danger recognized by the Founders of congressional usurpation of Executive Branch functions, "[t]his kind of congressional control over the execution of the laws . . . is constitutionally impermissible." Id. at 478 U. S. 726 -727. Nothing in Bowsher, however, suggests that one Branch may never exercise removal power, however limited, over members of another Branch. Indeed, we already have recognized that the President may remove a judge who serves on an Article I court. McAllister v. United States, 141 U. S. 174 , 141 U. S. 185 (1891). In any event, we hold here no more than that Congress may vest in the President the power to remove for good cause an Article III judge from a nonadjudicatory independent agency placed within the Judicial Branch. Because an Article III judge serving on a nonadjudicatory commission is not exercising judicial power, and because such limited removal power gives the President no control over judicatory functions, interbranch removal authority under these limited circumstances poses no threat to the balance of power among the Branches. Our paramount concern in Bowsher that Congress was accreting to itself the power to control the functions of another Branch is not implicated by a removal provision, like the one at issue here, which provides no control in one Branch over the constitutionally assigned mission of another Branch. JUSTICE SCALIA, dissenting. While the products of the Sentencing Commission's labors have been given the modest name "Guidelines," see 28 U.S.C. § 994(a)(1) (1982 ed., Supp. IV); United States Sentencing Commission Guidelines Manual (June 15, 1988), they have the force and effect of laws, prescribing the sentences criminal defendants are to receive. A judge who disregards them will be reversed, 18 U.S.C. § 3742 (1982 ed., Supp. IV). I dissent from today's decision because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws. There is no doubt that the Sentencing Commission has established significant, legally binding prescriptions governing application of governmental power against private individuals -- indeed, application of the ultimate governmental power, short of capital punishment. [ Footnote 2/1 ] Statutorily permissible sentences for particular crimes cover as broad a range as zero years to life, see, e.g., 18 U.S.C. § 1201 (1982 ed. and Supp. IV) (kidnapping), and within those ranges the Commission was given broad discretion to prescribe the "correct" sentence, 28 U.S.C. § 994(b)(2) (1982 ed., Supp. IV). Average prior sentences were to be a starting point for the Commission's inquiry, § 994(m), but it could and regularly did deviate from those averages as it thought appropriate. It chose, for example, to prescribe substantial increases over average prior sentences for white collar crimes such as public corruption, antitrust violations, and tax evasion. Guidelines, Page 488 U. S. 414 at 2.31, 2.133, 2.140. For antitrust violations, before the Guidelines, only 39% of those convicted served any imprisonment, and the average imprisonment was only 45 days, id. at 2.133, whereas the Guidelines prescribe base sentences (for defendants with no prior criminal conviction) ranging from 2 to 8 months to 10 to 16 months, depending upon the volume of commerce involved. See id. at 2.131, 5.2. The Commission also determined when probation was permissible, imposing a strict system of controls because of its judgment that probation had been used for an "inappropriately high percentage of offenders guilty of certain economic crimes." Id. at 1.8. Moreover, the Commission had free rein in determining whether statutorily authorized fines should be imposed in addition to imprisonment, and if so, in what amounts. It ultimately decided that every nonindigent offender should pay a fine according to a schedule devised by the Commission. Id. at 5.18. Congress also gave the Commission discretion to determine whether 7 specified characteristics of offenses, and 11 specified characteristics of offenders, "have any relevance," and should be included among the factors varying the sentence. 28 U.S.C. §§ 994(c), (d) (1982 ed., Supp. IV). Of the latter, it included only three among the factors required to be considered, and declared the remainder not ordinarily relevant. Guidelines at 5.29-5.31. It should be apparent from the above that the decisions made by the Commission are far from technical, but are heavily laden (or ought to be) with value judgments and policy assessments. This fact is sharply reflected in the Commission's product, as described by the dissenting Commissioner: "Under the guidelines, the judge could give the same sentence for abusive sexual contact that puts the child in fear as for unlawfully entering or remaining in the United States. Similarly, the guidelines permit equivalent sentences for the following pairs of offenses: drug Page 488 U. S. 415 trafficking and a violation of the Wild Free-Roaming Horses and Burros Act; arson with a destructive device and failure to surrender a cancelled naturalization certificate; operation of a common carrier under the influence of drugs that causes injury and alteration of one motor vehicle identification number; illegal trafficking in explosives and trespass; interference with a flight attendant and unlawful conduct relating to contraband cigarettes; aggravated assault and smuggling $11,000 worth of fish." Dissenting View of Commissioner Paul H. Robinson on the Promulgation of the Sentencing Guidelines by the United States Sentencing Commission 6-7 (May 1, 1987) (citations omitted). Petitioner's most fundamental and far-reaching challenge to the Commission is that Congress' commitment of such broad policy responsibility to any institution is an unconstitutional delegation of legislative power. It is difficult to imagine a principle more essential to democratic government than that upon which the doctrine of unconstitutional delegation is founded: except in a few areas constitutionally committed to the Executive Branch, the basic policy decisions governing society are to be made by the Legislature. Our Members of Congress could not, even if they wished, vote all power to the President and adjourn sine die. But while the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by the courts. Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle, but over a question of degree. As Chief Justice Taft expressed the point for the Court in the landmark case of J. W. Hampton, Jr., & Co. v. United Page 488 U. S. 416 States, 276 U. S. 394 , 276 U. S. 406 (1928), the limits of delegation "must be fixed according to common sense and the inherent necessities of the governmental co-ordination." Since Congress is no less endowed with common sense than we are, and better equipped to inform itself of the "necessities" of government; and since the factors bearing upon those necessities are both multifarious and (in the nonpartisan sense) highly political -- including, for example, whether the Nation is at war, see Yakus v. United States, 321 U. S. 414 (1944), or whether for other reasons "emergency is instinct in the situation," Amalgamated Meat Cutters and Butcher Workmen of North America v. Connally, 337 F. Supp. 737 , 752 (DC 1971) (three-judge court) -- it is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law. As the Court points out, we have invoked the doctrine of unconstitutional delegation to invalidate a law only twice in our history, over half a century ago. See Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). What legislated standard, one must wonder, can possibly be too vague to survive judicial scrutiny, when we have repeatedly upheld, in various contexts, a "public interest" standard? See, e.g., National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 216 -217 (1943); New York Central Securities Corp. v. United States, 287 U. S. 12 , 287 U. S. 24 -25 (1932). In short, I fully agree with the Court's rejection of petitioner's contention that the doctrine of unconstitutional delegation of legislative authority has been violated because of the lack of intelligible, congressionally prescribed standards to guide the Commission. Precisely because the scope of delegation is largely uncontrollable by the courts, we must be particularly rigorous in Page 488 U. S. 417 preserving the Constitution's structural restrictions that deter excessive delegation. The major one, it seems to me, is that the power to make law cannot be exercised by anyone other than Congress, except in conjunction with the lawful exercise of executive or judicial power. The whole theory of lawful congressional "delegation" is not that Congress is sometimes too busy or too divided, and can therefore assign its responsibility of making law to someone else, but rather that a certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its statutory commands, to determine -- up to a point -- how small or how large that degree shall be. Thus, the courts could be given the power to say precisely what constitutes a "restraint of trade," see Standard Oil Co. of New Jersey v. United States, 221 U. S. 1 (1911), or to adopt rules of procedure, see Sibbach v. Wilson & Co., 312 U. S. 1 , 312 U. S. 22 (1941), or to prescribe by rule the manner in which their officers shall execute their judgments, Wayman v. Southard , 10 Wheat. 1, 23 U. S. 45 (1825), because that "lawmaking" was ancillary to their exercise of judicial powers. And the Executive could be given the power to adopt policies and rules specifying in detail what radio and television licenses will be in the "public interest, convenience or necessity," because that was ancillary to the exercise of its executive powers in granting and policing licenses and making a "fair and equitable allocation" of the electromagnetic spectrum. See Federal Radio Comm'n v. Nelson Brothers Bond & Mortgage Co., 289 U. S. 266 , 289 U. S. 285 (1933). [ Footnote 2/2 ] Or, to take examples closer to the case before us: Trial judges could be given the power to determine Page 488 U. S. 418 what factors justify a greater or lesser sentence within the statutorily prescribed limits, because that was ancillary to their exercise of the judicial power of pronouncing sentence upon individual defendants. And the President, through the Parole Commission subject to his appointment and removal, could be given the power to issue Guidelines specifying when parole would be available, because that was ancillary to the President's exercise of the executive power to hold and release federal prisoners. See 18 U.S.C. §§ 4203(a)(1) and (b); 28 CFR § 2.20 (1988). As Justice Harlan wrote for the Court in Field v. Clark, 143 U. S. 649 (1892): "'The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter, no valid objection can be made.'" Id. at 143 U. S. 693 -694 (emphasis added), quoting Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88-89 (1852). "'Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of the law.'" 143 U.S. at 143 U. S. 694 (emphasis added), quoting Moers v. Reading, 21 Pa. 188, 202 (1853). In United States v. Grimaud, 220 U. S. 506 , 220 U. S. 517 (1911), which upheld a statutory grant of authority to the Secretary of Agriculture to make rules and regulations governing use of the public forests he was charged with managing, the Court said: Page 488 U. S. 419 "From the beginning of the Government, various acts have been passed conferring upon executive officers power to make rules and regulations -- not for the government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power." (Emphasis added.) Or, finally, as Chief Justice Taft described it in Hampton & Co., 276 U.S. at 276 U. S. 406 : "The field of Congress involves all and many varieties of legislative action, and Congress has found it frequently necessary to use officers of the Executive Branch, within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations." (Emphasis added.) The focus of controversy, in the long line of our so-called excessive delegation cases, has been whether the degree of generality contained in the authorization for exercise of executive or judicial powers in a particular field is so unacceptably high as to amount to a delegation of legislative powers. I say "so-called excessive delegation" because, although that convenient terminology is often used, what is really at issue is whether there has been any delegation of legislative power, which occurs (rarely) when Congress authorizes the exercise of executive or judicial power without adequate standards. Strictly speaking, there is no acceptable delegation of legislative power. As John Locke put it almost 300 years ago, "[t]he power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what the positive grant conveyed, which, being only to make laws, and not to make legislators, the legislative Page 488 U. S. 420 can have no power to transfer their authority of making laws, and place it in other hands." J. Locke, Second Treatise of Government 87 (R. Cox ed.1982) (emphasis added). Or as we have less epigrammatically said: "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." Field v. Clark, supra, at 143 U. S. 692 . In the present case, however, a pure delegation of legislative power is precisely what we have before us. It is irrelevant whether the standards are adequate, because they are not standards related to the exercise of executive or judicial powers; they are, plainly and simply, standards for further legislation. The lawmaking function of the Sentencing Commission is completely divorced from any responsibility for execution of the law or adjudication of private rights under the law. It is divorced from responsibility for execution of the law not only because the Commission is not said to be "located in the Executive Branch" (as I shall discuss presently, I doubt whether Congress can "locate" an entity within one Branch or another for constitutional purposes by merely saying so); but, more importantly, because the Commission neither exercises any executive power on its own, nor is subject to the control of the President, who does. The only functions it performs, apart from prescribing the law, 28 U.S.C. §§ 994(a) (1), (3) (1982 ed., Supp. IV), conducting the investigations useful and necessary for prescribing the law, e.g., §§ 995(a) (13), (15), (16), (21), and clarifying the intended application of the law that it prescribes, e.g., §§ 994(a)(2), 995(a)(10), are data collection and intragovernmental advice-giving and education, e.g., §§ 995(a)(8), (9), (12), (17), (18), (20). These latter activities -- similar to functions performed by congressional agencies and even congressional staff -- neither determine nor affect private rights, and do not constitute an exercise of governmental power. See Humphrey's Executor v. United States, 295 U. S. 602 , 295 U. S. 628 (1935). And the Commission's Page 488 U. S. 421 lawmaking is completely divorced from the exercise of judicial powers since, not being a court, it has no judicial powers itself, nor is it subject to the control of any other body with judicial powers. The power to make law at issue here, in other words, is not ancillary, but quite naked. The situation is no different in principle from what would exist if Congress gave the same power of writing sentencing laws to a congressional agency such as the General Accounting Office, or to members of its staff. The delegation of lawmaking authority to the Commission is, in short, unsupported by any legitimating theory to explain why it is not a delegation of legislative power. To disregard structural legitimacy is wrong in itself -- but since structure has purpose, the disregard also has adverse practical consequences. In this case, as suggested earlier, the consequence is to facilitate and encourage judicially uncontrollable delegation. Until our decision last Term in Morrison v. Olson, 487 U. S. 654 (1988), it could have been said that Congress could delegate lawmaking authority only at the expense of increasing the power of either the President or the courts. Most often, as a practical matter, it would be the President, since the judicial process is unable to conduct the investigations and make the political assessments essential for most policymaking. Thus, the need for delegation would have to be important enough to induce Congress to aggrandize its primary competitor for political power, and the recipient of the policymaking authority, while not Congress itself, would at least be politically accountable. But even after it has been accepted, pursuant to Morrison, that those exercising executive power need not be subject to the control of the President, Congress would still be more reluctant to augment the power of even an independent executive agency than to create an otherwise powerless repository for its delegation. Moreover, assembling the full-time senior personnel for an agency exercising executive powers is more difficult than borrowing other officials (or employing new officers on a Page 488 U. S. 422 short-term basis) to head an organization such as the Sentencing Commission. By reason of today's decision, I anticipate that Congress will find delegation of its lawmaking powers much more attractive in the future. If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of "expert" bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.'s, with perhaps a few Ph.D.'s in moral philosophy) to dispose of such thorny, "now-in" political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research. This is an undemocratic precedent that we set -- not because of the scope of the delegated power, but because its recipient is not one of the three Branches of Government. The only governmental power the Commission possesses is the power to make law; and it is not the Congress. III The strange character of the body that the Court today approves, and its incompatibility with our constitutional institutions, is apparent from that portion of the Court's opinion entitled "Location of the Commission." This accepts at the outset that the Commission is a "body within the Judicial Branch," ante at 488 U. S. 385 , and rests some of its analysis upon that asserted reality. Separation of powers problems are dismissed, however, on the ground that "[the Commission's] powers are not united with the powers of the Judiciary in a way that has meaning for separation of powers analysis," since the Commission "is not a court, does not exercise judicial power, and is not controlled by or accountable to members of the Judicial Branch," ante at 488 U. S. 393 . In light of the latter concession, I am at a loss to understand why the Commission is "within the Judicial Branch" in any sense that has relevance to today's discussion. I am sure that Congress can Page 488 U. S. 423 divide up the Government any way it wishes, and employ whatever terminology it desires, for nonconstitutional purposes -- for example, perhaps the statutory designation that the Commission is "within the Judicial Branch" places it outside the coverage of certain laws which say they are inapplicable to that Branch, such as the Freedom of Information Act, see 5 U.S.C. § 552(f) (1982 ed., Supp. IV). For such statutory purposes, Congress can define the term as it pleases. But since our subject here is the Constitution, to admit that that congressional designation "has [no] meaning for separation of powers analysis" is to admit that the Court must therefore decide for itself where the Commission is located for purposes of separation of powers analysis. It would seem logical to decide the question of which Branch an agency belongs to on the basis of who controls its actions: if Congress, the Legislative Branch; if the President, the Executive Branch; if the courts (or perhaps the judges), the Judicial Branch. See, e.g., Bowsher v. Synar, 478 U. S. 714 , 478 U. S. 727 -732 (1986). In Humphrey's Executor v. United States, supra, we approved the concept of an agency that was controlled by (and thus within) none of the Branches. We seem to have assumed, however, that that agency (the old Federal Trade Commission, before it acquired many of its current functions) exercised no governmental power whatever, but merely assisted Congress and the courts in the performance of their functions. See 295 U.S. at 295 U. S. 628 . Where no governmental power is at issue, there is no strict constitutional impediment to a "branchless" agency, since it is only "[a]ll legislative Powers," Art. I, § 1, "[t]he executive Power," Art. II, § 1, and "[t]he judicial Power," Art. III, § 1, which the Constitution divides into three departments. (As an example of a "branchless" agency exercising no governmental powers, one can conceive of an Advisory Commission charged with reporting to all three Branches, whose members are removable only for cause and are thus subject to the control of none of the Branches.) Over the years, however, Page 488 U. S. 424 Humphrey's Executor has come in general contemplation to stand for something quite different -- not an "independent agency" in the sense of an agency independent of all three Branches, but an "independent agency" in the sense of an agency within the Executive Branch (and thus authorized to exercise executive powers) independent of the control of the President. We approved that concept last Term in Morrison. See 487 U.S. at 487 U. S. 688 -691. I dissented in that case, essentially because I thought that concept illogical and destructive of the structure of the Constitution. I must admit, however, that today's next step -- recognition of an independent agency in the Judicial Branch -- makes Morrison seem, by comparison, rigorously logical. "The Commission," we are told, "is an independent agency in every relevant sense." Ante at 488 U. S. 393 . There are several problems with this. First, once it is acknowledged that an "independent agency" may be within any of the three Branches, and not merely within the Executive, then there really is no basis for determining what Branch such an agency belongs to, and thus what governmental powers it may constitutionally be given, except (what the Court today uses) Congress' say-so. More importantly, however, the concept of an "independent agency" simply does not translate into the legislative or judicial spheres. Although the Constitution says that "[t]he executive Power shall be vested in a President of the United States of America," Art. II, § 1, it was never thought that the President would have to exercise that power personally. He may generally authorize others to exercise executive powers, with full effect of law, in his place. See, e.g., Wolsey v. Chapman, 101 U. S. 755 (1880); Williams v. United States , 1 How. 290 (1843). It is already a leap from the proposition that a person who is not the President may exercise executive powers to the proposition we accepted in Morrison that a person who is neither the President nor subject to the President's control may exercise executive powers. But with Page 488 U. S. 425 respect to the exercise of judicial powers (the business of the Judicial Branch), the platform for such a leap does not even exist. For, unlike executive power, judicial and legislative powers have never been thought delegable. A judge may not leave the decision to his law clerk, or to a master. See United States v. Raddatz, 447 U. S. 667 , 447 U. S. 683 (1980); cf. Runkle v. United States, 122 U. S. 543 (1887). Senators and Members of the House may not send delegates to consider and vote upon bills in their place. See Rules of the House of Representatives, Rule VIII(3); Standing Rules of the United States Senate, Rule XII. Thus, however well established may be the "independent agencies" of the Executive Branch, here we have an anomaly beyond equal: an independent agency exercising governmental power on behalf of a Branch where all governmental power is supposed to be exercised personally by the judges of courts. [ Footnote 2/3 ] Today's decision may aptly be described as the Humphrey's Executor of the Judicial Branch, and I think we will live to regret it. Henceforth there may be agencies "within the Judicial Branch" (whatever that means) exercising governmental powers that are neither courts nor controlled by courts, nor even controlled by judges. If an "independent agency" such as this can be given the power to fix sentences previously exercised by district courts, I must assume that a similar agency can be given the powers to adopt rules of procedure Page 488 U. S. 426 and rules of evidence previously exercised by this Court. The bases for distinction would be thin indeed. * * * * Today's decision follows the regrettable tendency of our recent separation of powers jurisprudence, see Morrison, supra; Young v. United States ex rel. Vuitton et Fils S.A., 481 U. S. 787 (1987), to treat the Constitution as though it were no more than a generalized prescription that the functions of the Branches should not be commingled too much -- how much is too much to be determined, case-by-case, by this Court. The Constitution is not that. Rather, as its name suggests, it is a prescribed structure, a framework, for the conduct of Government. In designing that structure, the Framers themselves considered how much commingling was, in the generality of things, acceptable, and set forth their conclusions in the document. That is the meaning of the statements concerning acceptable commingling made by Madison in defense of the proposed Constitution, and now routinely used as an excuse for disregarding it. When he said, as the Court correctly quotes, that separation of powers " d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over, the acts of each other,'" ante at 488 U. S. 380 -381, quoting The Federalist No. 47, pp. 325-326 (J. Cooke ed.1961), his point was that the commingling specifically provided for in the structure that he and his colleagues had designed -- the Presidential veto over legislation, the Senate's confirmation of executive and judicial officers, the Senate's ratification of treaties, the Congress' power to impeach and remove executive and judicial officers -- did not violate a proper understanding of separation of powers. He would be aghast, I think, to hear those words used as justification for ignoring that carefully designed structure so long as, in the changing view of the Supreme Court from time to time, "too much commingling" does not occur. Consideration of the degree of commingling that a particular disposition produces may be appropriate at Page 488 U. S. 427 the margins, where the outline of the framework itself is not clear; but it seems to me far from a marginal question whether our constitutional structure allows for a body which is not the Congress, and yet exercises no governmental powers except the making of rules that have the effect of laws. I think the Court errs, in other words, not so much because it mistakes the degree of commingling, but because it fails to recognize that this case is not about commingling, but about the creation of a new Branch altogether, a sort of junior varsity Congress. It may well be that, in some circumstances, such a Branch would be desirable; perhaps the agency before us here will prove to be so. But there are many desirable dispositions that do not accord with the constitutional structure we live under. And, in the long run, the improvisation of a constitutional structure on the basis of currently perceived utility will be disastrous. I respectfully dissent from the Court's decision, and would reverse the judgment of the District Court. [ Footnote 2/1 ] It is even arguable that the Commission has authority to establish guidelines and procedures for imposing the death penalty, thus reinstituting that sanction under federal statutes for which (by reason of our recent decisions) it has been thought unusable because of constitutionally inadequate procedures. The Justice Department believes such authority exists, and has encouraged the Commission to exercise it. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, 1256 (CA9 1988). [ Footnote 2/2 ] An executive agency can, of course, be created with no power other than the making of rules, as long as that agency is subject to the control of the President and the President has executive authority related to the rulemaking. In such circumstances, the rulemaking is ultimately ancillary to the President's executive powers. [ Footnote 2/3 ] There are of course agencies within the Judicial Branch (because they operate under the control of courts or judges) which are not themselves courts, see, e.g., 28 U.S.C. § 601 et seq. (Administrative Office of the United States Courts), just as there are agencies within the Legislative Branch (because they operate under the control of Congress) which are not themselves Senators or Representatives, see, e.g., 31 U.S.C. § 701 et seq. (General Accounting Office). But these agencies, unlike the Sentencing Commission, exercise no governmental powers, that is, they establish and determine neither private rights nor the prerogatives of the other Branches. They merely assist the courts and the Congress in their exercise of judicial and legislative powers.

The U.S. Supreme Court case Mistretta v. United States (1989) dealt with the constitutionality of the Sentencing Reform Act of 1984, which created the United States Sentencing Commission and gave it the power to establish binding sentencing guidelines for federal offenses. The Court upheld the constitutionality of the Sentencing Guidelines, rejecting arguments that Congress had delegated excessive legislative power to the Commission or violated the separation-of-powers principle by placing it within the Judicial Branch. The Court reasoned that Congress could delegate the task of formulating sentencing guidelines to an expert body within the Judicial Branch, and that the Commission's guidelines were consistent with significant statutory direction from Congress. Justice Blackmun delivered the opinion of the Court, with Justice Scalia dissenting. Justice Scalia argued that the Commission effectively constituted a "junior varsity Congress," exercising legislative power without being accountable to the people or the President.

Separation of Powers

Clinton v. City of New York

https://supreme.justia.com/cases/federal/us/524/417/

OCTOBER TERM, 1997 Syllabus CLINTON, PRESIDENT OF THE UNITED STATES, ET AL. v. CITY OF NEW YORK ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 97-1374. Argued April 27, 1998-Decided June 25,1998 Last Term, this Court determined on expedited review that Members of Congress did not have standing to maintain a constitutional challenge to the Line Item Veto Act (Act), 2 U. S. C. § 691 et seq., because they had not alleged a sufficiently concrete injury. Raines v. Byrd, 521 U. S. 811 . Within two months, the President exercised his authority under the Act by canceling §4722(c) of the Balanced Budget Act of 1997, which waived the Federal Government's statutory right to recoupment of as much as $2.6 billion in taxes that the State of New York had levied against Medicaid providers, and § 968 of the Taxpayer Relief Act of 1997, which permitted the owners of certain food refiners and processors to defer recognition of capital gains if they sold their stock to eligible farmers' cooperatives. Appellees, claiming they had been injured, filed separate actions against the President and other officials challenging the cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are the Snake River farmers' cooperative and one of its individual members. The District Court consolidated the cases, determined that at least one of the plaintiffs in each had standing under Article III, and ruled, inter alia, that the Act's cancellation procedures violate the Presentment Clause, Art. I, § 7, cl. 2. This Court again expedited its review. Held: 1. The appellees have standing to challenge the Act's constitutionality. They invoked the District Court's jurisdiction under a section entitled "Expedited review," which, among other things, expressly authorizes "any individual adversely affected" to bring a constitutional challenge. § 692(a)(I). The Government's argument that none of them except the individual Snake River member is an "individual" within § 692(a)(I)'s meaning is rejected because, in the context of the entire section, it is clear that Congress meant that word to be construed broadly to include corporations and other entities. The Court is also unpersuaded by the Government's argument that appellees' challenge is nonjusticiable. These cases differ from Raines, not only because the President's exercise of his cancellation authority has removed any con- 418 Syllabus cern about the dispute's ripeness, but more importantly because the parties have alleged a "personal stake" in having an actual injury redressed, rather than an "institutional injury" that is "abstract and widely dispersed." 521 U. S., at 829. There is no merit to the Government's contention that, in both cases, the appellees have not suffered actual injury because their claims are too speculative and, in any event, are advanced by the wrong parties. Because New York State now has a multibillion dollar contingent liability that had been eliminated by § 4722(c), the State, and the appellees, suffered an immediate, concrete injury the moment the President canceled the section and deprived them of its benefits. The argument that New York's claim belongs to the State, not appellees, fails in light of New York statutes demonstrating that both New York City and the appellee providers will be assessed for substantial portions of any recoupment payments the State has to make. Similarly, the President's cancellation of § 968 inflicted a sufficient likelihood of economic injury on the Snake River appellees to establish standing under this Court's precedents, cf. Bryant v. Yellen, 447 U. S. 352, 368. The assertion that, because processing facility sellers would have received the tax benefits, only they have standing to challenge the § 968 cancellation not only ignores the fact that the cooperatives were the intended beneficiaries of § 968, but also overlooks the fact that more than one party may be harmed by a defendant and therefore have standing. Pp. 428-436. 2. The Act's cancellation procedures violate the Presentment Clause. pp.436-449. (a) The Act empowers the President to cancel an "item of new direct spending" such as § 4722(c) of the Balanced Budget Act and a "limited tax benefit" such as § 968 of the Taxpayer Relief Act, § 691(a), specifying that such cancellation prevents a provision "from having legal force or effect," §§ 691e(4)(B)-(C). Thus, in both legal and practical effect, the Presidential actions at issue have amended two Acts of Congress by repealing a portion of each. Statutory repeals must conform with Art. I, INS v. Chadha, 462 U. S. 919 , 954, but there is no constitutional authorization for the President to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it," i. e., "veto" it, if he does not. There are important differences between such a "return" and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part. There are powerful reasons for construing the constitutional silence on the profoundly important subject of Presidential repeals as equivalent to an express 419 prohibition. The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, procedure." Chadha, 462 U. S., at 951. What has emerged in the present cases, however, are not the product of the "finely wrought" procedure that the Framers designed, but truncated versions of two bills that passed both Houses. Pp. 436-441. (b) The Court rejects two related Government arguments. First, the contention that the cancellations were merely exercises of the President's discretionary authority under the Balanced Budget Act and the Taxpayer Relief Act, read in light of the previously enacted Line Item Veto Act, is unpersuasive. Field v. Clark, 143 U. S. 649 , 693, on which the Government relies, suggests critical differences between this cancellation power and the President's statutory power to suspend import duty exemptions that was there upheld: such suspension was contingent on a condition that did not predate its statute, the duty to suspend was absolute once the President determined the contingency had arisen, and the suspension executed congressional policy. In contrast, the Act at issue authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing Article I, § 7, procedures. Second, the contention that the cancellation authority is no greater than the President's traditional statutory authority to decline to spend appropriated funds or to implement specified tax measures fails because this Act, unlike the earlier laws, gives the President the unilateral power to change the text of duly enacted statutes. Pp.442-447. (c) The profound importance of these cases makes it appropriate to emphasize three points. First, the Court expresses no opinion about the wisdom of the Act's procedures and does not lightly conclude that the actions of the Congress that passed it, and the President who signed it into law, were unconstitutional. The Court has, however, twice had full argument and briefing on the question and has concluded that its duty is clear. Second, having concluded that the Act's cancellation provisions violate Article I, § 7, the Court finds it unnecessary to consider the District Court's alternative holding that the Act impermissibly disrupts the balance of powers among the three branches of Government. Third, this decision rests on the narrow ground that the Act's procedures are not authorized by the Constitution. If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That mayor may not be desirable, but it is surely not a document that may "become a law" pursuant to Article I, § 7. If there is to be a new proce- 420 dure in which the President will playa different role, such change must come through the Article V amendment procedures. Pp.447-449. 985 F. Supp. 168, affirmed. STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 449. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which O'CONNOR, J., joined, and in which BREYER, J., joined as to Part III, post, p. 453. BREYER, J., filed a dissenting opinion, in which O'CONNOR and SCALIA, JJ., joined as to Part III, post, p. 469. Solicitor General Waxman argued the cause for the appellants. With him on the briefs were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Douglas N. Letter. Louis R. Cohen argued the cause for appellees Snake River Potato Growers, Inc., et al. With him on the brief were Lloyd N. Cutler, Lawrence A. Kasten, Donald B. Holbrook, Randon W Wilson, and William H. Orton. Charles J. Cooper argued the cause for appellees City of New York et al. With him on the briefs were M. Sean Laane, Leonard J. Koerner, Alan G. Krams, David B. Goldin, and Peter F. Nadel. * JUSTICE STEVENS delivered the opinion of the Court. The Line Item Veto Act (Act), 110 Stat. 1200, 2 U. S. C. § 691 et seq. (1994 ed., Supp. II), was enacted in April 1996 *Briefs of amici curiae urging reversal were filed for the United States Senate by Thomas B. Griffith, Morgan J. Frankel, and Steven F. Huefner; for Marci Hamilton, pro se, and David Schoenbrod, pro se; for Congressman Dan Burton et al. by James M. Spears; and for John S. Baker, Jr., pro se. Briefs of amici curiae urging affirmance were filed for the Bar of the City of New York by Louis A. Craco, Jr., James F. Parver, and David P. Felsher; for Senator Robert C. Byrd et al. by Michael Davidson and Mark 421 and became effective on January 1, 1997. The following day, six Members of Congress who had voted against the Act brought suit in the District Court for the District of Columbia challenging its constitutionality. On April 10, 1997, the District Court entered an order holding that the Act is unconstitutional. Byrd v. Raines, 956 F. Supp. 25. In obedience to the statutory direction to allow a direct, expedited appeal to this Court, see §§ 692(b)-(c), we promptly noted probable jurisdiction and expedited review, 520 U. S. 1194 (1997). We determined, however, that the Members of Congress did not have standing to sue because they had not "alleged a sufficiently concrete injury to have established Article III standing," Raines v. Byrd, 521 U. S. 811 , 830 (1997); thus, "[i]n ... light of [the] overriding and time-honored concern about keeping the Judiciary's power within its proper constitutional sphere," id., at 820, we remanded the case to the District Court with instructions to dismiss the complaint for lack of jurisdiction. Less than two months after our decision in that case, the President exercised his authority to cancel one provision in the Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251, 515, and two provisions in the Taxpayer Relief Act of 1997, Pub. L. 105-34, 111 Stat. 788, 895-896, 990-993. Appellees, claiming that they had been injured by two of those cancellations, filed these cases in the District Court. That Court again held the statute invalid, 985 F. Supp. 168, 177182 (1998), and we again expedited our review, 522 U. S. 1144 (1998). We now hold that these appellees have standing to challenge the constitutionality of the Act and, reaching the merits, we agree that the cancellation procedures set forth in the Act violate the Presentment Clause, Art. I, § 7, cl. 2, of the Constitution. I We begin by reviewing the canceled items that are at issue in these cases. 422 Section J, 722 (c) of the Balanced Budget Act Title XIX of the Social Security Act, 79 Stat. 343, as amended, authorizes the Federal Government to transfer huge sums of money to the States to help finance medical care for the indigent. See 42 U. S. C. § 1396d(b). In 1991, Congress directed that those federal subsidies be reduced by the amount of certain taxes levied by the States on health care providers.1 In 1994, the Department of Health and Human Services (HHS) notified the State of New York that 15 of its taxes were covered by the 1991 Act, and that as of June 30, 1994, the statute therefore required New York to return $955 million to the United States. The notice advised the State that it could apply for a waiver on certain statutory grounds. New York did request a waiver for those tax programs, as well as for a number of others, but HHS has not formally acted on any of those waiver requests. New York has estimated that the amount at issue for the period from October 1992 through March 1997 is as high as $2.6 billion. Because HHS had not taken any action on the waiver requests, New York turned to Congress for relief. On August 5, 1997, Congress enacted a law that resolved the issue in New York's favor. Section 4722(c) of the Balanced Budget Act of 1997 identifies the disputed taxes and provides that they "are deemed to be permissible health care related taxes and in compliance with the requirements" of the relevant provisions of the 1991 statute.2 1 Medicaid Voluntary Contribution and Provider-Specific Tax Amendments of 1991, Pub. L. 102-234, 105 Stat. 1793, 42 U. S. C. § 1396b(w). 2 Section 4722(c) provides: "(c) WAIVER OF CERTAIN PROVIDER TAX PROVISIONS.-Notwithstanding any other provision of law, taxes, fees, or assessments, as defined in section 1903(w)(3)(A) of the Social Security Act (42 U. S. C. 1396b(w)(3)(A)), that were collected by the State of New York from a health care provider before June 1, 1997, and for which a waiver of the provisions of subparagraph (B) or (C) of section 1903(w)(3) of such Act has been applied for, or that would, but for this subsection require that such 423 On August 11, 1997, the President sent identical notices to the Senate and to the House of Representatives canceling "one item of new direct spending," specifying §4722(c) as that item, and stating that he had determined that "this cancellation will reduce the Federal budget deficit." He explained that §4722(c) would have permitted New York "to continue relying upon impermissible provider taxes to finance its Medicaid program" and that "[t]his preferential treatment would have increased Medicaid costs, would have treated New York differently from all other States, and would have established a costly precedent for other States to request comparable treatment." 3 Section 968 of the Taxpayer Relief Act of 1997 A person who realizes a profit from the sale of securities is generally subject to a capital gains tax. Under existing law, however, an ordinary business corporation can acquire a corporation, including a food processing or refining company, in a merger or stock-for-stock transaction in which no gain is recognized to the seller, see 26 U. S. C. §§ 354(a), 368(a); the seller's tax payment, therefore, is deferred. If, however, the purchaser is a farmers' cooperative, the parties cannot structure such a transaction because the stock of the cooperative may be held only by its members, see § 521(b)(2); thus, a seller dealing with a farmers' cooperative cannot obtain the benefits of tax deferral. a waiver be applied for, in accordance with subparagraph (E) of such section, and, (if so applied for) upon which action by the Secretary of Health and Human Services (including any judicial review of any such proceeding) has not been completed as of July 23, 1997, are deemed to be permissible health care related taxes and in compliance with the requirements of subparagraphs (B) and (C) of section 1903(w)(3) of such Act." 111 Stat. 515. 3 App. to Juris. Statement 63a-64a (Cancellation No. 97-3). The quoted text is an excerpt from the statement of reasons for the cancellation, which is required by the Line Item Veto Act. See 2 U. S. C. § 691a (1994 ed., Supp. II). 424 In § 968 of the Taxpayer Relief Act of 1997, Congress amended § 1042 of the Internal Revenue Code to permit owners of certain food refiners and processors to defer the recognition of gain if they sell their stock to eligible farmers' cooperatives.4 The purpose of the amendment, as repeatedly explained by its sponsors, was "to facilitate the transfer of refiners and processors to farmers' cooperatives." 5 The 4 Section 968(a) of the Taxpayer Relief Act of 1997 amended 26 U. S. C. § 1042 by adding a new subsection (g), which defined the sellers eligible for the exemption as follows: "(2) QUALIFIED REFINER OR PROCESSOR.-For purposes of this subsection, the term 'qualified refiner or processor' means a domestic corporation- "(A) substantially all of the activities of which consist of the active conduct of the trade or business of refining or processing agricultural or horticultural products, and "(E) which, during the I-year period ending on the date of the sale, purchases more than one-half of such products to be refined or processed from- "(i) farmers who make up the eligible farmers' cooperative which is purchasing stock in the corporation in a transaction to which this subsection is to apply, or "(ii) such cooperative." 111 Stat. 896. 5H. R. Rep. No. 105-148, p. 420 (1997); see also 141 Congo Rec. S18739 (Dec. 15, 1995) (Senator Hatch, introducing a previous version of the bill, stating that it "would provide farmers who form farmers cooperatives the opportunity for an ownership interest in the processing and marketing of their products"); ibid. (Senator Craig, cosponsor of a previous bill, stating that "[c]urrently, farmers cannot compete with other business entities ... in buying such [processing] businesses because of the advantages inherent in the tax deferrals available in transactions with these other purchases"; bill "would be helpful to farmers cooperatives"); App. 116-117 (Letter from Congresspersons Roberts and Stenholm (Dec. 1, 1995)) (congressional sponsors stating that a previous version of the bill was intended to "provide American farmers a more firm economic footing and more control over their economic destiny. We believe this proposal will help farmers, through their cooperatives, purchase facilities to refine and process their raw commodities into value-added products .... It will encourage farmers to help themselves in a more market-oriented environment by vertically integrating. If this legislation is passed, we are confident that, 10 years from now, we will look on this bill as one of the most beneficial actions Congress took for U. S. farmers"). 425 amendment to § 1042 was one of the 79 "limited tax benefits" authorized by the Taxpayer Relief Act of 1997 and specifically identified in Title XVII of that Act as "subject to [the] line item veto." 6 On the same date that he canceled the "item of new direct spending" involving New York's health care programs, the President also canceled this limited tax benefit. In his explanation of that action, the President endorsed the objective of encouraging "value-added farming through the purchase by farmers' cooperatives of refiners or processors of agricultural goods," 7 but concluded that the provision lacked safeguards and also "failed to target its benefits to small-andmedium-size cooperatives." 8 II Appellees filed two separate actions against the President 9 and other federal officials challenging these two cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are a farmers' cooperative consisting of about 30 potato growers in Idaho and an individual farmer who is a member and officer of the cooperative. The District Court consolidated the two cases and determined that at least one 6 § 1701(30), 111 Stat. 1101. 7 App. to Juris. Statement 71a (Cancellation No. 97-2). On the day the President canceled § 968, he stated: "Because I strongly support family farmers, farm cooperatives, and the acquisition of production facilities by co-ops, this was a very difficult decision for me." App. 125. He added that creating incentives so that farmers' cooperatives can obtain processing facilities is a "very worthy goal." Id., at 130. 8 App. to Juris. Statement 71a (Cancellation No. 97-2). Section 968 was one of the two limited tax benefits in the Taxpayer Relief Act of 1997 that the President canceled. 9 In both actions, the plaintiffs sought a declaratory judgment that the Line Item Veto Act is unconstitutional and that the particular cancellation was invalid; neither set of plaintiffs sought injunctive relief against the President. 426 of the plaintiffs in each had standing under Article III of the Constitution. Appellee New York City Health and Hospitals Corporation (NYCHHC) is responsible for the operation of public health care facilities throughout the City of New York. If HHS ultimately denies the State's waiver requests, New York law will automatically require 10 NYCHHC to make retroactive tax payments to the State of about $4 million for each of the years at issue. 985 F. Supp., at 172. This contingent liability for NYCHHC, and comparable potential liabilities for the other appellee health care providers, were eliminated by § 4722(c) of the Balanced Budget Act of 1997 and revived by the President's cancellation of that provision. The District Court held that the cancellation of the statutory protection against these liabilities constituted sufficient injury to give these providers Article III standing. Appellee Snake River Potato Growers, Inc. (Snake River) was formed in May 1997 to assist Idaho potato farmers in marketing their crops and stabilizing prices, in part through a strategy of acquiring potato processing facilities that will allow the members of the cooperative to retain revenues otherwise payable to third-party processors. At that time, Congress was considering the amendment to the capital gains tax that was expressly intended to aid farmers' cooperatives in the purchase of processing facilities, and Snake River had concrete plans to take advantage of the amendment if passed. Indeed, appellee Mike Cranney, acting on behalf of Snake River, was engaged in negotiations with the lOSee, e. g., N. Y. Pub. Health Law §2807-c(18)(e) (McKinney Supp.19971998) ("In the event the secretary of the department of health and human services determines that the assessments do not ... qualify based on any such exclusion, then the exclusion shall be deemed to have been null and void ... and the commissioner shall collect any retroactive amount due as a result .... Interest and penalties shall be measured from the due date of ninety days following notice from the commissioner"); § 2807-d(12) (1993) (same); §2807-j(1l) (Supp. 1997-1998) (same); §2807-s(8) (same). 427 owner of an Idaho potato processor that would have qualified for the tax benefit under the pending legislation, but these negotiations terminated when the President canceled § 968. Snake River is currently considering the possible purchase of other processing facilities in Idaho if the President's cancellation is reversed. Based on these facts, the District Court concluded that the Snake River plaintiffs were injured by the President's cancellation of § 968, as they "lost the benefit of being on equal footing with their competitors and will likely have to pay more to purchase processing facilities now that the sellers will not [be] able to take advantage of section 968's tax breaks." Id., at 177. On the merits, the District Court held that the cancellations did not conform to the constitutionally mandated procedures for the enactment or repeal of laws in two respects. First, the laws that resulted after the cancellations "were different from those consented to by both Houses of Congress." Id., at 178.11 Moreover, the President violated Article I "when he unilaterally canceled provisions of duly enacted statutes." Id., at 179.12 As a separate basis for 11 As the District Court explained: "These laws reflected the best judgment of both Houses. The laws that resulted after the President's line item veto were different from those consented to by both Houses of Congress. There is no way of knowing whether these laws, in their truncated form, would have received the requisite support from both the House and the Senate. Because the laws that emerged after the Line Item Veto are not the same laws that proceeded through the legislative process, as required, the resulting laws are not valid." 985 F. Supp., at 178-179. 12 "Unilateral action by any single participant in the law-making process is precisely what the Bicameralism and Presentment Clauses were designed to prevent. Once a bill becomes law, it can only be repealed or amended through another, independent legislative enactment, which itself must conform with the requirements of Article I. Any rescissions must be agreed upon by a majority of both Houses of Congress. The President cannot single-handedly revise the work of the other two participants in the lawmaking process, as he did here when he vetoed certain provisions of these statutes." Ibid. 428 its decision, the District Court also held that the Act "impermissibly disrupts the balance of powers among the three branches of government." Ibid. III As in the prior challenge to the Line Item Veto Act, we initially confront jurisdictional questions. The appellees invoked the jurisdiction of the District Court under the section of the Act entitled "Expedited review." That section, 2 U. s. C. § 692(a)(1) (1994 ed., Supp. II), expressly authorizes "[a]ny Member of Congress or any individual adversely affected" by the Act to bring an action for declaratory judgment or injunctive relief on the ground that any provision of the Act is unconstitutional. Although the Government did not question the applicability of that section in the District Court, it now argues that, with the exception of Mike Cranney, the appellees are not "individuals" within the meaning of § 692(a)(1). Because the argument poses a jurisdictional question (although not one of constitutional magnitude), it is not waived by the failure to raise it in the District Court. The fact that the argument did not previously occur to the able lawyers for the Government does, however, confirm our view that in the context of the entire section Congress undoubtedly intended the word "individual" to be construed as synonymous with the word "person." 13 The special section authorizing expedited review evidences an unmistakable congressional interest in a prompt and authoritative judicial determination of the constitution- 13 Although in ordinary usage both "individual" and "person" often refer to an individual human being, see, e. g., Webster's Third New International Dictionary 1152, 1686 (1986) ("individual" defined as a "single human being"; "person" defined as "an individual human being"), "person" often has a broader meaning in the law, see, e. g., 1 U. S. C. § 1 ("person" includes "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals"). 429 ality of the Act. Subsection (a)(2) requires that copies of any complaint filed under subsection (a)(l) "shall be promptly delivered" to both Houses of Congress, and that each House shall have a right to intervene. Subsection (b) authorizes a direct appeal to this Court from any order of the District Court, and requires that the appeal be filed within 10 days. Subsection (c) imposes a duty on both the District Court and this Court "to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under subsection (a)." There is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons. Acceptance of the Government's new-found reading of § 692 "would produce an absurd and unjust result which Congress could not have intended." Griffin v. Oceanic Contractors, Inc., 458 U. S. 564 , 574 (1982).14 We are also unpersuaded by the Government's argument that appellees' challenge to the constitutionality of the Act is nonjusticiable. We agree, of course, that Article III of the Constitution confines the jurisdiction of the federal courts to actual "Cases" and "Controversies," and that "the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process." Whit- 14JUSTICE SCALIA objects to our conclusion that the Government's reading of the statute would produce an absurd result. Post, at 454-455. Nonetheless, he states that '''the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.''' Post, at 455 (quoting this Court's Rule 11). Unlike JUSTICE SCALIA, however, we need not rely on our own sense of the importance of the issue involved; instead, the structure of § 692 makes it clear that Congress believed the issue warranted expedited review and, therefore, that Congress did not intend the result that the word "individual" would dictate in other contexts. 430 more v. Arkansas, 495 U. S. 149 , 155 (1990).15 Our disposition of the first challenge to the constitutionality of this Act demonstrates our recognition of the importance of respecting the constitutional limits on our jurisdiction, even when Congress has manifested an interest in obtaining our views as promptly as possible. But these cases differ from Raines, not only because the President's exercise of his cancellation authority has removed any concern about the ripeness of the dispute, but more importantly because the parties have alleged a "personal stake" in having an actual injury redressed rather than an "institutional injury" that is "abstract and widely dispersed." 521 U. S., at 829. In both the New York and the Snake River cases, the Government argues that the appellees are not actually injured because the claims are too speculative and, in any event, the claims are advanced by the wrong parties. We find no merit in the suggestion that New York's injury is merely speculative because HHS has not yet acted on the State's waiver requests. The State now has a multibillion dollar contingent liability that had been eliminated by § 4722(c) of the Balanced Budget Act of 1997. The District Court correctly concluded that the State, and the appellees, "suffered an immediate, concrete injury the moment that the President used the Line Item Veto to cancel section 4722(c) and deprived them of the benefits of that law." 985 F. Supp., at 174. The self-evident significance of the contingent liability is confirmed by the fact that New York lobbied Congress for this relief, that Congress decided that it warranted statutory attention, and that the President selected for cancellation only this one provision in an Act that occupies 536 pages of the Statutes at Large. His action was comparable to the judgment of an appellate court setting aside a verdict for the defendant and remanding for a new trial of a multibillion 15 To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U. S. 737 , 751 (1984). 431 dollar damages claim. Even if the outcome of the second trial is speculative, the reversal, like the President's cancellation, causes a significant immediate injury by depriving the defendant of the benefit of a favorable final judgment. The revival of a substantial contingent liability immediately and directly affects the borrowing power, financial strength, and fiscal planning of the potential obligor.16 We also reject the Government's argument that New York's claim is advanced by the wrong parties because the claim belongs to the State of New York, and not appellees. Under New York statutes that are already in place, it is clear that both the City of New York 17 and the appellee health care providers 18 will be assessed by the State for substantial portions of any recoupment payments that the State may have to make to the Federal Government. To the extent of such assessments, they have the same potential liability as the State does.19 16 Because the cancellation of the legislative equivalent of a favorable final judgment causes immediate injury, the Government's reliance on Anderson v. Green, 513 U. S. 557 (1995) (per curiam), is misplaced. That case involved a challenge to a California statute that would have imposed limits on welfare payments to new residents during their first year of residence in California. The statute could not become effective without a waiver from HHS. Although such a waiver had been in effect when the action was filed, it had been vacated in a separate proceeding and HHS had not sought review of that judgment. Accordingly, at the time the Anderson case reached this Court, the plaintiffs were receiving the same benefits as long-term residents; they had suffered no injury. We held that the case was not ripe because, unless and until HHS issued a new waiver, any future injury was purely conjectural. Id., at 559 ("The parties [i. e., the plaintiffs and California, but not HHS] have no live dispute now, and whether one will arise in the future is conjectural"). Unlike New York in this case, they were not contingently liable for anything. 17 App. 106-107. 18 See n. 10, supra. 19 The Government relies on Warth v. Seldin, 422 U. S. 490 (1975), to support its argument that the State, and not appellees, should be bringing this claim. In Warth we held, inter alia, that citizens of Rochester did not have standing to challenge the exclusionary zoning practices of another community because their claimed injury of increased taxation turned 432 The Snake River farmers' cooperative also suffered an immediate injury when the President canceled the limited tax benefit that Congress had enacted to facilitate the acquisition of processing plants. Three critical facts identify the specificity and the importance of that injury. First, Congress enacted § 968 for the specific purpose of providing a benefit to a defined category of potential purchasers of a defined category of assets.20 The members of that statutorily defined class received the equivalent of a statutory "bargaining chip" to use in carrying out the congressional plan to facilitate their purchase of such assets. Second, the President selected § 968 as one of only two tax benefits in the Taxpayer Relief Act of 1997 that should be canceled. The cancellation rested on his determination that the use of those bargaining chips would have a significant impact on the federal budget deficit. Third, the Snake River cooperative was organized for the very purpose of acquiring processing facilities, it had concrete plans to utilize the benefits of § 968, and it was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a taxdeferred sale when the President canceled § 968. Moreover, it is actively searching for other processing facilities for possible future purchase if the President's cancellation is reversed; and there are ample processing facilities in the State that Snake River may be able to purchase.21 By depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents. See, e. g., Investment on the prospective actions of Rochester officials. Id., at 509. Appellees' injury in this case, however, does not turn on the independent actions of third parties, as existing New York law will automatically require that appellees reimburse the State. Because both the City of New York and the health care appellees have standing, we need not consider whether the appellee unions also have standing to sue. See, e. g., Bowsher v. Synar, 478 U. S. 714 , 721 (1986). 20 See n. 5, supra. 21 App. 111-115 (Declaration of Mike Cranney). 433 Company Institute v. Camp, 401 U. S. 617 , 620 (1971); 3 K. Davis & R. Pierce, Administrative Law Treatise 13-14 (3d ed. 1994) ("The Court routinely recognizes probable economic injury resulting from [governmental actions] that alter competitive conditions as sufficient to satisfy the [Article III 'injury-in-fact' requirement] .... It follows logically that any ... petitioner who is likely to suffer economic injury as a result of [governmental action] that changes market conditions satisfies this part of the standing test"). Appellees' injury in this regard is at least as concrete as the injury suffered by the respondents in Bryant v. Yellen, 447 U. S. 352 (1980). In that case, we considered whether a rule that generally limited water deliveries from reclamation projects to 160 acres applied to the much larger tracts of the Imperial Irrigation District in southeastern California; application of that limitation would have given large landowners an incentive to sell excess lands at prices below the prevailing market price for irrigated land. The District Court had held that the 160-acre limitation did not apply, and farmers who had hoped to purchase the excess land sought to appeal. We acknowledged that the farmers had not presented "detailed information about [their] financial resources," and noted that "the prospect of windfall profits could attract a large number of potential purchasers" besides the farmers. Id., at 367, n. 17. Nonetheless, "even though they could not with certainty establish that they would be able to purchase excess lands" if the judgment were reversed, id., at 367, we found standing because it was "likely that excess lands would become available at less than market prices," id., at 368. The Snake River appellees have alleged an injury that is as specific and immediate as that in Yellen. See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 , 72-78 (1978).22 22 The Government argues that there can be an Article III injury only if Snake River would have actually obtained a facility on favorable terms. We have held, however, that a denial of a benefit in the bargaining process 434 As with the New York case, the Government argues that the wrong parties are before the Court-that because the sellers of the processing facilities would have received the tax benefits, only they have standing to challenge the cancellation of § 968. This argument not only ignores the fact that the cooperatives were the intended beneficiaries of § 968, but also overlooks the self-evident proposition that more than one party may have standing to challenge a particular action or inaction.23 Once it is determined that a particular plain- can itself create an Article III injury, irrespective of the end result. See Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656 , 666 (1993). In that case an association of contractors challenged a city ordinance that accorded preferential treatment to certain minority-owned businesses in the award of city contracts. The Court of Appeals had held that the association lacked standing "because it failed to allege that one or more of its members would have been awarded a contract but for the challenged ordinance." Id., at 664. We rejected the Court of Appeals' position, stating that it "cannot be reconciled with our precedents." Ibid. Even though the preference applied to only a small percentage of the city's business, and even though there was no showing that any party would have received a contract absent the ordinance, we held that the prospective bidders had standing; the "injury in fact" was the harm to the contractors in the negotiation process, "not the ultimate inability to obtain the benefit." Id., at 666. Having found that both the New York and Snake River appellees are actually injured, traceability and redressability are easily satisfied-each injury is traceable to the President's cancellation of § 4722(c) or § 968, and would be redressed by a declaratory judgment that the cancellations are invalid. 23 Allen v. Wright, 468 U. S. 737 (1984), and Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26 (1976), are distinguishable, as each of those cases involved a speculative chain of causation quite different from the situation here. In Allen, parents of black public school children alleged that, even though it was the policy of the Internal Revenue Service (IRS) to deny tax-exempt status to racially discriminatory schools, the IRS had "not adopted sufficient standards and procedures" to enforce this policy. 468 U. S., at 739. The parents alleged that the lax enforcement caused white students to attend discriminatory private schools and, therefore, interfered with their children's opportunity to attend desegre- 435 tiff is harmed by the defendant, and that the harm will likely be redressed by a favorable decision, that plaintiff has standing-regardless of whether there are others who would gated public schools. We held that the chain of causation between the challenged action and the alleged injury was too attenuated to confer standing: "It is, first, uncertain how many racially discriminatory private schools are in fact receiving tax exemptions. Moreover, it is entirely speculative ... whether withdrawal of a tax exemption from any particular school would lead the school to change its policies .... It is just as speculative whether any given parent of a child attending such a private school would decide to transfer the child to public school as a result of any changes in educational or financial policy made by the private school once it was threatened with loss of tax-exempt status. It is also pure speculation whether, in a particular community, a large enough number of the numerous relevant school officials and parents would reach decisions that collectively would have a significant impact on the racial composition of the public schools." Id., at 758 (footnote omitted). Similarly, in Simon, the respondents challenged an IRS Revenue Ruling that granted favorable tax treatment to nonprofit hospitals that offered only emergency-room services to the poor. The respondents argued that the Revenue Ruling" 'encouraged' hospitals to deny services to indigents." 426 U. S., at 42. As in Allen, we held that the chain of causation was too attenuated: "It is purely speculative whether the denials of service ... fairly can be traced to [the IRS's] 'encouragement' or instead result from decisions made by the hospitals without regard to the tax implications. "It is equally speculative whether the desired exercise of the court's remedial powers in this suit would result in the availability to respondents of such services. So far as the complaint sheds light, it is just as plausible that the hospitals to which respondents may apply for service would elect to forgo favorable tax treatment to avoid the undetermined financial drain of an increase in the level of uncompensated services." 426 U. S., at 42-43. See also id., at 45 ("Speculative inferences are necessary to connect [respondents'] injury to the challenged actions of petitioners"). The injury in the present case is comparable to the repeal of a law granting a subsidy to sellers of processing plants if, and only if, they sell to farmers' cooperatives. Every farmers' cooperative seeking to buy a processing plant is harmed by that repeal. 436 also have standing to sue. Thus, we are satisfied that both of these actions are Article III "Cases" that we have a duty to decide. IV The Line Item Veto Act gives the President the power to "cancel in whole" three types of provisions that have been signed into law: "(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit." 2 U. S. C. § 691(a) (1994 ed., Supp. II). It is undisputed that the New York case involves an "item of new direct spending" and that the Snake River case involves a "limited tax benefit" as those terms are defined in the Act. It is also undisputed that each of those provisions had been signed into law pursuant to Article I, § 7, of the Constitution before it was canceled. The Act requires the President to adhere to precise procedures whenever he exercises his cancellation authority. In identifying items for cancellation he must consider the legislative history, the purposes, and other relevant information about the items. See 2 U. S. C. § 691(b) (1994 ed., Supp. II). He must determine, with respect to each cancellation, that it will "(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest." § 691(a)(A). Moreover, he must transmit a special message to Congress notifying it of each cancellation within five calendar days (excluding Sundays) after the enactment of the canceled provision. See § 691(a)(B). It is undisputed that the President meticulously followed these procedures in these cases. A cancellation takes effect upon receipt by Congress of the special message from the President. See § 691b(a). If, however, a "disapproval bill" pertaining to a special message is enacted into law, the cancellations set forth in that message become "null and void." Ibid. The Act sets forth a detailed expedited procedure for the consideration of a "disapproval bill," see § 691d, but no such bill was passed for 437 either of the cancellations involved in these cases.24 A majority vote of both Houses is sufficient to enact a disapproval bill. The Act does not grant the President the authority to cancel a disapproval bill, see § 691(c), but he does, of course, retain his constitutional authority to veto such a bill.25 The effect of a cancellation is plainly stated in § 691e, which defines the principal terms used in the Act. With respect to both an item of new direct spending and a limited tax benefit, the cancellation prevents the item "from having legal force or effect." §§ 691e(4)(B)-(C).26 Thus, under the 24 Congress failed to act upon proposed legislation to disapprove these cancellations. See S. 1157, H. R. 2444, S. 1144, and H. R. 2436, 105th Cong., 1st Sess. (1997). Indeed, despite the fact that the President has canceled at least 82 items since the Act was passed, see Statement of June E. O'Neill, Director, Congressional Budget Office, Line Item Veto Act After One Year, The Process and Its Implementation, before the Subcommittee on Legislative and Budget Process of the House Committee on Rules, 105th Cong., 2d Sess. (Mar. 11-12, 1998), Congress has enacted only one law, over a Presidential veto, disapproving any cancellation, see Pub. L. 105-159, 112 Stat. 19 (1998) (disapproving the cancellation of 38 military construction spending items). 25 See n. 29, infra. 26 The term "cancel," used in connection with any dollar amount of discretionary budget authority, means "to rescind." 2 U. S. C. § 691e(4)(A). The entire definition reads as follows: "The term 'cancel' or 'cancellation' means- "(A) with respect to any dollar amount of discretionary budget authority, to rescind; "(B) with respect to any item of new direct spending- "(i) that is budget authority provided by law (other than an appropriation law), to prevent such budget authority from having legal force or effect; "(ii) that is entitlement authority, to prevent the specific legal obligation of the United States from having legal force or effect; or "(iii) through the food stamp program, to prevent the specific provision of law that results in an increase in budget authority or outlays for that program from having legal force or effect; and "(C) with respect to a limited tax benefit, to prevent the specific provision of law that provides such benefit from having legal force or effect." 2 U. S. C. § 691e(4) (1994 ed., Supp. II). 438 plain text of the statute, the two actions of the President that are challenged in these cases prevented one section of the Balanced Budget Act of 1997 and one section of the Taxpayer Relief Act of 1997 "from having legal force or effect." The remaining provisions of those statutes, with the exception of the second canceled item in the latter, continue to have the same force and effect as they had when signed into law. In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. "[R]epeal of statutes, no less than enactment, must conform with Art. 1." INS v. Chadha, 462 U. S. 919 , 954 (1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article II assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases. The President "shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient .... " Art. II, § 3. Thus, he may initiate and influence legislative proposals.27 Moreover, after a bill has passed both Houses of Congress, but "before it become[s] a Law," it must be presented to the President. If he approves it, "he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it." Art. I, § 7, cl. 2.28 His 27 See 3 J. Story, Commentaries on the Constitution of the United States § 1555, p. 413 (1833) (Art. II, § 3, enables the President "to point out the evil, and to suggest the remedy"). 28 The full text of the relevant paragraph of § 7 provides: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and pro- 439 "return" of a bill, which is usually described as a "veto," 29 is subject to being overridden by a two-thirds vote in each House. There are important differences between the President's "return" of a bill pursuant to Article I, § 7, and the exercise of the President's cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to playa role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes. There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, ceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." 29 "In constitutional terms, 'veto' is used to describe the President's power under Art. I, § 7, of the Constitution." INS v. Chadha, 462 U. S. 919 , 925, n. 2 (1983) (citing Black's Law Dictionary 1403 (5th ed. 1979)). 440 procedure." Chadha, 462 U. S., at 951. Our first President understood the text of the Presentment Clause as requiring that he either "approve all the parts of a Bill, or reject it in toto." 30 What has emerged in these cases from the President's exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the "finely wrought" procedure that the Framers designed. At oral argument, the Government suggested that the cancellations at issue in these cases do not effect a "repeal" of the canceled items because under the special "lockbox" provisions of the Act,31 a canceled item "retain[s] real, legal 3033 Writings of George Washington 96 (J. Fitzpatrick ed., 1940); see also W. Taft, The Presidency: Its Duties, Its Powers, Its Opportunities and Its Limitations 11 (1916) (stating that the President "has no power to veto part of a bill and let the rest become a law"); cf. 1 W. Blackstone, Commentaries *154 ("The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses"). 31 The lockbox procedure ensures that savings resulting from cancellations are used to reduce the deficit, rather than to offset deficit increases arising from other laws. See 2 U. S. C. §§ 691c(a)-(b) (1994 ed., Supp. II); see also H. R. Conf. Rep. No. 104-491, pp. 23-24 (1996). The Office of Management and Budget (OMB) estimates the deficit reduction resulting from each cancellation of new direct spending or limited tax benefit items and presents its estimate as a separate entry in the "pay-as-you-go" report submitted to Congress pursuant to § 252(d) of the Balanced Budget and Emergency Deficit Control Act of 1985 (or Gramm-Rudman-Hollings Act), 2 U. S. C. § 902(d). See § 691c(a)(2)(A) (1994 ed., Supp. II); see also H. R. Conf. Rep. No. 104-491, at 23. The "pay-as-you-go" requirement acts as a self-imposed limitation on Congress' ability to increase spending and/or reduce revenue: If spending increases are not offset by revenue increases (or if revenue reductions are not offset by spending reductions), then a "sequester" of the excess budgeted funds is required. See 2 U. S. C. §§ 900(b), 901(a)(1), 902(b), 906(l). OMB does not include the estimated savings resulting from a cancellation in the report it must submit under §§252(b) and 254 of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U. S. C. §§ 902(b), 904. See § 691c(a)(2)(B). By providing in this way that such savings "shall not be included in the pay-as-you-go balances," Congress ensures that "savings from the cancellation of new 441 budgetary effect" insofar as it prevents Congress and the President from spending the savings that result from the cancellation. Tr. of Oral Arg. 10.32 The text of the Act expressly provides, however, that a cancellation prevents a direct spending or tax benefit provision "from having legal force or effect." 2 U. S. C. §§ 691e(4)(B)-(C). That a canceled item may have "real, legal budgetary effect" as a result of the lockbox procedure does not change the fact that by canceling the items at issue in these cases, the President made them entirely inoperative as to appellees. Section 968 of the Taxpayer Relief Act no longer provides a tax benefit, and §4722(c) of the Balanced Budget Act of 1997 no longer relieves New York of its contingent liability.33 Such significant changes do not lose their character simply because the canceled provisions may have some continuing financial effect on the Government.34 The cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled. direct spending or limited tax benefits are devoted to deficit reduction and are not available to offset a deficit increase in another law." H. R. Conf. Rep. No. 104-491, at 23. Thus, the "pay-as-you-go" cap does not change upon cancellation because the canceled item is not treated as canceled. Moreover, if Congress enacts a disapproval bill, "OMB will not score this legislation as increasing the deficit under pay as you go." Ibid. 32 The Snake River appellees have argued that the lockbox provisions have no such effect with respect to the canceled tax benefits at issue. Because we reject the Government's suggestion that the lockbox provisions alter our constitutional analysis, however, we find it unnecessary to resolve the dispute over the details of the lockbox procedure's applicability. 33 Thus, although "Congress's use of infelicitous terminology cannot transform the cancellation into an unconstitutional amendment or repeal of an enacted law," Brief for Appellants 40-41 (citations omitted), the actual effect of a cancellation is entirely consistent with the language of the Act. 34 Moreover, Congress always retains the option of statutorily amending or repealing the lockbox provisions and/or the Gramm-Rudman-Hollings Act, so as to eliminate any lingering financial effect of canceled items. 442 v The Government advances two related arguments to support its position that despite the unambiguous provisions of the Act, cancellations do not amend or repeal properly enacted statutes in violation of the Presentment Clause. First, relying primarily on Field v. Clark, 143 U. S. 649 (1892), the Government contends that the cancellations were merely exercises of discretionary authority granted to the President by the Balanced Budget Act and the Taxpayer Relief Act read in light of the previously enacted Line Item Veto Act. Second, the Government submits that the substance of the authority to cancel tax and spending items "is, in practical effect, no more and no less than the power to 'decline to spend' specified sums of money, or to 'decline to implement' specified tax measures." Brief for Appellants 40. Neither argument is persuasive. In Field v. Clark, the Court upheld the constitutionality of the Tariff Act of 1890. Act of Oct. 1, 1890, 26 Stat. 567. That statute contained a "free list" of almost 300 specific articles that were exempted from import duties "unless otherwise specially provided for in this act." Id., at 602. Section 3 was a special provision that directed the President to suspend that exemption for sugar, molasses, coffee, tea, and hides "whenever, and so often" as he should be satisfied that any country producing and exporting those products imposed duties on the agricultural products of the United States that he deemed to be "reciprocally unequal and unreasonable .... " Id., at 612, quoted in Field, 143 U. S., at 680. The section then specified the duties to be imposed on those products during any such suspension. The Court provided this explanation for its conclusion that § 3 had not delegated legislative power to the President: "Nothing involving the expediency or the just operation of such legislation was left to the determination of the President .... [W]hen he ascertained the fact that duties 443 and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws .... It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspensions certain duties should be imposed." Id., at 693. This passage identifies three critical differences between the power to suspend the exemption from import duties and the power to cancel portions of a duly enacted statute. First, the exercise of the suspension power was contingent upon a condition that did not exist when the Tariff Act was passed: the imposition of "reciprocally unequal and unreasonable" import duties by other countries. In contrast, the exercise of the cancellation power within five days after the enactment of the Balanced Budget and Tax Reform Acts necessarily was based on the same conditions that Congress evaluated when it passed those statutes. Second, under the Tariff Act, when the President determined that the contingency had arisen, he had a duty to suspend; in contrast, while it is true that the President was required by the Act to make three determinations before he canceled a provision, see 2 444 u. S. C. § 691(a)(A) (1994 ed., Supp. II), those determinations did not qualify his discretion to cancel or not to cancel. Finally, whenever the President suspended an exemption under the Tariff Act, he was executing the policy that Congress had embodied in the statute. In contrast, whenever the President cancels an item of new direct spending or a limited tax benefit he is rejecting the policy judgment made by Congress and relying on his own policy judgment.35 Thus, the conclusion in Field v. Clark that the suspensions mandated by the Tariff Act were not exercises of legislative power does not undermine our opinion that cancellations pursuant to the Line Item Veto Act are the functional equivalent of partial repeals of Acts of Congress that fail to satisfy Article I, § 7. The Government's reliance upon other tariff and import statutes, discussed in Field, that contain provisions similar to the one challenged in Field is unavailing for the same reasons.36 Some of those statutes authorized the President to "suspen[dJ and discontinu[eJ" statutory duties upon his determination that discriminatory duties imposed by other nations had been abolished. See 143 U. S., at 686-687 (discussing Act of Jan. 7, 1824, ch. 4, §4, 4 Stat. 3, and Act of May 24, 1828, ch. 111,4 Stat. 308).37 A slightly different statute, 35 For example, one reason that the President gave for canceling § 968 of the Taxpayer Relief Act was his conclusion that "this provision failed to target its benefits to small-and-medium size cooperatives." App. to Juris. Statement 71a (Cancellation No. 97-2); see n. 8, supra. Because the Line Item Veto Act requires the President to act within five days, every exercise of the cancellation power will necessarily be based on the same facts and circumstances that Congress considered, and therefore constitute a rejection of the policy choice made by Congress. 36 The Court did not, of course, expressly consider in Field whether those statutes comported with the requirements of the Presentment Clause. 37 Cf. 143 U. S., at 688 (discussing Act of Mar. 6, 1866, ch. 12, § 2, 14 Stat. 4, which permitted the President to "declare the provisions of this act to be inoperative" and lift import restrictions on foreign cattle and hides upon a showing that such importation would not endanger U. S. cattle). 445 Act of May 31, 1830, ch. 219, § 2, 4 Stat. 425, provided that certain statutory provisions imposing duties on foreign ships "shall be repealed" upon the same no-discrimination determination by the President. See 143 U. S., at 687; see also id., at 686 (discussing similar tariff statute, Act of Mar. 3, 1815, ch. 77, 3 Stat. 224, which provided that duties "are hereby repealed," "[s]uch repeal to take effect ... whenever the President" makes the required determination). The cited statutes all relate to foreign trade, and this Court has recognized that in the foreign affairs arena, the President has "a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 320 (1936). "Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries." Ibid. 38 More important, when enacting the statutes discussed in Field, Congress itself made the decision to suspend or repeal the particular provisions at issue upon the occurrence of particular events subsequent to enactment, and it left only the determination of whether such events occurred up to the President.39 The Line Item Veto Act authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing the procedures set out in Article I, § 7. The fact that Congress intended such a result is of no 38 Indeed, the Court in Field v. Clark, 143 U. S. 649 (1892), so limited its reasoning: "[I]n the judgment of the legislative branch of the government, it is often desirable, if not essential for the protection of the interests of our people, against the unfriendly or discriminating regulations established by foreign governments, ... to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations." Id., at 691. 39 See also J. W Hampton, Jr., & Co. v. United States, 276 U. S. 394 , 407 (1928) ("Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive"). 446 moment. Although Congress presumably anticipated that the President might cancel some of the items in the Balanced Budget Act and in the Taxpayer Relief Act, Congress cannot alter the procedures set out in Article I, § 7, without amending the Constitution.40 Neither are we persuaded by the Government's contention that the President's authority to cancel new direct spending and tax benefit items is no greater than his traditional authority to decline to spend appropriated funds. The Government has reviewed in some detail the series of statutes in which Congress has given the Executive broad discretion over the expenditure of appropriated funds. For example, the First Congress appropriated "sum[s] not exceeding" specified amounts to be spent on various Government operations. See, e. g., Act of Sept. 29, 1789, ch. 23, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, § 1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. In those statutes, as in later years, the President was given wide discretion with respect to both the amounts to be spent and how the money would be allocated among different functions. It is argued that the Line Item Veto Act merely confers comparable discretionary authority over the expenditure of appropriated funds. The critical 40 The Government argues that the Rules Enabling Act, 28 U. S. C. § 2072(b), permits this Court to "repeal" prior laws without violating Article I, § 7. Section 2072(b) provides that this Court may promulgate rules of procedure for the lower federal courts and that "[a]lllaws in conflict with such rules shall be of no further force or effect after such rules have taken effect." See Sibbach v. Wilson & Co., 312 U. S. 1 , 10 (1941) (stating that the procedural rules that this Court promulgates, "if they are within the authority granted by Congress, repeal" a prior inconsistent procedural statute); see also Henderson v. United States, 517 U. S. 654 , 664 (1996) (citing § 2072(b)). In enacting § 2072(b), however, Congress expressly provided that laws inconsistent with the procedural rules promulgated by this Court would automatically be repealed upon the enactment of new rules in order to create a uniform system of rules for Article III courts. As in the tariff statutes, Congress itself made the decision to repeal prior rules upon the occurrence of a particular event-here, the promulgation of procedural rules by this Court. 447 difference between this statute and all of its predecessors, however, is that unlike any of them, this Act gives the President the unilateral power to change the text of duly enacted statutes. None of the Act's predecessors could even arguably have been construed to authorize such a change. VI Although they are implicit in what we have already written, the profound importance of these cases makes it appropriate to emphasize three points. First, we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. Many members of both major political parties who have served in the Legislative and the Executive Branches have long advocated the enactment of such procedures for the purpose of "ensur[ing] greater fiscal accountability in Washington." H. R. Conf. Rep. 104-491, p. 15 (1996).41 The text of the Act was itself the product of much debate and deliberation in both Houses of Congress and that precise text was signed into law by the President. We do not lightly conclude that their action was unauthorized by the Constitution.42 We have, however, twice had full argument and briefing on the question and have concluded that our duty is clear. Second, although appellees challenge the validity of the Act on alternative grounds, the only issue we address concerns the "finely wrought" procedure commanded by the Constitution. Chadha, 462 U. S., at 951. We have been 41 Cf. Taft, The Presidency, supra n. 30, at 21 ("A President with the power to veto items in appropriation bills might exercise a good restraining influence in cutting down the total annual expenses of the government. But this is not the right way"). 42 See Bowsher, 478 U. S., at 736 (STEVENS, J., concurring in judgment) ("When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons"). 448 favored with extensive debate about the scope of Congress' power to delegate lawmaking authority, or its functional equivalent, to the President. The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act's cancellation provisions violate Article I, § 7, of the Constitution, we find it unnecessary to consider the District Court's alternative holding that the Act "impermissibly disrupts the balance of powers among the three branches of government." 985 F. Supp., at 179.43 Third, our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became "Public Law 105-33" after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may "become a law." Art. I, § 7. If one paragraph of that text had been omitted at anyone of those three stages, Public Law 105-33 would not have been validly enacted. If the Line Item Veto Act were valid, it would authorize the President to create a different law-one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as "Public Law 105-33 as modified by the President" mayor 43 We also find it unnecessary to consider whether the provisions of the Act relating to discretionary budget authority are severable from the Act's tax benefit and direct spending provisions. We note, however, that the Act contains no severability clause; a severability provision that had appeared in the Senate bill was dropped in conference without explanation. H. R. Conf. Rep. No. 104-491, at 17,41. 449 may not be desirable, but it is surely not a document that may "become a law" pursuant to the procedures designed by the Framers of Article I, § 7, of the Constitution. If there is to be a new procedure in which the President will playa different role in determining the final text of what may "become a law," such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. Cf. U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779 , 837 (1995). The judgment of the District Court is affirmed. It is so ordered. JUSTICE KENNEDY, concurring. A Nation cannot plunder its own treasury without putting its Constitution and its survival in peril. The statute before us, then, is of first importance, for it seems undeniable the Act will tend to restrain persistent excessive spending. Nevertheless, for the reasons given by JUSTICE STEVENS in the opinion for the Court, the statute must be found invalid. Failure of political will does not justify unconstitutional remedies. I write to respond to my colleague JUSTICE BREYER, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree. See post, at 496-497. The argument is related to his earlier suggestion that our role is lessened here because the two political branches are adjusting their own powers between themselves. Post, at 472,482-483. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution's structure requires a stability which transcends the convenience of the moment. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 , 276-277 (1991); Bowsher v. Synar, 450 478 U. S. 714 , 736 (1986); INS v. Chadha, 462 U. S. 919 , 944945, 958-959 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 , 73-74 (1982). The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers. Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961). So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84, pp. 513, 515; G. Wood, The Creation of the American Republic 1776-1787, pp. 536-543 (1969). It was at Madison's insistence that the First Congress enacted the Bill of Rights. R. Goldwin, From Parchment to Power 75-153 (1997). It would be a grave mistake, however, to think a Bill of Rights in Madison's scheme then or in sound constitutional theory now renders separation of powers of lesser importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1132 (1991). In recent years, perhaps, we have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of anyone 451 branch to influence basic political decisions. Quoting Montesquieu, the Federalist Papers made the point in the following manner: "'When the legislative and executive powers are united in the same person or body,' says he, 'there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.' Again: 'Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.'" The Federalist No. 47, supra, at 303. It follows that if a citizen who is taxed has the measure of the tax or the decision to spend determined by the Executive alone, without adequate control by the citizen's Representatives in Congress, liberty is threatened. Money is the instrument of policy and policy affects the lives of citizens. The individual loses liberty in a real sense if that instrument is not subject to traditional constitutional constraints. The principal object of the statute, it is true, was not to enhance the President's power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another. Yet these are its undeniable effects. The law establishes a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in order to disfavor the group or to extract further concessions from Congress. The law is the functional equivalent of a line item veto and enhances the President's powers beyond what the Framers would have endorsed. It is no answer, of course, to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or 452 enacted over his veto, could restore to Congress the power it now seeks to relinquish. That a congressional cession of power is voluntary does not make it innocuous. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow. See Freytag v. Commissioner, 501 U. S. 868 , 880 (1991); cf. Chadha, supra, at 942, n. 13. Abdication of responsibility is not part of the constitutional design. Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority. Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power. If this point was not clear before Chadha, it should have been so afterwards. Though Chadha involved the deportation of a person, while the case before us involves the expenditure of money or the grant of a tax exemption, this circumstance does not mean that the vertical operation of the separation of powers is irrelevant here. By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure. The Constitution is not bereft of controls over improvident spending. Federalism is one safeguard, for political accountability is easier to enforce within the States than nationwide. The other principal mechanism, of course, is control of the political branches by an informed and responsible electorate. Whether or not federalism and control by the electorate are adequate for the problem at hand, they are two of the structures the Framers designed for the problem the statute strives to confront. The Framers of the Consti- 453 tution could not command statesmanship. They could simply provide structures from which it might emerge. The fact that these mechanisms, plus the proper functioning of the separation of powers itself, are not employed, or that they prove insufficient, cannot validate an otherwise unconstitutional device. With these observations, I join the opinion of the Court. JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins, and with whom JUSTICE BREYER joins as to Part III, concurring in part and dissenting in part. Today the Court acknowledges the" 'overriding and timehonored concern about keeping the Judiciary's power within its proper constitutional sphere.'" Ante, at 421, quoting Raines v. Byrd, 521 U. S. 811 , 820 (1997). It proceeds, however, to ignore the prescribed statutory limits of our jurisdiction by permitting the expedited-review provisions of the Line Item Veto Act to be invoked by persons who are not "individual[s]," 2 U. S. C. § 692 (1994 ed., Supp. II); and to ignore the constitutional limits of our jurisdiction by permitting one party to challenge the Government's denial to an other party of favorable tax treatment from which the first party might, but just as likely might not, gain a concrete benefit. In my view, the Snake River appellees lack standing to challenge the President's cancellation of the "limited tax benefit," and the constitutionality of that action should not be addressed. I think the New York appellees have standing to challenge the President's cancellation of an "item of new direct spending"; I believe we have statutory authority (other than the expedited-review provision) to address that challenge; but unlike the Court I find the President's cancellation of spending items to be entirely in accord with the Constitution. I The Court's unrestrained zeal to reach the merits of this case is evident in its disregard of the statute's expedited- 454 Opinion of SCALIA, J. review provision, which extends that special procedure to "[a]ny Member of Congress or any individual adversely affected by [the Act]." § 692. With the exception of Mike Cranney, a natural person, the appellees-corporations, cooperatives, and governmental entities-are not "individuals" under any accepted usage of that term. Worse still, the first provision of the United States Code confirms that insofar as this word is concerned, Congress speaks English like the rest of us: "In determining the meaning of any Act of Congress, unless the context indicates otherwise ... the wor[d] 'person' ... include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." 1 U. S. C. § 1 (emphasis added). And doubly worse, one of the definitional provisions of this very Act expressly distinguishes "individuals" from "persons." A tax law does not create a "limited tax benefit," it says, so long as "any difference in the treatment of persons is based solely on- "(I) in the case of businesses and associations, the size or form of the business or association involved; "(II) in the case of individuals, general demographic conditions, such as income, marital status, number of dependents, or tax return filing status .... " 2 U. S. C. § 691e(9)(B)(iii) (1994 ed., Supp. II) (emphasis added). The Court majestically sweeps the plain language of the statute aside, declaring that "[t]here is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons." Ante, at 429. Indeed, the Court says, it would be "absurd" for Congress to have done so. Ibid. But Congress treats individuals more favorably than corporations and other associations all the time. There is nothing whatever extraordinary-and surely nothing so 455 bizarre as to permit this Court to declare a "scrivener's error"-in believing that individuals will suffer more seriously from delay in the receipt of "vetoed" benefits or tax savings than corporations will, and therefore according individuals (but not corporations) expedited review. It may be unlikely that this is what Congress actually had in mind; but it is what Congress said, it is not so absurd as to be an obvious mistake, and it is therefore the law. The only individual who has sued, and thus the only appellee who qualifies for expedited review under § 692, is Mike Cranney. Since § 692 does not confer jurisdiction over the claims of the other appellees, we must dismiss them, unless we have jurisdiction under another statute. In their complaints, appellees sought declaratory relief not only under § 692(a), but also under the Declaratory Judgment Act, 28 U. S. C. § 2201, invoking the District Court's jurisdiction under 28 U. S. C. § 1331. After the District Court ruled, the Government appealed directly to this Court, but it also filed a notice of appeal to the Court of Appeals for the District of Columbia Circuit. In light of the Government's representation that it desires "[t]o eliminate any possibility that the district court's decision might escape review," Reply Brief for Appellants 2, n. 1, I would deem its appeal to this Court a petition for writ of certiorari before judgment, see 28 U. S. C. § 2101(e), and grant it. Under this Court's Rule 11, "[a] petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." In light of the public importance of the issues involved, and the little sense it would make for the Government to pursue its appeal against one appellee in this Court and against the others in the Court of Appeals, the entire case, in my view, qualifies for certiorari review before judgment. 456 Opinion of SCALIA, J. II Not only must we be satisfied that we have statutory jurisdiction to hear this case; we must be satisfied that we have jurisdiction under Article III. "To meet the standing requirements of Article III, '[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'" Raines, 521 U. S., at 818, quoting Allen v. Wright, 468 U. S. 737 , 751 (1984). In the first action before us, appellees Snake River Potato Growers, Inc. (Snake River) and Mike Cranney, Snake River's Director and Vice-Chairman, challenge the constitutionality of the President's cancellation of § 968 of the Taxpayer Relief Act of 1997. The Snake River appellees have standing, in the Court's view, because § 968 gave them "the equivalent of a statutory 'bargaining chip,'" and "[b]y depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents." Ante, at 432. It is unclear whether the Court means that deprivation of a "bargaining chip" itself suffices for standing, or that such deprivation suffices in the present case because it creates a likelihood of economic injury. The former is wrong as a matter of law, and the latter is wrong as a matter of fact, on the facts alleged. For the proposition that "a denial of a benefit in the bargaining process" can suffice for standing the Court relies in a footnote, see ante, at 433, n. 22, on Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656 (1993). There, an association of contractors alleged that a city ordinance according racial preferences in the award of city contracts denied its members equal protection of the laws. Id., at 658-659. The association's members had regularly bid on and performed city contracts, and would have bid on designated set-aside contracts but for the ordinance. Id., at 659. We held that the association had 457 standing even without proof that its members would have been awarded contracts absent the challenged discrimination. The reason, we explained, is that "[t]he 'injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit." Id., at 666, citing two earlier equal protection cases, Turner v. Fouche, 396 U. S. 346 , 362 (1970), and Richmond v. J. A. Croson Co., 488 U. S. 469 , 493 (1989). In other words, Northeastern Florida did not hold, as the Court suggests, that harm to one's bargaining position is an "injury in fact," but rather that, in an equal protection case, the denial of equal treatment is. Inasmuch as Snake River does not challenge the Line Item Veto Act on equal protection grounds, Northeastern Florida is inapposite. And I know of no case outside the equal protection field in which the mere detriment to one's "bargaining position," as opposed to a demonstrated loss of some bargain, has been held to confer standing. The proposition that standing is established by the mere reduction in one's chances of receiving a financial benefit is contradicted by Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26 (1976), which held that low-income persons who had been denied treatment at local hospitals lacked standing to challenge an Internal Revenue Service (IRS) ruling that reduced the amount of charitable care necessary for the hospitals to qualify for tax-exempt status. The situation in that case was strikingly similar to the one before us here: The denial of a tax benefit to a third party was alleged to reduce the chances of a financial benefit to the plaintiffs. And standing was denied. But even if harm to one's bargaining position were a legally cognizable injury, Snake River has not alleged, as it must, facts sufficient to demonstrate that it personally has suffered that injury. See Warth v. Seldin, 422 U. S. 490 , 502 (1975). In Eastern Ky. Welfare Rights, supra, the plaintiffs at least had applied for the financial benefit which had alleg- 458 Opinion of SCALIA, J. edly been rendered less likely of receipt; the present suit, by contrast, resembles a complaint asserting that the plaintiff's chances of winning the lottery were reduced, filed by a plaintiff who never bought a lottery ticket, or who tore it up before the winner was announced. Snake River has presented no evidence to show that it was engaged in bargaining, and that that bargaining was impaired by the President's cancellation of § 968. The Court says that Snake River "was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a taxdeferred sale when the President canceled § 968," ante, at 432. There is, however, no evidence of "negotiations," only of two "discussions." According to the affidavit of Mike Cranney: "On or about May 1997, I spoke with Howard Phillips, the principal owner of Idaho Potato Packers, concerning the possibility that, if the Cooperative Tax Act were passed, Snake River Potato Growers might purchase a Blackfoot, Idaho processing facility in a transaction that would allow the deferral of gain. Mr. Phillips expressed an interest in such a transaction if the Cooperative Tax Act were to pass. Mr. Phillips also acknowledged to me that Jim Chapman, our General Manager, had engaged him in a previous discussion concerning this matter." App. 112. This affidavit would have set forth something of significance if it had said that Phillips had expressed an interest in the transaction "if and only if the Cooperative Tax Act were to pass." But of course it is most unlikely he said that; Idaho Potato Packers (IPP) could get just as much from the sale without the Act as with the Act, so long as the price was right. The affidavit would also have set forth something of significance if it had said that Phillips had expressed an interest in the sale "at a particular price if the Cooperative Tax Act were to pass." But it does not say that either. 459 Nor does it even say that the President's action caused IPP to reconsider. Moreover, it was Snake River, not IPP, that terminated the discussions. According to Cranney, "[t]he President's cancellation of the Cooperative Tax Act caused me to terminate discussions with Phillips about the possibility of Snake River Potato Growers buying the Idaho Potato Packers facility." Id., at 114. So all we know from the record is that Snake River had two discussions with IPP concerning the sale of its processing facility on the tax deferred basis the Act would allow; that IPP was interested; and that Snake River ended the discussions after the President's action. We do not know that Snake River was prepared to offer a price-tax deferral or no-that would cross IPP's laugh threshold. We do not even know for certain that the tax deferral was a significant attraction to IPP; we know only that Cranney thought it was. On these facts-which never even bring things to the point of bargaining-it is pure conjecture to say that Snake River suffered an impaired bargaining position. As we have said many times, conjectural or hypothetical injuries do not suffice for Article III standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555 , 560 (1992). Nor has Snake River demonstrated, as the Court finds, that "the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents." Ante, at 432. Presumably the economic injury the Court has in mind is Snake River's loss of a bargain purchase of a processing plant. But there is no evidence, and indeed not even an allegation, that before the President's action such a purchase was likely. The most that Snake River alleges is that the President's action rendered it "more difficult for plaintiffs to purchase qualified processors," App. 12. And even if that abstract "increased difficulty" sufficed for injury in fact (which it does not), the existence of even that is pure speculation. For all that appears, no owner of a processing plant would have been willing to sell to Snake 460 Opinion of SCALIA, J. River at any price that Snake River could afford-and the impossible cannot be made "more difficult." All we know is that a potential seller was "interested" in talking about the subject before the President's action, and that after the President's action Snake River itself decided to proceed no further. If this establishes a "likelihood" that Snake River would have made a bargain purchase but for the President's action, or even a "likelihood" that the President's action rendered "more difficult" a purchase that was realistically within Snake River's grasp, then we must adopt for our standing jurisprudence a new definition of likely: "plausible." Twice before have we addressed whether plaintiffs had standing to challenge the Government's tax treatment of a third party, and twice before have we held that the speculative nature of a third party's response to changes in federal tax laws defeats standing. In Simon v. Eastern Ky. Welfare Rights, 426 U. S. 26 (1976), we found it "purely speculative whether the denials of service ... fairly can be traced to [the IRS's] 'encouragement' or instead result from decisions made by the hospitals without regard to the tax implications." Id., at 42-43. We found it "equally speculative whether the desired exercise of the court's remedial powers in this suit would result in the availability to respondents of such services." Id., at 43. In Allen v. Wright, 468 U. S. 737 (1984), we held that parents of black children attending public schools lacked standing to challenge IRS policies concerning tax exemptions for private schools. The parents alleged, inter alia, that "federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated." Id., at 752753. We concluded that "the injury alleged is not fairly traceable to the Government conduct ... challenge[d] as unlawful," id., at 757, and that "it is entirely speculative ... whether withdrawal of a tax exemption from any particular school would lead the school to change its policies," id., at 758. Likewise, here, it is purely speculative whether a tax 461 deferral would have prompted any sale, let alone one that reflected the tax benefit in the sale price. The closest case the Court can appeal to as precedent for its finding of standing is Bryant v. Yellen, 447 U. S. 352 (1980). Even on its own terms, Bryant is distinguishable. As that case came to us, it involved a dispute between a class of some 800 landowners in the Imperial Valley, each of whom owned more than 160 acres, and a group of Imperial Valley residents who wished to purchase lands owned by that class. The point at issue was the application to those lands of a statutory provision that forbade delivery of water from a federal reclamation project to irrigable land held by a single owner in excess of 160 acres, and that limited the sale price of any lands so held in excess of 160 acres to a maximum amount, fixed by the Secretary of the Interior, based on fair market value in 1929, before the valley was irrigated by water from the Boulder Canyon Project. Id., at 366-367. That price would of course be "far below [the lands'] current market values." Id., at 367, n. 17. The Court concluded that the would-be purchasers "had a sufficient stake in the outcome of the controversy to afford them standing." Id., at 368. It is true, as the Court today emphasizes, that the purchasers had not presented "detailed information about [their] financial resources," but the Court thought that unnecessary only because "purchasers of such land would stand to reap significant gains on resale." Id., at 367, n. 17. Financing, in other words, would be easy to come by. Here, by contrast, not only do we have no notion whether Snake River has the cash in hand to afford IPP's bottom-line price, but we also have no reason to believe that financing of the purchase will be readily available. Potato processing plants, unlike agricultural land in the Imperial Valley, do not have a readily available resale market. On the other side of the equation, it was also much clearer in Bryant that if the suit came out in the would-be purchasers' favor, many of the landowners would be willing to sell. The alternative would be 462 Opinion of SCALIA, J. withdrawing the land from agricultural production, whereas sale-even at bargain-basement prices for the land-would at least enable recoupment of the cost of improvements, such as drainage systems. Ibid. In the present case, by contrast, we have no reason to believe that IPP is not operating its processing plant at a profit, and will not continue to do so in the future; Snake River has proffered no evidence that IPP or any other processor would surely have sold if only the President had not canceled the tax deferral. The only uncertainty in Bryant was whether any of the respondents would wind up as buyers of any of the excess land; that seemed probable enough, since "respondents are residents of the Imperial Valley who desire to purchase the excess land for purposes of farming." Ibid. We have no basis to say that it is "likely" that Snake River would have purchased a processing facility if § 968 had not been canceled. More fundamentally, however, the reasoning of Bryant should not govern the present case because it represents a crabbed view of the standing doctrine that has been superseded. Bryant was decided at the tail-end of "an era in which it was thought that the only function of the constitutional requirement of standing was 'to assure that concrete adverseness which sharpens the presentation of issues,'" Spencer v. Kemna, 523 U. S. 1 , 11 (1998), quoting Baker v. Carr, 369 U. S. 186 , 204 (1962). Thus, the Bryant Court ultimately afforded the respondents standing simply because they "had a sufficient stake in the outcome of the controversy," 447 U. S., at 368, not because they had demonstrated injury in fact, causation, and redressability. "That parsimonious view of the function of Article III standing has since yielded to the acknowledgment that the constitutional requirement is a 'means of "defin[ing] the role assigned to the judiciary in a tripartite allocation of power," , and 'a part of the basic charter ... provid[ing] for the interaction between [the federal] government and the governments of the several States,'" Spencer, supra, at 11-12, quoting Valley Forge 463 Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 474, 476 (1982). While Snake River in the present case may indeed have enough of a "stake" to assure adverseness, the matter it brings before us is inappropriate for our resolution because its allegations do not establish an injury in fact, attributable to the Presidential action it challenges, and remediable by this Court's invalidation of that Presidential action. Because, in my view, Snake River has no standing to bring this suit, we have no jurisdiction to resolve its challenge to the President's authority to cancel a "limited tax benefit." III I agree with the Court that the New York appellees have standing to challenge the President's cancellation of § 4722(c) of the Balanced Budget Act of 1997 as an "item of new direct spending." See ante, at 430-431. The tax liability they will incur under New York law is a concrete and particularized injury, fairly traceable to the President's action, and avoided if that action is undone. Unlike the Court, however, I do not believe that Executive cancellation of this item of direct spending violates the Presentment Clause. The Presentment Clause requires, in relevant part, that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it." U. S. Const., Art. I, § 7, cl. 2. There is no question that enactment of the Balanced Budget Act complied with these requirements: the House and Senate passed the bill, and the President signed it into law. It was only after the requirements of the Presentment Clause had been satisfied that the President exercised his authority under the Line Item Veto Act to cancel the spending item. Thus, the Court's problem with the Act is not that it authorizes the President to veto parts of a bill and sign others into law, but rather that it authorizes 464 Opinion of SCALIA, J. him to "cancel"-prevent from "having legal force or effect"-certain parts of duly enacted statutes. Article I, § 7, of the Constitution obviously prevents the President from canceling a law that Congress has not authorized him to cancel. Such action cannot possibly be considered part of his execution of the law, and if it is legislative action, as the Court observes, "'repeal of statutes, no less than enactment, must conform with Art. 1.'" Ante, at 438, quoting from INS v. Chadha, 462 U. S. 919 , 954 (1983). But that is not this case. It was certainly arguable, as an original matter, that Art. I, § 7, also prevents the President from canceling a law which itself authorizes the President to cancel it. But as the Court acknowledges, that argument has long since been made and rejected. In 1809, Congress passed a law authorizing the President to cancel trade restrictions against Great Britain and France if either revoked edicts directed at the United States. Act of Mar. 1, 1809, § 11, 2 Stat. 528. Joseph Story regarded the conferral of that authority as entirely unremarkable in The Orono, 18 F. Cas. 830 (No. 10,585) (CCD Mass. 1812). The Tariff Act of 1890 authorized the President to "suspend, by proclamation to that effect" certain of its provisions if he determined that other countries were imposing "reciprocally unequal and unreasonable" duties. Act of Oct. 1, 1890, § 3, 26 Stat. 612. This Court upheld the constitutionality of that Act in Field v. Clark, 143 U. S. 649 (1892), reciting the history since 1798 of statutes conferring upon the President the power to, inter alia, "discontinue the prohibitions and restraints hereby enacted and declared," id., at 684, "suspend the operation of the aforesaid act," id., at 685, and "declare the provisions of this act to be inoperative," id., at 688. As much as the Court goes on about Art. I, § 7, therefore, that provision does not demand the result the Court reaches. It no more categorically prohibits the Executive reduction of congressional dispositions in the course of implementing statutes that authorize such reduction, than it categorically 465 prohibits the Executive augmentation of congressional dispositions in the course of implementing statutes that authorize such augmentation-generally known as substantive rulemaking. There are, to be sure, limits upon the former just as there are limits upon the latter-and I am prepared to acknowledge that the limits upon the former may be much more severe. Those limits are established, however, not by some categorical prohibition of Art. I, § 7, which our cases conclusively disprove, but by what has come to be known as the doctrine of unconstitutional delegation of legislative authority: When authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers. It is this doctrine, and not the Presentment Clause, that was discussed in the Field opinion, and it is this doctrine, and not the Presentment Clause, that is the issue presented by the statute before us here. That is why the Court is correct to distinguish prior authorizations of Executive cancellation, such as the one involved in Field, on the ground that they were contingent upon an Executive finding of fact, and on the ground that they related to the field of foreign affairs, an area where the President has a special "'degree of discretion and freedom,'" ante, at 445 (citation omitted). These distinctions have nothing to do with whether the details of Art. I, § 7, have been complied with, but everything to do with whether the authorizations went too far by transferring to the Executive a degree of political, lawmaking power that our traditions demand be retained by the Legislative Branch. I turn, then, to the crux of the matter: whether Congress's authorizing the President to cancel an item of spending gives him a power that our history and traditions show must reside exclusively in the Legislative Branch. I may note, to begin with, that the Line Item Veto Act is not the first statute to authorize the President to "cancel" spending items. In Bowsher v. Synar, 478 U. S. 714 (1986), we addressed the 466 Opinion of SCALIA, J. constitutionality of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U. S. C. § 901 et seq. (1982 ed., Supp. II!), which required the President, if the federal budget deficit exceeded a certain amount, to issue a "sequestration" order mandating spending reductions specified by the Comptroller General, § 902. The effect of sequestration was that "amounts sequestered ... shall be permanently cancelled." § 902(a)(4) (emphasis added). We held that the Act was unconstitutional, not because it impermissibly gave the Executive legislative power, but because it gave the Comptroller General, an officer of the Legislative Branch over whom Congress retained removal power, "the ultimate authority to determine the budget cuts to be made," 478 U. S., at 733, "functions ... plainly entailing execution of the law in constitutional terms," id., at 732-733 (emphasis added). The President's discretion under the Line Item Veto Act is certainly broader than the Comptroller General's discretion was under the 1985 Act, but it is no broader than the discretion traditionally granted the President in his execution of spending laws. Insofar as the degree of political, "lawmaking" power conferred upon the Executive is concerned, there is not a dime's worth of difference between Congress's authorizing the President to cancel a spending item, and Congress's authorizing money to be spent on a particular item at the President's discretion. And the latter has been done since the founding of the Nation. From 1789-1791, the First Congress made lump-sum appropriations for the entire Government-"sum[s] not exceeding" specified amounts for broad purposes. Act of Sept. 29, 1789, ch. 23, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, § 1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. From a very early date Congress also made permissive individual appropriations, leaving the decision whether to spend the money to the President's unfettered discretion. In 1803, it appropriated $50,000 for the President to build "not exceeding fifteen gun boats, to be armed, 467 manned and fitted out, and employed for such purposes as in his opinion the public service may require," Act of Feb. 28, 1803, ch. 11, § 3, 2 Stat. 206. President Jefferson reported that "[t]he sum of fifty thousand dollars appropriated by Congress for providing gun boats remains unexpended. The favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary," 13 Annals of Congo 14 (1803). Examples of appropriations committed to the discretion of the President abound in our history. During the Civil War, an Act appropriated over $76 million to be divided among various items "as the exigencies of the service may require," Act of Feb. 25, 1862, ch. 32, 12 Stat. 344-345. During the Great Depression, Congress appropriated $950 million "for such projects and/or purposes and under such rules and regulations as the President in his discretion may prescribe," Act of Feb. 15, 1934, ch. 13, 48 Stat. 351, and $4 billion for general classes of projects, the money to be spent "in the discretion and under the direction of the President," Emergency Relief Appropriation Act of 1935, 49 Stat. 115. The constitutionality of such appropriations has never seriously been questioned. Rather, "[t]hat Congress has wide discretion in the matter of prescribing details of expenditures for which it appropriates must, of course, be plain. Appropriations and other acts of Congress are replete with instances of general appropriations of large amounts, to be allotted and expended as directed by designated government agencies." Cincinnati Soap Co. v. United States, 301 U. S. 308 , 321-322 (1937). Certain Presidents have claimed Executive authority to withhold appropriated funds even absent an express conferral of discretion to do so. In 1876, for example, President Grant reported to Congress that he would not spend money appropriated for certain harbor and river improvements, see Act of Aug. 14, 1876, ch. 267, 19 Stat. 132, because "[u]nder no circumstances [would he] allow expenditures upon works not clearly national," and in his view, the appropriations 468 Opinion of SCALIA, J. were for "works of purely private or local interest, in no sense national," 4 Congo Rec. 5628. President Franklin D. Roosevelt impounded funds appropriated for a flood control reservoir and levee in Oklahoma. See Act of Aug. 18, 1941, ch. 377, 55 Stat. 638, 645; Hearings on S. 373 before the Ad Hoc Subcommittee on Impoundment of Funds of the Committee on Government Operations and the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 848-849 (1973). President Truman ordered the impoundment of hundreds of millions of dollars that had been appropriated for military aircraft. See Act of Oct. 29, 1949, ch. 787, 63 Stat. 987, 1013; Public Papers of the Presidents of the United States, Harry S. Truman, 1949, pp. 538-539 (w. Reid ed. 1964). President Nixon, the Mahatma Gandhi of all impounders, asserted at a press conference in 1973 that his "constitutional right" to impound appropriated funds was "absolutely clear." The President's News Conference of Jan. 31, 1973, 9 Weekly Compo of Pres. Doc. 109-110 (1973). Our decision two years later in Train v. City of New York, 420 U. S. 35 (1975), proved him wrong, but it implicitly confirmed that Congress may confer discretion upon the Executive to withhold appropriated funds, even funds appropriated for a specific purpose. The statute at issue in Train authorized spending "not to exceed" specified sums for certain projects, and directed that such "[s]ums authorized to be appropriated ... shall be allotted" by the Administrator of the Environmental Protection Agency, 33 U. S. C. §§ 1285, 1287 (1970 ed., Supp. III). Upon enactment of this statute, the President directed the Administrator to allot no more than a certain part of the amount authorized. 420 U. S., at 40. This Court held, as a matter of statutory interpretation, that the statute did not grant the Executive discretion to withhold the funds, but required allotment of the full amount authorized. Id., at 44-47. The short of the matter is this: Had the Line Item Veto Act authorized the President to "decline to spend" any item 469 of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead-authorizing the President to "cancel" an item of spending-is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President's action it authorizes in fact is not a line-item veto and thus does not offend Art. I, § 7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union. IV I would hold that the President's cancellation of § 4722(c) of the Balanced Budget Act of 1997 as an item of direct spending does not violate the Constitution. Because I find no party before us who has standing to challenge the President's cancellation of § 968 of the Taxpayer Relief Act of 1997, I do not reach the question whether that violates the Constitution. For the foregoing reasons, I respectfully dissent. JUSTICE BREYER, with whom JUSTICE O'CONNOR and JUSTICE SCALIA join as to Part III, dissenting. I I agree with the Court that the parties have standing, but I do not agree with its ultimate conclusion. In my view the Line Item Veto Act (Act) does not violate any specific textual constitutional command, nor does it violate any implicit 470 separation-of-powers principle. Consequently, I believe that the Act is constitutional. II I approach the constitutional question before us with three general considerations in mind. First, the Act represents a legislative effort to provide the President with the power to give effect to some, but not to all, of the expenditure and revenue-diminishing provisions contained in a single massive appropriations bill. And this objective is constitutionally proper. When our Nation was founded, Congress could easily have provided the President with this kind of power. In that time period, our population was less than 4 million, see U. S. Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, p. 8 (1975), federal employees numbered fewer than 5,000, see id., pt. 2, at 1103, annual federal budget outlays totaled approximately $4 million, see id., pt. 2, at 1104, and the entire operative text of Congress' first general appropriations law read as follows: "Be it enacted ... [t]hat there be appropriated for the service of the present year, to be paid out of the monies which arise, either from the requisitions heretofore made upon the several states, or from the duties on import and tonnage, the following sums, viz. A sum not exceeding two hundred and sixteen thousand dollars for defraying the expenses of the civil list, under the late and present government; a sum not exceeding one hundred and thirty-seven thousand dollars for defraying the expenses of the department of war; a sum not exceeding one hundred and ninety thousand dollars for discharging the warrants issued by the late board of treasury, and remaining unsatisfied; and a sum not exceeding ninetysix thousand dollars for paying the pensions to invalids." Act of Sept. 29, 1789, ch. 23, § 1, 1 Stat. 95. 471 At that time, a Congress, wishing to give a President the power to select among appropriations, could simply have embodied each appropriation in a separate bill, each bill subject to a separate Presidential veto. Today, however, our population is about 250 million, see U. S. Dept. of Commerce, Census Bureau, 1990 Census, the Federal Government employs more than 4 million people, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Analytical Perspectives 207 (1997) (hereinafter Analytical Perspectives), the annual federal budget is $1.5 trillion, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Budget 303 (1997) (hereinafter Budget), and a typical budget appropriations bill may have a dozen titles, hundreds of sections, and spread across more than 500 pages of the Statutes at Large. See, e. g., Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251. Congress cannot divide such a bill into thousands, or tens of thousands, of separate appropriations bills, each one of which the President would have to sign, or to veto, separately. Thus, the question is whether the Constitution permits Congress to choose a particular novel means to achieve this same, constitutionally legitimate, end. Second, the case in part requires us to focus upon the Constitution's generally phrased structural provisions, provisions that delegate all "legislative" power to Congress and vest all "executive" power in the President. See Part IV; infra. The Court, when applying these provisions, has interpreted them generously in terms of the institutional arrangements that they permit. See, e. g., Mistretta v. United States, 488 U. S. 361 , 412 (1989) (upholding delegation of authority to Sentencing Commission to promulgate Sentencing Guidelines); Crowell v. Benson, 285 U. S. 22 , 53-54 (1932) (permitting non-Article III commission to adjudicate factual 472 disputes arising under federal dock workers' compensation statute). See generally, e. g., OPP Cotton Mills, Inc. v. Administrator of Wage and Hour Div., Dept. of Labor, 312 U. S. 126 ,145 (1941) ("In an increasingly complex society Congress obviously could not perform its functions" without delegating details of regulatory scheme to executive agency); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 635 (1952) (Jackson, J., concurring) (Constitution permits "interdependence" and flexible relations between branches in order to secure "workable government"); J. W Hampton, Jr., & Co. v. United States, 276 U. S. 394 , 406 (1928) (Taft, C. J.) ("[T]he extent and character of ... assistance [between the different branches] must be fixed according to common sense and the inherent necessities of the governmental coordination"); Crowell v. Benson, supra, at 53 ("[R]egard must be had" in cases "where constitutional limits are invoked, not to mere matters of form but to the substance of what is required"). Indeed, Chief Justice Marshall, in a well-known passage, explained, "To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur." McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). This passage, like the cases I have just mentioned, calls attention to the genius of the Framers' pragmatic vision, which this Court has long recognized in cases that find constitutional room for necessary institutional innovation. Third, we need not here referee a dispute among the other two branches. And, as the majority points out: 473 " 'When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons.'" Ante, at 447, n. 42 (quoting Bowsher v. Synar, 478 U. S. 714 , 736 (1986) (STEVENS, J., concurring in judgment)). Cf. Youngstown Sheet and Tube Co., supra, at 635 (Jackson, J., concurring) ("Presidential powers are not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress ... [and when] the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum"). These three background circumstances mean that, when one measures the literal words of the Act against the Constitution's literal commands, the fact that the Act may closely resemble a different, literally unconstitutional, arrangement is beside the point. To drive exactly 65 miles per hour on an interstate highway closely resembles an act that violates the speed limit. But it does not violate that limit, for small differences matter when the question is one of literal violation of law. No more does this Act literally violate the Constitution's words. See Part III, infra. The background circumstances also mean that we are to interpret nonliteral separation-of-powers principles in light of the need for "workable government." Youngstown Sheet and Tube Co., supra, at 635 (Jackson, J., concurring). If we apply those principles in light of that objective, as this Court has applied them in the past, the Act is constitutional. See Part IV, infra. III The Court believes that the Act violates the literal text of the Constitution. A simple syllogism captures its basic reasoning: 474 Major Premise: The Constitution sets forth an exclusive method for enacting, repealing, or amending laws. See ante, at 438-440. Minor Premise: The Act authorizes the President to "repea[l] or amen[d]" laws in a different way, namely by announcing a cancellation of a portion of a previously enacted law. See ante, at 436-438. Conclusion: The Act is inconsistent with the Constitution. See ante, at 448-449. I find this syllogism unconvincing, however, because its Minor Premise is faulty. When the President "canceled" the two appropriation measures now before us, he did not repeal any law nor did he amend any law. He simply followed the law, leaving the statutes, as they are literally written, intact. To understand why one cannot say, literally speaking, that the President has repealed or amended any law, imagine how the provisions of law before us might have been, but were not, written. Imagine that the canceled New York health care tax provision at issue here, Pub. L. 105-33, § 4722(c), 111 Stat. 515 (quoted in full ante, at 422-423, n. 2), had instead said the following: "Section One. Taxes ... that were collected by the State of New York from a health care provider before June 1, 1997, and for which a waiver of the provisions [requiring payment] have been sought ... are deemed to be permissible health care related taxes ... provided however that the President may prevent the justmentioned provision from having legal force or effect if he determines x, y, and z" (Assume x, y, and z to be the same determinations required by the Line Item Veto Act). Whatever a person might say, or think, about the constitutionality of this imaginary law, there is one thing the English language would prevent one from saying. One could not say that a President who "prevent[s]" the deeming language 475 from "having legal force or effect," see 2 U. S. C. § 691e(4)(B) (1994 ed., Supp. II), has either repealed or amended this particular hypothetical statute. Rather, the President has followed that law to the letter. He has exercised the power it explicitly delegates to him. He has executed the law, not repealed it. It could make no significant difference to this linguistic point were the italicized proviso to appear, not as part of what I have called Section One, but, instead, at the bottom of the statute page, say, referenced by an asterisk, with a statement that it applies to every spending provision in the Act next to which a similar asterisk appears. And that being so, it could make no difference if that proviso appeared, instead, in a different, earlier enacted law, along with legal language that makes it applicable to every future spending provision picked out according to a specified formula. See, e. g., Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act), Pub. L. 99-177, 99 Stat. 1063, 2 U. S. C. § 901 et seq. (enforcing strict spending and deficit-neutrality limits on future appropriations statutes); see also 1 U. S. C. § 1 (in "any Act of Congress" singular words include plural, and vice versa) (emphasis added). But, of course, this last mentioned possibility is this very case. The earlier law, namely, the Line Item Veto Act, says that "the President may ... prevent such [future] budget authority from having legal force or effect." 2 U. S. C. §§ 691(a), 691e(4)(B) (1994 ed., Supp. II). Its definitional sections make clear that it applies to the 1997 New York health care provision, see § 691e(8), just as they give a special legal meaning to the word "cancel," § 691e(4). For that reason, one cannot dispose of this case through a purely literal analysis as the majority does. Literally speaking, the President has not "repealed" or "amended" anything. He has simply executed a power conferred upon him by Congress, which power is contained in laws that were enacted in compliance with the exclusive method set forth in the Constitution. See Field v. Clark, 143 U. S. 649 , 693 (1892) (President's 476 power to raise tariff rates "was a part of the law itself, as it left the hands of Congress" (emphasis added)). Nor can one dismiss this literal compliance as some kind of formal quibble, as if it were somehow "obvious" that what the President has done "amounts to," "comes close to," or is "analogous to" the repeal or amendment of a previously enacted law. That is because the power the Act grants the President (to render designated appropriations items without "legal force or effect") also "amounts to," "comes close to," or is "analogous to" a different legal animal, the delegation of a power to choose one legal path as opposed to another, such as a power to appoint. To take a simple example, a legal document, say, a will or a trust instrument, might grant a beneficiary the power (a) to appoint property "to Jones for his life, remainder to Smith for 10 years so long as Smith ... etc., and then to Brown," or (b) to appoint the same property "to Black and the heirs of his body," or (c) not to exercise the power of appointment at all. See, e. g., 5 W. Bowe & D. Parker, Page on Law of Wills § 45.8 (rev. 3d ed. 1962) (describing power of appointment). To choose the second or third of these alternatives prevents from taking effect the legal consequences that flow from the first alternative, which the legal instrument describes in detail. Any such choice, made in the exercise of a delegated power, renders that first alternative language without "legal force or effect." But such a choice does not "repeal" or "amend" either that language or the document itself. The will or trust instrument, in delegating the power of appointment, has not delegated a power to amend or to repeal the instrument; to the contrary, it requires the delegated power to be exercised in accordance with the instrument's terms. Id., § 45.9, pp. 516-518. The trust example is useful not merely because of its simplicity, but also because it illustrates the logic that must apply when a power to execute is conferred, not by a private trust document, but by a federal statute. This is not the 477 first time that Congress has delegated to the President or to others this kind of power-a contingent power to deny effect to certain statutory language. See, e. g., Pub. L. 95-384, § 13(a), 92 Stat. 737 ("Section 620(x) of the Foreign Assistance Act of 1961 shall be of no further force and effect upon the President's determination and certification to the Congress that the resumption of full military cooperation with Turkey is in the national interest of the United States and [other criteria]") (emphasis added); 28 U. S. C. § 2072 (Supreme Court is authorized to promulgate rules of practice and procedure in federal courts, and "[a]ll laws in conflict with such rules shall be of no further force and effect") (emphasis added); 41 U. S. C. § 405b (subsection (a) requires the Office of Federal Procurement Policy to issue "[g]overnment-wide regulations" setting forth a variety of conflict of interest standards, but subsection (e) says that "if the President determine[s]" that the regulations "would have a significantly adverse effect on the accomplishment of the mission" of Government agencies, "the requirement [to promulgate] the regulations ... shall be null and void") (emphasis added); Gramm-Rudman-Hollings Act, §252(a)(4), 99 Stat. 1074 (authorizing the President to issue a "final order" that has the effect of "permanently cancell[ingJ" sequestered amounts in spending statutes in order to achieve budget compliance) (emphasis added); Pub. L. 104-208, 110 Stat. 3009-695 ("Public Law 89-732 [dealing with immigration from Cuba] is repealed ... upon a determination by the President ... that a democratically elected government in Cuba is in power") (emphasis added); Pub. L. 99-498, § 701, 100 Stat. 1532 (amending § 758 of the Higher Education Act of 1965) (Secretary of Education "may" sell common stock in an educational loan corporation; if the Secretary decides to sell stock, and "if the Student Loan Marketing Association acquires from the Secretary" over 50 percent of the voting stock, "section 754 [governing composition of the Board of Directors] shall be of no further force or effect") (emphasis 478 added); Pub. L. 104-134, §2901(c), 110 Stat. 1321-160 (President is "authorized to suspend the provisions of the [preceding] proviso" which suspension may last for entire effective period of proviso, if he determines suspension is "appropriate based upon the public interest in sound environmental management ... [or] the protection of national or locallyaffected interests, or protection of any cultural, biological or historic resources"). All of these examples, like the Act, delegate a power to take action that will render statutory provisions "without force or effect." Every one of these examples, like the present Act, delegates the power to choose between alternatives, each of which the statute spells out in some detail. None of these examples delegates a power to "repeal" or "amend" a statute, or to "make" a new law. Nor does the Act. Rather, the delegated power to nullify statutory language was itself created and defined by Congress, and included in the statute books on an equal footing with (indeed, as a component part of) the sections that are potentially subject to nullification. As a Pennsylvania court put the matter more than a century ago: "The legislature cannot delegate its power to make a law; but it can make a law to delegate a power." Locke's Appeal, 72 Pa. 491, 498 (1873). In fact, a power to appoint property offers a closer analogy to the power delegated here than one might at first suspect. That is because the Act contains a "lockbox" feature, which gives legal significance to the enactment of a particular appropriations item even if, and even after, the President has rendered it without "force or effect." See 2 U. S. C. § 691c (1994 ed., Supp. II); see also ante, at 440-441, n. 31 (describing "lockbox"); but cf. Letter from Counsel for Snake River Cooperative, dated Apr. 29, 1998 (available in Clerk of Court's case file) (arguing "lockbox" feature inapplicable here due to special provision in Balanced Budget Act of 1997, the constitutionality and severability of which have not been argued). In essence, the "lockbox" feature: (1) points to a 479 Gramm-Rudman-Hollings Act requirement that, when Congress enacts a "budget busting" appropriation bill, automatically reduces authorized spending for a host of federal programs in a pro rata way; (2) notes that cancellation of an item (say, a $2 billion item) would, absent the "lockbox" provision, neutralize (by up to $2 billion) the potential "budget busting" effects of other bills (and therefore potentially the President could cancel items in order to "save" the other programs from the mandatory cuts, resulting in no net deficit reduction); and (3) says that this "neutralization" will not occur (i. e., the pro rata reductions will take place just as if the $2 billion item had not been canceled), so that the canceled items truly provide additional budget savings over and above the Gramm-Rudman-Hollings regime. See generally H. R. Conf. Rep. No. 104-491, pp. 23-24 (1996) ("lockbox" provision included "to ensure that the savings from the cancellation of [items] are devoted to deficit reduction and are not available to offset a deficit increase in another law"). That is why the Government says that the Act provides a "lockbox," and why it seems fair to say that, despite the Act's use of the word "cancel," the Act does not delegate to the President the power truly to cancel a line item expenditure (returning the legal status quo to one in which the item had never been enacted). Rather, it delegates to the President the power to decide how to spend the money to which the line item refers-either for the specific purpose mentioned in the item, or for general deficit reduction via the "lockbox" feature. These features of the law do not mean that the delegated power is, or is just like, a power to appoint property. But they do mean that it is not, and it is not just like, the repeal or amendment of a law, or, for that matter, a true line item veto (despite the Act's title). Because one cannot say that the President's exercise of the power the Act grants is, literally speaking, a "repeal" or "amendment," the fact that the Act's procedures differ from the Constitution's exclusive pro- 480 cedures for enacting (or repealing) legislation is beside the point. The Act itself was enacted in accordance with these procedures, and its failure to require the President to satisfy those procedures does not make the Act unconstitutional. IV Because I disagree with the Court's holding of literal violation, I must consider whether the Act nonetheless violates separation-of-powers principles-principles that arise out of the Constitution's vesting of the "executive Power" in "a President," U. S. Const., Art. II, § 1, and "[a]ll legislative Powers" in "a Congress," Art. I, § 1. There are three relevant separation-of-powers questions here: (1) Has Congress given the President the wrong kind of power, i. e., "nonExecutive" power? (2) Has Congress given the President the power to "encroach" upon Congress' own constitutionally reserved territory? (3) Has Congress given the President too much power, violating the doctrine of "nondelegation?" These three limitations help assure "adequate control by the citizen's Representatives in Congress," upon which JUSTICE KENNEDY properly insists. See ante, at 451 (concurring opinion). And with respect to this Act, the answer to all these questions is "no." A Viewed conceptually, the power the Act conveys is the right kind of power. It is "executive." As explained above, an exercise of that power "executes" the Act. Conceptually speaking, it closely resembles the kind of delegated authority-to spend or not to spend appropriations, to change or not to change tariff rates-that Congress has frequently granted the President, any differences being differences in degree, not kind. See Part IV -C, infra. The fact that one could also characterize this kind of power as "legislative," say, if Congress itself (by amending the appropriations bill) prevented a provision from taking effect, is beside the point. This Court has frequently found that the 481 exercise of a particular power, such as the power to make rules of broad applicability, American Trucking Assns., Inc. v. United States, 344 U. S. 298 , 310-313 (1953), or to adjudicate claims, Crowell v. Benson, 285 U. S., at 50-51, 54; Wiener v. United States, 357 U. S. 349 , 354-356 (1958), can fall within the constitutional purview of more than one branch of Government. See Wayman v. Southard, 10 Wheat. 1, 43 (1825) (Marshall, C. J.) ("Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself"). The Court does not "carry out the distinction between legislative and executive action with mathematical precision" or "divide the branches into watertight compartments," Springer v. Philippine Islands, 277 U. S. 189 , 211 (1928) (Holmes, J., dissenting), for, as others have said, the Constitution "blend[s]" as well as "separat[es]" powers in order to create a workable government. 1 K. Davis, Administrative Law § 1.09, p. 68 (1958). The Court has upheld congressional delegation of rulemaking power and adjudicatory power to federal agencies, American Trucking Assns. v. United States, supra, at 310 313; Wiener v. United States, supra, at 354-356, guidelinewriting power to a Sentencing Commission, Mistretta v. United States, 488 U. S., at 412, and prosecutor-appointment power to judges, Morrison v. Olson, 487 U. S. 654 , 696-697 (1988). It is far easier conceptually to reconcile the power at issue here with the relevant constitutional description ("executive") than in many of these cases. And cases in which the Court may have found a delegated power and the basic constitutional function of another branch conceptually irreconcilable are yet more distant. See, e. g., Federal Radio Comm'n v. General Elec. Co., 281 U. S. 464 (1930) (power to award radio licenses not a "judicial" power). If there is a separation-of-powers violation, then, it must rest, not upon purely conceptual grounds, but upon some important conflict between the Act and a significant separation-of-powers objective. 482 B The Act does not undermine what this Court has often described as the principal function of the separation of powers, which is to maintain the tripartite structure of the Federal Government-and thereby protect individual libertyby providing a "safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U. S. 1 , 122 (1976) (per curiam); Mistretta v. United States, supra, at 380-382. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison) (separation of powers confers on each branch the means "to resist encroachments of the others"); 1 Davis, supra, § 1.09, at 68 ("The danger is not blended power[;] [t]he danger is unchecked power"); see also, e. g., Bowsher v. Synar, 478 U. S. 714 (1986) (invalidating congressional intrusion on Executive Branch); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982) (Congress may not give away Article III "judicial" power to an Article I judge); Myers v. United States, 272 U. S. 52 (1926) (Congress cannot limit President's power to remove Executive Branch official). In contrast to these cases, one cannot say that the Act "encroaches" upon Congress' power, when Congress retained the power to insert, by simple majority, into any future appropriations bill, into any section of any such bill, or into any phrase of any section, a provision that says the Act will not apply. See 2 U. S. C. § 69lf(c)(1) (1994 ed., Supp. II); Raines v. Byrd, 521 U. S. 811 , 824 (1997) (Congress can "exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act"). Congress also retained the power to "disapprov[e]," and thereby reinstate, any of the President's cancellations. See 2 U. S. C. § 691b(a). And it is Congress that drafts and enacts the appropriations statutes that are subject to the Act in the first place-and thereby defines the outer limits of the President's cancellation authority. Thus this Act is not the sort of delegation "without ... sufficient check" that concerns JUSTICE KEN- 483 NEDY. See ante, at 450 (concurring opinion). Indeed, the President acts only in response to, and on the terms set by, the Congress. Nor can one say that the Act's basic substantive objective is constitutionally improper, for the earliest Congresses could, see Part II, supra, and often did, confer on the President this sort of discretionary authority over spending, see ante, at 466-467 (SCALIA, J., concurring in part and dissenting in part). Cf. J. W Hampton, 276 U. S., at 412 (Taft, C. J.) ("[C]ontemporaneous legislative exposition of the Constitution when the founders of our Government and the framers of our Constitution were actively participating in public affairs ... fixes the construction to be given to its provisions"). And, if an individual Member of Congress, who, say, favors aid to Country A but not to Country B, objects to the Act on the ground that the President may "rewrite" an appropriations law to do the opposite, one can respond: "But a majority of Congress voted that he have that power; you may vote to exempt the relevant appropriations provision from the Act; and if you command a majority, your appropriation is safe." Where the burden of overcoming legislative inertia lies is within the power of Congress to determine by rule. Where is the encroachment? Nor can one say the Act's grant of power "aggrandizes" the Presidential office. The grant is limited to the context of the budget. It is limited to the power to spend, or not to spend, particular appropriated items, and the power to permit, or not to permit, specific limited exemptions from generally applicable tax law from taking effect. These powers, as I will explain in detail, resemble those the President has exercised in the past on other occasions. See Part IV -C, infra. The delegation of those powers to the President may strengthen the Presidency, but any such change in Executive Branch authority seems minute when compared with the changes worked by delegations of other kinds of authority that the Court in the past has upheld. See, e. g., American 484 Trucking Assns., Inc. v. United States, 344 U. S. 298 (1953) (delegation of rulemaking authority); Lichter v. United States, 334 U. S. 742 (1948) (delegation to determine and regulate "excessive" profits); Crowell v. Benson, 285 U. S. 22 (1932) (delegation of adjudicatory authority); Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833 (1986) (same). C The "nondelegation" doctrine represents an added constitutional check upon Congress' authority to delegate power to the Executive Branch. And it raises a more serious constitutional obstacle here. The Constitution permits Congress to "see[k] assistance from another branch" of Government, the "extent and character" of that assistance to be fixed "according to common sense and the inherent necessities of the governmental co-ordination." J. W Hampton, supra, at 406. But there are limits on the way in which Congress can obtain such assistance; it "cannot delegate any part of its legislative power except under the limitation of a prescribed standard." United States v. Chicago, M., St. P. & P. R. Co., 282 U. S. 311 , 324 (1931). Or, in Chief Justice Taft's more familiar words, the Constitution permits only those delegations where Congress "shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." J. W Hampton, supra, at 409 (emphasis added). The Act before us seeks to create such a principle in three ways. The first is procedural. The Act tells the President that, in "identifying dollar amounts [or] ... items ... for cancellation" (which I take to refer to his selection of the amounts or items he will "prevent from having legal force or effect"), he is to "consider," among other things, "the legislative history, construction, and purposes of the law which contains [those amounts or items, and] ... any specific sources of information referenced in 485 such law or ... the best available information .... " 2 U. S. C. § 691(b) (1994 ed., Supp. II). The second is purposive. The clear purpose behind the Act, confirmed by its legislative history, is to promote "greater fiscal accountability" and to "eliminate wasteful federal spending and ... special tax breaks." H. R. Conf. Rep. No. 104-491, p. 15 (1996). The third is substantive. The President must determine that, to "prevent" the item or amount "from having legal force or effect" will "reduce the Federal budget deficit; ... not impair any essential Government functions; and ... not harm the national interest." 2 U. S. C. § 691(a)(A) (1994 ed., Supp. II). The resulting standards are broad. But this Court has upheld standards that are equally broad, or broader. See, e. g., National Broadcasting Co. v. United States, 319 U. S. 190 , 225-226 (1943) (upholding delegation to Federal Communications Commission to regulate broadcast licensing as "public interest, convenience, or necessity" require) (internal quotation marks omitted); FPC v. Hope Natural Gas Co., 320 U. S. 591, 600-603 (1944) (upholding delegation to Federal Power Commission to determine "just and reasonable" rates); United States v. Rock Royal Co-operative, Inc., 307 U. S. 533, 577 (1939) (if milk prices were "unreasonable," Secretary of Agriculture could "fi[x]" prices to a level that was "in the public interest"). See also Lichter v. United States, 334 U. S. 742 , 785-786 (1948) (delegation of authority to determine "excessive" profits); American Power & Light Co. v. SEC, 329 U. S. 90 , 104-105 (1946) (delegation of authority to Securities and Exchange Commission to prevent "unfairly or inequitably" distributing voting power among security holders); Yakus v. United States, 321 U. S. 414 , 427 (1944) (upholding delegation to Price Administrator to fix commodity prices that would be "fair" and "equitable"). Indeed, the Court has only twice in its history found that a congressional delegation of power violated the "nondele- 486 gation" doctrine. One such case, Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), was in a sense a special case, for it was discovered in the midst of the case that the particular exercise of the power at issue, the promulgation of a Petroleum Code under the National Industrial Recovery Act, did not contain any legally operative sentence. Id., at 412-413. The other case, A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935), involved a delegation through the National Industrial Recovery Act, 48 Stat. 195, that contained not simply a broad standard ("fair competition"), but also the conferral of power on private parties to promulgate rules applying that standard to virtually all of American industry, id., at 521-525. As Justice Cardozo put it, the legislation exemplified "delegation running riot," which created a "roving commission to inquire into evils and upon discovery correct them." Id., at 553, 551 (concurring opinion). The case before us does not involve any such "roving commission," nor does it involve delegation to private parties, nor does it bring all of American industry within its scope. It is limited to one area of Government, the budget, and it seeks to give the President the power, in one portion of that budget, to tailor spending and special tax relief to what he concludes are the demands of fiscal responsibility. Nor is the standard that governs his judgment, though broad, any broader than the standard that currently governs the award of television licenses, namely, "public convenience, interest, or necessity." 47 U. S. C. § 303 (emphasis added). To the contrary, (a) the broadly phrased limitations in the Act, together with (b) its evident deficit reduction purpose, and (c) a procedure that guarantees Presidential awareness of the reasons for including a particular provision in a budget bill, taken together, guide the President's exercise of his discretionary powers. 1 The relevant similarities and differences among and between this case and other "nondelegation" cases can be listed 487 more systematically as follows: First, as I have just said, like statutes delegating power to award broadcast television licenses, or to regulate the securities industry, or to develop and enforce workplace safety rules, the Act is aimed at a discrete problem: namely, a particular set of expenditures within the federal budget. The Act concerns, not the entire economy, cf. Schecter Poultry Corp., supra, but the annual federal budget. Within the budget it applies only to discretionary budget authority and new direct spending items, that together amount to approximately a third of the current annual budget outlays, see Tr. of Oral Arg. 18; see also Budget 303, and to "limited tax benefits" that (because each can affect no more than 100 people, see 2 U. S. C. § 691e(9)(A) (1994 ed., Supp. II)), amount to a tiny fraction of federal revenues and appropriations. Compare Analytical Perspectives 73-75 (listing over $500 billion in overall "tax expenditures" that OMB estimated were contained in federal law in 1997) and Budget 303 (federal outlays and receipts in 1997 were both over $1.5 trillion) with App. to Juris. Statement 71a (President's cancellation message for Snake River appellees' limited tax benefit, estimating annual "value" of benefit, in terms of revenue loss, at about $20 million). Second, like the award of television licenses, the particular problem involved-determining whether or not a particular amount of money should be spent or whether a particular dispensation from tax law should be granted a few individuals-does not readily lend itself to a significantly more specific standard. The Act makes clear that the President should consider the reasons for the expenditure, measure those reasons against the desirability of avoiding a deficit (or building a surplus), and make up his mind about the comparative weight of these conflicting goals. Congress might have expressed this matter in other language, but could it have done so in a significantly more specific way? See National Broadcasting Co. v. United States, supra, at 216 ("[P]ublic interest, convenience, or necessity" standard is 488 " 'as concrete as the complicated factors for judgment in such a field of delegated authority permit''') (quoting FCC v. Pottsville Broadcasting Co., 309 U. S. 134 , 138 (1940)). The statute's language, I believe, is sufficient to provide the President, and the public, with a fairly clear idea as to what Congress had in mind. And the public can judge the merits of the President's choices accordingly. Cf. Yakus v. United States, 321 U. S., at 426 (standards were "sufficiently definite and precise to enable ... the public to ascertain ... conform[ity]"). Third, insofar as monetary expenditure (but not "tax expenditure") is at issue, the President acts in an area where history helps to justify the discretionary power that Congress has delegated, and where history may inform his exercise of the Act's delegated authority. Congress has frequently delegated the President the authority to spend, or not to spend, particular sums of money. See, e. g., Act of Sept. 29, 1789, ch. 23, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, § 1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190; Emergency Relief Appropriation Act of 1935, 49 Stat. 115 (appropriating over $4 billion to be spent "in the discretion and under the direction of the President" for economic relief measures); see also ante, at 466-467 (SCALIA, J., concurring in part and dissenting in part) (listing numerous examples). Fourth, the Constitution permits Congress to rely upon context and history as providing the necessary standard for the exercise of the delegated power. See, e. g., Federal Radio Comm'n v. Nelson Brothers Bond & Mortgage Co. (Station WIBO), 289 U. S. 266 , 285 (1933) ("public interest, convenience, or necessity [standard] ... is to be interpreted by its context"); Fahey v. Mallonee, 332 U. S. 245 , 253 (1947) (otherwise vague delegation to regulate banks was "sufficiently explicit, against the background of custom, to be adequate"). Relying upon context, Congress has sometimes granted the President broad discretionary authority over 489 spending in laws that mention no standard at all. See, e. g., Act of Mar. 3, 1809, ch. 28, § 1,2 Stat. 535-536 (granting the President recess authority to transfer money "appropriated for a particular branch of expenditure in [a] department" to be "applied [instead] to another branch of expenditure in the same department"); Revenue and Expenditure Control Act of 1968, §§ 202(b), 203(b), 82 Stat. 271-272; (authorizing the President annually to reserve up to $6 billion in outlays and $10 billion in new obligation authority); Second Supplemental Appropriations Act, 1969, § 401, 83 Stat. 82; Second Supplemental Appropriations Act, 1970, §§ 401,501,84 Stat. 405407. In this case, too, context and purpose can give meaning to highly general language. See Federal Radio Comm'n v. Nelson Bros., supra, at 285; Fahey v. Malonee, supra, at 250-253; cf. Lichter v. United States, 334 U. S., at 777 (Congress has "at least expressed ... satisfaction with the existing specificity of the Act"); Train v. City of New York, 420 U. S. 35, 44-47 (1975) (disallowing President Nixon's efforts to impound funds because Court found Congress did not in tend him to exercise the power in that instance). On the other hand, I must recognize that there are important differences between the delegation before us and other broad, constitutionally acceptable delegations to Executive Branch agencies-differences that argue against my conclusion. In particular, a broad delegation of authority to an administrative agency differs from the delegation at issue here in that agencies often develop subsidiary rules under the statute, rules that explain the general "public interest" language. Doing so diminishes the risk that the agency will use the breadth of a grant of authority as a cloak for unreasonable or unfair implementation. See 1 K. Davis, Administrative Law § 3:15, pp. 207-208 (2d ed. 1978). Moreover, agencies are typically subject to judicial review, which review provides an additional check against arbitrary implementation. See, e. g., Motor Vehicle Mfrs. Assn. of United 490 States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 40-42 (1983). The President has not so narrowed his discretionary power through rule, nor is his implementation subject to judicial review under the terms of the Administrative Procedure Act. See, e. g., Franklin v. Massachusetts, 505 U. S. 788 , 801 (1992) (APA does not apply to President absent express statement by Congress). While I believe that these last mentioned considerations are important, they are not determinative. The President, unlike most agency decisionmakers, is an elected official. He is responsible to the voters, who, in principle, will judge the manner in which he exercises his delegated authority. Whether the President's expenditure decisions, for example, are arbitrary is a matter that in the past has been left primarily to those voters to consider. And this Court has made clear that judicial review is less appropriate when the President's own discretion, rather than that of an agency, is at stake. See Dalton v. Specter, 511 U. S. 462 , 476 (1994) (Presidential decision on military base closure recommendations not reviewable; President could "approv[e] or disapprov[e] the recommendations for whatever reason he sees fit"); Franklin, 505 U. S., at 801 (President's decision whether or not to transmit census report to Congress was unreviewable by courts for abuse of discretion); cf. id., at 799-800 (it was "important to the integrity of the process" that the decision was made by the President, a "constitutional officer" as opposed to the unelected Secretary of Commerce). These matters reflect in part the Constitution's own delegation of "executive Power" to "a President," Art. II, § 1; cf. Clinton v. Jones, 520 U. S. 681 , 710-711 (1997) (BREYER, J., concurring in judgment) (discussing unitary Executive), and we must take this into account when applying the Constitution's nondelegation doctrine to questions of Presidential authority. Consequently I believe that the power the Act grants the President to prevent spending items from taking effect does not violate the "nondelegation" doctrine. 491 Most, but not all, of the considerations mentioned in the previous subsection apply to the Act's delegation to the President of the authority to prevent "from having legal force or effect" a "limited tax benefit," which term the Act defines in terms of special tax relief for fewer than 100 (or in some instances 10) beneficiaries, which tax relief is not available to others who are somewhat similarly situated. 2 U. S. C. § 691e(9) (1994 ed., Supp. II). There are, however, two related significant differences between the "limited tax benefit" and the spending items considered above, which make the "limited tax benefit" question more difficult. First, the history is different. The history of Presidential authority to pick and to choose is less voluminous. Second, the subject matter (increasing or decreasing an individual's taxes) makes the considerations discussed at the end of the last section (i. e., the danger of an arbitrary exercise of delegated power) of greater concern. But these differences, in my view, are not sufficient to change the "nondelegation" result. For one thing, this Court has made clear that the standard we must use to judge whether a law violates the "nondelegation" doctrine is the same in the tax area as in any other. In Skinner v. Mid-America Pipeline Co., 490 U. S. 212 (1989), the Court considered whether Congress, in the exercise of its taxing power, could delegate to the Secretary of Transportation the authority to establish a system of pipeline user fees. In rejecting the argument that the "fees" were actually a "tax," and that the law amounted to an unconstitutional delegation of Congress' own power to tax, the unanimous Court said that: "From its earliest days to the present, Congress, when enacting tax legislation, has varied the degree of specificity and the consequent degree of discretionary authority delegated to the Executive .... 492 "We find no support ... for [the] contention that the text of the Constitution or the practices of Congress require the application of a different and stricter non delegation doctrine in cases where Congress delegates discretionary authority to the Executive under its taxing power .... Even if the user fees are a form of taxation, we hold that the delegation of discretionary authority under Congress' taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges. Congress may wisely choose to be more circumspect in delegating authority under the Taxing Clause than under other of its enumerated powers, but this is not a heightened degree of prudence required by the Constitution." Id., at 221-223. For another thing, this Court has upheld tax statutes that delegate to the President the power to change taxes under very broad standards. In 1890, for example, Congress authorized the President to "suspend" the provisions of the tariff statute, thereby raising tariff rates, if the President determined that other nations were imposing "reciprocally unequal and unreasonable" tariff rates on specialized commodities. Act of Oct. 1, 1890, ch. 1244, § 3, 26 Stat. 612. And the Court upheld the statute against constitutional attack. Field v. Clark, 143 U. S., at 693-694 ("[N]o valid objection can be made" to such statutes "conferring authority or discretion" on the President) (internal quotation marks omitted); see also Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 (President "authorized" to "suspend the operation of" a customs law "if in his judgment the public interest should require it"); Act of June 4, 1794, ch. 41, § 1, 1 Stat. 372 (empowering President to lay an embargo on ships in ports "whenever, in his opinion, the public safety shall so require" and to revoke related regulations "whenever he shall think proper"). In 1922 Congress gave the President the authority to adjust tariff rates to "equalize" the differences in costs of production at home and abroad, see Tariff Act of 1922, ch. 356, 493 § 315(a), 42 Stat. 941-942. The Court also upheld this delegation against constitutional attack. See J. W Hampton, Jr., & Co. v. United States, 276 U. S. 394 (1928). These statutory delegations resemble today's Act more closely than one might at first suspect. They involve a duty on imports, which is a tax. That tax in the last century was as important then as the income tax is now, for it provided most of the Federal Government's revenues. See U. S. Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 2, at 1106 (in 1890, when Congress passed the statute at issue in Field, tariff revenues were 57% of the total receipts of the Federal Government). And the delegation then thus affected a far higher percentage of federal revenues than the tax-related delegation over extremely "limited" tax benefits here. See supra, at 487. The standards at issue in these earlier laws, such as "unreasonable," were frequently vague and without precise meaning. See, e. g., Act of Oct. 1, 1890, § 3, 26 Stat. 612. Indeed, the word "equalize" in the 1922 statute, 42 Stat. 942, could not have been administered as if it offered the precision it seems to promise, for a tariff that literally "equalized" domestic and foreign production costs would, because of transport costs, have virtually ended foreign trade. Nor can I accept the majority's effort to distinguish these examples. The majority says that these statutes imposed a specific "duty" upon the President to act upon the occurrence of a specified event. See ante, at 443. But, in fact, some of the statutes imposed no duty upon the President at all. See, e. g., Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 (President "authorized" to "suspend the operation of" a customs law "if in his judgment the public interest should require it"). Others imposed a "duty" in terms so vague as to leave substantial discretion in the President's hands. See Act of Oct. 1, 1890, 26 Stat. 612 (President's "duty" to suspend tariff law was triggered "whenever" and "so often as" he was "satisfied" 494 that "unequal and unreasonable" rates were imposed); see also Field v. Clark, supra, at 691 (historically in the flexible tariff statutes Congress has "invest[ed] the President with large discretion"). The majority also tries to distinguish these examples on the ground that the President there executed congressional policy while here he rejects that policy. See ante, at 444. The President here, however, in exercising his delegated authority does not reject congressional policy. Rather, he executes a law in which Congress has specified its desire that the President have the very authority he has exercised. See Part III, supra. The majority further points out that these cases concern imports, an area that, it says, implicates foreign policy and therefore justifies an unusual degree of discretion by the President. See ante, at 445. Congress, however, has not limited its delegations of taxation authority to the "foreign policy" arena. The first Congress gave the Secretary of the Treasury the "power to mitigate or remit" statutory penalties for nonpayment of liquor taxes "upon such terms and conditions as shall appear to him reasonable." Act of Mar. 3, 1791, ch. 15, § 43, 1 Stat. 209. A few years later, the Secretary was authorized, in lieu of collecting the stamp duty enacted by Congress, "to agree to an annual composition for the amount of such stamp duty, with any of the said banks, of one per centum on the amount of the annual dividend made by such banks." Act of July 6, 1797, ch. 11, § 2, 1 Stat. 528. More recently, Congress has given to the Executive Branch the authority to "prescribe all needful rules and regulations for the enforcement of [the Internal Revenue Code], including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue." 26 U. S. C. § 7805(a). And the Court has held that such rules and regulations, "which undoubtedly affect individual taxpayer liability, are ... without doubt the result of entirely appropriate delegations of discretionary authority 495 by Congress." Skinner v. Mid-America Pipeline Co., 490 U. S., at 222. I do not believe the Court would hold the same delegations at issue in J. W Hampton and Field unconstitutional were they to arise in a more obviously domestic area. Finally, the tax-related delegation is limited in ways that tend to diminish any widespread risk of arbitrary Presidential decisionmaking: (1) The Act does not give the President authority to change general tax policy. That is because the limited tax benefits are defined in terms of deviations from tax policy, i. e., special benefits to fewer than 100 individuals. See 2 U. S. C. § 691e(9)(A)(i) (1994 ed., Supp. II); see also Analytical Perpectives 84 (defining "tax expenditure" as "a preferential exception to the baseline provisions of the tax structure"). (2) The Act requires the President to make the same kind of policy judgment with respect to these special benefits as with respect to items of spending. He is to consider the budget as a whole, he is to consider the particular history of the tax benefit provision, and he is to consider whether the provision is worth the loss of revenue it causes in the same way that he must decide whether a particular expenditure item is worth the added revenue that it requires. See supra, at 484-485. (3) The delegated authority does not destroy any individual's expectation of receiving a particular benefit, for the Act is written to say to the small group of taxpayers who may receive the benefit, "Taxpayers, you will receive an exemption from ordinary tax laws, but only if the President decides the budgetary loss is not too great." (4) The "limited tax benefit" provisions involve only a small part of the federal budget, probably less than one percent of total annual outlays and revenues. Compare Budget 303 (federal outlays and receipts in 1997 were both over $1.5 trillion) with App. to Juris. Statement 71a (President's cancellation message for Snake River appellees' limited tax ben- 496 efit, estimating annual "value" of benefit, in terms of revenue loss, at about $20 million) and Taxpayer Relief Act of 1997, § 1701, 111 Stat. 1099 (identifying only 79 "limited tax benefits" subject to cancellation in the entire tax statute). (5) Because the "tax benefit" provisions are part and parcel of the budget provisions, and because the Act in defining them, focuses upon "revenue-losing" tax provisions, 2 U. S. C. § 691e(9)(A)(i) (1994 ed., Supp. II), it regards "tax benefits" as if they were a special kind of spending, namely spending that puts back into the pockets of a small group of taxpayers, money that "baseline" tax policy would otherwise take from them. There is, therefore, no need to consider this provision as if it represented a delegation of authority to the President, outside the budget expenditure context, to set major policy under the federal tax laws. But c:t: Skinner v. Mid-America Pipeline, supra, at 222-223 (no "different and stricter" nondelegation doctrine in the taxation context). Still less does approval of the delegation in this case, given the long history of Presidential discretion in the budgetary context, automatically justify the delegation to the President of the authority to alter the effect of other laws outside that context. The upshot is that, in my view, the "limited tax benefit" provisions do not differ enough from the "spending" provisions to warrant a different "nondelegation" result. v In sum, I recognize that the Act before us is novel. In a sense, it skirts a constitutional edge. But that edge has to do with means, not ends. The means chosen do not amount literally to the enactment, repeal, or amendment of a law. Nor, for that matter, do they amount literally to the "line item veto" that the Act's title announces. Those means do not violate any basic separation-of-powers principle. They do not improperly shift the constitutionally foreseen balance of power from Congress to the President. Nor, since 497 they comply with separation-of-powers principles, do they threaten the liberties of individual citizens. They represent an experiment that may, or may not, help representative government work better. The Constitution, in my view, authorizes Congress and the President to try novel methods in this way. Consequently, with respect, I dissent.

Here is a summary of the Clinton v. City of New York case: The case concerned the constitutionality of the Line Item Veto Act, which allowed the President to cancel specific spending items in a budget. The Court determined that the appellees, including the City of New York and a farmers' cooperative, had standing to challenge the Act as they had suffered concrete injuries due to the President's cancellation of certain tax provisions. The Court also rejected the Government's argument that the case was nonjusticiable, distinguishing it from Raines v. Byrd on the basis that the appellees had alleged personal, concrete injuries. On the merits, the Court held that the Act's cancellation procedures violated the Presentment Clause of the Constitution, which outlines the process for enacting laws. The Court found that the Act gave the President the power to amend or repeal laws, which is exclusively a legislative function. The Court also addressed the Act's "limited tax benefit" provisions, concluding that they did not represent an improper delegation of taxation authority to the President. In sum, the Court recognized the novelty of the Act but concluded that it violated the Constitution's separation of powers principles by giving the President legislative powers.

Separation of Powers

Collins v. Yellen

https://supreme.justia.com/cases/federal/us/594/19-422/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–422 and 19–563 _________________ PATRICK J. COLLINS, et al., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al., PETITIONERS 19–563 v. PATRICK J. COLLINS, et al. on writs of certiorari to the united states court of appeals for the fifth circuit [June 23, 2021] Justice Alito delivered the opinion of the Court. Fannie Mae and Freddie Mac are two of the Nation’s leading sources of mortgage financing. When the housing crisis hit in 2008, the companies suffered significant losses, and many feared that their troubling financial condition would imperil the national economy. To address that concern, Congress enacted the Housing and Economic Recovery Act of 2008 (Recovery Act), 122Stat. 2654, 12 U. S. C. §4501 et seq. Among other things, that law created the Federal Housing Finance Agency (FHFA), “an independent agency” tasked with regulating the companies and, if necessary, stepping in as their conservator or receiver. §§4511, 4617. At its head, Congress installed a single Director, whom the President could remove only “for cause.” §§4512(a), (b)(2). Shortly after the FHFA came into existence, it placed Fannie Mae and Freddie Mac into conservatorship and negotiated agreements for the companies with the Department of Treasury. Under those agreements, Treasury committed to providing each company with up to $100 billion in capital, and in exchange received, among other things, senior preferred shares and quarterly fixed-rate dividends. Four years later, the FHFA and Treasury amended the agreements and replaced the fixed-rate dividend formula with a variable one that required the companies to make quarterly payments consisting of their entire net worth minus a small specified capital reserve. This deal, which the parties refer to as the “third amendment” or “net worth sweep,” caused the companies to transfer enormous amounts of wealth to Treasury. It also resulted in a slew of lawsuits, including the one before us today. A group of Fannie Mae’s and Freddie Mac’s shareholders challenged the third amendment on statutory and constitutional grounds. With respect to their statutory claim, the shareholders contended that the Agency exceeded its authority as a conservator under the Recovery Act when it agreed to a variable dividend formula that would transfer nearly all of the companies’ net worth to the Federal Government. And with respect to their constitutional claim, the shareholders argued that the FHFA’s structure violates the separation of powers because the Agency is led by a single Director who may be removed by the President only “for cause.” §4512(b)(2). They sought declaratory and injunctive relief, including an order requiring Treasury either to return the variable dividend payments or to re-characterize those payments as a pay down on Treasury’s investment. We hold that the shareholders’ statutory claim is barred by the Recovery Act, which prohibits courts from taking “any action to restrain or affect the exercise of [the] powers or functions of the Agency as a conservator.” §4617(f ). But we conclude that the FHFA’s structure violates the separation of powers, and we remand for further proceedings to determine what remedy, if any, the shareholders are entitled to receive on their constitutional claim. I A Congress created the Federal National Mortgage Association (Fannie Mae) in 1938 and the Federal Home Loan Mortgage Corporation (Freddie Mac) in 1970 to support the Nation’s home mortgage system. See National Housing Act Amendments of 1938, 52Stat. 23; Federal Home Loan Mortgage Corporation Act, 84Stat. 451. The companies operate under congressional charters as for-profit corporations owned by private shareholders. See Housing and Urban Development Act of 1968, §801, 82Stat. 536, 12 U. S. C. §1716b; Financial Institutions Reform, Recovery, and Enforcement Act of 1989, §731, 103Stat. 429–436, note following 12 U. S. C. §1452. Their primary business is purchasing mortgages, pooling them into mortgage-backed securities, and selling them to investors. By doing so, the companies “relieve mortgage lenders of the risk of default and free up their capital to make more loans,” Jacobs v. Federal Housing Finance Agcy . ( FHFA ), 908 F.3d 884, 887 (CA3 2018), and this, in turn, increases the liquidity and stability of America’s home lending market and promotes access to mortgage credit. By 2007, the companies’ mortgage portfolios had a combined value of approximately $5 trillion and accounted for almost half of the Nation’s mortgage market. So, when the housing bubble burst in 2008, the companies took a sizeable hit. In fact, they lost more that year than they had earned in the previous 37 years combined. See FHFA Office of Inspector General, Analysis of the 2012 Amendments to the Senior Preferred Stock Purchase Agreements 5 (Mar. 20, 2013), https://www.fhfaoig.gov/Content/Files/WPR–2013–002_2.pdf. Though they remained solvent, many feared the companies would eventually default and throw the housing market into a tailspin. To address that concern, Congress enacted the Recovery Act. Two aspects of that statute are relevant here. First, the Recovery Act authorized Treasury to purchase Fannie Mae’s and Freddie Mac’s stock if it determined that infusing the companies with capital would protect taxpayers and be beneficial to the financial and mortgage markets. 12 U. S. C. §§1455( l )(1), 1719(g)(1). The statute further provided that Treasury’s purchasing authority would automatically expire at the end of the 2009 calendar year. §§1455( l )(4), 1719(g)(4). Second, the Recovery Act created the FHFA to regulate the companies and, in certain specified circumstances, step in as their conservator or receiver. §§4502(20), 4511(b), 4617.[ 1 ] A few features of the Agency deserve mention. The FHFA is led by a single Director who is appointed by the President with the advice and consent of the Senate. §§4512(a), (b)(1). The Director serves a 5-year term but may be removed by the President “for cause.” §4512(b)(2). The Director is permitted to choose three deputies to assist in running the Agency’s various divisions, and the Director sits as Chairman of the Federal Housing Finance Oversight Board, which advises the Agency about matters of strategy and policy. §§4512(c)–(e), 4513a(a), (c)(4). Since its inception, the FHFA has had three Senate-confirmed Directors, and in times of their absence, various Acting Directors have been selected to lead the Agency on an interim basis. See Rop v. FHFA , 485 F. Supp. 3d 900, 915 (WD Mich. 2020). The Agency is tasked with supervising nearly every aspect of the companies’ management and operations. For example, the Agency must approve any new products that the companies would like to offer. §4541(a). It may reject acquisitions and certain transfers of interests the companies seek to execute. §4513(a)(2)(A). It establishes criteria governing the companies’ portfolio holdings. §4624(a). It may order the companies to dispose of or acquire any asset. §4624(c). It may impose caps on how much the companies compensate their executives and prohibit or limit golden parachute and indemnification payments. §4518. It may require the companies to submit regular reports on their condition or “any other relevant topics.” §4514(a)(2). And it must conduct one on-site examination of the companies each year and may, on any terms the Director deems appropriate, hire outside firms to perform additional reviews. §§4517(a)–(b), 4519. The statute empowers the Agency with broad investigative and enforcement authority to ensure compliance with these standards. Among other things, the Agency may hold hearings, §§4582, 4633; issue subpoenas, §§4588(a)(3), 4641(a)(3); remove or suspend corporate officers, §4636a; issue cease-and-desist orders, §§4581, 4632; bring civil actions in federal court, §§4584, 4635; and impose penalties ranging from $2,000 to $2 million per day, §§4514(c)(2), 4585, 4636(b). In addition to vesting the FHFA with these supervisory and enforcement powers, the Recovery Act authorizes the Agency to act as the companies’ conservator or receiver for the purposes of reorganizing the companies, rehabilitating them, or winding down their affairs. §§4617(a)(1)–(2). The Director may appoint the Agency in either capacity if the companies meet certain specified benchmarks of financial risk or satisfy other criteria, §4617(a)(3), and once the Director makes that appointment, the Agency succeeds to all of the rights, titles, powers, and privileges of the companies, §4617(b)(2)(A)(i).[ 2 ] From there, the Agency has the authority to take control of the companies’ assets and operations, conduct business on their behalf, and transfer or sell any of their assets or liabilities. §§4617(b)(2)(B)–(C), (G). In performing these functions, the Agency may exercise whatever incidental powers it deems necessary, and it may take any authorized action that is in the best interests of the companies or the Agency itself. §4617(b)(2)(J). Finally, the FHFA is not funded through the ordinary appropriations process. Rather, the Agency’s budget comes from the assessments it imposes on the entities it regulates, which include Fannie Mae, Freddie Mac, and the Nation’s federal home loan banks. §§4502(20), 4516(a). Those assessments are unlimited so long as they do not exceed the “reasonable costs . . . and expenses of the Agency.” §4516(a) . In fiscal year 2020, the FHFA collected more than $311 million. See FHFA, Performance & Accountability Report 24 (2020), https://www.fhfa.gov/AboutUs/Reports/ ReportDocuments/FHFA-2020-PAR.pdf. B In September 2008, less than two months after Congress enacted the Recovery Act, the Director appointed the FHFA as conservator of Fannie Mae and Freddie Mac. The following day, Treasury exercised its temporary authority to buy their stock and the FHFA, acting as the companies’ conservator, entered into purchasing agreements with Treasury.[ 3 ] Under these agreements, Treasury committed to providing each company with up to $100 billion in capital, upon which it could draw in any quarter in which its liabilities exceeded its assets. In return for this funding commitment, Treasury received 1 million shares of specially created senior preferred stock in each company. Those shares provided Treasury with four key entitlements. First, Treasury received a senior liquidation preference equal to $1 billion in each company, with a dollar-for-dollar increase every time the company drew on the capital commitment. In other words, in the event the FHFA liquidated Fannie Mae or Freddie Mac, Treasury would have the right to be paid back $1 billion, as well as whatever amount the company had already drawn from the capital commitment, before any other investors or shareholders could seek repayment. Second, Treasury was given warrants, or long-term options, to purchase up to 79.9% of the companies’ common stock at a nominal price. Third, Treasury became entitled to a quarterly periodic commitment fee, which the companies would pay to compensate Treasury for the support provided by the ongoing access to capital.[ 4 ] And finally, the companies became obligated to pay Treasury quarterly cash dividends at an annualized rate equal to 10% of Treasury’s outstanding liquidation preference. Within a year, Fannie Mae’s and Freddie Mac’s net worth decreased substantially, and it became clear that Treasury’s initial capital commitment would prove inadequate. To address that problem, the FHFA and Treasury twice amended the agreements to increase the available capital. The first amendment came in May 2009, when Treasury doubled its combined commitment from $200 billion to $400 billion.[ 5 ] And the second amendment was adopted in December 2009, when Treasury agreed to provide as much funding as the companies needed through 2012, after which the cap would be reinstated.[ 6 ] The companies drew sizeable amounts from Treasury’s capital commitment in the years that followed. And because of the fixed-rate dividend formula, the more money they drew, the larger their dividend obligations became. The companies consistently lacked the cash necessary to pay them, and they began the circular practice of drawing funds from Treasury’s capital commitment just to hand those funds back as a quarterly dividend. By the middle of 2012, the companies had drawn over $187 billion, and $26 billion of that was used to satisfy their dividend obligations. In August 2012, the FHFA and Treasury decided to amend the agreements for a third time.[ 7 ] This amendment replaced the fixed-rate dividend formula (which was tied to the size of Treasury’s investment) with a variable dividend formula (which was tied to the companies’ net worth). Under the new formula, the companies were required to pay a dividend equal to the amount, if any, by which their net worth exceeded a pre-determined capital reserve.[ 8 ] In addition, the amendment suspended the companies’ obligations to pay periodic commitment fees. Shifting from a fixed-rate dividend formula to a variable one materially changed the nature of the agreements. If the net worth of Fannie Mae or Freddie Mac at the end of a quarter exceeded the capital reserve, the amendment required the company to pay all of the surplus to Treasury. But if a company’s net worth at the end of a quarter did not exceed the reserve or if it lost money during a quarter, the amendment did not require the company to pay anything. This ensured that Fannie Mae and Freddie Mac would never again draw money from Treasury just to make their quarterly dividend payments, but it also meant that the companies would not be able to accrue capital in good quarters. After the third amendment took effect, the companies’ financial condition improved, and they ended up transferring immense amounts of wealth to Treasury. In 2013, the companies paid a total of $130 billion in dividends. In 2014, they paid over $40 billion. In 2015, they paid almost $16 billion. And in 2016, they paid almost $15 billion.[ 9 ] These payments totaled approximately $200 billion, which is at least $124 billion more than the companies would have had to pay during those four years under the fixed-rate dividend formula that previously applied. The third amendment stayed in place for another four years. In January 2021, the FHFA and Treasury amended the stock purchasing agreements for a fourth time.[ 10 ] This amendment, which is currently in place, suspends the companies’ quarterly dividend payments until they build up enough capital to meet certain specified thresholds, a process that we are told is expected to take years. See Letter from E. Prelogar, Acting Solicitor General, to S. Harris, Clerk of Court (Mar. 18, 2021). During that time, each company is required to pay Treasury through increases in the liquidation preference that are equal to the increase, if any, in its net worth during the previous fiscal year. Once that threshold is met, the company will resume quarterly dividend payments, and those dividends will be equal to the lesser of 10% of Treasury’s liquidation preference or the incremental increase in the company’s net worth in the previous quarter. In addition, the company will be required to pay periodic commitment fees. C In 2016, three of Fannie Mae’s and Freddie Mac’s shareholders brought suit against the FHFA and its Director, and they asserted two claims that are relevant for present purposes. First, they claimed that the FHFA exceeded its statutory authority as the companies’ conservator by adopting the third amendment. Second, they asserted that because the FHFA is led by a single Director who may be removed by the President only “for cause,” its structure is unconstitutional. They asked for various forms of equitable relief, including a declaration that the third amendment violated the Recovery Act and that the FHFA’s structure is unconstitutional; an injunction ordering Treasury to return to Fannie Mae and Freddie Mac all the dividend payments that were made under the third amendment or alternatively, a re-characterization of those payments as a pay-down of the liquidation preference and a corresponding redemption of Treasury’s stock; an order vacating and setting aside the third amendment; and an order enjoining the FHFA and Treasury from taking any further action to implement the third amendment.[ 11 ] The District Court dismissed the statutory claim and granted summary judgment in favor of the FHFA on the constitutional claim, Collins v. FHFA , 254 F. Supp. 3d 841 (SD Tex. 2017), and a three-judge panel of the Fifth Circuit affirmed in part and reversed in part, Collins v. Mnuchin , 896 F.3d 640 (2018) ( per curiam ). At the request of both parties, the Fifth Circuit reheard the case en banc. Collins v. Mnuchin , 908 F.3d 151 (2018). In a deeply fractured opinion, the en banc court reversed the District Court’s dismissal of the statutory claim; held that the FHFA’s structure violates the separation of powers; and concluded that the appropriate remedy for the constitutional violation was to sever the removal restriction from the rest of the Recovery Act, but not to vacate and set aside the third amendment. Collins v. Mnuchin , 938 F.3d 553 (2019). Both the shareholders and the federal parties sought this Court’s review, and we granted certiorari. 591 U. S. ___ (2020). Because the federal parties did not contest the Fifth Circuit’s conclusion that the Recovery Act’s removal restriction improperly insulates the Director from Presidential control, we appointed Aaron Nielson to brief and argue, as amicus curiae , in support of the position that the FHFA’s structure is constitutional. He has ably discharged his responsibilities. II We begin with the shareholders’ statutory claim and conclude that the Recovery Act requires its dismissal. In the Recovery Act, Congress sharply circumscribed judicial review of any action that the FHFA takes as a conservator or receiver. The Act states that unless review is specifically authorized by one of its provisions or is requested by the Director, “no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.” 12 U. S. C. §4617(f ). The parties refer to this as the Act’s “anti-injunction clause.” Every Court of Appeals that has confronted this language has held that it prohibits relief where the FHFA action at issue fell within the scope of the Agency’s authority as a conservator, but that relief is allowed if the FHFA exceeded that authority. See Jacobs , 908 F. 3d, at 889; Saxton v. FHFA , 901 F.3d 954, 957–958 (CA8 2018); Roberts v. FHFA , 889 F.3d 397, 402 (CA7 2018); Robinson v. FHFA , 876 F.3d 220, 228 (CA6 2017); Perry Capital LLC v. Mnuchin , 864 F.3d 591, 605–606 (CADC 2017); County of Sonoma v. FHFA , 710 F.3d 987, 992 (CA9 2013); Leon Cty. v. FHFA , 700 F.3d 1273, 1278 (CA11 2012). We agree with that consensus. The anti-injunction clause applies only where the FHFA exercised its “powers or functions” “as a conservator or a receiver.” Where the FHFA does not exercise but instead exceeds those powers or functions, the anti-injunction clause imposes no restrictions. With that understanding in mind, we must decide whether the FHFA was exercising its powers or functions as a conservator when it agreed to the third amendment. If it was, then the anti-injunction clause bars the shareholders’ statutory claim. A The Recovery Act grants the FHFA expansive authority in its role as a conservator. As we have explained, the Agency is authorized to take control of a regulated entity’s assets and operations, conduct business on its behalf, and transfer or sell any of its assets or liabilities. See §§4617(b)(2)(B)–(C), (G). When the FHFA exercises these powers, its actions must be “necessary to put the regulated entity in a sound and solvent condition” and must be “appropriate to carry on the business of the regulated entity and preserve and conserve [its] assets and property.” §4617(b)(2)(D). Thus, when the FHFA acts as a conservator, its mission is rehabilitation, and to that extent, an FHFA conservatorship is like any other. See, e.g., Resolution Trust Corporation v. CedarMinn Bldg. Ltd. Partnership , 956 F.2d 1446, 1454 (CA8 1992).[ 12 ] An FHFA conservatorship, however, differs from a typical conservatorship in a key respect. Instead of mandating that the FHFA always act in the best interests of the regulated entity, the Recovery Act authorizes the Agency to act in what it determines is “in the best interests of the regulated entity or the Agency .” §4617(b)(2)(J)(ii) (emphasis added). Thus, when the FHFA acts as a conservator, it may aim to rehabilitate the regulated entity in a way that, while not in the best interests of the regulated entity, is beneficial to the Agency and, by extension, the public it serves. This distinctive feature of an FHFA conservatorship is fatal to the shareholders’ statutory claim. The facts alleged in the complaint demonstrate that the FHFA chose a path of rehabilitation that was designed to serve public interests by ensuring Fannie Mae’s and Freddie Mac’s continued support of the secondary mortgage market. Recall that the third amendment was adopted at a time when the companies’ liabilities had consistently exceeded their assets over at least the prior three years. See supra, at 8. It is undisputed that the companies had repeatedly been unable to make their fixed quarterly dividend payments without drawing on Treasury’s capital commitment. And there is also no dispute that the cap on Treasury’s capital commitment was scheduled to be reinstated at the end of the year and that Treasury’s temporary stock-purchasing authority had expired in 2009. See §§1455( l )(4), 1719(g)(4). If things had proceeded as they had in the past, there was a realistic possibility that the companies would have consumed some or all of the remaining capital commitment in order to pay their dividend obligations, which were themselves increasing in size every time the companies made a draw. The third amendment eliminated this risk by replacing the fixed-rate dividend formula with a variable one. Under the new formula, the companies would never again have to use capital from Treasury’s commitment to pay their dividends. And that, in turn, ensured that all of Treasury’s capital was available to backstop the companies’ operations during difficult quarters. In exchange, the companies had to relinquish nearly all their net worth, and this made certain that they would never be able to build up their own capital buffers, pay back Treasury’s investment, and exit conservatorship. Whether or not this new arrangement was in the best interests of the companies or their shareholders, the FHFA could have reasonably concluded that it was in the best interests of members of the public who rely on a stable secondary mortgage market. The Recovery Act therefore authorized the Agency to choose this option. B The shareholders contend that the third amendment did not actually serve the best interests of the FHFA or the public because it did not further the asserted objective of protecting Treasury’s capital commitment. This is so, the shareholders argue, for two reasons. First, they claim that the FHFA adopted the third amendment at a time when the companies were on the precipice of a financial uptick and that they would soon have been in a position not only to pay cash dividends, but also to build up capital buffers to absorb future losses. Thus, the shareholders assert, sweeping all the companies’ earnings to Treasury increased rather than decreased the risk that the companies would make further draws and eventually deplete Treasury’s commitment. The nature of the conservatorship authorized by the Recovery Act permitted the Agency to reject the shareholders’ suggested strategy in favor of one that the Agency reasonably viewed as more certain to ensure market stability. The success of the strategy that the shareholders tout was dependent on speculative projections about future earnings, and recent experience had given the FHFA reasons for caution. The companies had been repeatedly unable to pay their dividends from 2009 to 2011. With the aim of more securely ensuring market stability, the FHFA did not exceed the scope of its conservatorship authority by deciding on what it viewed as a less risky approach. Second, the shareholders contend that the FHFA could have protected Treasury’s capital commitment by ordering the companies to pay the dividends in kind rather than in cash. This argument rests on a misunderstanding of the agreement between the companies and Treasury. The companies’ stock certificates required Fannie Mae and Freddie Mac to pay their dividends “in cash in a timely manner.” App. 180, 198. If the companies had failed to do so, they would have incurred a penalty: Treasury’s liquidation preference would have immediately increased by the dividend amount, and the dividend rate would have increased from 10% to 12% until the companies paid their outstanding dividends in cash.[ 13 ] Thus, paying Treasury in kind would not have satisfied the cash dividend obligation, and the risk that the companies’ cash dividend obligations would consume Treasury’s capital commitment in the future would have remained. Choosing to forgo this option in favor of one that eliminated the risk entirely was not in excess of the FHFA’s statutory authority as conservator. Finally, the shareholders argue that because the third amendment left the companies unable to build capital reserves and exit conservatorship, it is best viewed as a step toward ultimate liquidation and, according to the shareholders, the FHFA lacked the authority to take this decisive step without first placing the companies in receivership. The shareholders’ characterization of the third amendment as a step toward liquidation is inaccurate. Nothing about the amendment precluded the companies from operating at full steam in the marketplace, and all the available evidence suggests that they did so. Between 2012 and 2016 alone, the companies “collectively purchased at least 11 million mortgages on single-family owner-occupied properties, and Fannie issued over $1.5 trillion in single-family mortgage-backed securities.” Perry Capital , 864 F. 3d, at 602. During that time, the companies amassed over $200 billion in net worth and, as of November 2020, Fannie Mae’s mortgage portfolio had grown to $163 billion and Freddie Mac’s to $193 billion.[ 14 ] This evidence does not suggest that the companies were in the process of winding down their affairs. It is not necessary for us to decide—and we do not decide—whether the FHFA made the best, or even a particularly good, business decision when it adopted the third amendment. Instead, we conclude only that under the terms of the Recovery Act, the FHFA did not exceed its authority as a conservator, and therefore the anti-injunction clause bars the shareholders’ statutory claim. III We now consider the shareholders’ claim that the statutory restriction on the President’s power to remove the FHFA Director, 12 U. S. C. §4512(b)(2), is unconstitutional. A Before turning to the merits of this question, however, we must address threshold issues raised in the lower court or by the federal parties and appointed amicus . 1 In the proceedings below, some judges concluded that the shareholders lack standing to bring their constitutional claim. See 938 F. 3d, at 620 (Costa, J., dissenting in part). Because we have an obligation to make sure that we have jurisdiction to decide this claim, see DaimlerChrysler Corp. v. Cuno , 547 U.S. 332 , 340 (2006), we begin by explaining why the shareholders have standing. To establish Article III standing, a plaintiff must show that it has suffered an “injury in fact” that is “fairly traceable” to the defendant’s conduct and would likely be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560–561 (1992) (alterations and internal quotation marks omitted). The shareholders meet these requirements. First, the shareholders claim that the FHFA transferred the value of their property rights in Fannie Mae and Freddie Mac to Treasury, and that sort of pocketbook injury is a prototypical form of injury in fact. See Czyzewski v. Jevic Holding Corp. , 580 U. S. ___, ___ (2017) (slip op., at 11). Second, the shareholders’ injury is traceable to the FHFA’s adoption and implementation of the third amendment, which is responsible for the variable dividend formula that swept the companies’ net worth to Treasury and left nothing for their private shareholders. Finally, a decision in the shareholders’ favor could easily lead to the award of at least some of the relief that the shareholders seek. We found standing under similar circumstances in Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___ (2020). See id ., at ___ (slip op., at 10) (“In the specific context of the President’s removal power, we have found it sufficient that the challenger sustains injury from an executive act that allegedly exceeds the official’s authority” (brackets and internal quotation marks omitted)); see also Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 (2010) (considering challenge to removal restriction where plaintiffs claimed injury from allegedly unlawful agency oversight). The judges who thought that the shareholders lacked standing reached that conclusion on the ground that the shareholders could not trace their injury to the Recovery Act’s removal restriction. See 938 F. 3d, at 620–621 (opinion of Costa, J.). But for purposes of traceability, the relevant inquiry is whether the plaintiffs’ injury can be traced to “allegedly unlawful conduct” of the defendant, not to the provision of law that is challenged. Allen v. Wright , 468 U.S. 737 , 751 (1984); see also Lujan , supra , at 560 (explaining that the plaintiff must show “a causal connection between the injury and the conduct complained of,” and that “the injury has to be fairly traceable to the challenged action of the defendant” (quoting Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26 , 41 (1976); brackets, ellipsis, and internal quotation marks omitted)). Because the relevant action in this case is the third amendment, and because the shareholders’ concrete injury flows directly from that amendment, the traceability requirement is satisfied. 2 After oral argument was held in this case, the federal parties notified the Court that the FHFA and Treasury had agreed to amend the stock purchasing agreements for a fourth time.[ 15 ] And because that amendment eliminated the variable dividend formula that had caused the shareholders’ injury, it is necessary to consider whether the fourth amendment moots the shareholders’ constitutional claim. It does so only with respect to some of the relief requested. In their complaint, the shareholders sought various forms of prospective relief, but because that amendment is no longer in place, the shareholders no longer have any ground for such relief. By contrast, they retain an interest in the retrospective relief they have requested, and that interest saves their constitutional claim from mootness. 3 The federal parties contend that the “succession clause” in the Recovery Act bars the shareholders’ constitutional claim. Under this clause, when the FHFA appoints itself as conservator, it immediately succeeds to “all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director of such regulated entity with respect to the regulated entity and the assets of the regulated entity.” 12 U. S. C. §4617(b)(2)(A)(i). According to the federal parties, this clause transferred to the FHFA the shareholders’ right to bring their constitutional claim, and it therefore bars the shareholders from asserting that claim on their own behalf. In other words, the federal parties read the succession clause to mean that the only party with the authority to challenge the restriction on the President’s power to remove the Director of the FHFA is the FHFA itself. The federal parties read the succession clause too broadly. The clause effects only a limited transfer of stockholders’ rights, namely, the rights they hold as stockholders “with respect to the regulated entity” and its assets . The right the shareholders assert in this case is one that they hold in common with all other citizens who have standing to challenge the removal restriction. As we have explained on many prior occasions, the separation of powers is designed to preserve the liberty of all the people. See, e.g. , Bowsher v. Synar , 478 U.S. 714 , 730 (1986); Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 635 (1952) (Jackson, J., concurring) (noting that the Constitution “diffuses power the better to secure liberty”). So whenever a separation-of-powers violation occurs, any aggrieved party with standing may file a constitutional challenge. See, e.g. , Seila Law , supra , at ___ (slip op., at 10); Bond v. United States , 564 U.S. 211 , 223 (2011); INS v. Chadha , 462 U.S. 919 , 935–936 (1983). Nearly half our hallmark removal cases have been brought by aggrieved private parties. See Seila Law , 591 U. S., at ___–___ (slip op., at 6–7) (law firm to which the agency issued a civil investigative demand); Free Enterprise Fund , supra , at 487 (accounting firm placed under agency investigation); Morrison v. Olson , 487 U.S. 654 , 668 (1988) (federal officials subject to subpoenas issued at the request of an independent counsel); Bowsher , supra , at 719 (union representing employee-members whose benefit increases were suspended due to an action of the Comptroller General). Here, the right asserted is not one that is distinctive to shareholders of Fannie Mae and Freddie Mac; it is a right shared by everyone in this country. Because the succession clause transfers the rights of “stockholder[s] . . . with respect to the regulated entity,” it does not transfer to the FHFA the constitutional right at issue.[ 16 ] 4 The federal parties and appointed amicus next contend that the shareholders’ constitutional challenge was dead on arrival because the third amendment was adopted when the FHFA was led by an Acting Director[ 17 ] who was removable by the President at will. This argument would have merit if (a) the Acting Director was indeed removable at will (a matter we address below, see infra , at 22–26) and (b) all the harm allegedly incurred by the shareholders had been completed at the time of the third amendment’s adoption. Under those circumstances, any constitutional defect in the provision restricting the removal of a confirmed Director would not have harmed the shareholders, and they would not be entitled to any relief. But the harm allegedly caused by the third amendment did not come to an end during the tenure of the Acting Director who was in office when the amendment was adopted. That harm is alleged to have continued after the Acting Director was replaced by a succession of confirmed Directors, and it appears that any one of those officers could have renegotiated the companies’ dividend formula with Treasury. From what we can tell from the record, the FHFA and Treasury consistently reevaluated the stock purchasing agreements and adopted amendments as they thought necessary. Nothing in the third amendment suggested that it was permanent or that the FHFA lacked the ability to bring Treasury back to the bargaining table. After all, the agencies adopted a fourth amendment just this year. The federal parties and amicus do not dispute this. Accordingly, continuing to implement the third amendment was a decision that each confirmed Director has made since 2012, and because confirmed Directors chose to continue implementing the third amendment while insulated from plenary Presidential control, the survival of the shareholders’ constitutional claim does not depend on the answer to the question whether the Recovery Act restricted the removal of an Acting Director. On the other hand, the answer to that question could have a bearing on the scope of relief that may be awarded to the shareholders. If the statute unconstitutionally restricts the authority of the President to remove an Acting Director, the shareholders could seek relief rectifying injury inflicted by actions taken while an Acting Director headed the Agency. But if the statute does not restrict the removal of an Acting Director, any harm resulting from actions taken under an Acting Director would not be attributable to a constitutional violation. Only harm caused by a confirmed Director’s implementation of the third amendment could then provide a basis for relief. We therefore consider what the Recovery Act says about the removal of an Acting Director. The Recovery Act’s removal restriction provides that “[t]he Director shall be appointed for a term of 5 years, unless removed before the end of such term for cause by the President.” 12 U. S. C. §4512(b)(2). That provision refers only to “the Director,” and it is surrounded by other provisions that apply only to the Director. See §4512(a) (establishing the position of the Director); §4512(b)(1) (setting out the procedure for appointing the Director); §4512(b)(3) (discussing the manner for selecting a new Director to fill a vacancy). The Act’s mention of an “acting Director” does not appear until four subsections later, and that subsection does not include any removal restriction. See §4512(f ). Nor does it cross-reference the earlier restriction on the removal of a confirmed Director. Ibid. Instead, it merely states that “[i]n the event of the death, resignation, sickness, or absence of the Director, the President shall designate” one of three Deputy Directors to serve as an Acting Director until the Senate-confirmed Director returns or his successor is appointed. Ibid. That omission is telling. When a statute does not limit the President’s power to remove an agency head, we generally presume that the officer serves at the President’s pleasure. See Shurtleff v. United States , 189 U.S. 311 , 316 (1903). Moreover, “when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Barnhart v. Sigmon Coal Co., 534 U.S. 438 , 452 (2002) (internal quotation marks omitted). In the Recovery Act, Congress expressly restricted the President’s power to remove a confirmed Director but said nothing of the kind with respect to an Acting Director. And Congress might well have wanted to provide greater protection for a Director who had been confirmed by the Senate than for an Acting Director in whose appointment Congress had played no role. In any event, the disparate treatment weighs against the shareholders’ interpretation. In support of that interpretation, the shareholders first contend that the Recovery Act should be read to restrict the removal of an Acting Director because the Act refers to the FHFA as an “ independent agency of the Federal Government.” 12 U. S. C. §4511(a) (emphasis added). The reference to the FHFA’s independence, they claim, means that any person heading the Agency was intended to enjoy a degree of independence from Presidential control. That interpretation reads far too much into the term “independent.” The term does not necessarily mean that the Agency is “independent” of the President. It may mean instead that the Agency is not part of and is therefore independent of any other unit of the Federal Government. And describing an agency as independent would be an odd way to signify that its head is removable only for cause because even an agency head who is shielded in that way would hardly be fully “independent” of Presidential control. A review of other enabling statutes that describe agencies as “independent” undermines the shareholders’ interpretation of the term. Congress has described many agencies as “independent” without imposing any restriction on the President’s power to remove the agency’s leadership. This is true, for example, of the Peace Corps, 22 U. S. C. §§2501–1, 2503, the Defense Nuclear Facilities Safety Board, 42 U. S. C. §2286, the Commodity Futures Trading Commission, 7 U. S. C. §2(a)(2), the Farm Credit Administration, 12 U. S. C. §§2241–2242, the National Credit Union Administration, 12 U. S. C. §1752a, and the Railroad Retirement Board, 45 U. S. C. §231f(a). In other statutes, Congress has restricted the President’s removal power without referring to the agency as “independent.” This is the case for the Commission on Civil Rights, 42 U. S. C. §§1975(a), (e), the Federal Trade Commission, 15 U. S. C. §41, and the National Labor Relations Board, 29 U. S. C. §153. And in yet another group of statutes, Congress has referred to an agency as “independent” but has not expressly provided that the removal of the agency head is subject to any restrictions. See 44 U. S. C. §§2102, 2103 (National Archives and Records Administration); 42 U. S. C. §§1861, 1864 (National Science Foundation). That combination of provisions shows that the term “independent” does not necessarily connote independence from Presidential control, and we refuse to read that connotation into the Recovery Act. Taking a different tack, the shareholders claim that their interpretation is supported by the absence of any reference to removal in the Recovery Act’s provision on Acting Directors. Again, that provision states that if the Director is absent, “the President shall designate [one of the FHFA’s three Deputy Directors] to serve as acting Director until the return of the Director, or the appointment of a successor.” 12 U. S. C. §4512(f ). According to the shareholders, this text makes clear that an Acting Director differs from a confirmed Director in three respects (manner of appointment, qualifications, and length of tenure). They assume that these are the only respects in which confirmed and Acting Directors differ, and they therefore conclude that the permissible grounds for removing an Acting Director are the same as those for a confirmed Director. This argument draws an unwarranted inference from the Recovery Act’s silence on this matter. As noted, we generally presume that the President holds the power to remove at will executive officers and that a statute must contain “plain language to take [that power] away.” Shurtleff , supra , at 316. The shareholders argue that this is not a hard and fast rule, but we certainly see no grounds for an exception in this case.[ 18 ] For all these reasons, we hold that the Recovery Act’s removal restriction does not extend to an Acting Director, and we now proceed to the merits of the shareholders’ constitutional argument. B The Recovery Act’s for-cause restriction on the President’s removal authority violates the separation of powers. Indeed, our decision last Term in Seila Law is all but dispositive. There, we held that Congress could not limit the President’s power to remove the Director of the Consumer Financial Protection Bureau (CFPB) to instances of “inefficiency, neglect, or malfeasance.” 591 U. S., at ___ (slip op., at 11). We did “not revisit our prior decisions allowing certain limitations on the President’s removal power,” but we found “compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director.” Id., at ___ (slip op., at 2). “Such an agency,” we observed, “lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control.” Id. , at ___–___ (slip op., at 2–3). A straightforward application of our reasoning in Seila Law dictates the result here. The FHFA (like the CFPB) is an agency led by a single Director, and the Recovery Act (like the Dodd-Frank Act) restricts the President’s removal power. Fulfilling his obligation to defend the constitutionality of the Recovery Act’s removal restriction, amicus attempts to distinguish the FHFA from the CFPB. We do not find any of these distinctions sufficient to justify a different result. 1 Amicus first argues that Congress should have greater leeway to restrict the President’s power to remove the FHFA Director because the FHFA’s authority is more limited than that of the CFPB. Amicus points out that the CFPB administers 19 statutes while the FHFA administers only 1; the CFPB regulates millions of individuals and businesses whereas the FHFA regulates a small number of Government-sponsored enterprises; the CFPB has broad rulemaking and enforcement authority and the FHFA has little; and the CFPB receives a large budget from the Federal Reserve while the FHFA collects roughly half the amount from regulated entities. We have noted differences between these two agencies. See Seila Law , 591 U. S. , at ___ (slip op., at 20) (noting that the FHFA “regulates primarily Government-sponsored enterprises, not purely private actors”). But the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head. The President’s removal power serves vital purposes even when the officer subject to removal is not the head of one of the largest and most powerful agencies. The removal power helps the President maintain a degree of control over the subordinates he needs to carry out his duties as the head of the Executive Branch, and it works to ensure that these subordinates serve the people effectively and in accordance with the policies that the people presumably elected the President to promote. See, e.g. , id., at ___–___ (slip op., at 11–12); Free Enterprise Fund , 561 U. S., at 501–502; Myers v. United States , 272 U.S. 52 , 131 (1926). In addition, because the President, unlike agency officials, is elected, this control is essential to subject Executive Branch actions to a degree of electoral accountability. See Free Enterprise Fund , 561 U. S., at 497–498. At-will removal ensures that “the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” Id., at 498 (quoting 1 Annals of Cong. 499 (1789) (J. Madison)). These purposes are implicated whenever an agency does important work, and nothing about the size or role of the FHFA convinces us that its Director should be treated differently from the Director of the CFPB. The test that amicus proposes would also lead to severe practical problems. Amicus does not propose any clear standard to distinguish agencies whose leaders must be removable at will from those whose leaders may be protected from at-will removal. This case is illustrative. As amicus points out, the CFPB might be thought to wield more power than the FHFA in some respects. But the FHFA might in other respects be considered more powerful than the CFPB. For example, the CFPB’s rulemaking authority is more constricted. Under the Dodd-Frank Act, the CFPB’s final rules can be set aside by a super majority of the Financial Stability and Oversight Council whenever it concludes that the rule would “ ‘put the safety and soundness’ ” of the Nation’s banking or financial systems at risk. See Seila Law , supra , at ___, n. 9 (slip op., at 25, n. 9) (quoting 12 U. S. C. §§5513(a), (c)(3)). No board or commission can set aside the FHFA’s rules. In addition, while the CFPB has direct regulatory and enforcement authority over purely private individuals and businesses, the FHFA has regulatory and enforcement authority over two companies that dominate the secondary mortgage market and have the power to reshape the housing sector. See App. 116. FHFA actions with respect to those companies could have an immediate impact on millions of private individuals and the economy at large. See Seila Law , supra , at ___ (slip op., at 31) (Kagan, J., concurring in judgment with respect to severability and dissenting in part) (noting that “the FHFA plays a crucial role in overseeing the mortgage market, on which millions of Americans annually rely”). Courts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies, and we do not think that the constitutionality of removal restrictions hinges on such an inquiry.[ 19 ] 2 Amicus next contends that Congress may restrict the removal of the FHFA Director because when the Agency steps into the shoes of a regulated entity as its conservator or receiver, it takes on the status of a private party and thus does not wield executive power. But the Agency does not always act in such a capacity, and even when it acts as conservator or receiver, its authority stems from a special statute, not the laws that generally govern conservators and receivers. In deciding what it must do, what it cannot do, and the standards that govern its work, the FHFA must interpret the Recovery Act, and “[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.” Bowsher , 478 U. S., at 733; see also id., at 765 (White, J., dissenting) (“[T]he powers exercised by the Comptroller under the Act may be characterized as ‘executive’ in that they involve the interpretation and carrying out of the Act’s mandate”). Moreover, as we have already mentioned, see supra , at 5–6, the FHFA’s powers under the Recovery Act differ critically from those of most conservators and receivers. It can subordinate the best interests of the company to its own best interests and those of the public. See 12 U. S. C. §4617(b)(2)(J)(ii). Its business decisions are protected from judicial review. §4617(f ). It is empowered to issue a “regulation or order” requiring stockholders, directors, and officers to exercise certain functions. §4617(b)(2)(C). It is authorized to issue subpoenas. §4617(b)(2)(I). And of course, it has the power to put the company into conservatorship and simultaneously appoint itself as conservator. §4617(a)(1). For these reasons, the FHFA clearly exercises executive power.[ 20 ] 3 Amicus asserts that the FHFA’s structure does not violate the separation of powers because the entities it regulates are Government-sponsored enterprises that have federal charters, serve public objectives, and receive “ ‘special privileges’ ” like tax exemptions and certain borrowing rights. Brief for Court-Appointed Amicus Curiae 27–28. In amicus ’s view, the individual-liberty concerns that the removal power exists to preserve “ring hollow where the only entities an agency regulates are themselves not purely private actors.” Id., at 29 (internal quotation marks omitted). This argument fails because the President’s removal power serves important purposes regardless of whether the agency in question affects ordinary Americans by directly regulating them or by taking actions that have a profound but indirect effect on their lives. And there can be no question that the FHFA’s control over Fannie Mae and Freddie Mac can deeply impact the lives of millions of Americans by affecting their ability to buy and keep their homes. 4 Finally, amicus contends that there is no constitutional problem in this case because the Recovery Act offers only “modest [tenure] protection.” Id., at 37. That is so, amicus claims, because the for-cause standard would be satisfied whenever a Director “disobey[ed] a lawful [Presidential] order,” including one about the Agency’s policy discretion. Id., at 41. We acknowledge that the Recovery Act’s “for cause” restriction appears to give the President more removal authority than other removal provisions reviewed by this Court. See, e.g., Seila Law , 591 U. S., at ___ (slip op., at 5) (“for ‘inefficiency, neglect of duty, or malfeasance in office’ ”); Morrison , 487 U. S., at 663 (“ ‘for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of [his or her] duties’ ”); Bowsher , supra , at 728 (“by joint resolution of Congress” due to “ ‘permanent disability,’ ” “ ‘inefficiency,’ ” “ ‘neglect of duty,’ ” “ ‘malfeasance,’ ” “ ‘a felony[,] or conduct involving moral turpitude’ ”); Humphrey’s Executor v. United States , 295 U.S. 602 , 619 (1935) (“ ‘ “for inefficiency, neglect of duty, or malfeasance in office” ’ ”); Myers , 272 U. S., at 107 (“ ‘by and with the advice and consent of the Senate’ ”). And it is certainly true that disobeying an order is generally regarded as “cause” for removal. See NLRB v. Electrical Workers , 346 U.S. 464 , 475 (1953) (“The legal principle that insubordination, disobedience or disloyalty is adequate cause for discharge is plain enough”). But as we explained last Term, the Constitution prohibits even “modest restrictions” on the President’s power to remove the head of an agency with a single top officer. Seila Law , supra , at ___ (slip op., at 26) (internal quotation marks omitted). The President must be able to remove not just officers who disobey his commands but also those he finds “negligent and inefficient,” Myers , 272 U. S. , at 135, those who exercise their discretion in a way that is not “intelligen[t ] or wis[e ],” ibid. , those who have “different views of policy,” id., at 131, those who come “from a competing political party who is dead set against [the President’s] agenda,” Seila Law , supra , at ___ (slip op., at 24) (emphasis deleted), and those in whom he has simply lost confidence, Myers , supra , at 124. Amicus recognizes that “ ‘for cause’ . . . does not mean the same thing as ‘at will,’ ” Brief for Court-Appointed Amicus Curiae 44–45, and therefore the removal restriction in the Recovery Act violates the separation of powers.[ 21 ] C Having found that the removal restriction violates the Constitution, we turn to the shareholders’ request for relief. And because the shareholders no longer have a live claim for prospective relief, see supra , at 19, the only remaining remedial question concerns retrospective relief. On this issue, the shareholders’ lead argument is that the third amendment must be completely undone. They seek an order setting aside the amendment and requiring the “return to Fannie and Freddie [of] all dividend payments made pursuant to [it].”[ 22 ] App. 117–118. In support of this request, they contend that the third amendment was adopted and implemented by officers who lacked constitutional authority and that their actions were therefore void ab initio . We have already explained that the Acting Director who adopted the third amendment was removable at will. See supra, at 22–26. That conclusion defeats the shareholders’ argument for setting aside the third amendment in its entirety. We therefore consider the shareholders’ contention about remedy with respect to only the actions that confirmed Directors have taken to implement the third amendment during their tenures. But even as applied to that subset of actions, the shareholders’ argument is neither logical nor supported by precedent. All the officers who headed the FHFA during the time in question were properly appointed . Although the statute unconstitutionally limited the President’s authority to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA in relation to the third amendment as void. The shareholders argue that our decisions in prior separation-of-powers cases support their position, but most of the cases they cite involved a Government actor’s exercise of power that the actor did not lawfully possess. See Lucia v. SEC , 585 U. S. ___, ___ (2018) (slip op., at 12) (administrative law judge appointed in violation of Appointments Clause); Stern v. Marshall , 564 U.S. 462 , 503 (2011) (bankruptcy judge’s exercise of exclusive power of Article III judge); Clinton v. City of New York , 524 U.S. 417 , 425, and n. 9, 438 (1998) (President’s cancellation of individual portions of bills under the Line Item Veto Act); Chadha , 462 U. S., at 952–956 (one-house veto of Attorney General’s determination to suspend an alien’s deportation); Youngstown , 343 U. S., at 585, 587–589 (Presidential seizure and operation of steel mills). As we have explained, there is no basis for concluding that any head of the FHFA lacked the authority to carry out the functions of the office.[ 23 ] The shareholders claim to find implicit support for their argument in Seila Law and Bowsher , but they read far too much into those decisions. In Seila Law ,[ 24 ] after holding that the restriction on the removal of the CFPB Director was unconstitutional and severing that provision from the rest of the Dodd-Frank Act, we remanded the case so that the lower courts could decide whether, as the Government claimed, the Board’s issuance of an investigative demand had been ratified by an Acting Director who was removable at will by the President. See 591 U. S. , at ___ (slip op., at 36). The shareholders argue that this disposition implicitly meant that the Director’s action would be void unless lawfully ratified, but we said no such thing. The remand did not resolve any issue concerning ratification, including whether ratification was necessary. And in Bowsher , after holding that the Gramm-Rudman-Hollings Act unconstitutionally authorized the Comptroller General to exercise executive power, the Court simply turned to the remedy specifically prescribed by Congress. See 478 U. S. , at 735.[ 25 ] We therefore see no reason to hold that the third amendment must be completely undone. That does not necessarily mean, however, that the shareholders have no entitlement to retrospective relief. Although an unconstitutional provision is never really part of the body of governing law (because the Constitution automatically displaces any conflicting statutory provision from the moment of the provision’s enactment), it is still possible for an unconstitutional provision to inflict compensable harm. And the possibility that the unconstitutional restriction on the President’s power to remove a Director of the FHFA could have such an effect cannot be ruled out. Suppose, for example, that the President had attempted to remove a Director but was prevented from doing so by a lower court decision holding that he did not have “cause” for removal. Or suppose that the President had made a public statement expressing displeasure with actions taken by a Director and had asserted that he would remove the Director if the statute did not stand in the way. In those situations, the statutory provision would clearly cause harm. In the present case, the situation is less clear-cut, but the shareholders nevertheless claim that the unconstitutional removal provision inflicted harm. Were it not for that provision, they suggest, the President might have replaced one of the confirmed Directors who supervised the implementation of the third amendment, or a confirmed Director might have altered his behavior in a way that would have benefited the shareholders. The federal parties dispute the possibility that the unconstitutional removal restriction caused any such harm. They argue that, irrespective of the President’s power to remove the FHFA Director, he “retained the power to supervise the [Third] Amendment’s adoption . . . because FHFA’s counterparty to the Amendment was Treasury—an executive department led by a Secretary subject to removal at will by the President.” Reply Brief for Federal Parties 43. The parties’ arguments should be resolved in the first instance by the lower courts.[ 26 ] *  *  * The judgment of the Court of Appeals is affirmed in part, reversed in part, and vacated in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Before the Recovery Act was enacted, Fannie Mae and Freddie Mac were regulated by the Office of Federal Housing Enterprise Oversight. See Federal Housing Enterprises Financial Safety and Soundness Act of 1992, §§1311–1313, 106Stat. 3944–3946. 2 Receivership is mandatory in certain circumstances not relevant here. See 12 U. S. C. §4617(a)(4). 3 See Amended and Restated Senior Preferred Stock Purchase Agreement Between the United States Department of the Treasury and the Federal National Mortgage Association (Sept. 26, 2008); Amended and Restated Senior Preferred Stock Purchase Agreement Between the United States Department of the Treasury and the Federal Home Loan Mortgage Corporation (Sept. 26, 2008) (online sources archived at www.supremecourt.gov). 4 Treasury has the authority to waive this fee. At the time this lawsuit was filed, Treasury had always exercised this option and had never received a periodic commitment fee from the companies. See App. 61. 5 See Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement Between the United States Department of the Treasury and Federal National Mortgage Association (May 6, 2009); Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement Between the United States Department of the Treasury and Federal Home Loan Mortgage Corporation (May 6, 2009) (online sources archived at www.supremecourt.gov). 6 See Second Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement Between the United States Department of the Treasury and Federal National Mortgage Association (Dec. 24, 2009); Second Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement Between the United States Department of the Treasury and Federal Home Loan Mortgage Corporation (Dec. 24, 2009) (online sources archived at www.supremecourt.gov). 7 See Third Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement Between the United State Department of the Treasury and Federal National Mortgage Association (Aug. 17, 2012); Third Amendment to Amended and Restated Senior Preferred Stock Purchase Agreement Between the United States Department of the Treasury and Federal Home Loan Mortgage Corporation (Aug. 17, 2012) (online sources archived at www.supremecourt.gov). 8 The capital reserve for each company began at $3 billion and was scheduled to decrease to zero by January 2018. In December 2017, however, Treasury agreed to restore the reserve to $3 billion per company in return for a liquidation-preference increase of the same amount. See Letters from S. Mnuchin, Secretary of Treasury, to M. Watt, Director of the FHFA (Dec. 21, 2017). And in September 2019, Treasury agreed to raise the reserve to $25 billion for Fannie Mae and $20 billion for Freddie Mac, again in return for corresponding increases in the liquidation preference. See Letters from S. Mnuchin, Secretary of Treasury, to M. Calabria, Director of the FHFA (Sept. 27, 2019) (online sources archived at www.supremecourt.gov). 9 See Fannie Mae, Form 10–K for Fiscal Year Ended Dec. 31, 2016, p. 120, https://www.fanniemae.com/media/26811/display; Freddie Mac, Form 10–K for Fiscal Year Ended Dec. 31, 2016, p. 283, https://www.freddiemac.com/investors/financials/pdf/10k_021617.pdf. 10 See Letters from S. Mnuchin, Secretary of Treasury, to M. Calabria, Director of the FHFA (Jan. 14, 2021) (online source archived at www.supremecourt.gov). 11 The shareholders also sued Treasury and its Secretary, contending that the Agency exceeded its statutory authority and acted arbitrarily and capriciously in adopting the third amendment. The District Court dismissed these claims, the Fifth Circuit affirmed, and the shareholders did not seek review of those holdings in this Court. 12 By contrast, when the FHFA acts as a receiver, it is required to “place the regulated entity in liquidation and proceed to realize upon the assets of the regulated entity.” §4617(b)(2)(E). The roles of conservator and receiver are very different. See §4617(a)(4)(D) (“The appointment of the Agency as receiver of a regulated entity under this section shall immediately terminate any conservatorship established for the regulated entity under this chapter”). 13 The senior preferred stock certificates provide: “[I]f at any time the Company shall have for any reason failed to pay dividends in cash in a timely manner as required by this Certificate, then immediately following such failure and for all Dividend Periods thereafter until the Dividend Period following the date on which the Company shall have paid in cash full cumulative dividends (including any unpaid dividends added to the Liquidation Preference . . . ), the ‘Dividend Rate’ shall mean 12.0%”). App. 180, 198. 14 See Dept. of Treasury Press Release, Treasury Department and FHFA Amend Terms of Preferred Stock Purchase Agreements for Fannie Mae and Freddie Mac (Jan. 14, 2021), https://home.treasury.gov/news/press-releases/sm1236. 15 See Letter from E. Prelogar, Acting Solicitor General, to S. Harris, Clerk of Court (Mar. 18, 2021). 16 The federal parties also argue that the Recovery Act’s succession clause bars the shareholders’ statutory claim. Because we have concluded that the statutory claim is already barred by the anti-injunction clause, we do not address this argument. 17 See Rop v. FHFA , 485 F. Supp. 3d 900, 915 (WD Mich. 2020). 18 In Wiener v. United States , 357 U.S. 349 (1958), the Court read a removal restriction into the War Claims Act of 1948. But it did so on the rationale that the War Claims Commission was an adjudicatory body, and as such, it had a unique need for “absolute freedom from Executive interference.” Id., at 353, 355–356. The FHFA is not an adjudicatory body, so Shurtleff , not Weiner, is the more applicable precedent . 19 Amicus argues that there is historical support for the removal restriction at issue here because the Comptroller of Currency and the members of the Sinking Fund Commission were subject to similar protection, but those agencies are materially different because neither of them operated beyond the President’s control, and one of them was led by a multi-member Commission. As we explained in Seila Law , with the exception of a 1-year aberration during the Civil War, the Comptroller was removable at will by the President, who needed only to communicate the reasons for his decision to Congress. 591 U. S., at ___, n. 5 (slip op., at 19, n. 5). And the Sinking Fund Commission, which Congress created to purchase U. S. securities following the Revolutionary War, was run by a 5-member Commission, and three of those Commissioners were part of the President’s Cabinet and therefore removable at will. See An Act Making Provision for the Reduction of the Public Debt, ch. 47, 1Stat. 186 (1790). 20 Amicus claims that O’Melveny & Myers v. FDIC , 512 U.S. 79 (1994), supports his argument, but that decision is far afield. It held that state law, not federal common law, governed an attribute of the FDIC’s status as receiver for an insolvent savings bank. Id., at 81–82. The nature of the FDIC’s authority in that capacity sheds no light on the nature of the FHFA’s distinctive authority as conservator under the Recovery Act. 21 Amicus warns that if the Court holds that the Recovery Act’s removal restriction violates the Constitution, the decision will “call into question many other aspects of the Federal Government.” Brief for Court-Appointed Amicus Curiae 47. Amicus points to the Social Security Administration, the Office of Special Counsel, the Comptroller, “multi-member agencies for which the chair is nominated by the President and confirmed by the Senate to a fixed term,” and the Civil Service. Id., at 48 (emphasis deleted). None of these agencies is before us, and we do not comment on the constitutionality of any removal restriction that applies to their officers. 22 In the alternative, they request that the dividend payments be “recharacteriz[ed] . . . as a pay down of the liquidation preference and a corresponding redemption of Treasury’s Government Stock.” App. 118. 23 Settled precedent also confirms that the unlawfulness of the removal provision does not strip the Director of the power to undertake the other responsibilities of his office, including implementing the third amendment. See, e.g., Seila Law , 591 U. S., at ___–___ (slip op., at 30–36). 24 What we said about standing in Seila Law should not be misunderstood as a holding on a party’s entitlement to relief based on an unconstitutional removal restriction. We held that a plaintiff that challenges a statutory restriction on the President’s power to remove an executive officer can establish standing by showing that it was harmed by an action that was taken by such an officer and that the plaintiff alleges was void. See 591 U. S., at ___–___ (slip op., at 9–10). But that holding on standing does not mean that actions taken by such an officer are void ab initio and must be undone. Compare post , at 2 (Gorsuch, J., concurring in part). 25 In addition, the constitutional defect in Bowsher was different from the defect here. In Bowsher , the Comptroller General, whom Congress had long viewed as “an officer of the Legislative Branch,” 478 U. S., at 731, was vested with executive power. Here, the FHFA Director is clearly an executive officer. See post, at 5–6 (Thomas, J., concurring). 26 The lower courts may also consider all issues related to the federal parties’ argument that the doctrine of laches precludes any relief. The federal parties argue that Treasury was prejudiced by the shareholders’ delay in filing suit because, for some time after the third amendment was adopted, there was a chance that it would benefit the shareholders. According to the federal parties, the shareholders waited to file suit until it became apparent that the third amendment would not have that effect. The shareholders respond that laches is inapplicable because they filed their complaint within the time allowed by the statute of limitations, and they argue that their delay did not cause prejudice because it was “mathematically impossible” for Treasury to make less money under the Third Amendment than under the prior regime. Reply Brief for Collins et al. 4–5 (emphasis deleted). We decline to decide this fact-bound question in the first instance. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–422 and 19–563 _________________ PATRICK J. COLLINS, et al., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al., PETITIONERS 19–563 v. PATRICK J. COLLINS, et al. on writs of certiorari to the united states court of appeals for the fifth circuit [June 23, 2021] Justice Thomas, concurring. I join the Court’s opinion in full. I agree that the Directors were properly appointed and could lawfully exercise executive power. And I agree that, to the extent a Government action violates the Constitution, the remedy should fit the injury. But I write separately because I worry that the Court and the parties have glossed over a fundamental problem with removal-restriction cases such as these: The Government does not necessarily act unlawfully even if a removal restriction is unlawful in the abstract. I As discussed in more detail by the Court, Congress created the Federal Housing Finance Agency (FHFA) in 2008. Housing and Economic Recovery Act of 2008, 12 U. S. C. §4501 et seq. The FHFA is “an independent agency.” 12 U. S. C. §4511(a). Among other things, it supervises and regulates Fannie Mae and Freddie Mac, two companies created by Congress to provide liquidity and stability to the mortgage market. See §4511(b). In the midst of the 2008 financial crisis, the FHFA’s Director exercised his statutory authority under §4617(a)(1) to appoint the Agency as conservator of Fannie Mae and Freddie Mac. As conservator, the Agency in effect had full control over the companies. The FHFA used this control to have the companies enter into several agreements with the Treasury Department to secure financing to keep both companies afloat. Relevant here, the FHFA and Treasury signed two agreements, known as the Third Amendments, requiring the companies to pay a quarterly dividend to Treasury of nearly all their net worth minus a predetermined capital reserve. Shareholders of the companies sued the FHFA, the Director, Treasury, and the Secretary of the Treasury. They advanced four theories about why the adoption and enforcement of the Third Amendments violated the law: (1) The FHFA’s conduct exceeded its statutory authority; (2) Treasury’s conduct exceeded its statutory authority; (3) Treasury’s conduct was arbitrary and capricious; and (4) the FHFA’s structure violated the “Separation of Powers” because the President could fire the FHFA Director only “for cause.” App. 116–117; §4512(b)(2). The District Court rejected their claims. The Fifth Circuit affirmed the dismissal of claims two and three, and the shareholders did not seek review of that decision. The Fifth Circuit reinstated the statutory claim, but today we correctly reverse that decision. Ante , at 12–17. The Fifth Circuit also held that the shareholders are entitled to judgment on the separation-of-powers claim. Collins v. Mnuchin , 938 F.3d 553, 587 (2019) II For the shareholders to prevail, identifying some conflict between the Constitution and a statute is not enough. They must show that the challenged Government action at issue—the adoption and implementation of the Third Amendment—was, in fact, unlawful. See California v. Texas , 593 U. S. ___, ___–___ (2021) (slip op., at 4–9). Modern standing doctrine reflects this principle: To have standing, a plaintiff must allege an injury traceable to an “allegedly unlawful” action (or threatened action) and seek a remedy to redress that action. Allen v. Wright , 468 U.S. 737 , 751 (1984); accord, Virginia v. American Booksellers Assn., Inc. , 484 U.S. 383 , 392 (1988); contra, 938 F. 3d, at 586 (tracing injury to the removal restriction). Here, before a court can provide relief, it must conclude that either the adoption or implementation of the Third Amendment was unlawful.[ 1 ] The parties simply assume that the lawfulness of agency action turns on the lawfulness of the removal restriction. Our recent precedents have not clearly questioned this premise, and on this premise, the Court correctly resolves the remaining legal issues. But in the future, parties and courts should ensure not only that a provision is unlawful but also that unlawful action was taken. This suit provides a good example. The shareholders largely neglect the issue of lawfulness to focus on remedy, but their briefing appears premised on several theories of unlawfulness.[ 2 ] First, that the removal restriction renders all Agency actions void because the Directors serve in violation of the Constitution’s structural provisions, similar to Appointments Clause cases, see Lucia v. SEC , 585 U. S. ___, ___ (2018) (slip op., at 12) (holding that an Administrative Law Judge was unlawfully appointed), and other separation-of-powers cases, e.g., Bowsher v. Synar , 478 U.S. 714 , 727–736 (1986) (holding that the Comptroller General was not an executive officer and could not exercise executive power granted to him by statute). Second, that even if the Director is in the Executive Branch and the removal restriction is just unenforceable, the mere existence of the law somehow taints all of the Director’s actions. Third, that “when FHFA’s single Director exercises Executive Power without meaningful oversight from the President, he exercises authority that was never properly his.” Brief for Collins et al. 64. Fourth, that the statutory provision that gave the Director the power to adopt and implement the Third Amendments must fall if the statutory removal restriction is unlawful. §4617(b)(2)(J)(ii). As the Court’s reasoning makes clear, however, all these theories appear to fail on the merits. A I begin with whether the FHFA Director may lawfully exercise executive authority. The shareholders suggest that the removal restriction inherently renders the Agency’s actions void. In support, they point to our Appointments Clause cases and our other separation-of-powers cases. But the cases on which they rely prove quite the opposite. Consider our separation-of-powers cases, which set out a two-part analysis to determine whether an official can lawfully exercise a statutory power at all . First, we ask in what branch (if any) an official is located. Second, we determine whether the statutory power possessed by the official belongs to that branch. In Bowsher , the Court determined that the Comptroller General of the United States was “an officer of the Legislative Branch” based on other statutes dating back to 1945 declaring him as such, the expressed views of other Comptrollers General, the fact that only Congress could remove the Comptroller General, and the structure of the office. 478 U. S., at 727–732. In light of this legislative identity, the Court held the Comptroller General could not lawfully exercise executive powers assigned to him by statute. Id., at 732–735.[ 3 ] Assuming the shareholders raise a Bowsher -type argument, I agree with the Court that the FHFA Director is an executive official who can lawfully “carry out the functions of the office.” Ante , at 33–35, and n. 25 (discussing Bowsher ). The statutory scheme creates a common type of executive officer—an individual nominated by the President and confirmed by the Senate, who heads an agency exercising executive powers and who reports to the President. The only statutory powers assigned to the Director are executive. No party contends the office of the FHFA Director is a nonexecutive office. No statute refers to him as a nonexecutive officer. And the statutory scheme recognizes that the President can remove the officer (but only “for cause”). §4512(b)(2). In fact, the Court concludes that the removal restriction is unconstitutional in part because the FHFA Director is an executive officer whom the President needs to be able to control. See ante, at 26–32. Our cases demonstrate that the existence of a removal restriction, without more, usually does not take an otherwise executive officer outside the Executive Branch. True, statutory provisions governing who can remove an officer (and when) can provide evidence of the branch to which that officer belongs. E.g., Bowsher , 478 U. S., at 727–728, and n. 5; American Ins. Co. v. 356 Bales of Cotton , 1 Pet. 511, 546 (1828). But they generally are not dispositive. In many cases, it is obvious that the officer is executive, and it is the removal restriction—not the officer’s exercise of executive powers—that is the problem. E.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 492–508 (2010) (holding unconstitutional tenure provisions protecting executive officer, but concluding “the existence of the Board does not violate the separation of powers”); cf. Myers v. United States , 272 U.S. 52 , 108, 176 (1926).[ 4 ] The Appointments Clause cases do not help the shareholders either. These cases also ask whether an officer can lawfully exercise the statutory power of his office at all in light of the rule that an officer must be properly appointed before he can legally act as an officer. Lucia , 585 U. S., at ___ (slip op., at 12); Ryder v. United States , 515 U. S 177, 182–183 (1995). Otherwise, the official’s authority to exercise the powers of the office generally is legally deficient. Id. , at 179, 182–183. Here, “[a]ll the officers who headed the FHFA during the time in question were properly appointed .” Ante , at 33. There is thus no barrier to them exercising power in the first instance. B The mere existence of an unconstitutional removal provision, too, generally does not automatically taint Government action by an official unlawfully insulated. It is true the removal restriction here is unlawful. But while the shareholders are correct that the Constitution authorizes the President to dismiss the FHFA Director for any reason, no statute can take that Presidential power away. See Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___, ___ (2020) (Thomas, J., concurring in part and dissenting in part) (slip op., at 15) (“In the context of a constitutional challenge, . . . if a party argues that a statute and the Constitution conflict, then courts must resolve that dispute and . . . follow the higher law of the Constitution” (internal quotation marks omitted)); ante, at 35. That the Constitution automatically trumps an inconsistent statute creates a paradox for the shareholders. Had the removal restriction not conflicted with the Constitution, the law would never have unconstitutionally insulated any Director. And while the provision does conflict with the Constitution, the Constitution has always displaced it and the President has always had the power to fire the Director for any reason. So regardless of whether the removal restriction was lawful or not, the President always had the legal power to remove the Director in a manner consistent with the Constitution.[ 5 ] Brief for Harrison as Amicus Curiae 15–16. Moreover, no Director has ever purported to occupy the office and exercise its powers despite a Presidential attempt at removal. No court, for example, has enjoined an attempt by the President to remove the Director.[ 6 ] So every Director is a lawfully appointed executive officer whom the President may remove in a manner consistent with the Constitution but did not attempt to do so. C Another possible theory the shareholders seem to rely on is that a misunderstanding about the correct state of the law makes an otherwise constitutional action unconstitutional. Thus, if the President or Director misunderstood the circumstances under which the President could have removed the Director, then that creates a defect in authority. But nothing in the Constitution, history, or our case law supports this expansive view of unlawfulness. The Constitution does not transform unfamiliarity with the Vesting Clause into a legal violation when an executive officer acts with authority.[ 7 ] Perhaps the better understanding of this argument is the Director might have acted differently if he knew that he served at the pleasure of the President. That may be true, but it is not enough for a party to show that an official acted differently because he or another official incorrectly interpreted the Vesting Clause—the party must show that the official acted unlawfully. If the President vetoed a bill on the ground that he believed it to be unconstitutional, this Court could not undo that lawful act simply because an injured plaintiff persuasively establishes that the President was mistaken. Sure enough, we have not held that a misunderstanding about authority results in a constitutional defect where the action was otherwise lawful. Absent such authority in a “constitutional cas[e], our watchword [should be] caution.” Hernández v. Mesa , 589 U. S. ___, ___ (2020) (slip op., at 6). We should be reluctant to create a new restriction on a coequal branch and enforce it through a new private right of action. Id. , at ___–___ (slip op., at 6–7). Doing so places great stress upon “the Constitution’s separation of legislative and judicial power.” Id. , at ___ (slip op., at 5). Seila Law and Free Enterprise do not help the shareholders on the lawfulness of the Government actions question. Ante , at 18, 34–35. In Seila Law , the Government in effect “conceded that [its] actions were unconstitutional” if the removal restriction was unconstitutional. 591 U. S., at ___ (opinion of Thomas, J.) (slip op., at 17). So the Court assumed “that [petitioner] ‘sustain[ed] injury’ from an executive act that allegedly exceeds the official’s authority.” Id., at ___ (slip op., at 10); ante , at 34–35. In Free Enterprise , we considered a similar challenge to a removal restriction without questioning the plaintiffs’ standing “where plaintiffs claimed injury from allegedly unlawful agency oversight.” Ante , at 18. And then we assumed that the agency lacked the authority to act lawfully if the removal restriction there were invalid. D The shareholders’ briefing strongly implies one final argument: The statutory provision giving the FHFA the power to act as conservator, 12 U. S. C. §4617(b)(2)(J)(ii), cannot be severed from the removal restriction. Brief for Collins et al. 77–79. Thus, the argument goes, if the removal provision is unlawful, then §4617(b)(2)(j)(ii) is too and the FHFA Directors acted without statutory authority. Assuming that the unlawfulness of one provision can cause another to be unlawful, this inquiry is just a question of statutory interpretation. See Seila Law , 591 U. S., at ___ (opinion of Thomas, J.) (slip op., at 20); Lea, Situational Severability, 103 Va. L. Rev. 735, 764–776 (2017). The Recovery Act contains no inseverability clause. Contra, 4 U. S. C. §125 (inseverability clause). Nor does it contain any fallback provision stating that §4617(b)(2)(j)(ii) should be altered if the removal clause is found unlawful. Without something in the statutory text or structure to show that §4617(b)(2)(j)(ii)’s lawfulness rises or falls based on the removal restriction, this argument is also unconvincing. *  *  * I do not understand the parties to have sought review of these issues in this Court. So the Court correctly resolves the legal issues presented. That being said, I seriously doubt that the shareholders can demonstrate that any relevant action by an FHFA Director violated the Constitution. And, absent an unlawful act, the shareholders are not entitled to a remedy. The Fifth Circuit can certainly consider this issue on remand. Notes 1 Another limit on the judicial power is relevant: A party seeking relief must have a legal right to redress. See Cohens v. Virginia , 6 Wheat. 264, 405 (1821) (explaining that Article III “does not extend the judicial power to every violation of the constitution which may possibly take place”). The judicial power extends only “to ‘a case in law or equity,’ in which a right, under such law, is asserted.” Ibid. We have indicated that individuals may have an implied private right of action under the Constitution to seek equitable relief to “ ‘preven[t] entities from acting unconstitutionally.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 491, n. 2 (2010). This includes “Appointments Clause or separation-of-powers claim[s].” Ibid. I assume the shareholders have brought such a cause of action here and have a legal right to obtain equitable relief if they can show they suffered an injury traceable to a Government action that violates the Constitution. The shareholders did not raise the Administrative Procedure Act (APA) in count four of their complaint, but now contend their “constitutional claim is cognizable under the APA,” which permits a “ ‘reviewing court [to] hold unlawful and set aside agency action found to be contrary to constitutional right, power, privilege, or immunity.’ ” Brief for Collins et al. 74 (quoting 5 U. S. C. §706; ellipses omitted; emphasis in original). Even assuming they raised their constitutional claim under the APA, it would not change the analysis; the shareholders would need to show they suffered an injury traceable to a Government action that violates the Constitution. 2 Because the shareholders allege the Government acted unlawfully, because their alleged injury can be traced to those allegedly unlawful actions, and because this Court might be able to redress that injury, I agree with the Court that they have standing. See Steel Co. v. Citizens for Better Environment , 523 U.S. 83 , 89 (1998). 3 See also Stern v. Marshall , 564 U.S. 462 , 503 (2011) (bankruptcy judges, as Article I officers, cannot exercise exclusive Article III power); Clinton v. City of New York , 524 U.S. 417 , 438–441, 448–449 (1998) (the President, an Article II officer, cannot exercise Article I line-item-veto power); Morrison v. Olson , 487 U.S. 654 , 677–679 (1988) (a law cannot give a court powers that violated Article III); Glidden Co. v. Zdanok , 370 U.S. 530 , 584 (1962) (plurality opinion) (concluding after exhaustive analysis that two courts were Article III courts); id., at 585–588 (Clark, J., concurring in result) (agreeing “in light of the congressional power exercised and the jurisdiction enjoyed, together with the characteristics of its judges”); American Ins. Co. v. 356 Bales of Cotton , 1 Pet. 511, 546 (1828) (a territorial court is an Article I court and admiralty jurisdictioncan be exercised only by Article III courts, but Article IV removes this limitation with respect to the Territories). 4 I agree with Justice Gorsuch that a court must look at more than the label to determine in what branch an officer sits. Post , at 3, n. 1 (opinion concurring in part). To answer this question, courts have historically looked at various factors. See n.3, supra . Here, everything about the Director’s position, except the removal restriction, indicates he is an executive officer. See also ante, at 35, n. 25 (opinion of the Court). As the Court correctly explains, “the removal restriction . . . violates the separation of powers” because the Director is an executive officer. Ante , at 32. 5 In Seila Law , the Court did not address whether an officer acts unlawfully if protected by an unlawful removal restriction. See ante , at 34, and nn. 23–24. That is because the Government in effect conceded the issue. Seila Law , 591 U. S., at ___ (plurality opinion) (slip op., at 30); id., at ___ (opinion of Thomas, J.) (slip op., at 17). Perhaps we should have addressed it then. Post , at 6–7, n. 2 (opinion of Gorsuch, J.). I continue to adhere to the views that I expressed in Seila Law : A combination of statutes can produce a separation-of-powers violation that renders Government action unlawful. See 591 U. S., at ___ (opinion concurring in part and dissenting in part) (slip op., at 21). In remedying such a separation-of-powers violation, courts cannot purport to rewrite the statute to avoid the violation. Ibid. ; post, at 6, n. 2 (opinion of Gorsuch, J.) (“[W]e cannot divine ‘which of the provisions’ Congress would have kept and which it would have scrapped . . . had it known its actual choice was unconstitutional,” “absent statutory direction from Congress”). However, I respectfully part ways with Justice Gorsuch, because, on the merits, I am uncertain whether the unlawful removal restriction here combines with any other statutory provision in a way that renders the Government action at issue unlawful. 6 A removal restriction may unconstitutionally insulate an officer such that his actions are unlawful. If the President tries to remove an officialbut a court blocks this action, then that official is not lawfully occupying his office and would likely be acting without authority. Cf. ante , at 35. But that circumstance has not arisen here. 7 The APA might permit this type of lawsuit in allowing an individual to challenge an agency action as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A). There is a colorable argument that a Government official’s misunderstanding about the scope of the President’s removal authority would render an agency action arbitrary or capricious in certain cases. However, the shareholders did not bring this constitutional challenge as an arbitrary and capricious claim against the FHFA. And if they had, we would need to consider the interaction between this statutory claim and the Act’s anti-injunction provision. Cf. ante, at 12–13. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–422 and 19–563 _________________ PATRICK J. COLLINS, et al., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al., PETITIONERS 19–563 v. PATRICK J. COLLINS, et al. on writs of certiorari to the united states court of appeals for the fifth circuit [June 23, 2021] Justice Gorsuch, concurring in part. I agree with the Court on the merits and am pleased to join nearly all of its opinion. I part ways only when it comes to the question of remedy addressed in Part III–C. As the Court observes, the only question before us concerns retrospective relief. Ante , at 32. By the time we turn to that question, the plaintiffs have proven that the Director was without constitutional authority when he took the challenged actions implementing the Third Amendment. In response to such a showing, a court would normally set aside the Director’s ultra vires actions as “contrary to constitutional right,” 5 U. S. C. §706(2)(B), subject perhaps to consideration of traditional remedial principles such as laches. See ante , at 36, n. 26; Abbott Laboratories v. Gardner , 387 U.S. 136 , 155 (1967). Because the Court of Appeals did not follow this course, this Court would normally vacate the judgment in this suit with instructions requiring the Court of Appeals to conform its judgment to traditional practice. Today, the Court acknowledges it has taken exactly this course in cases involving unconstitutionally appointed executive officials. Ante , at 33–34. Still, the Court submits, we should treat this suit differently because the Director was unconstitutionally insulated from removal rather than unconstitutionally appointed. Ante, at 33–34; see also ante , at 7 (Thomas, J., concurring). It is unclear to me why this distinction should make a difference. Either way, governmental action is taken by someone erroneously claiming the mantle of executive power—and thus taken with no authority at all. The Court points to not a single precedent in 230 years of history for the distinction it would have us draw. Nor could it. The course it pursues today defies our precedents. In Bowsher v. Synar , 478 U.S. 714 (1986), this Court concluded that Congress had vested the Comptroller General with “the very essence” of executive power, id. , at 732–733, but that he was (impermissibly) removable only by Congress, id. , at 727–728. In Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___ (2020), we found Congress had assigned the CFPB Director sweeping authority over the financial sector, id. , at ___–___ (slip op., at 4–6), while insulating him “from removal by an accountable President,” id. , at ___ (slip op., at 23). In both cases that meant the officers could “not be entrusted with executive powers” from day one, Bowsher , 478 U. S., at 732, and the challenged actions were “void,” Seila Law , 591 U. S., at ___ (slip op., at 10).[ 1 ] If anything, removal restrictions may be a greater constitutional evil than appointment defects. New Presidents always inherit thousands of Executive Branch officials whom they did not select. It is the power to supervise—and, if need be, remove—subordinate officials that allows a new President to shape his administration and respond to the electoral will that propelled him to office. After all, from the moment “an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear.” Synar v. United States , 626 F. Supp. 1374 , 1401 (DC 1986) ( per curiam ). Chief Justice Taft, who knew a little about such things, put it this way: “[W]hen the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.” Myers v. United States , 272 U.S. 52 , 122 (1926). Because the power of supervising subordinates is essential to sound constitutional administration, as between presidential hiring and firing “the unfettered ability to remove is the more important.” M. McConnell, The President Who Would Not Be King 167 (2020). Protecting this aspect of the separation of powers isn’t just about protecting presidential authority. Ultimately, the separation of powers is designed to “secure[ ] the freedom of the individual.” Bond v. United States , 564 U.S. 211 , 221 (2011); ante , at 20–21. That’s no less true here than anywhere else. As Hamilton explained, the point of ensuring presidential supervision of the Executive Branch is to ensure “a due dependence on the people” and “a due responsibility” to them; these are key “ingredients which constitute safety in the republican sense.” The Federalist No. 70, p. 424 (C. Rossiter ed. 1961). In the case of a removal defect, a wholly unaccountable government agent asserts the power to make decisions affecting individual lives, liberty, and property. The chain of dependence between those who govern and those who endow them with power is broken. United States v. Arthrex, Inc. , ante, at 3 (Gorsuch, J., concurring in part and dissenting in part). Few things could be more perilous to liberty than some “fourth branch” that does not answer even to the one executive official who is accountable to the body politic. FTC v. Ruberoid Co. , 343 U.S. 470 , 487 (1952) (Jackson, J., dissenting). Instead of applying our traditional remedy for constitutional violations like these, the Court supplies a novel and feeble substitute. The Court says that, on remand in this suit, lower courts should inquire whether the President would have removed or overruled the unconstitutionally insulated official had he known he had the authority to do so. Ante , at 35. So, if lower courts find that the President would have removed or overruled the Director, then the for-cause removal provision “clearly cause[d] harm” and the Director’s actions may be set aside. Ibid. Not only is this “relief ” unlike anything this Court has ever before authorized in cases like ours; it is materially identical to a remedial approach this Court previously rejected. In Bowsher , the Court directly addressed and expressly refused the dissent’s insistence that it should undertake a “ ‘consideration’ of the ‘practical result of the removal provision.’ ” 478 U. S., at 730. Instead of speculating about what would have happened in a different world where the officer’s challenged actions were reviewable within the Executive Branch, the Court recognized that unconstitutionally insulating an officer from removal “inflicts a ‘here-and-now’ injury” on affected parties. Seila Law , 591 U. S., at ___ (slip op., at 10). In this world, real people are injured by actions taken without lawful authority. “The Framers did not rest our liberties on . . . minutiae” like some guessing game about what might have transpired in another timeline. Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 500 (2010). Other problems attend the Court’s remedial science fiction. It proceeds on an assumption that Congress would have adopted a version of the Housing and Economic Recovery Act (HERA) that allowed the President to remove the Director. But that is sheer speculation. It is equally possible that—had Congress known it could not have a Director independent from presidential supervision—it would have deployed different tools to rein in Fannie Mae and Freddie Mac. Surely, Congress possessed no shortage of options. By way of example, it could have conferred new regulatory functions on an existing (and accountable) agency like the Department of Housing and Urban Development, or it might have enacted detailed statutes to govern Fannie and Freddie’s activities directly. For that matter, Congress might have opted for no additional oversight rather than subject the Federal Housing Finance Agency (FHFA) to supervision by the President. This Court possesses no authority to substitute its own judgment about which legislative solution Congress might have adopted had it considered a problem never put to it. That is not statutory interpretation; it is statutory reinvention. Indeed, while never uttering the words “severance doctrine,” the Court today winds up implicitly resting its remedial enterprise upon it—severing, or removing, one part of Congress’s work based on speculation about its wishes and usurping a legislative prerogative in the process. See, e.g., Arthrex , ante, at 6–7 (Gorsuch, J., concurring in part and dissenting in part); Synar , 626 F. Supp., at 1393. By once again purporting to do Congress’s job, we discourage the people’s representatives from taking up for themselves the task of consulting their oaths, grappling with constitutional problems, and specifying a solution in statutory text. “Congress can now simply rely on the courts to sort [it] out.” Tennessee v. Lane , 541 U.S. 509 , 552 (2004) (Rehnquist, C. J., dissenting).[ 2 ] The Court’s conjecture does not stop there. After guessing what legislative scheme Congress would have adopted in some hypothetical but-for world, the Court tasks lower courts and the parties with reconstructing how executive agents would have reacted to it. On remand, we are told, the litigants and lower courts must ponder whether the President would have removed the Director had he known he was free to do so. Ante , at 35. But how are judges and lawyers supposed to construct the counterfactual history? It is no less a speculative enterprise than guessing what Congress would have done had it known its statutory scheme was unconstitutional. It’s only that the Court prefers to reserve the big hypothetical (legislative) choice for itself and leave others for lower courts to sort out. Consider the guidance the Court offers. It says lower courts should examine clues such as whether the President made a “public statement expressing displeasure” about something the Director did, or whether the President “attempted” to remove the Director but was stymied by lower courts. Ibid. But what if the President never considered the possibility of removing the Director because he was never advised of that possibility? What if his advisers themselves never contemplated the option given statutory law? And even putting all that aside, what evidence should courts and parties consult when inquiring into the President’s “displeasure”? Are they restricted to publicly available materials, even though the most probative evidence may be the most sensitive? To ascertain with any degree of confidence the President’s state of mind regarding the Director, don’t we need testimony from him or his closest staff? The Court declines to tangle with any of these questions. It’s hard not to wonder whether that’s because it intends for this speculative enterprise to go nowhere. Rather than intrude on often-privileged executive deliberations, the Court may calculate that the lower courts on remand in this suit will simply refuse retroactive relief. See, e.g., ante , at 6 (Kagan, J., concurring in part and concurring in judgment in part). But if this is what the Court intends, why not just admit it and put these parties out of their misery? As strange as the Court’s remand instructions are, the more important question lower courts face isn’t how to resolve this suit but what to do with the next one. Today, the Court sounds the call to arms and declares a constitutional violation only to head for the hills as soon as it’s faced with a request for meaningful relief. But as we have seen, the Court has in the past consistently vindicated Article II both in reasoning and in remedy. E.g., Seila Law , 591 U. S., at ___ (opinion of Roberts, C. J.) (slip op., at 36); Lucia v. SEC , 585 U. S. ___, ___–___, n. 5 (2018) (slip op., at 12–13, n. 5); NLRB v. Noel Canning , 573 U.S. 513 , 557 (2014); Ryder v. United States , 515 U.S. 177 , 182–183 (1995); Bowsher , 478 U. S., at 736. These cases—involving appointment and removal defects alike—remain good law. So what are lower courts faced with future removal defect cases to make of all this? The only lesson I can divine is that the Court’s opinion today is a product of its unique context—a retreat prompted by the prospect that affording a more traditional remedy here could mean unwinding or disgorging hundreds of millions of dollars that have already changed hands. Ante , at 32–33. The Court may blanch at authorizing such relief today, but nothing it says undoes our prior guidance authorizing more meaningful relief in other situations. For my part, rather than carve out some suit-specific, removal-only, money-in-the-bank exception to our normal rules for Article II violations, I would take a simpler and more familiar path. Whether unconstitutionally installed or improperly unsupervised, officials cannot wield executive power except as Article II provides. Attempts to do so are void; speculation about alternate universes is neither necessary nor appropriate. In the world we inhabit, where individuals are burdened by unconstitutional executive action, they are “entitled to relief.” Lucia , 585 U. S., at ___ (slip op., at 12). Notes 1 The Court’s attempt to sidestep these cases leads nowhere. Seila Law , we are told, discussed standing—not remedies—when it said plaintiffs “ ‘sustain[ ] injury’ ” from unlawfully insulated executive action and may “challeng[e] [such] action as void.” See ante, at 34, n. 24. But standing and remedies are joined at the hip: Article III permits a court only to provide “a remedy that redresses the plaintiffs’ injury-in-fact .” Collins v. Mnuchin , 938 F.3d 553, 609 (CA5 2019) (Oldham, J., concurring in part and dissenting in part) (emphasis added). That is why a plaintiff “must have standing [for] each form of relief” sought. Town of Chester v. Laroe Estates, Inc. , 581 U. S. ___, ___ (2017) (slip op., at 5). Bowsher , we are told, involved a legislative officer—not an executive one, which supposedly makes all the difference. Ante , at 35, n. 25. But there the Comptroller was legislative only in the sense that he headed an “independent” department and was accountable to Congress rather than the President. 478 U. S, at 730–732. If there is any difference here, it’s that the FHFA Director—who likewise heads an “independent” agency, 12 U. S. C. §4511(a)—is accountable to no one . The idea that whether acts are void or not turns on a label rather than on the functions an officer is assigned and who he is accountable to should not be taken seriously. E.g., Bowsher , 478 U. S., at 727–728, 732–733; Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 484–486, 496–498 (2010); Seila Law , 591 U. S., at ___–___, ___ (slip op., at 4–6, 23); ante , at 27–29, 31–32. 2 Justice Thomas stakes out more foreign terrain. After saying that he “join[s] the Court’s opinion in full,” he argues there was no constitutional violation at all because the President—despite statutes barring his way—was free to remove the Director all along. Ante , at 1, 4, 11. Accordingly, it seems Justice Thomas disagrees with all of Part III–B’s merits analysis in addition to the Court’s novel remedy in Part III–C. Like the Court, though, he seemingly takes as given that Congress would have chosen to adopt HERA even if it had known this course required subjecting the Director to removal by the President. Ante , at 5–6. In doing so, he parts ways with his opinion last year in Seila Law , where he recognized the following: First, in cases like ours, a constitutional violation arises because of “the combination” of statutory terms that (1) confer executive power on an official and (2) improperly insulate him from removal. 591 U. S., at ___ (Thomas, J., concurring in part and dissenting in part) (slip op., at 21). Second, absent statutory direction from Congress, we cannot divine “which of the provisions” Congress would have kept and which it would have scrapped—or what else it might have done—had it known its actual choice was unconstitutional. Id., at ___ (slip op., at 23). Third, this Court lacks the “ ‘editorial freedom’ ” to pick and choose among options like these, for doing so would usurp Congress’s legislative authority. Ibid. Today, Justice Thomas suggests Seila Law rested on one party’s concession about the meaning of the law. Ante , at 8, n. 5; ante , at 10. But parties cannot stipulate to the law. E.g., Zivotofsky v. Kerry , 576 U.S. 1, 41, n. 2 (2015) (Thomas, J., concurring in judgment in part and dissenting in part); Young v. United States , 315 U.S. 257 , 258–259 (1942). More importantly, his observations were right then—and they remain so today. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–422 and 19–563 _________________ PATRICK J. COLLINS, et al., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al., PETITIONERS 19–563 v. PATRICK J. COLLINS, et al. on writs of certiorari to the united states court of appeals for the fifth circuit [June 23, 2021] Justice Kagan, with whom Justice Breyer and Justice Sotomayor join as to Part II, concurring in part and concurring in the judgment in part. Faced with a global financial crisis, Congress created the Federal Housing Finance Agency (FHFA) and gave it broad powers to rescue the Nation’s mortgage market. I join the Court in deciding that the FHFA wielded its authority within statutory limits. On the main constitutional question, though, I concur only in the judgment. Stare decisis compels the conclusion that the FHFA’s for-cause removal provision violates the Constitution. But the majority’s opinion rests on faulty theoretical premises and goes further than it needs to. I also write to address the remedial question. The majority’s analysis, which I join, well explains why backwards-looking relief is not always necessary to redress a removal violation. I add only two thoughts. The broader is that the majority’s remedial holding mitigates the harm of the removal doctrine applied here. The narrower is that, as I read the decision below, the Court of Appeals has already done what is needed to find that the plaintiffs are not entitled to their requested relief. I I agree with the majority that Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___ (2020), governs the constitutional question here. See ante , at 26. In Seila Law , the Court held that an “agency led by a single [d]irector and vested with significant executive power” comports with the Constitution only if the President can fire the director at will. 591 U. S., at ___ (slip op., at 18). I dissented from that decision—vehemently. See id. , at ___ (Kagan, J., dissenting) (slip op., at 4) (“The text of the Constitution, the history of the country, the precedents of this Court, and the need for sound and adaptable governance—all stand against the majority’s opinion”). But the “doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike”—even when that means adhering to a wrong decision. June Medical Services L. L. C. v. Russo , 591 U. S. ___, ___ (2020) (Roberts, C. J., concurring in judgment) (slip op., at 2). So the issue now is not whether Seila Law was correct. The question is whether that case is distinguishable from this one. And it is not. As I observed in Seila Law , the FHFA “plays a crucial role in overseeing the mortgage market, on which millions of Americans annually rely.” 591 U. S., at ___ (slip op., at 31). It thus wields “significant executive power,” much as the agency in Seila Law did. And I agree with the majority that there is no other legally relevant distinction between the two. See ante , at 29–32. For two reasons, however, I do not join the majority’s discussion of the constitutional issue. First is the majority’s political theory. Throughout the relevant part of its opinion, the majority offers a contestable—and, in my view, deeply flawed—account of how our government should work. At-will removal authority, the majority intones, “is essential to subject Executive Branch actions to a degree of electoral accountability”—and so courts should grant the President that power in cases like this one. Ante , at 27. I see the matter differently (as, I might add, did the Framers). Seila Law , 591 U. S., at ___–___ (Kagan, J., dissenting) (slip op., at 9–13). The right way to ensure that government operates with “electoral accountability” is to lodge decisions about its structure with, well, “the branches accountable to the people.” Id. , at ___ (slip op., at 38); see id. , at ___ (slip op., at 39) (the Constitution “instructs Congress, not this Court, to decide on agency design”). I will subscribe to decisions contrary to my view where precedent, fairly read, controls (and there is no special justification for reversal). But I will not join the majority’s mistaken musings about how to create “a workable government.” Id. , at ___ (slip op., at 38) (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 635 (1952) (Jackson, J., concurring)). My second objection is to the majority’s extension of Seila Law ’s holding. Again and again, Seila Law emphasized that its rule was limited to single-director agencies “wield[ing] significant executive power.” 591 U. S., at ___ (plurality opinion) (slip op., at 2); see id. , at ___ (majority opinion) (slip op., at 18); id. , at ___ (plurality opinion) (slip op., at 36). To take Seila Law at its word is to acknowledge where it left off: If an agency did not exercise “significant executive power,” the constitutionality of a removal restriction would remain an open question. Accord, post , at 11–12 (Sotomayor, J., concurring in part and dissenting in part). But today’s majority careens right past that boundary line. Without even mentioning Seila Law ’s “significant executive power” framing, the majority announces that, actually, “the constitutionality of removal restrictions” does not “hinge[ ]” on “the nature and breadth of an agency’s authority.” Ante , at 27, 29. Any “agency led by a single Director,” no matter how much executive power it wields, now becomes subject to the requirement of at-will removal. Ante , at 26. And the majority’s broadening is gratuitous—unnecessary to resolve the dispute here. As the opinion later explains, the FHFA exercises plenty of executive authority: Indeed, it might “be considered more powerful than the CFPB.” Ante , at 28. So the majority could easily have stayed within, rather than reached out beyond, the rule Seila Law created. In thus departing from Seila Law , the majority strays from its own obligation to respect precedent. To ensure that our decisions reflect the “evenhanded” and “consistent development of legal principles,” not just shifts in the Court’s personnel, s tare decisis demands something of Justices previously on the losing side. Payne v. Tennessee , 501 U.S. 808 , 827 (1991). They (meaning here, I) must fairly apply decisions with which they disagree. But fidelity to precedent also places demands on the winners. They must apply the Court’s precedents—limits and all—wherever they can, rather than widen them unnecessarily at the first opportunity. Because today’s majority does not conform to that command, I concur in the judgment only. II I join in full the majority’s discussion of the proper remedy for the constitutional violation it finds. I too believe that our Appointments Clause precedents have little to say about remedying a removal problem. See ante , at 33–34; cf. Lucia v. SEC , 585 U. S. ___, ___ (2018) (slip op., at 12) (requiring a new hearing before a properly appointed official). As the majority explains, the officers heading the FHFA, unlike those with invalid appointments, possessed the “authority to carry out the functions of the office.” Ante , at 34. I also agree that plaintiffs alleging a removal violation are entitled to injunctive relief—a rewinding of agency action—only when the President’s inability to fire an agency head affected the complained-of decision. See ante , at 35–36. Only then is relief needed to restore the plaintiffs to the position they “would have occupied in the absence” of the removal problem. Milliken v. Bradley , 433 U.S. 267 , 280 (1977); see D. Laycock & R. Hasen, Modern American Remedies 275 (5th ed. 2019). Granting relief in any other case would, contrary to usual remedial principles, put the plaintiffs “in a better position” than if no constitutional violation had occurred. Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274 , 285 (1977). The majority’s remedial holding limits the damage of the Court’s removal jurisprudence. As the majority explains, its holding ensures that actions the President supports—which would have gone forward whatever his removal power—will remain in place. See ante , at 35. In refusing to rewind those presidentially favored decisions, the majority prevents theories of formal presidential control from stymying the President’s real-world ability to carry out his agenda. Similarly, the majority’s approach should help protect agency decisions that would never have risen to the President’s notice. Consider the hundreds of thousands of decisions that the Social Security Administration (SSA) makes each year. The SSA has a single head with for-cause removal protection; so a betting person might wager that the agency’s removal provision is next on the chopping block. Cf. ante , at 32, n. 21. But given the majority’s remedial analysis, I doubt the mass of SSA decisions—which would not concern the President at all—would need to be undone. That makes sense. “[P]residential control [does] not show itself in all, or even all important, regulation.” Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2250 (2001). When an agency decision would not capture a President’s attention, his removal authority could not make a difference—and so no injunction should issue. My final point relates to the last sentence of the majority’s remedial section. There, the Court holds that the decisive question—whether the removal provision mattered—“should be resolved in the first instance by the lower courts.” Ante , at 36. That remand follows the Court’s usual practice: We are, as we often say, not a “court of first view.” Alabama v. Shelton , 535 U.S. 654 , 673 (2002). But here the lower court proceedings may be brief indeed. As I read the opinion below, the Court of Appeals already considered and decided the issue remanded today. The court noted that all of the FHFA’s policies were jointly “created [by] the FHFA and Treasury” and that the Secretary of the Treasury is “subject to at will removal by the President.” Collins v. Mnuchin , 938 F.3d 553, 594 (CA5 2019). For that reason, the court concluded, “we need not speculate about whether appropriate presidential oversight would have stopped” the FHFA’s actions. Ibid. “We know that the President, acting through the Secretary of the Treasury, could have stopped [them] but did not.” Ibid ; see ibid. , n. 6 (noting that the plaintiffs’ “allegations show that the President had oversight of the action”). That reasoning seems sufficient to answer the question the Court kicks back, and nothing prevents the Fifth Circuit from reiterating its analysis. So I join the Court’s opinion on the understanding that this litigation could speedily come to a close. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–422 and 19–563 _________________ PATRICK J. COLLINS, et al., PETITIONERS 19–422 v. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al. JANET L. YELLEN, SECRETARY OF THE TREASURY, et al., PETITIONERS 19–563 v. PATRICK J. COLLINS, et al. on writs of certiorari to the united states court of appeals for the fifth circuit [June 23, 2021] Justice Sotomayor, with whom Justice Breyer joins, concurring in part and dissenting in part. Prior to 2010, this Court had gone the greater part of a century since it last prevented Congress from protecting an Executive Branch officer from unfettered Presidential removal. Yet today, for the third time in just over a decade, the Court strikes down the tenure protections Congress provided an independent agency’s leadership. Last Term, the Court held in Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___ (2020), that for-cause removal protection for the Director of the Consumer Financial Protection Bureau (CFPB) violated the separation of powers. Id. , at ___ (slip op., at 3). As an “independent agency led by a single Director and vested with significant executive power,” the Court reasoned, the CFPB had “no basis in history and no place in our constitutional struc- ture.” Id. , at ___ (slip op., at 18). Seila Law expressly distinguished the Federal Housing Finance Agency (FHFA), another independent Agency headed by a single Director, on the ground that the FHFA does not possess “regulatory or enforcement authority remotely comparable to that exercised by the CFPB.” Id. , at ___–___ (slip op., at 20–21). Moreover, the Court found it significant that, unlike the CFPB, the FHFA “regulates primarily Government- sponsored enterprises, not purely private actors.” Id. , at ___ (slip op., at 20). Nevertheless, the Court today holds that the FHFA and CFPB are comparable after all, and that any differences between the two are irrelevant to the constitutional separation of powers. That reasoning cannot be squared with this Court’s precedents, least of all last Term’s Seila Law . I respectfully dissent in part from the Court’s opinion and from the corresponding portions of the judgment.[ 1 ] I Congress created the FHFA in the Housing and Economic Recovery Act of 2008 (Recovery Act), 12 U. S. C. §4501 et seq. The FHFA supervises the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), and the 11 Federal Home Loan Banks. These 13 Government-sponsored entities (GSEs) provide liquidity and stability to the national housing market by, among other things, purchasing mortgage loans from, and offering financing to, private lenders. The FHFA “establish[es] standards” for the GSEs relating to risk management, internal auditing, and minimum capital requirements. §4513b(a). If the FHFA believes a GSE may be failing to meet its requirements under the Act, the Agency may initiate administrative proceedings, §4581, issue subpoenas, §4517(g), and, in some circumstances, impose monetary penalties, §4585. In the event a GSE falls into financial distress, the FHFA may appoint itself “conservator or receiver for the purpose of reorganizing, rehabilitating, or winding up” the GSE’s affairs. §4617(a)(2). In 2008, the FHFA put both Fannie Mae and Freddie Mac under conservatorship. In 2016, shareholders of Fannie Mae and Freddie Mac (petitioners) sued the FHFA, challenging the Agency’s conservatorship decisions in part by arguing that the Agency’s structure is unconstitutional. The FHFA is headed by a single Director, who serves a 5-year term and may be removed by the President “for cause.” §4512(b)(2). According to petitioners, the separation of powers requires the FHFA Director to be removable by the President at will. II Where Congress is silent on the question, the general rule is that the President may remove Executive Branch officers at will. See Myers v. United States , 272 U.S. 52 , 126 (1926). Throughout our Nation’s history, however, Congress has identified particular officers who, because of the nature of their office, require a degree of independence from Presidential control. Those officers may be removed from their posts only for cause. Often, Congress has granted financial regulators such independence in order to bolster public confidence that financial policy is guided by long-term thinking, not short-term political expediency. See Seila Law , 591 U. S., at ___–___ (slip op., at 13–16) (Kagan, J., concurring in judgment with respect to severability and dissenting in part) (discussing examples). Other times, Congress has provided tenure protection to officers who investigate other Government actors and thus might face conflicts of interest if directly controlled by the President. See, e.g. , 28 U. S. C. §596(a)(1) (making an independent counsel removable “only by the personal action of the Attorney General and only for good cause” or disability). In a line of decisions spanning more than half a century, this Court consistently approved of independent agencies and independent counsels within the Executive Branch. See Humphrey’s Executor v. United States , 295 U.S. 602 (1935); Wiener v. United States , 357 U.S. 349 (1958); Morrison v. Olson , 487 U.S. 654 (1988). In recent years, however, the Court has taken an unprecedentedly active role in policing Congress’ decisions about which officers should enjoy independence. See Seila Law , 591 U. S. ___; Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 (2010). These decisions have focused almost exclusively on perceived threats to the separation of powers posed by limiting the President’s removal power, while largely ignoring the Court’s own encroachment on Congress’ constitutional authority to structure the Executive Branch as it deems necessary. Never before, however, has the Court forbidden simple for-cause tenure protection for an Executive Branch officer who neither exercises significant executive power nor regulates the affairs of private parties. Because the FHFA Director fits that description, this Court’s precedent, separation-of-powers principles, and proper respect for Congress all support leaving in place Congress’ limits on the grounds upon which the President may remove the Director. A In Seila Law , the Court held that the CFPB Director, an individual with “the authority to bring the coercive power of the state to bear on millions of private citizens and businesses,” 591 U. S., at ___ (slip op., at 18), must be removable by the President at will. In so holding, the Court declined to overrule Humphrey’s Executor and Morrison , which respectively upheld the independence of the Federal Trade Commission’s (FTC) five-member board and an independent counsel tasked with investigating Government malfeasance. See 591 U. S., at ___ (slip op., at 27) (“[W]e do not revisit Humphrey’s Executor or any other precedent today”). Instead, Seila Law opted not to “extend those precedents” to the CFPB, “an independent agency led by a single Director and vested with significant executive power.” 591 U. S., at ___ (slip op., at 18).[ 2 ] The Court today concludes that the reasoning of Seila Law “dictates” that the FHFA is unconstitutionally structured because it, too, is led by a single Director. Ante , at 26. But Seila Law did not hold that an independent agency may never be run by a single individual with tenure protection. Rather, that decision stated, repeatedly, that its holding was limited to a single-director agency with “significant executive power.” 591 U. S., at ___, ___, ___ (slip op., at 2, 18, 36). The question, therefore, is not whether the FHFA is headed by a single Director, but whether the FHFA wields “significant” executive power. It does not. As a yardstick for measuring the constitutional significance of an agency’s executive power, Seila Law looked to the FTC as it existed at the time of Humphrey’s Executor (the 1935 FTC). 591 U. S., at ___–___ (slip op., at 16–17). That agency had a roving mandate to prevent private individuals and corporations alike from engaging in “ ‘unfair methods of competition in commerce.’ ” Humphrey’s Executor , 295 U. S., at 620 (citing 15 U. S. C. §45). To carry out its mandate, the 1935 FTC had broad authority to issue complaints and cease-and-desist orders. 295 U. S., at 620. The agency also had “wide powers of investigation,” which it used to make recommendations to Congress, as well as the responsibility to assist courts in antitrust litigation by “ ‘ascertain[ing] and report[ing] an appropriate form of decree.’ ” Id. , at 621. These powers may seem “significant” in a colloquial sense. In Seila Law ’s view, however, they did not rise to the level of constitutional significance. That was in contrast to the CFPB’s powers, which far outstrip the 1935 FTC’s. While the 1935 FTC’s ambit was limited to preventing unfair competition and violations of antitrust law, the CFPB “possesses the authority to promulgate binding rules fleshing out 19 federal statutes, including a broad prohibition on unfair and deceptive practices in a major segment of the U. S. economy.” Seila Law , 591 U. S., at ___ (slip op., at 17). While the 1935 FTC could issue cease-and- desist orders and recommended dispositions, the CFPB “may unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications” and “seek daunting monetary penalties against private parties on behalf of the United States in federal court.” Ibid. Far from a “mere legislative or judicial aid” like the 1935 FTC, ibid ., the CFPB is a “mini legislature, prosecutor, and court, responsible for creating substantive rules for a wide swath of industries, prosecuting violations, and levying knee- buckling penalties against private citizens,” id. , at ___, n. 8 (slip op., at 21, n. 8). Measured against such standards, the FHFA comfortably fits within the same category of constitutional insignificance as the 1935 FTC. To some, the CFPB Director was “the single most powerful official in the entire U. S. Government, other than the President, at least when measured in terms of unilateral power.” PHH Corp. v. Consumer Financial Protection Bur. , 881 F.3d 75, 171 (CADC 2018) (Kavanaugh, J., dissenting). The FHFA Director is not one of the most powerful officials in the U. S. Government. As the Court recognized in Seila Law , the FHFA does “not involve regulatory or enforcement authority remotely comparable to that exercised by the CFPB.” 591 U. S., at ___ (slip op., at 20–21). The FHFA’s authority is much closer to (and, in some respects, far less than) that of the 1935 FTC. Like the 1935 FTC, the FHFA oversees regulated entities and gathers specified information from them on Congress’ behalf. Unlike the 1935 FTC, however, which was tasked with implementing the Nation’s antitrust laws and policing unfair competition, the FHFA is limited to specified duties under the Recovery Act. Furthermore, while the 1935 FTC had jurisdiction over countless individuals and corporations, the FHFA regulates just 13 GSEs. Moreover, one of the FHFA’s main powers is assuming the mantle of conservatorship or receivership over the GSEs, which hardly registers as executive at all. When acting as a conservator or receiver, an agency like the FHFA “ ‘steps into the shoes’ ” of the party under distress, O’Melveny & Myers v. FDIC , 512 U.S. 79 , 86 (1994), and largely “ ‘shed[s] its government character,’ ” Herron v. Fannie Mae , 861 F.3d 160, 169 (CADC 2017). Even granting that there are differences between the FHFA’s powers as a conservator and those of a common-law conservator, “the FHFA’s conservatorship function [is] a role one would be hard-pressed to characterize as near the heart of executive power.” Collins v. Mnuchin , 938 F.3d 553, 620 (CA5 2019) (Higginson, C. J., dissenting in part). To be sure, the FHFA has at least one executive power that the 1935 FTC did not: the power to impose fines. But that fining authority is quite limited. The FHFA may impose fines on the 13 GSEs it regulates for failing to meet their reporting requirements and housing goals under the Recovery Act and for violating the requirements of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, 106Stat. 3941. See 12 U. S. C. §§4585, 4636. Petitioners point to no instance in the Agency’s 13-year history in which it has ever fined a GSE.[ 3 ] That is not to say that the FHFA possesses no executive authority whatsoever. It does. But the 1935 FTC, too, possessed executive authority, just not enough to be “significant.” See Seila Law , 591 U. S., at ___, n. 2 (slip op., at 14, n. 2) (“ ‘[I]t is hard to dispute that the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered “executive,” at least to some degree’ ” (quoting Morrison , 487 U. S., at 690, n. 28)). When measured against the benchmark of the 1935 FTC, the FHFA does not possess “significant executive power” within the meaning of Seila Law . It is in “an entirely different league” from the CFPB. 591 U. S., at ___, n. 8 (slip op., at 21, n. 8). B Because the FHFA does not possess significant executive power, the question under Seila Law is whether this Court’s decisions upholding for-cause removal provisions in Humphrey’s Executor and Morrison should be “extend[ed]” to the FHFA Director. 591 U. S., at ___ (slip op., at 18). The clear answer is yes. Not only does the FHFA lack significant executive power, the authority it does possess is exercised over other governmental actors. In that respect, the FHFA Director mimics the independent counsel whose tenure protections were upheld in Morrison . The independent counsel, as Seila Law noted, could bring criminal prosecutions and thus “wielded core executive power.” 591 U. S., at ___ (slip op., at 18). Separation-of-powers concerns were allayed, however, because “that power, while significant, was trained inward to high-ranking Governmental actors identified by others.” Ibid. In explaining why “[t]he logic of Morrison” did “not apply” to the CFPB, Seila Law emphasized that the CFPB “has the authority to bring the coercive power of the state to bear on millions of private citizens and businesses.” Id. , at ___–___ (slip op., at 17–18). Morrison ’s logic may not have applied to the CFPB, but it certainly applies to the FHFA. The FHFA’s executive power, too, is “trained inward,” on the 13 GSEs “identified by” the Recovery Act. Seila Law , 591 U. S., at ___ (slip op., at 18). While the GSEs are now privately owned, they still operate under congressional charters, see 12 U. S. C. §4501(1), serve “important public missions,” ibid. , and receive preferential treatment under law by dint of their Government affiliation, §1719.[ 4 ] Seila Law itself distinguished the CFPB from the FHFA precisely on the basis that the latter Agency “regulates primarily Government-sponsored enterprises, not purely private actors.” 591 U. S., at ___ (slip op., at 20). Historical considerations further confirm the constitutionality of the FHFA Director’s independence. Single- director independent agencies with limited executive power, like the FHFA, boast a more storied pedigree than do single-director independent agencies with significant ex- ecutive power, like the CFPB. Consider three such examples, each discussed in Seila Law . First, the Comptroller of the Currency, who was briefly independent from Presidential removal during the Civil War and thereafter retained a lesser form of tenure protection. Id. , at ___ (slip op., at 19). Second, the Office of Special Counsel, which has been “headed by a single officer since 1978.” Id ., at ___–___ (slip op., at 19–20). Third, the Social Security Administration, which has been “run by a single Administrator since 1994.” Id ., at ___ (slip op., at 20). Like the FHFA, these examples lack “regulatory or enforcement authority remotely comparable to that exercised by the CFPB.” Id. , at ___–___ (slip op., at 20–21). While these agencies thus offered “no foothold in history or tradition” for the CFPB, id. , at ___ (slip op., at 21), they provide historical support for an agency with the FHFA’s limited purview. The FHFA also draws on a long tradition of independence enjoyed by financial regulators, including the Comptroller of the Treasury, the Second Bank of the United States, the Federal Reserve Board, the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the Federal Deposit Insurance Corporation. See id. , at ___–___ (slip op., at 12–16) (opinion of Kagan, J.). The public has long accepted (indeed, expected) that financial regulators will best perform their duties if separated from the political exigencies and pressures of the present moment. In Seila Law , this tradition of independence was of little help to the CFPB because, “even assuming financial institutions . . . can claim a special historical status,” the CFPB’s unique powers put it “in an entirely different league” from other financial regulators. Id. , at ___, n. 8 (majority opinion) (slip op., at 21, n. 8). In contrast, the FHFA’s function as a monitor of regulated entities important to economic stability makes the FHFA far more similar to historically independent financial regulators than to the CFPB. See FHFA, Performance and Accountability Report 18 (2020) (“The [Recovery Act] vests FHFA with the authorities, similar to those of other prudential financial regulators, to maintain the financial health of the regulated entities”). To recap, the FHFA does not wield significant executive power, the executive power it does wield is exercised over Government affiliates, and its independence is supported by historical tradition. All considerations weigh in favor of recognizing Congress’ power to make the FHFA Director removable only for cause. III The Court disagrees. After Seila Law , the Court reasons, all that matters is that “[t]he FHFA (like the CFPB) is an agency led by a single Director.” Ante , at 26. From that, the unconstitutionality of the FHFA Director’s independence follows virtually a fortiori . The Court reaches that conclusion by disavowing the very distinctions it relied upon just last Term in Seila Law in striking down the CFPB Director’s independence. On three separate occasions, Seila Law stated that its holding applied to single-director independent agencies with “significant executive power.” See 591 U. S . , at ___, ___, ___ (slip op., at 2, 18, 36). Remarkably, those words appear nowhere in today’s decision. Instead, the Court appears to take the position that exercising essentially any executive power whatsoever is enough. Ante , at 27–29. In terms of explanation, the Court says that it is “not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies” and that it “do[es] not think that the constitutionality of removal restrictions hinges on such an inquiry.” Ante , at 29. The Court’s position unduly encroaches on Congress’ judgments about which executive officers can and should enjoy a degree of independence from Presidential removal, and it cannot be squared with Seila Law , which relied extensively on such agency comparisons. Not only did Seila Law contrast the CFPB’s powers against those of the 1935 FTC in Humphrey’s Executor , see 591 U. S . , at ___–___ (slip op., at 16–17), as well as the independent counsel in Morrison , see 591 U. S., at ___–___ (slip op., at 17–18), it concluded that the FHFA (along with the Comptroller of the Currency, the Office of Special Counsel, and the Social Security Administration) does not possess “regulatory or enforcement authority remotely comparable to that exercised by the CFPB.” Id. , at ___–___ (slip op., at 20–21). Those distinctions underpinned Seila Law ’s proclamation that the CFPB had “no basis in history and no place in our constitutional structure.” Id. , at ___ (slip op., at 18). In the Court’s view today, however, all of those comparisons were irrelevant to the bottom-line question whether the CFPB Director’s tenure protections comport with the Constitution. The Court today also suggests that whether an agency regulates private individuals or Government actors does not meaningfully affect the separation-of-powers analysis. Ante , at 30–31 (“[T]he President’s removal power serves important purposes regardless of whether the agency in question affects ordinary Americans by directly regulating them or by taking actions that have a profound but indirect effect on their lives”). That, too, is flatly inconsistent with Seila Law , which returned repeatedly to this consideration. Not only did Seila Law distinguish the CFPB from the independent counsel in Morrison on this basis, see 591 U. S., at ___ (slip op., at 18), it distinguished the CFPB from both the FHFA and the Office of Special Counsel for the same reason, see id ., at ___ (slip op., at 20). That the Court is unwilling to stick to the methodology it articulated just last Term in Seila Law is a telltale sign that the Court’s separation-of-powers jurisprudence has only continued to lose its way. IV The Court has proved far too eager in recent years to insert itself into questions of agency structure best left to Congress. In striking down the independence of the FHFA Director, the Court reaches further than ever before, refusing tenure protections to an Agency head who neither wields significant executive power nor regulates private individuals. Troublingly, the Court justifies that result by ignoring the standards it set out just last Term in Seila Law . Because I would afford Congress the freedom it has long possessed to make officers like the FHFA Director independent from Presidential control, I respectfully dissent. Notes 1 I join Parts I and II of the Court’s opinion rejecting petitioners’ argument that the FHFA actions under review violated the Housing and Economic Recovery Act of 2008, as well as Part III–C discussing what the appropriate remedial implications would be if the FHFA Director’s for-cause removal protection were unconstitutional. I join also Part II of Justice Kagan’s concurrence concerning the proper remedial analysis for the Fifth Circuit to conduct on remand. Finally, I note that Justice Thomas’ arguments that an improper removal restriction does not necessarily render agency action unlawful warrant further consideration in an appropriate case. 2 As Justice Kagan explained in dissent, Seila Law rested on implausible recharacterizations of this Court’s separation-of-powers jurisprudence. I continue to believe that Seila Law was wrongly decided. Whatever the merits of that decision, however, it does not support invalidating the FHFA Director’s independence. 3 By comparison, the CFPB has fined private actors billions of dollars. Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___, ___ (2020) (slip op., at 5). 4 The GSEs’ ongoing ties with the Government long fueled public perception that the Government would intervene if the GSEs were in danger of collapse. See Congressional Research Serv., Fannie Mae and Freddie Mac in Conservatorship: Frequently Asked Questions 2 (updated May 31, 2019) (noting that it was “widely believed prior to 2008 that the federal government was an implicit backstop for the GSEs in light of their congressional charters”). This perception became reality during the 2008 financial crisis, when the Treasury Department extended hundreds of billions of dollars in credit to Fannie Mae and Freddie Mac, and the FHFA put those entities under conservatorship.

The Supreme Court ruled that the Federal Housing Finance Agency (FHFA), created to regulate Fannie Mae and Freddie Mac, violated the separation of powers by having a single director who could only be removed by the President "for cause." The Court held that the FHFA director's removal protection was unconstitutional, but this did not affect the validity of the agency's previous actions. The Court sent the case back to the lower court to determine the appropriate remedy.

Separation of Powers

Medellín v. Texas

https://supreme.justia.com/cases/federal/us/552/491/

OPINION OF THE COURT MEDELLIN V. TEXAS 552 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-984 JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS on writ of certiorari to the court of criminal appeals of texas [March 25, 2008]    Chief Justice Roberts delivered the opinion of the Court.    The International Court of Justice (ICJ), located in the Hague, is a tribunal established pursuant to the United Nations Charter to adjudicate disputes between member states. In the Case Concerning Avena and Other Mexican Nationals ( Mex. v. U. S. ), 2004 I. C. J. 12 (Judgment of Mar. 31) ( Avena ), that tribunal considered a claim brought by Mexico against the United States. The ICJ held that, based on violations of the Vienna Convention, 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences in the United States. This was so regardless of any forfeiture of the right to raise Vienna Convention claims because of a failure to comply with generally applicable state rules governing challenges to criminal convictions.    In Sanchez-Llamas v. Oregon , 548 U. S. 331 (2006)—issued after Avena but involving individuals who were not named in the Avena judgment—we held that, contrary to the ICJ’s determination, the Vienna Convention did not preclude the application of state default rules. After the Avena decision, President George W. Bush determined, through a Memorandum to the Attorney General (Feb. 28, 2005), App. to Pet. for Cert. 187a (Memorandum or President’s Memorandum), that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision.”    Petitioner José Ernesto Medellín, who had been convicted and sentenced in Texas state court for murder, is one of the 51 Mexican nationals named in the Avena decision. Relying on the ICJ’s decision and the President’s Memorandum, Medellín filed an application for a writ of habeas corpus in state court. The Texas Court of Criminal Appeals dismissed Medellín’s application as an abuse of the writ under state law, given Medellín’s failure to raise his Vienna Convention claim in a timely manner under state law. We granted certiorari to decide two questions. First , is the ICJ’s judgment in Avena directly enforceable as domestic law in a state court in the United States? Second , does the President’s Memorandum independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules? We conclude that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. We therefore affirm the decision below. I A    In 1969, the United States, upon the advice and consent of the Senate, ratified the Vienna Convention on Consular Relations (Vienna Convention or Convention), Apr. 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (Optional Protocol or Protocol), Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S. No. 6820. The preamble to the Convention provides that its purpose is to “contribute to the development of friendly relations among nations.” 21 U. S. T., at 79; Sanchez-Llamas, supra , at 337. Toward that end, Article 36 of the Convention was drafted to “facilitat[e] the exercise of consular functions.” Art. 36(1), 21 U. S. T., at 100. It provides that if a person detained by a foreign country “so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” of such detention, and “inform the [detainee] of his righ[t]” to request assistance from the consul of his own state. Art. 36(1)(b), id. , at 101.    The Optional Protocol provides a venue for the resolution of disputes arising out of the interpretation or application of the Vienna Convention. Art. I, 21 U. S. T., at 326. Under the Protocol, such disputes “shall lie within the compulsory jurisdiction of the International Court of Justice” and “may accordingly be brought before the [ICJ] … by any party to the dispute being a Party to the present Protocol.” Ibid. The ICJ is “the principal judicial organ of the United Nations.” United Nations Charter, Art. 92, 59 Stat. 1051, T. S. No. 993 (1945). It was established in 1945 pursuant to the United Nations Charter. The ICJ Statute—annexed to the U. N. Charter—provides the organizational framework and governing procedures for cases brought before the ICJ. Statute of the International Court of Justice (ICJ Statute), 59 Stat. 1055, T. S. No. 993 (1945).    Under Article 94(1) of the U. N. Charter, “[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party.” 59 Stat. 1051. The ICJ’s jurisdiction in any particular case, however, is dependent upon the consent of the parties. See Art. 36, 59 Stat. 1060. The ICJ Statute delineates two ways in which a nation may consent to ICJ jurisdiction: It may consent generally to jurisdiction on any question arising under a treaty or general international law, Art. 36(2), ibid. , or it may consent specifically to jurisdiction over a particular category of cases or disputes pursuant to a separate treaty, Art. 36(1), ibid . The United States originally consented to the general jurisdiction of the ICJ when it filed a declaration recognizing compulsory jurisdiction under Art. 36(2) in 1946. The United States withdrew from general ICJ jurisdiction in 1985. See U. S. Dept. of State Letter and Statement Concerning Termination of Acceptance of ICJ Compulsory Jurisdiction (Oct. 7, 1985), reprinted in 24 I. L. M. 1742 (1985). By ratifying the Optional Protocol to the Vienna Convention, the United States consented to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention. On March 7, 2005, subsequent to the ICJ’s judgment in Avena , the United States gave notice of withdrawal from the Optional Protocol to the Vienna Convention. Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations. B    Petitioner José Ernesto Medellín, a Mexican national, has lived in the United States since preschool. A member of the “Black and Whites” gang, Medellín was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers.    On June 24, 1993, 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena were walking home when they encountered Medellín and several fellow gang members. Medellín attempted to engage Elizabeth in conversation. When she tried to run, petitioner threw her to the ground. Jennifer was grabbed by other gang members when she, in response to her friend’s cries, ran back to help. The gang members raped both girls for over an hour. Then, to prevent their victims from identifying them, Medellín and his fellow gang members murdered the girls and discarded their bodies in a wooded area. Medellín was personally responsible for strangling at least one of the girls with her own shoelace.    Medellín was arrested at approximately 4 a.m. on June 29, 1993. A few hours later, between 5:54 and 7:23 a.m., Medellín was given Miranda warnings; he then signed a written waiver and gave a detailed written confession. App. to Brief for Respondent 32–36. Local law enforcement officers did not, however, inform Medellín of his Vienna Convention right to notify the Mexican consulate of his detention. Brief for Petitioner 6–7. Medellín was convicted of capital murder and sentenced to death; his conviction and sentence were affirmed on appeal. Medellín v. State, No. 71,997 (Tex. Crim. App., May 16, 1997), App. to Brief for Respondent 2–31.    Medellín first raised his Vienna Convention claim in his first application for state postconviction relief. The state trial court held that the claim was procedurally defaulted because Medellín had failed to raise it at trial or on direct review. The trial court also rejected the Vienna Convention claim on the merits, finding that Medellín had “fail[ed] to show that any non-notification of the Mexican authorities impacted on the validity of his conviction or punishment.” Id., at 62.[ Footnote 1 ] The Texas Court of Criminal Appeals affirmed. Id. , at 64–65.    Medellín then filed a habeas petition in Federal District Court. The District Court denied relief, holding that Medellín’s Vienna Convention claim was procedurally defaulted and that Medellín had failed to show prejudice arising from the Vienna Convention violation. See Medellín v. Cockrell , Civ. Action No. H–01–4078 (SD Tex., June 26, 2003), App. to Brief for Respondent 86–92.    While Medellín’s application for a certificate of appealability was pending in the Fifth Circuit, the ICJ issued its decision in Avena . The ICJ held that the United States had violated Article 36(1)(b) of the Vienna Convention by failing to inform the 51 named Mexican nationals, including Medellín, of their Vienna Convention rights. 2004 I. C. J., at 53–55. In the ICJ’s determination, the United States was obligated “to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals.” Id. , at 72. The ICJ indicated that such review was required without regard to state procedural default rules. Id., at 56–57.    The Fifth Circuit denied a certificate of appealability. Medellín v. Dretke , 371 F. 3d 270, 281 (2004). The court concluded that the Vienna Convention did not confer individually enforceable rights. Id. , at 280. The court further ruled that it was in any event bound by this Court’s decision in Breard v. Greene , 523 U. S. 371 , 375 (1998) ( per curiam ), which held that Vienna Convention claims are subject to procedural default rules, rather than by the ICJ’s contrary decision in Avena . 371 F. 3d, at 280.    This Court granted certiorari. Medellín v. Dretke , 544 U. S. 660 , 661 (2005) ( per curiam ) ( Medellín I ). Before we heard oral argument, however, President George W. Bush issued his Memorandum to the United States Attorney General, providing: I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [ Avena ], by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision. App. to Pet. for Cert. 187a.    Medellín, relying on the President’s Memorandum and the ICJ’s decision in Avena , filed a second application for habeas relief in state court. Ex parte Medellín, 223 S. W. 3d 315, 322–323 (Tex. Crim. App. 2006). Because the state-court proceedings might have provided Medellín with the review and reconsideration he requested, and because his claim for federal relief might otherwise have been barred, we dismissed his petition for certiorari as improvidently granted. Medellín I , supra , at 664.    The Texas Court of Criminal Appeals subsequently dismissed Medellín’s second state habeas application as an abuse of the writ. 223 S. W. 3d, at 352. In the court’s view, neither the Avena decision nor the President’s Memorandum was “binding federal law” that could displace the State’s limitations on the filing of successive habeas applications. Ibid . We again granted certiorari. 550 U. S. ___ (2007). II    Medellín first contends that the ICJ’s judgment in Avena constitutes a “binding” obligation on the state and federal courts of the United States. He argues that “by virtue of the Supremacy Clause, the treaties requiring compliance with the Avena judgment are already the ‘Law of the Land’ by which all state and federal courts in this country are ‘bound.’ ” Reply Brief for Petitioner 1. Accordingly, Medellín argues, Avena is a binding federal rule of decision that pre-empts contrary state limitations on successive habeas petitions.    No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.    This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v. Neilson , 2 Pet. 253, 315 (1829), overruled on other grounds, United States v. Percheman , 7 Pet. 51 (1833), which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.” Foster, supra, at 314. When, in contrast, “[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Whitney v. Robertson , 124 U. S. 190 , 194 (1888). In sum, while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Igartúa-De La Rosa v. United States , 417 F. 3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).[ Footnote 2 ]    A treaty is, of course, “primarily a compact between independent nations.” Head Money Cases , 112 U. S. 580 , 598 (1884). It ordinarily “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” Ibid .; see also The Federalist No. 33, p. 207 (J. Cooke ed. 1961) (A. Hamilton) (comparing laws that individuals are “bound to observe” as “the supreme law of the land” with “a mere treaty, dependent on the good faith of the parties”). “If these [interests] fail, its infraction becomes the subject of international negotiations and reclamations … . It is obvious that with all this the judicial courts have nothing to do and can give no redress.” Head Money Cases, supra, at 598. Only “[i]f the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, [will] they have the force and effect of a legislative enactment.” Whitney , supra , at 194.[ Footnote 3 ]    Medellín and his amici nonetheless contend that the Optional Protocol, United Nations Charter, and ICJ Statute supply the “relevant obligation” to give the Avena judgment binding effect in the domestic courts of the United States. Reply Brief for Petitioner 5–6.[ Footnote 4 ] Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law. A    The interpretation of a treaty, like the interpretation of a statute, begins with its text. Air France v. Saks , 470 U. S. 392 , 396–397 (1985). Because a treaty ratified by the United States is “an agreement among sovereign powers,” we have also considered as “aids to its interpretation” the negotiation and drafting history of the treaty as well as “the postratification understanding” of signatory nations. Zicherman v. Korean Air Lines Co., 516 U. S. 217 , 226 (1996); see also United States v. Stuart , 489 U. S. 353 , 365–366 (1989); Choctaw Nation v. United States , 318 U. S. 423 , 431–432 (1943).    As a signatory to the Optional Protocol, the United States agreed to submit disputes arising out of the Vienna Convention to the ICJ. The Protocol provides: “Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice.” Art. I, 21 U. S. T., at 326. Of course, submitting to jurisdiction and agreeing to be bound are two different things. A party could, for example, agree to compulsory nonbinding arbitration. Such an agreement would require the party to appear before the arbitral tribunal without obligating the party to treat the tribunal’s decision as binding. See, e.g. , North American Free Trade Agreement, U. S.-Can.-Mex., Art. 2018(1), Dec. 17, 1992, 32 I. L. M. 605, 697 (1993) (“On receipt of the final report of [the arbitral panel requested by a Party to the agreement], the disputing Parties shall agree on the resolution of the dispute, which normally shall conform with the determinations and recommendations of the panel”).    The most natural reading of the Optional Protocol is as a bare grant of jurisdiction. It provides only that “[d]isputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice” and “may accordingly be brought before the [ICJ] . . . by any party to the dispute being a Party to the present Protocol.” Art. I, 21 U. S. T., at 326. The Protocol says nothing about the effect of an ICJ decision and does not itself commit signatories to comply with an ICJ judgment. The Protocol is similarly silent as to any enforcement mechanism.    The obligation on the part of signatory nations to comply with ICJ judgments derives not from the Optional Protocol, but rather from Article 94 of the United Nations Charter—the provision that specifically addresses the effect of ICJ decisions. Article 94(1) provides that “[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party.” 59 Stat. 1051 (emphasis added). The Executive Branch contends that the phrase “undertakes to comply” is not “an acknowledgement that an ICJ decision will have immediate legal effect in the courts of U. N. members,” but rather “a commitment on the part of U. N. Members to take future action through their political branches to comply with an ICJ decision.” Brief for United States as Amicus Curiae in Medellín I , O. T. 2004, No. 04–5928, p. 34.    We agree with this construction of Article 94. The Article is not a directive to domestic courts. It does not provide that the United States “shall” or “must” comply with an ICJ decision, nor indicate that the Senate that ratified the U. N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, “[t]he words of Article 94 . . . call upon governments to take certain action.” Committee of United States Citizens Living in Nicaragua v. Reagan , 859 F. 2d 929, 938 (CADC 1988) (quoting Diggs v. Richardson , 555 F. 2d 848, 851 (CADC 1976); internal quotation marks omitted). See also Foster , 2 Pet., at 314, 315 (holding a treaty non-self-executing because its text—“ ‘all . . . grants of land . . . shall be ratified and confirmed’ ”—did not “act directly on the grants” but rather “pledge[d] the faith of the United States to pass acts which shall ratify and confirm them”). In other words, the U. N. Charter reads like “a compact between independent nations” that “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” Head Money Cases , 112 U. S., at 598.[ Footnote 5 ]    The remainder of Article 94 confirms that the U. N. Charter does not contemplate the automatic enforceability of ICJ decisions in domestic courts.[ Footnote 6 ] Article 94(2)—the enforcement provision—provides the sole remedy for noncompliance: referral to the United Nations Security Council by an aggrieved state. 59 Stat. 1051.    The U. N. Charter’s provision of an express diplomatic—that is, nonjudicial—remedy is itself evidence that ICJ judgments were not meant to be enforceable in domestic courts. See Sanchez - Llamas, 548 U. S., at 347. And even this “quintessentially international remed[y],” id ., at 355, is not absolute. First, the Security Council must “dee[m] necessary” the issuance of a recommendation or measure to effectuate the judgment. Art. 94(2), 59 Stat. 1051. Second, as the President and Senate were undoubtedly aware in subscribing to the U. N. Charter and Optional Protocol, the United States retained the unqualified right to exercise its veto of any Security Council resolution.    This was the understanding of the Executive Branch when the President agreed to the U. N. Charter and the declaration accepting general compulsory ICJ jurisdiction. See, e.g. , The Charter of the United Nations for the Maintenance of International Peace and Security: Hearings before the Senate Committee on Foreign Relations, 79th Cong., 1st Sess., 124–125 (1945) (“[I]f a state fails to perform its obligations under a judgment of the [ICJ], the other party may have recourse to the Security Council”); id. , at 286 (statement of Leo Paslovsky, Special Assistant to the Secretary of State for International Organizations and Security Affairs) (“[W]hen the Court has rendered a judgment and one of the parties refuses to accept it, then the dispute becomes political rather than legal. It is as a political dispute that the matter is referred to the Security Council”); A Resolution Proposing Acceptance of Compulsory Jurisdiction of International Court of Justice: Hearings on S. Res. 196 before the Subcommittee of the Senate Committee on Foreign Relations, 79th Cong., 2d Sess., 142 (1946) (statement of Charles Fahy, State Dept. Legal Adviser) (while parties that accept ICJ jurisdiction have “a moral obligation” to comply with ICJ decisions, Article 94(2) provides the exclusive means of enforcement).    If ICJ judgments were instead regarded as automatically enforceable domestic law, they would be immediately and directly binding on state and federal courts pursuant to the Supremacy Clause. Mexico or the ICJ would have no need to proceed to the Security Council to enforce the judgment in this case. Noncompliance with an ICJ judgment through exercise of the Security Council veto—always regarded as an option by the Executive and ratifying Senate during and after consideration of the U. N. Charter, Optional Protocol, and ICJ Statute—would no longer be a viable alternative. There would be nothing to veto. In light of the U. N. Charter’s remedial scheme, there is no reason to believe that the President and Senate signed up for such a result.    In sum, Medellín’s view that ICJ decisions are automatically enforceable as domestic law is fatally undermined by the enforcement structure established by Article 94. His construction would eliminate the option of noncompliance contemplated by Article 94(2), undermining the ability of the political branches to determine whether and how to comply with an ICJ judgment. Those sensitive foreign policy decisions would instead be transferred to state and federal courts charged with applying an ICJ judgment directly as domestic law. And those courts would not be empowered to decide whether to comply with the judgment—again, always regarded as an option by the political branches—any more than courts may consider whether to comply with any other species of domestic law. This result would be particularly anomalous in light of the principle that “[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative—‘the political’—Departments.” Oetjen v. Central Leather Co. , 246 U. S. 297 , 302 (1918).    The ICJ Statute, incorporated into the U. N. Charter, provides further evidence that the ICJ’s judgment in Avena does not automatically constitute federal law judicially enforceable in United States courts. Art. 59, 59 Stat. 1062. To begin with, the ICJ’s “principal purpose” is said to be to “arbitrate particular disputes between national governments.” Sanchez-Llamas, supra , at 355 (citing 59 Stat. 1055). Accordingly, the ICJ can hear disputes only between nations, not individuals. Art. 34(1), 59 Stat. 1059 (“Only states [ i.e., countries] may be parties in cases before the [ICJ]”). More important, Article 59 of the statute provides that “[t]he decision of the [ICJ] has no binding force except between the parties and in respect of that particular case.” Id., at 1062 (emphasis added).[ Footnote 7 ] The dissent does not explain how Medellín, an individual, can be a party to the ICJ proceeding.    Medellín argues that because the Avena case involves him, it is clear that he—and the 50 other Mexican nationals named in the Avena decision—should be regarded as parties to the Avena judgment. Brief for Petitioner 21–22. But cases before the ICJ are often precipitated by disputes involving particular persons or entities, disputes that a nation elects to take up as its own. See, e.g. , Case Concerning the Barcelona Traction, Light & Power Co. ( Belg. v. Spain ), 1970 I. C. J. 3 (Judgment of Feb. 5) (claim brought by Belgium on behalf of Belgian nationals and shareholders); Case Concerning the Protection of French Nationals and Protected Persons in Egypt ( Fr. v. Egypt ), 1950 I. C. J. 59 (Order of Mar. 29) (claim brought by France on behalf of French nationals and protected persons in Egypt); Anglo-Iranian Oil Co. Case ( U. K. v. Iran ), 1952 I. C. J. 93, 112 (Judgment of July 22) (claim brought by the United Kingdom on behalf of the Anglo-Iranian Oil Company). That has never been understood to alter the express and established rules that only nation-states may be parties before the ICJ, Art. 34, 59 Stat. 1059, and—contrary to the position of the dissent, post , at 23—that ICJ judgments are binding only between those parties, Art. 59, id., at 1062.[ Footnote 8 ]    It is, moreover, well settled that the United States’ interpretation of a treaty “is entitled to great weight.” Sumitomo Shoji America, Inc. v. Avagliano , 457 U. S. 176 , 184–185 (1982); see also El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng , 525 U. S. 155 , 168 (1999). The Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law. See Brief for United States as Amicus Curiae 4, 27–29.[ Footnote 9 ]    The pertinent international agreements, therefore, do not provide for implementation of ICJ judgments through direct enforcement in domestic courts, and “where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own.” Sanchez - Llamas , 548 U. S., at 347. B    The dissent faults our analysis because it “looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language).” Post, at 26. Given our obligation to interpret treaty provisions to determine whether they are self-executing, we have to confess that we do think it rather important to look to the treaty language to see what it has to say about the issue. That is after all what the Senate looks to in deciding whether to approve the treaty.    The interpretive approach employed by the Court today—resorting to the text—is hardly novel. In two early cases involving an 1819 land-grant treaty between Spain and the United States, Chief Justice Marshall found the language of the treaty dispositive. In Foster , after distinguishing between self-executing treaties (those “equivalent to an act of the legislature”) and non-self-executing treaties (those “the legislature must execute”), Chief Justice Marshall held that the 1819 treaty was non-self-executing. 2 Pet., at 314. Four years later, the Supreme Court considered another claim under the same treaty, but concluded that the treaty was self-executing. See Percheman , 7 Pet., at 87. The reason was not because the treaty was sometimes self-executing and sometimes not, but because “the language of” the Spanish translation (brought to the Court’s attention for the first time) indicated the parties’ intent to ratify and confirm the land-grant “by force of the instrument itself.” Id., at 89.    As against this time-honored textual approach, the dissent proposes a multifactor, judgment-by-judgment analysis that would “jettiso[n] relative predictability for the open-ended rough-and-tumble of factors.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U. S. 527 , 547 (1995). The dissent’s novel approach to deciding which (or, more accurately, when) treaties give rise to directly enforceable federal law is arrestingly indeterminate. Treaty language is barely probative. Post, at 12–13 (“[T]he absence or presence of language in a treaty about a provision’s self-execution proves nothing at all”). Determining whether treaties themselves create federal law is sometimes committed to the political branches and sometimes to the judiciary. Post , at 13. Of those committed to the judiciary, the courts pick and choose which shall be binding United States law—trumping not only state but other federal law as well—and which shall not. Post, at 13–27. They do this on the basis of a multifactor, “context-specific” inquiry. Post , at 13. Even then, the same treaty sometimes gives rise to United States law and sometimes does not, again depending on an ad hoc judicial assessment. Post, at 13–27.    Our Framers established a careful set of procedures that must be followed before federal law can be created under the Constitution—vesting that decision in the political branches, subject to checks and balances. U. S. Const., Art. I, §7. They also recognized that treaties could create federal law, but again through the political branches, with the President making the treaty and the Senate approving it. Art. II, §2. The dissent’s understanding of the treaty route, depending on an ad hoc judgment of the judiciary without looking to the treaty language—the very language negotiated by the President and approved by the Senate—cannot readily be ascribed to those same Framers.    The dissent’s approach risks the United States’ involvement in international agreements. It is hard to believe that the United States would enter into treaties that are sometimes enforceable and sometimes not. Such a treaty would be the equivalent of writing a blank check to the judiciary. Senators could never be quite sure what the treaties on which they were voting meant. Only a judge could say for sure and only at some future date. This uncertainty could hobble the United States’ efforts to negotiate and sign international agreements.    In this case, the dissent—for a grab bag of no less than seven reasons—would tell us that this particular ICJ judgment is federal law. Post , at 13–27. That is no sort of guidance.    Nor is it any answer to say that the federal courts will diligently police international agreements and enforce the decisions of international tribunals only when they should be enforced. Ibid . The point of a non-self-executing treaty is that it “addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.” Foster , supra , at 314 (emphasis added); Whitney , 124 U. S., at 195. See also Foster , supra , at 307 (“The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided”). The dissent’s contrary approach would assign to the courts—not the political branches—the primary role in deciding when and how international agreements will be enforced. To read a treaty so that it sometimes has the effect of domestic law and sometimes does not is tantamount to vesting with the judiciary the power not only to interpret but also to create the law. C    Our conclusion that Avena does not by itself constitute binding federal law is confirmed by the “postratification understanding” of signatory nations. See Zicherman , 516 U. S., at 226. There are currently 47 nations that are parties to the Optional Protocol and 171 nations that are parties to the Vienna Convention. Yet neither Medellín nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts.[ Footnote 10 ] In determining that the Vienna Convention did not require certain relief in United States courts in Sanchez-Llamas , we found it pertinent that the requested relief would not be available under the treaty in any other signatory country. See 548 U. S., at 343–344, and n. 3. So too here the lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts.    Our conclusion is further supported by general principles of interpretation. To begin with, we reiterated in Sanchez - Llamas what we held in Breard , that “ ‘absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State.’ ” 548 U. S., at 351 (quoting Breard , 523 U. S., at 375). Given that ICJ judgments may interfere with state procedural rules, one would expect the ratifying parties to the relevant treaties to have clearly stated their intent to give those judgments domestic effect, if they had so intended. Here there is no statement in the Optional Protocol, the U. N. Charter, or the ICJ Statute that supports the notion that ICJ judgments displace state procedural rules.    Moreover, the consequences of Medellín’s argument give pause. An ICJ judgment, the argument goes, is not only binding domestic law but is also unassailable. As a result, neither Texas nor this Court may look behind a judgment and quarrel with its reasoning or result. (We already know, from Sanchez-Llamas , that this Court disagrees with both the reasoning and result in Avena .) Medellín’s interpretation would allow ICJ judgments to override otherwise binding state law; there is nothing in his logic that would exempt contrary federal law from the same fate. See, e.g. , Cook v. United States , 288 U. S. 102 , 119 (1933) (later-in-time self-executing treaty supersedes a federal statue if there is a conflict). And there is nothing to prevent the ICJ from ordering state courts to annul criminal convictions and sentences, for any reason deemed sufficient by the ICJ. Indeed, that is precisely the relief Mexico requested. Avena, 2004 I. C. J., at 58–59.    Even the dissent flinches at reading the relevant treaties to give rise to self-executing ICJ judgments in all cases. It admits that “Congress is unlikely to authorize automatic judicial enforceability of all ICJ judgments, for that could include some politically sensitive judgments and others better suited for enforcement by other branches.” Post, at 24. Our point precisely. But the lesson to draw from that insight is hardly that the judiciary should decide which judgments are politically sensitive and which are not.    In short, and as we observed in Sanchez-Llamas , “[n]othing in the structure or purpose of the ICJ suggests that its interpretations were intended to be conclusive on our courts.” 548 U. S., at 354. Given that holding, it is difficult to see how that same structure and purpose can establish, as Medellín argues, that judgments of the ICJ nonetheless were intended to be conclusive on our courts. A judgment is binding only if there is a rule of law that makes it so. And the question whether ICJ judgments can bind domestic courts depends upon the same analysis undertaken in Sanchez-Llamas and set forth above.    Our prior decisions identified by the dissent as holding a number of treaties to be self-executing, see post, at 8–9, Appendix A, stand only for the unremarkable proposition that some international agreements are self-executing and others are not.  It is well settled that the “[i]nterpretation of [a treaty] . . . must, of course, begin with the language of the Treaty itself.” Sumitomo Shoji America, Inc., 457 U. S., at 180. As a result, we have held treaties to be self-executing when the textual provisions indicate that the President and Senate intended for the agreement to have domestic effect.    Medellín and the dissent cite Comegys v. Vasse , 1 Pet. 193 (1828), for the proposition that the judgments of international tribunals are automatically binding on domestic courts. See post, at 9; Reply Brief for Petitioner 2; Brief for Petitioner 19–20. That case, of course, involved a different treaty than the ones at issue here; it stands only for the modest principle that the terms of a treaty control the outcome of a case.[ Footnote 11 ] We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments—only that the U. N. Charter, the Optional Protocol, and the ICJ Statute do not do so. And whether the treaties underlying a judgment are self-executing so that the judgment is directly enforceable as domestic law in our courts is, of course, a matter for this Court to decide. See Sanchez-Llamas , supra , at 353–354. D    Our holding does not call into question the ordinary enforcement of foreign judgments or international arbitral agreements. Indeed, we agree with Medellín that, as a general matter, “an agreement to abide by the result” of an international adjudication—or what he really means, an agreement to give the result of such adjudication domestic legal effect—can be a treaty obligation like any other, so long as the agreement is consistent with the Constitution. See Brief for Petitioner 20. The point is that the particular treaty obligations on which Medellín relies do not of their own force create domestic law.    The dissent worries that our decision casts doubt on some 70-odd treaties under which the United States has agreed to submit disputes to the ICJ according to “roughly similar” provisions. See post, at 4, 16–17. Again, under our established precedent, some treaties are self-executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.” See post , at 17; cf. post , at 11 (describing the British system in which treaties “virtually always requir[e] parliamentary legislation”). Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. See Head Money Cases , 112 U. S., at 598. And Congress could elect to give them wholesale effect (rather than the judgment-by-judgment approach hypothesized by the dissent, post , at 24) through implementing legislation, as it regularly has. See, e.g., Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105–277, div. G, §2242, 112 Stat. 2681–822, note following 8 U. S. C. §1231 (directing the “appropriate agencies” to “prescribe regulations to implement the obligations of the United States under Article 3” of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment); see also infra , at 25–26 (listing examples of legislation implementing international obligations).    Further, that an ICJ judgment may not be automatically enforceable in domestic courts does not mean the particular underlying treaty is not. Indeed, we have held that a number of the “Friendship, Commerce, and Navigation” Treaties cited by the dissent, see post, Appendix B, are self-executing—based on “the language of the[se] Treat[ies].” See Sumitomo Shoji America, Inc., supra , at 180, 189–190. In Kolovrat v. Oregon , 366 U. S. 187 , 191, 196 (1961), for example, the Court found that Yugoslavian claimants denied inheritance under Oregon law were entitled to inherit personal property pursuant to an 1881 Treaty of Friendship, Navigation, and Commerce between the United States and Serbia. See also Clark v. Allen , 331 U. S. 503 , 507–511, 517–518 (1947) (finding that the right to inherit real property granted German aliens under the Treaty of Friendship, Commerce, and Consular Rights with Germany prevailed over California law). Contrary to the dissent’s suggestion, see post , at 11, neither our approach nor our cases require that a treaty provide for self-execution in so many talismanic words; that is a caricature of the Court’s opinion. Our cases simply require courts to decide whether a treaty’s terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.    In addition, Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes. Cf. post, at 24 (Breyer, J., dissenting). The judgments of a number of international tribunals enjoy a different status because of implementing legislation enacted by Congress. See, e.g. , 22 U. S. C. §1650a(a) (“An award of an arbitral tribunal rendered pursuant to chapter IV of the [Convention on the Settlement of Investment Disputes] shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States”); 9 U. S.C. §§201–208 (“The [U. N.] Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United States courts in accordance with this chapter,” §201). Such language demonstrates that Congress knows how to accord domestic effect to international obligations when it desires such a result.[ Footnote 12 ]    Further, Medellín frames his argument as though giving the Avena judgment binding effect in domestic courts simply conforms to the proposition that domestic courts generally give effect to foreign judgments. But Medellín does not ask us to enforce a foreign-court judgment settling a typical commercial or property dispute. See, e.g. , Hilton v. Guyot , 159 U. S. 113 (1895); United States v. Arredondo , 6 Pet. 691 (1832); see also Uniform Foreign Money-Judgments Recognition Act §1(2), 13 U. L. A., pt. 2, p. 44 (2002) (“ ‘[F]oreign judgment’ means any judgment of a foreign state granting or denying recovery of a sum of money”). Rather, Medellín argues that the Avena judgment has the effect of enjoining the operation of state law. What is more, on Medellín’s view, the judgment would force the State to take action to “review and reconside[r]” his case. The general rule, however, is that judgments of foreign courts awarding injunctive relief, even as to private parties, let alone sovereign States, “are not generally entitled to enforcement.” See 2 Restatement §481, Comment b, at 595.    In sum, while the ICJ’s judgment in Avena creates an international law obligation on the part of the United States, it does not of its own force constitute binding federal law that pre-empts state restrictions on the filing of successive habeas petitions. As we noted in Sanchez-Llamas , a contrary conclusion would be extraordinary, given that basic rights guaranteed by our own Constitution do not have the effect of displacing state procedural rules. See 548 U. S., at 360. Nothing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of an international tribunal a higher status than that enjoyed by “many of our most fundamental constitutional protections.” Ibid. III Medellín next argues that the ICJ’s judgment in Avena is binding on state courts by virtue of the President’s February 28, 2005 Memorandum. The United States contends that while the Avena judgment does not of its own force require domestic courts to set aside ordinary rules of procedural default, that judgment became the law of the land with precisely that effect pursuant to the President’s Memorandum and his power “to establish binding rules of decision that preempt contrary state law.” Brief for United States as Amicus Curiae 5. Accordingly, we must decide whether the President’s declaration alters our conclusion that the Avena judgment is not a rule of domestic law binding in state and federal courts.[ Footnote 13 ] A    The United States maintains that the President’s constitutional role “uniquely qualifies” him to resolve the sensitive foreign policy decisions that bear on compliance with an ICJ decision and “to do so expeditiously.” Brief for United States as Amicus Curiae 11, 12. We do not question these propositions. See, e.g. , First Nat. City Bank v. Banco Nacional de Cuba , 406 U. S. 759 , 767 (1972) (plurality opinion) (The President has “the lead role . . . in foreign policy”); American Ins. Assn. v. Garamendi , 539 U. S. 396 , 414 (2003) (Article II of the Constitution places with the President the “ ‘vast share of responsibility for the conduct of our foreign relations’ ” (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579 , 610–611 (1952) (Frankfurter, J., concurring)). In this case, the President seeks to vindicate United States interests in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. These interests are plainly compelling.    Such considerations, however, do not allow us to set aside first principles. The President’s authority to act, as with the exercise of any governmental power, “must stem either from an act of Congress or from the Constitution itself.” Youngstown, supra, at 585; Dames & Moore v. Regan , 453 U. S. 654 , 668 (1981).    Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action in this area. First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown , 343 U. S., at 635 (Jackson, J., concurring). Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Id ., at 637. In this circumstance, Presidential authority can derive support from “congressional inertia, indifference or quiescence.” Ibid . Finally, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.” Id. , at 637–638. B    The United States marshals two principal arguments in favor of the President’s authority “to establish binding rules of decision that preempt contrary state law.” Brief for United States as Amicus Curiae 5. The Solicitor General first argues that the relevant treaties give the President the authority to implement the Avena judgment and that Congress has acquiesced in the exercise of such authority. The United States also relies upon an “independent” international dispute-resolution power wholly apart from the asserted authority based on the pertinent treaties. Medellín adds the additional argument that the President’s Memorandum is a valid exercise of his power to take care that the laws be faithfully executed. 1    The United States maintains that the President’s Memorandum is authorized by the Optional Protocol and the U. N. Charter. Brief for United States as Amicus Curiae 9. That is, because the relevant treaties “create an obligation to comply with Avena ,” they “ implicitly give the President authority to implement that treaty-based obligation.” Id. , at 11 (emphasis added). As a result, the President’s Memorandum is well grounded in the first category of the Youngstown framework.    We disagree. The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. Foster , 2 Pet., at 315; Whitney , 124 U. S., at 194; Igartúa-De La Rosa , 417 F. 3d, at 150. As this Court has explained, when treaty stipulations are “not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Whitney, supra , at 194. Moreover, “[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.” Foster, supra , at 315.    The requirement that Congress, rather than the President, implement a non-self-executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. The Constitution vests the President with the authority to “make” a treaty. Art. II, §2. If the Executive determines that a treaty should have domestic effect of its own force, that determination may be implemented “in mak[ing]” the treaty, by ensuring that it contains language plainly providing for domestic enforceability. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote, ibid., consistent with all other constitutional restraints.    Once a treaty is ratified without provisions clearly according it domestic effect, however, whether the treaty will ever have such effect is governed by the fundamental constitutional principle that “ ‘[t]he power to make the necessary laws is in Congress; the power to execute in the President.’ ” Hamdan v. Rumsfeld , 548 U. S. 557 , 591 (2006) (quoting Ex parte Milligan , 4 Wall. 2, 139 (1866) (opinion of Chase, C. J.)); see U. S. Const., Art. I, §1 (“All legislative Powers herein granted shall be vested in a Congress of the United States”). As already noted, the terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto. See Art. I, §7. Indeed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Youngstown , 343 U. S., at 587.    A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President—acting on his own—to achieve precisely the same result. We therefore conclude, given the absence of congressional legislation, that the non-self-executing treaties at issue here did not “express[ly] or implied[ly]” vest the President with the unilateral authority to make them self-executing. See id., at 635 (Jackson, J., concurring). Accordingly, the President’s Memorandum does not fall within the first category of the Youngstown framework.    Indeed, the preceding discussion should make clear that the non-self-executing character of the relevant treaties not only refutes the notion that the ratifying parties vested the President with the authority to unilaterally make treaty obligations binding on domestic courts, but also implicitly prohibits him from doing so. When the President asserts the power to “enforce” a non-self-executing treaty by unilaterally creating domestic law, he acts in conflict with the implicit understanding of the ratifying Senate. His assertion of authority, insofar as it is based on the pertinent non-self-executing treaties, is therefore within Justice Jackson’s third category, not the first or even the second. See id., at 637–638.    Each of the two means described above for giving domestic effect to an international treaty obligation under the Constitution—for making law—requires joint action by the Executive and Legislative Branches: The Senate can ratify a self-executing treaty “ma[de]” by the Executive, or, if the ratified treaty is not self-executing, Congress can enact implementing legislation approved by the President. It should not be surprising that our Constitution does not contemplate vesting such power in the Executive alone. As Madison explained in The Federalist No. 47, under our constitutional system of checks and balances, “[t]he magistrate in whom the whole executive power resides cannot of himself make a law.” J. Cooke ed., p. 326 (1961). That would, however, seem an apt description of the asserted executive authority unilaterally to give the effect of domestic law to obligations under a non-self-executing treaty. The United States nonetheless maintains that the President’s Memorandum should be given effect as domestic law because “this case involves a valid Presidential action in the context of Congressional ‘acquiescence’.” Brief for United States as Amicus Curiae 11, n. 2. Under the Youngstown tripartite framework, congressional acquiescence is pertinent when the President’s action falls within the second category—that is, when he “acts in absence of either a congressional grant or denial of authority.” 343 U. S., at 637 (Jackson, J., concurring). Here, however, as we have explained, the President’s effort to accord domestic effect to the Avena judgment does not meet that prerequisite. In any event, even if we were persuaded that congressional acquiescence could support the President’s asserted authority to create domestic law pursuant to a non-self-executing treaty, such acquiescence does not exist here. The United States first locates congressional acquiescence in Congress’s failure to act following the President’s resolution of prior ICJ controversies. A review of the Executive’s actions in those prior cases, however, cannot support the claim that Congress acquiesced in this particular exercise of Presidential authority, for none of them remotely involved transforming an international obligation into domestic law and thereby displacing state law.[ Footnote 14 ] The United States also directs us to the President’s “related” statutory responsibilities and to his “established role” in litigating foreign policy concerns as support for the President’s asserted authority to give the ICJ’s decision in Avena the force of domestic law. Brief for United States as Amicus Curiae 16–19. Congress has indeed authorized the President to represent the United States before the United Nations, the ICJ, and the Security Council, 22 U. S. C. §287, but the authority of the President to represent the United States before such bodies speaks to the President’s international responsibilities, not any unilateral authority to create domestic law. The authority expressly conferred by Congress in the international realm cannot be said to “invite” the Presidential action at issue here. See Youngstown, supra , at 637 (Jackson, J., concurring). At bottom, none of the sources of authority identified by the United States supports the President’s claim that Congress has acquiesced in his asserted power to establish on his own federal law or to override state law. None of this is to say, however, that the combination of a non-self-executing treaty and the lack of implementing legislation precludes the President from acting to comply with an international treaty obligation. It is only to say that the Executive cannot unilaterally execute a non-self-executing treaty by giving it domestic effect. That is, the non-self-executing character of a treaty constrains the President’s ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts. The President may comply with the treaty’s obligations by some other means, so long as they are consistent with the Constitution. But he may not rely upon a non-self-executing treaty to “establish binding rules of decision that preempt contrary state law.” Brief for United States as Amicus Curiae 5. 2 We thus turn to the United States’ claim that—independent of the United States’ treaty obligations—the Memorandum is a valid exercise of the President’s foreign affairs authority to resolve claims disputes with foreign nations. Id. , at 12–16. The United States relies on a series of cases in which this Court has upheld the authority of the President to settle foreign claims pursuant to an executive agreement. See Garamendi , 539 U. S., at 415; Dames & Moore , 453 U. S., at 679–680; United States v. Pink , 315 U. S. 203 , 229 (1942); United States v. Belmont , 301 U. S. 324 , 330 (1937). In these cases this Court has explained that, if pervasive enough, a history of congressional acquiescence can be treated as a “gloss on ‘Executive Power’ vested in the President by §1 of Art. II.” Dames & Moore , supra, at 686 (some internal quotation marks omitted). This argument is of a different nature than the one rejected above. Rather than relying on the United States’ treaty obligations, the President relies on an independent source of authority in ordering Texas to put aside its procedural bar to successive habeas petitions. Nevertheless, we find that our claims-settlement cases do not support the authority that the President asserts in this case. The claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. See, e.g. , Belmont, supra , at 327. They are based on the view that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” can “raise a presumption that the [action] had been [taken] in pursuance of its consent.” Dames & Moore, supra , at 686 (some internal quotation marks omitted). As this Court explained in Garamendi , Making executive agreements to settle claims of American nationals against foreign governments is a particularly longstanding practice … . Given the fact that the practice goes back over 200 years, and has received congressional acquiescence throughout its history, the conclusion that the President’s control of foreign relations includes the settlement of claims is indisputable. 539 U. S., at 415 (internal quotation marks and brackets omitted). Even still, the limitations on this source of executive power are clearly set forth and the Court has been careful to note that “[p]ast practice does not, by itself, create power.” Dames & Moore, supra, at 686. The President’s Memorandum is not supported by a “particularly longstanding practice” of congressional acquiescence, see Garamendi, supra, at 415, but rather is what the United States itself has described as “unprecedented action,” Brief for United States as Amicus Curiae in Sanchez-Llamas , O. T. 2005, Nos. 05–51 and 04–10566, pp. 29–30. Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws. Cf. Brecht v. Abrahamson , 507 U. S. 619 , 635 (1993) (“States possess primary authority for defining and enforcing the criminal law” (quoting Engle v. Isaac , 456 U. S. 107 , 128 (1982); internal quotation marks omitted). The Executive’s narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current Presidential Memorandum. 3 Medellín argues that the President’s Memorandum is a valid exercise of his “Take Care” power. Brief for Petitioner 28. The United States, however, does not rely upon the President’s responsibility to “take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §3. We think this a wise concession. This authority allows the President to execute the laws, not make them. For the reasons we have stated, the Avena judgment is not domestic law; accordingly, the President cannot rely on his Take Care powers here. The judgment of the Texas Court of Criminal Appeals is affirmed. It is so ordered. Footnote 1 The requirement of Article 36(1)(b) of the Vienna Convention that the detaining state notify the detainee’s consulate “without delay” is satisfied, according to the ICJ, where notice is provided within three working days. Avena , 2004 I. C. J. 12, 52, ¶97 (Judgment of Mar. 31). See Sanchez-Llamas v. Oregon , 548 U. S. 331 , 362 (2006) (Ginsburg, J., concurring in judgment). Here, Medellín confessed within three hours of his arrest—before there could be a violation of his Vienna Convention right to consulate notification. App. to Brief for Respondent 32–36. In a second state habeas application, Medellín sought to expand his claim of prejudice by contending that the State’s noncompliance with the Vienna Convention deprived him of assistance in developing mitigation evidence during the capital phase of his trial. This argument, however, was likely waived: Medellín had the assistance of consulate counsel during the preparation of his first application for state postconviction relief, yet failed to raise this argument at that time. See Application for Writ of Habeas Corpus in Ex parte Medellín , No. 675430–A (Tex. Crim. App.), pp. 25–31. In light of our disposition of this case, we need not consider whether Medellín was prejudiced in any way by the violation of his Vienna Convention rights. Footnote 2 The label “self-executing” has on occasion been used to convey different meanings. What we mean by “self-executing” is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress. Footnote 3 Even when treaties are self-executing in the sense that they create federal law, the background presumption is that “[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.” 2 Restatement (Third) of Foreign Relations Law of the United States §907, Comment a, p. 395 (1986) (hereinafter Restatement). Accordingly, a number of the Courts of Appeals have presumed that treaties do not create privately enforceable rights in the absence of express language to the contrary. See, e.g. , United States v. Emuegbunam , 268 F. 3d 377, 389 (CA6 2001); United States v. Jimenez-Nava , 243 F. 3d 192, 195 (CA5 2001); United States v. Li , 206 F. 3d 56, 60–61 (CA1 2000) (en banc); Goldstar (Panama) S. A. v. United States , 967 F. 2d 965, 968 (CA4 1992); Canadian Transp. Co. v. United States , 663 F. 2d 1081, 1092 (CADC 1980); Mannington Mills, Inc. v. Congoleum Corp. , 595 F. 2d 1287, 1298 (CA3 1979). Footnote 4 The question is whether the Avena judgment has binding effect in domestic courts under the Optional Protocol, ICJ Statute, and U. N. Charter. Consequently, it is unnecessary to resolve whether the Vienna Convention is itself “self-executing” or whether it grants Medellín individually enforceable rights. See Reply Brief for Petitioner 5 (disclaiming reliance on the Vienna Convention). As in Sanchez-Llamas, 548 U. S., at 342–343, we thus assume, without deciding, that Article 36 grants foreign nationals “an individually enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification.” Footnote 5 We do not read “undertakes” to mean that “ ‘ “[t]he United States . . . shall be at liberty to make respecting th[e] matter, such laws as they think proper.” ’ ” Post , at 17–18 (Breyer, J., dissenting) (quoting Todok v. Union State Bank of Harvard , 281 U. S. 449 , 453, 454 (1930) (holding that a treaty with Norway did not “operat[e] to override the law of [Nebraska] as to the disposition of homestead property”)). Whether or not the United States “undertakes” to comply with a treaty says nothing about what laws it may enact. The United States is always “at liberty to make . . . such laws as [it] think[s] proper.” Id., at 453. Indeed, a later-in-time federal statute supersedes inconsistent treaty provisions. See, e.g ., Cook v. United States , 288 U. S. 102 , 119–120 (1933). Rather, the “undertakes to comply” language confirms that further action to give effect to an ICJ judgment was contemplated, contrary to the dissent’s position that such judgments constitute directly enforceable federal law, without more. See also post , at 1–3 (Stevens, J., concurring in judgment). Footnote 6 Article 94(2) provides in full: “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” 59 Stat. 1051. Footnote 7 Medellín alters this language in his brief to provide that the ICJ Statute makes the Avena judgment binding “in respect of [his] particular case.” Brief for Petitioner 22 (internal quotation marks omitted). Medellín does not and cannot have a case before the ICJ under the terms of the ICJ Statute. Footnote 8 The dissent concludes that the ICJ judgment is binding federal law based in large part on its belief that the Vienna Convention overrides contrary state procedural rules. See post , at 19–20, 20–21, 23. But not even Medellín relies on the Convention. See Reply Brief for Petitioner 5 (disclaiming reliance). For good reason: Such reliance is foreclosed by the decision of this Court in Sanchez-Llamas , 548 U. S., at 351 (holding that the Convention does not preclude the application of state procedural bars); see also id. , at 363 (Ginsburg, J., concurring in judgment). There is no basis for relitigating the issue. Further, to rely on the Convention would elide the distinction between a treaty—negotiated by the President and signed by Congress—and a judgment rendered pursuant to those treaties. Footnote 9 In interpreting our treaty obligations, we also consider the views of the ICJ itself, “giv[ing] respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret [the treaty].” Breard v. Greene, 523 U. S. 371 , 375 (1998) ( per curiam ); see Sanchez - Llamas, supra , at 355–356. It is not clear whether that principle would apply when the question is the binding force of ICJ judgments themselves, rather than the substantive scope of a treaty the ICJ must interpret in resolving disputes. Cf. Phillips Petroleum Co. v. Shutts , 472 U. S. 797 , 805 (1985) (“[A] court adjudicating a dispute may not be able to predetermine the res judicata effect of its own judgment”); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4405, p. 82 (2d ed. 2002) (“The first court does not get to dictate to other courts the preclusion consequences of its own judgment”). In any event, nothing suggests that the ICJ views its judgments as automatically enforceable in the domestic courts of signatory nations. The Avena judgment itself directs the United States to provide review and reconsideration of the affected convictions and sentences “ by means of its own choosing .” 2004 I. C. J., at 72 (emphasis added). This language, as well as the ICJ’s mere suggestion that the “judicial process” is best suited to provide such review, id., at 65–66, confirm that domestic enforceability in court is not part and parcel of an ICJ judgment. Footnote 10 The best that the ICJ experts as amici curiae can come up with is the contention that local Moroccan courts have referred to ICJ judgments as “dispositive.” Brief for ICJ Experts as Amici Curiae 20, n. 31. Even the ICJ experts do not cite a case so holding, and Moroccan practice is at best inconsistent, for at least one local Moroccan court has held that ICJ judgments are not binding as a matter of municipal law. See, e.g. , Mackay Radio & Tel. Co. v. Lal-La Fatma Bent si Mohamed el Khadar, [1954] 21 Int’l L. Rep. 136 (Tangier, Ct. App. Int’l Trib.) (holding that ICJ decisions are not binding on Morocco’s domestic courts); see also “ Socobel” v. Greek State , [1951] 18 Int’l L. Rep. 3 (Belg., Trib. Civ. de Bruxelles) (holding that judgments of the ICJ’s predecessor, the Permanent Court of International Justice, were not domestically enforceable). Footnote 11 The other case Medellín cites for the proposition that the judgments of international courts are binding, La Abra Silver Mining Co. v. United States , 175 U. S. 423 (1899), and the cases he cites for the proposition that this Court has routinely enforced treaties under which foreign nationals have asserted rights, similarly stand only for the principle that the terms of a treaty govern its enforcement. See Reply Brief for Petitioner 4, 5, n. 2. In each case, this Court first interpreted the treaty prior to finding it domestically enforceable. See, e.g. , United States v. Rauscher , 119 U. S. 407 , 422–423 (1886) (holding that the treaty required extradition only for specified offenses); Hopkirk v. Bell , 3 Cranch 454, 458 (1806) (holding that the treaty of peace between Great Britain and the United States prevented the operation of a state statute of limitations on British debts). Footnote 12 That this Court has rarely had occasion to find a treaty non-self-executing is not all that surprising. See post , at 8 (Breyer, J., dissenting). To begin with, the Courts of Appeals have regularly done so. See, e.g. , Pierre v. Gonzales , 502 F. 3d 109, 119–120 (CA2 2007) (holding that the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is non-self-executing); Singh v. Ashcroft , 398 F. 3d 396, 404, n. 3 (CA6 2005) (same); Beazley v. Johnson , 242 F. 3d 248, 267 (CA5 2001) (holding that the International Covenant on Civil and Political Rights is non-self-executing). Further, as noted, Congress has not hesitated to pass implementing legislation for treaties that in its view require such legislation. Footnote 13 The dissent refrains from deciding the issue, but finds it “difficult to believe that in the exercise of his Article II powers pursuant to a ratified treaty, the President can never take action that would result in setting aside state law.” Post , at 29. We agree. The questions here are the far more limited ones of whether he may unilaterally create federal law by giving effect to the judgment of this international tribunal pursuant to this non-self-executing treaty, and, if not, whether he may rely on other authority under the Constitution to support the action taken in this particular case. Those are the only questions we decide. Footnote 14 Rather, in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua ( Nicar. v. U. S. ), 1986 I. C. J. 14 (Judgment of June 27), the President determined that the United States would not comply with the ICJ’s conclusion that the United States owed reparations to Nicaragua. In the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area ( Can . v. U. S./em>.), 1984 I. C. J. 246 (Judgment of Oct. 12), a federal agency—the National Oceanic and Atmospheric Administration—issued a final rule which complied with the ICJ’s boundary determination. The Case Concerning Rights of Nationals of the United States of America in Morocco ( Fr. v. U. S. ), 1952 I. C. J. 176 (Judgment of Aug. 27), concerned the legal status of United States citizens living in Morocco; it was not enforced in United States courts. The final two cases arose under the Vienna Convention. In the Lagrand Case ( F. R. G. v. U. S. ), 2001 I. C. J. 466 (Judgment of June 27), the ICJ ordered the review and reconsideration of convictions and sentences of German nationals denied consular notification. In response, the State Department sent letters to the States “encouraging” them to consider the Vienna Convention in the clemency process. Brief for United States as Amicus Curiae 20–21. Such encouragement did not give the ICJ judgment direct effect as domestic law; thus, it cannot serve as precedent for doing so in which Congress might be said to have acquiesced. In the Case Concerning the Vienna Convention on Consular Relations ( Para. v. U. S. ), 1998 I. C. J. 248 (Judgment of Apr. 9), the ICJ issued a provisional order, directing the United States to “ take all measures at its disposal to ensure that [Breard] is not executed pending the final decision in [the ICJ’s] proceedings.” Breard , 523 U. S., at 374 (internal quotation marks omitted). In response, the Secretary of State sent a letter to the Governor of Virginia requesting that he stay Breard’s execution. Id. , at 378. When Paraguay sought a stay of execution from this Court, the United States argued that it had taken every measure at its disposal: because “our federal system imposes limits on the federal government’s ability to interfere with the criminal justice systems of the States,” those measures included “only persuasion,” not “legal compulsion.” Brief for United States as Amicus Curiae , O. T. 1997, No. 97–8214, p. 51. This of course is precedent contrary to the proposition asserted by the Solicitor General in this case. STEVENS, J., CONCURRING IN JUDGMENT MEDELLIN V. TEXAS 552 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-984 JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS on writ of certiorari to the court of criminal appeals of texas [March 25, 2008]    Justice Stevens, concurring in the judgment.    There is a great deal of wisdom in Justice Breyer’s dissent. I agree that the text and history of the Supremacy Clause, as well as this Court’s treaty-related cases, do not support a presumption against self-execution. See post , at 5–10. I also endorse the proposition that the Vienna Convention on Consular Relations, Apr. 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, “is itself self-executing and judicially enforceable.” Post , at 19. Moreover, I think this case presents a closer question than the Court’s opinion allows. In the end, however, I am persuaded that the relevant treaties do not authorize this Court to enforce the judgment of the International Court of Justice (ICJ) in Case Concerning Avena and Other Mexican Nationals ( Mex. v. U. S. ), 2004 I. C. J. 12 (Judgment of Mar. 31) ( Avena ).    The source of the United States’ obligation to comply with judgments of the ICJ is found in Article 94(1) of the United Nations Charter, which was ratified in 1945. Article 94(1) provides that “[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party.” 59 Stat. 1051, T. S. No. 993 (emphasis added). In my view, the words “undertakes to comply”—while not the model of either a self-executing or a non-self-executing commitment—are most naturally read as a promise to take additional steps to enforce ICJ judgments.    Unlike the text of some other treaties, the terms of the United Nations Charter do not necessarily incorporate international judgments into domestic law. Cf., e.g. , United Nations Convention on the Law of the Sea, Annex VI, Art. 39, Dec. 10, 1982, S. Treaty Doc. No. 103–39, 1833 U. N. T. S. 570 (“[D]ecisions of the [Seabed Disputes] Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought”). Moreover, Congress has passed implementing legislation to ensure the enforcement of other international judgments, even when the operative treaty provisions use far more mandatory language than “undertakes to comply.”[ Footnote 1 ]    On the other hand Article 94(1) does not contain the kind of unambiguous language foreclosing self-execution that is found in other treaties. The obligation to undertake to comply with ICJ decisions is more consistent with self-execution than, for example, an obligation to enact legislation. Cf., e.g., International Plant Protection Convention, Art. I, Dec. 6, 1951, [1972] 23 U. S. T. 2770, T. I. A. S. No. 7465 (“[T]he contracting Governments undertake to adopt the legislative, technical and administrative measures specified in this Convention”). Furthermore, whereas the Senate has issued declarations of non-self-execution when ratifying some treaties, it did not do so with respect to the United Nations Charter.[ Footnote 2 ]    Absent a presumption one way or the other, the best reading of the words “undertakes to comply” is, in my judgment, one that contemplates future action by the political branches. I agree with the dissenters that “Congress is unlikely to authorize automatic judicial enforceability of all ICJ judgments, for that could include some politically sensitive judgments and others better suited for enforcement by other branches.” Post , at 24. But this concern counsels in favor of reading any ambiguity in Article 94(1) as leaving the choice of whether to comply with ICJ judgments, and in what manner, “to the political, not the judicial department.” Foster v. Neilson , 2 Pet. 253, 314 (1829).[ Footnote 3 ]    The additional treaty provisions cited by the dissent do not suggest otherwise. In an annex to the United Nations Charter, the Statute of the International Court of Justice (ICJ Statute) states that a decision of the ICJ “has no binding force except between the parties and in respect of that particular case.” Art. 59, 59 Stat. 1062. Because I read that provision as confining, not expanding, the effect of ICJ judgments, it does not make the undertaking to comply with such judgments any more enforceable than the terms of Article 94(1) itself. That the judgment is “binding” as a matter of international law says nothing about its domestic legal effect. Nor in my opinion does the reference to “compulsory jurisdiction” in the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, Art. I, Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S. No. 6820, shed any light on the matter. This provision merely secures the consent of signatory nations to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention. See ICJ Statute, Art. 36(1), 59 Stat. 1060 (“The jurisdiction of the Court comprises . . . all matters specially provided for . . . in treaties and conventions in force”).    Even though the ICJ’s judgment in Avena is not “the supreme Law of the Land,” U. S. Const., Art. VI, cl. 2, no one disputes that it constitutes an international law obligation on the part of the United States. Ante , at 8. By issuing a memorandum declaring that state courts should give effect to the judgment in Avena , the President made a commendable attempt to induce the States to discharge the Nation’s obligation. I agree with the Texas judges and the majority of this Court that the President’s memorandum is not binding law. Nonetheless, the fact that the President cannot legislate unilaterally does not absolve the United States from its promise to take action necessary to comply with the ICJ’s judgment.    Under the express terms of the Supremacy Clause, the United States’ obligation to “undertak[e] to comply” with the ICJ’s decision falls on each of the States as well as the Federal Government. One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas’ duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current controversy. Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another.    The decision in Avena merely obligates the United States “to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals,” 2004 I. C. J., at 72, ¶153(9), “with a view to ascertaining” whether the failure to provide proper notice to consular officials “caused actual prejudice to the defendant in the process of administration of criminal justice,” id. , at 60, ¶121. The cost to Texas of complying with Avena would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced José Ernesto Medellín. See ante , at 4–6, and n. 1. It is a cost that the State of Oklahoma unhesitatingly assumed.[ Footnote 4 ]    On the other hand, the costs of refusing to respect the ICJ’s judgment are significant. The entire Court and the President agree that breach will jeopardize the United States’ “plainly compelling” interests in “ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law.” Ante , at 28. When the honor of the Nation is balanced against the modest cost of compliance, Texas would do well to recognize that more is at stake than whether judgments of the ICJ, and the principled admonitions of the President of the United States, trump state procedural rules in the absence of implementing legislation.    The Court’s judgment, which I join, does not foreclose further appropriate action by the State of Texas. Footnote 1 See, e.g., Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), Art. 54(1), Mar. 18, 1965, [1966] 17 U. S. T. 1291, T. I. A. S. No. 6090 (“Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State”); 22 U. S. C. §1650a (“An award of an arbitral tribunal rendered pursuant to chapter IV of the [ICSID Convention] shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States”). Footnote 2 Cf., e.g. , U. S. Reservations, Declarations and Understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. 8071 (1992) (“[T]he United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing”). Footnote 3 Congress’ implementation options are broader than the dissent suggests. In addition to legislating judgment-by-judgment, enforcing all judgments indiscriminately, and devising “legislative bright lines,” post , at 24, Congress could, for example, make ICJ judgments enforceable upon the expiration of a waiting period that gives the political branches an opportunity to intervene. Cf., e.g., 16 U. S. C. §1823 (imposing a 120-day waiting period before international fishery agreements take effect). Footnote 4 In Avena , the ICJ expressed “great concern” that Oklahoma had set the date of execution for one of the Mexican nationals involved in the judgment, Osbaldo Torres, for May 18, 2004. 2004 I. C. J., at 28, ¶21. Responding to Avena , the Oklahoma Court of Criminal Appeals stayed Torres’ execution and ordered an evidentiary hearing on whether Torres had been prejudiced by the lack of consular noti-fication. See Torres v. Oklahoma , No. PCD–04–442 (May 13, 2004), 43 I. L. M. 1227. On the same day, the Governor of Oklahoma commuted Torres’ death sentence to life without the possibility of parole, stressing that (1) the United States signed the Vienna Convention, (2) that treaty is “important in protecting the rights of American citizens abroad,” (3) the ICJ ruled that Torres’ rights had been violated, and (4) the U. S. State Department urged his office to give careful consideration to the United States’ treaty obligations. See Office of Governor Brad Henry, Press Release: Gov. Henry Grants Clemency to Death Row Inmate Torres (May 13, 2004), online at http://www.ok.gov/governor/display_article.php?article_id=301&article_type=1 (as visited Mar. 20, 2008, and available in Clerk of Court’s case file). After the evidentiary hearing, the Oklahoma Court of Criminal Appeals held that Torres had failed to establish prejudice with respect to the guilt phase of his trial, and that any prejudice with respect to the sentencing phase had been mooted by the commutation order. Torres v. Oklahoma , 120 P. 3d 1184 (2005). BREYER, J., DISSENTING MEDELLIN V. TEXAS 552 U. S. ____ (2008) NO. 06-984 SUPREME COURT OF THE UNITED STATES JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS on writ of certiorari to the court of criminal appeals of texas [March 25, 2008] Justice Breyer, with whom Justice Souter and Justice Ginsburg join, dissenting. The Constitution’s Supremacy Clause provides that “all Treaties … which shall be made … under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Art. VI, cl. 2. The Clause means that the “courts” must regard “a treaty … as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision . ” Foster v. Neilson , 2 Pet. 253, 314 (1829) (majority opinion of Marshall, C. J.). In the Avena case the International Court of Justice (ICJ) (interpreting and applying the Vienna Convention on Consular Relations) issued a judgment that requires the United States to reexamine certain criminal proceedings in the cases of 51 Mexican nationals. Case Concerning Avena and Other Mexican Nationals (Mex . v. U. S.) , 2004 I. C. J. 12 (Judgment of Mar. 31) (Avena) . The question here is whether the ICJ’s Avena judgment is en- forceable now as a matter of domestic law, i.e. , whether it “operates of itself without the aid” of any further legislation. The United States has signed and ratified a series of treaties obliging it to comply with ICJ judgments in cases in which it has given its consent to the exercise of the ICJ’s adjudicatory authority. Specifically, the United States has agreed to submit, in this kind of case, to the ICJ’s “compulsory jurisdiction” for purposes of “compulsory settlement.” Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol or Protocol), Art. I, Apr. 24, 1963, [1970] 21 U. S. T. 325, 326 T. I. A. S. No. 6820 (capitalization altered). And it agreed that the ICJ’s judgments would have “binding force … between the parties and in respect of [a] particular case.” United Nations Charter, Art. 59, 59 Stat. 1062, T. S. No. 993 (1945). President Bush has determined that domestic courts should enforce this particular ICJ judgment. Memorandum to the Attorney General (Feb. 28, 2005), App. to Pet. for Cert. 187a (hereinafter President’s Memorandum). And Congress has done nothing to suggest the contrary. Under these circumstances, I believe the treaty obligations, and hence the judgment, resting as it does upon the consent of the United States to the ICJ’s jurisdiction, bind the courts no less than would “an act of the [federal] legislature.” Foster , supra , at 314. I To understand the issue before us, the reader must keep in mind three separate ratified United States treaties and one ICJ judgment against the United States. The first treaty, the Vienna Convention, contains two relevant provisions. The first requires the United States and other signatory nations to inform arrested foreign nationals of their separate Convention-given right to contact their nation’s consul. The second says that these rights (of an arrested person) “shall be exercised in conformity with the laws and regulations” of the arresting nation, provided that the “laws and regulations . . . enable full effect to be given to the purposes for which” those “rights . . . are intended.” See Vienna Convention on Consular Relations, Arts. 36(1)(b), 36(2), Apr. 24, 1963, [1970] 21 U. S. T. 100–101, T. I. A. S. No. 6820 (emphasis added). The second treaty, the Optional Protocol, concerns the “compulsory settlement” of Vienna Convention disputes. 21 U. S. T., at 326. It provides that for parties that elect to subscribe to the Protocol, “[d]isputes arising out of the interpretation or application of the [Vienna] Convention” shall be submitted to the “compulsory jurisdiction of the International Court of Justice.” Art. I, ibid. It authorizes any party that has consented to the ICJ’s jurisdiction (by signing the Optional Protocol) to bring another such party before that Court. Ibid. The third treaty, the United Nations Charter, says that every signatory Nation “undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” Art. 94(1), 59 Stat. 1051. In an annex to the Charter, the Statute of the International Court of Justice states that an ICJ judgment has “binding force … between the parties and in respect of that particular case.” Art. 59, id., at 1062. See also Art. 60, id., at 1063 (ICJ “judgment is final and without appeal”). The judgment at issue is the ICJ’s judgment in Avena, a case that Mexico brought against the United States on behalf of 52 nationals arrested in different States on different criminal charges. 2004 I. C. J., at 39. Mexico claimed that state authorities within the United States had failed to notify the arrested persons of their Vienna Convention rights and, by applying state procedural law in a manner which did not give full effect to the Vienna Convention rights, had deprived them of an appropriate remedy. Ibid. The ICJ judgment in Avena requires that the United States reexamine “by means of its own choosing” certain aspects of the relevant state criminal proceedings of 51 of these individual Mexican nationals. Id., at 62. The President has determined that this should be done. See President’s Memorandum. The critical question here is whether the Supremacy Clause requires Texas to follow, i.e. , to enforce, this ICJ judgment. The Court says “no.” And it reaches its negative answer by interpreting the labyrinth of treaty provisions as creating a legal obligation that binds the United States internationally, but which, for Supremacy Clause purposes, is not automatically enforceable as domestic law. In the majority’s view, the Optional Protocol simply sends the dispute to the ICJ; the ICJ statute says that the ICJ will subsequently reach a judgment; and the U. N. Charter contains no more than a promise to “ ‘undertak[e] to comply’ ” with that judgment. Ante, at 3. Such a promise, the majority says, does not as a domestic law matter (in Chief Justice Marshall’s words) “operat[e] of itself without the aid of any legislative provision.” Foster , 2 Pet., at 314. Rather, here (and presumably in any other ICJ judgment rendered pursuant to any of the approximately 70 U. S. treaties in force that contain similar provisions for submitting treaty-based disputes to the ICJ for decisions that bind the parties) Congress must enact specific legislation before ICJ judgments entered pursuant to our consent to compulsory ICJ jurisdiction can become domestic law. See Brief for International Court of Justice Experts as Amici Curiae 18 (“Approximately 70 U. S. treaties now in force contain obligations comparable to those in the Optional Protocol for submission of treaty-based disputes to the ICJ”); see also id., at 18, n. 25. In my view, the President has correctly determined that Congress need not enact additional legislation. The majority places too much weight upon treaty language that says little about the matter. The words “undertak[e] to comply,” for example, do not tell us whether an ICJ judgment rendered pursuant to the parties’ consent to compulsory ICJ jurisdiction does, or does not, automatically become part of our domestic law. To answer that question we must look instead to our own domestic law, in particular, to the many treaty-related cases interpreting the Supremacy Clause. Those cases, including some written by Justices well aware of the Founders’ original intent, lead to the conclusion that the ICJ judgment before us is enforceable as a matter of domestic law without further legislation. A Supreme Court case law stretching back more than 200 years helps explain what, for present purposes, the Founders meant when they wrote that “all Treaties … shall be the supreme Law of the Land.” Art. VI, cl. 2. In 1796, for example, the Court decided the case of Ware v. Hylton , 3 Dall. 199. A British creditor sought payment of an American’s Revolutionary War debt. The debtor argued that he had, under Virginia law, repaid the debt by complying with a state statute enacted during the Revolutionary War that required debtors to repay money owed to British creditors into a Virginia state fund. Id., at 220–221 (opinion of Chase, J.). The creditor, however, claimed that this state-sanctioned repayment did not count because a provision of the 1783 Paris Peace Treaty between Britain and the United States said that “ ‘the creditors of either side should meet with no lawful impediment to the recovery of the full value … of all bona fide debts, theretofore contracted’ ”; and that provision, the creditor argued, effectively nullified the state law. Id. , at 203–204. The Court, with each Justice writing separately, agreed with the British creditor, held the Virginia statute invalid, and found that the American debtor remained liable for the debt. Id., at 285. The key fact relevant here is that Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) “self-executing.” Justice Iredell, a member of North Carolina’s Ratifying Convention, addressed the matter specifically, setting forth views on which Justice Story later relied to explain the Founders’ reasons for drafting the Supremacy Clause. 3 J. Story, Commentaries on the Constitution of the United States 696–697 (1833) (hereinafter Story). See Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, 697–700 (1995) (hereinafter Vázquez) (describing the history and purpose of the Supremacy Clause). See also Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land”, 99 Colum. L. Rev. 2095 (1999) (contending that the Founders crafted the Supremacy Clause to make ratified treaties self-executing). But see Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955 (1999). Justice Iredell pointed out that some Treaty provisions, those, for example, declaring the United States an independent Nation or acknowledging its right to navigate the Mississippi River, were “ executed ,” taking effect automatically upon ratification. 3 Dall. , at 272. Other provisions were “executory,” in the sense that they were “to be carried into execution” by each signatory nation “in the manner which the Constitution of that nation prescribes.” Ibid. Before adoption of the U. S. Constitution, all such provisions would have taken effect as domestic law only if Congress on the American side, or Parliament on the British side, had written them into domestic law. Id., at 274–277. But, Justice Iredell adds, after the Constitution’s adoption, while further parliamentary action remained necessary in Britain (where the “practice” of the need for an “act of parliament” in respect to “any thing of a legislative nature” had “been constantly observed,” id., at 275–276), further legislative action in respect to the treaty’s debt-collection provision was no longer necessary in the United States. Id., at 276–277. The ratification of the Constitution with its Supremacy Clause means that treaty provisions that bind the United States may (and in this instance did) also enter domestic law without further congressional action and automatically bind the States and courts as well. Id., at 277. “Under this Constitution,” Justice Iredell concluded, “so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also by the vigour of its own authority to be executed in fact. It would not otherwise be the Supreme law in the new sense provided for.” Ibid.; see also Story, supra , §1833, at 697 (noting that the Supremacy Clause’s language was crafted to make the Clause’s “obligation more strongly felt by the state judges” and to “remov[e] every pretense” by which they could “escape from [its] controlling power”); see also The Federalist No. 42, p. 264 (C. Rossiter ed. 1961) (J. Madison) (Supremacy Clause “disembarrassed” the Convention of the problem presented by the Articles of Confederation where “treaties might be substantially frustrated by regulations of the States”). Justice Iredell gave examples of provisions that would no longer require further legislative action, such as those requiring the release of prisoners, those forbidding war-related “future confiscations” and “ ‘prosecutions,’ ” and, of course, the specific debt-collection provision at issue in the Ware case itself. 3 Dall., at 273, 277. Some 30 years later, the Court returned to the “self-execution” problem. In Foster , 2 Pet. 253, the Court examined a provision in an 1819 treaty with Spain ceding Florida to the United States; the provision said that “ ‘grants of land made’ ” by Spain before January 24, 1818, “ ‘shall be ratified and confirmed’ ” to the grantee. Id., at 310. Chief Justice Marshall, writing for the Court, noted that, as a general matter, one might expect a signatory nation to execute a treaty through a formal exercise of its domestic sovereign authority ( e.g. , through an act of the legislature). Id., at 314. But in the United States “a different principle” applies. Ibid. (emphasis added). The Supremacy Clause means that, here, a treaty is “the law of the land … to be regarded in Courts of justice as equivalent to an act of the legislature” and “operates of itself without the aid of any legislative provision” unless it specifically contemplates execution by the legislature and thereby “addresses itself to the political, not the judicial department .” Ibid. (emphasis added). The Court decided that the treaty provision in question was not self-executing; in its view, the words “shall be ratified” demonstrated that the provision foresaw further legislative action. Id., at 315. The Court, however, changed its mind about the result in Foster four years later, after being shown a less legislatively oriented, less tentative, but equally authentic Spanish-language version of the treaty. See United States v. Percheman , 7 Pet. 51, 88–89 (1833). And by 1840, instances in which treaty provisions automatically became part of domestic law were common enough for one Justice to write that “it would be a bold proposition” to assert “that an act of Congress must be first passed” in order to give a treaty effect as “a supreme law of the land.” Lessee of Pollard’s Heirs v. Kibbe , 14 Pet. 353, 388 (1840) (Baldwin, J., concurring). Since Foster and Pollard, this Court has frequently held or assumed that particular treaty provisions are self-executing, automatically binding the States without more. See Appendix A, infra (listing, as examples, 29 such cases, including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence). See also Wu, Treaties’ Domains, 93 Va. L. Rev. 571, 583–584 (2007) (concluding “enforcement against States is the primary and historically most significant type of treaty enforcement in the United States”). As far as I can tell, the Court has held to the contrary only in two cases: Foster , supra , which was later reversed, and Cameron Septic Tank Co. v. Knoxville , 227 U. S. 39 (1913), where specific congressional actions indicated that Congress thought further legislation necessary . See also Vázquez 716. The Court has found “self-executing” provisions in multilateral treaties as well as bilateral treaties. See, e.g. , Trans World Airlines, Inc. v. Franklin Mint Corp. , 466 U. S. 243 , 252 (1984); Bacardi Corp. of America v. Domenech , 311 U. S. 150 , 160, and n. 9, 161 (1940). And the subject matter of such provisions has varied widely, from extradition, see, e.g ., United States v. Rauscher , 119 U. S. 407 , 411–412 (1886), to criminal trial jurisdiction, see Wildenhus’s Case , 120 U. S. 1 , 11, 17–18 (1887), to civil liability, see, e.g. , El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng , 525 U. S. 155 , 161–163 (1999), to trademark infringement, see Bacardi , supra , at 160, and n. 9, 161, to an alien’s freedom to engage in trade, see, e.g. , Jordan v. Tashiro , 278 U. S. 123 , 126, n. 1 (1928), to immunity from state taxation, see Nielsen v. Johnson , 279 U. S. 47 , 50, 58 (1929), to land ownership, Percheman , supra , at 88–89, and to inheritance, see, e.g. , Kolovrat v. Oregon , 366 U. S. 187 , 191, n. 6, 198 (1961). Of particular relevance to the present case, the Court has held that the United States may be obligated by treaty to comply with the judgment of an international tribunal interpreting that treaty, despite the absence of any congressional enactment specifically requiring such compliance. See Comegys v. Vasse , 1 Pet. 193, 211–212 (1828) (holding that decision of tribunal rendered pursuant to a United States-Spain treaty, which obliged the parties to “undertake to make satisfaction” of treaty-based rights, was “conclusive and final” and “not re-examinable” in American courts); see also Meade v. United States , 9 Wall. 691, 725 (1870) (holding that decision of tribunal adjudicating claims arising under United States-Spain treaty “was final and conclusive, and bar[red] a recovery upon the merits” in American court). All of these cases make clear that self-executing treaty provisions are not uncommon or peculiar creatures of our domestic law; that they cover a wide range of subjects; that the Supremacy Clause itself answers the self-execution question by applying many, but not all, treaty provisions directly to the States; and that the Clause answers the self-execution question differently than does the law in many other nations. See supra , at 5–9. The cases also provide criteria that help determine which provisions automatically so apply—a matter to which I now turn. B 1 The case law provides no simple magic answer to the question whether a particular treaty provision is self-executing. But the case law does make clear that, insofar as today’s majority looks for language about “self-execution” in the treaty itself and insofar as it erects “clear statement” presumptions designed to help find an answer, it is misguided. See, e.g. , ante , at 21 (expecting “clea[r] state[ment]” of parties’ intent where treaty obligation “may interfere with state procedural rules”); ante, at 30 (for treaty to be self-executing, Executive should at drafting “ensur[e] that it contains language plainly providing for domestic enforceability”). The many treaty provisions that this Court has found self-executing contain no textual language on the point (see Appendix A, infra ). Few, if any, of these provisions are clear. See, e.g. , Ware , 3 Dall., at 273 (opinion of Iredell, J.). Those that displace state law in respect to such quintessential state matters as, say, property, inheritance, or debt repayment, lack the “clea[r] state[ment]” that the Court today apparently requires. Compare ante , at 21 (majority expects “clea[r] state[ment]” of parties’ intent where treaty obligation “may interfere with state procedural rules”). This is also true of those cases that deal with state rules roughly comparable to the sort that the majority suggests require special accommodation. See, e.g. , Hopkirk v. Bell , 3 Cranch 454, 457–458 (1806) (treaty pre-empts Virginia state statute of limitations). Cf. ante , at 21 (setting forth majority’s reliance on case law that is apparently inapposite). These many Supreme Court cases finding treaty provisions to be self-executing cannot be reconciled with the majority’s demand for textual clarity. Indeed, the majority does not point to a single ratified United States treaty that contains the kind of “clea[r]” or “plai[n]” textual indication for which the majority searches. Ante , at 21, 30. Justice Stevens’ reliance upon one ratified and one un- ratified treaty to make the point that a treaty could speak clearly on the matter of self-execution, see ante , at 2 and n. 1, does suggest that there are a few such treaties. But that simply highlights how few of them actually do speak clearly on the matter. And that is not because the United States never, or hardly ever, has entered into a treaty with self-executing provisions. The case law belies any such conclusion. Rather, it is because the issue whether further legislative action is required before a treaty provision takes domestic effect in a signatory nation is often a matter of how that Nation’s domestic law regards the provision’s legal status. And that domestic status-determining law differs markedly from one nation to another. See generally Hollis, Comparative Approach to Treaty Law and Practice, in National Treaty Law and Practice 1, 9–50 (D. Hollis, M. Blakeslee, & L. Ederington eds. 2005) (hereinafter Hollis). As Justice Iredell pointed out 200 years ago, Britain, for example, taking the view that the British Crown makes treaties but Parliament makes domestic law, virtually always requires parliamentary legislation. See Ware , supra , at 274–277; Sinclair, Dickson, & Maciver, United Kingdom, in National Treaty Law and Practice, supra, at 727, 733, and n. 9 (citing Queen v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Lord Rees-Mogg, [1994] Q. B. 552 (1993) (in Britain, “ ‘treaties are not self-executing’ ”)). See also Torruella, The Insular Cases : The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Int’l L. 283, 337 (2007). On the other hand, the United States, with its Supremacy Clause, does not take Britain’s view. See, e.g., Ware, supra , at 277 (opinion of Iredell, J.). And the law of other nations, the Netherlands for example, directly incorporates many treaties concluded by the executive into its domestic law even without explicit parliamentary approval of the treaty. See Brouwer, The Netherlands, in National Treaty Law and Practice, supra, at 483, 483–502. The majority correctly notes that the treaties do not explicitly state that the relevant obligations are self-executing. But given the differences among nations, why would drafters write treaty language stating that a provision about, say, alien property inheritance, is self-executing? How could those drafters achieve agreement when one signatory nation follows one tradition and a second follows another? Why would such a difference matter sufficiently for drafters to try to secure language that would prevent, for example, Britain’s following treaty ratification with a further law while (perhaps unnecessarily) insisting that the United States apply a treaty provision without further domestic legislation? Above all, what does the absence of specific language about “self-execution” prove? It may reflect the drafters’ awareness of national differences. It may reflect the practical fact that drafters, favoring speedy, effective implementation, conclude they should best leave national legal practices alone. It may reflect the fact that achieving international agreement on this point is simply a game not worth the candle. In a word, for present purposes, the absence or presence of language in a treaty about a provision’s self-execution proves nothing at all. At best the Court is hunting the snark. At worst it erects legalistic hurdles that can threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones. (For examples, see Appendix B, infra .) 2 The case law also suggests practical, context-specific criteria that this Court has previously used to help determine whether, for Supremacy Clause purposes, a treaty provision is self-executing. The provision’s text matters very much. Cf. ante , at 17–19. But that is not because it contains language that explicitly refers to self-execution. For reasons I have already explained, Part I–B–1, supra , one should not expect that kind of textual statement. Drafting history is also relevant. But, again, that is not because it will explicitly address the relevant question. Instead text and history, along with subject matter and related characteristics will help our courts determine whether, as Chief Justice Marshall put it, the treaty provision “addresses itself to the political … department[s]” for further action or to “the judicial department” for direct enforcement. Foster , 2 Pet., at 314; see also Ware , 3 Dall., at 244 (opinion of Chase, J.) (“No one can doubt that a treaty may stipulate, that certain acts shall be done by the Legislature; that other acts shall be done by the Executive; and others by the Judiciary”). In making this determination, this Court has found the provision’s subject matter of particular importance. Does the treaty provision declare peace? Does it promise not to engage in hostilities? If so, it addresses itself to the political branches. See id., at 259–262 (opinion of Iredell, J.). Alternatively, does it concern the adjudication of traditional private legal rights such as rights to own property, to conduct a business, or to obtain civil tort recovery? If so, it may well address itself to the Judiciary. Enforcing such rights and setting their boundaries is the bread-and-butter work of the courts. See, e.g., Clark v. Allen , 331 U. S. 503 (1947) (treating provision with such subject matter as self-executing); Asakura v. Seattle , 265 U. S. 332 (1924) (same). One might also ask whether the treaty provision confers specific, detailed individual legal rights. Does it set forth definite standards that judges can readily enforce? Other things being equal, where rights are specific and readily enforceable, the treaty provision more likely “addresses” the judiciary. See, e.g. , Olympic Airways v. Husain , 540 U. S. 644 (2004) (specific conditions for air-carrier civil liability); Geofroy v. Riggs , 133 U. S. 258 (1890) (French citizens’ inheritance rights). Compare Foster, supra , at 314–315 (treaty provision stating that landholders’ titles “shall be ratified and confirmed” foresees legislative action). Alternatively, would direct enforcement require the courts to create a new cause of action? Would such enforcement engender constitutional controversy? Would it create constitutionally undesirable conflict with the other branches? In such circumstances, it is not likely that the provision contemplates direct judicial enforcement. See, e.g. , Asakura, supra , at 341 (although “not limited by any express provision of the Constitution,” the treaty-making power of the United States “does not extend ‘so far as to authorize what the Constitution forbids’ ”). Such questions, drawn from case law stretching back 200 years, do not create a simple test, let alone a magic formula. But they do help to constitute a practical, context-specific judicial approach, seeking to separate run-of-the-mill judicial matters from other matters, sometimes more politically charged, sometimes more clearly the responsibility of other branches, sometimes lacking those attributes that would permit courts to act on their own without more ado. And such an approach is all that we need to find an answer to the legal question now before us. C Applying the approach just described, I would find the relevant treaty provisions self-executing as applied to the ICJ judgment before us (giving that judgment domestic legal effect) for the following reasons, taken together. First, the language of the relevant treaties strongly supports direct judicial enforceability, at least of judgments of the kind at issue here. The Optional Protocol bears the title “Compulsory Settlement of Disputes,” thereby emphasizing the mandatory and binding nature of the procedures it sets forth. 21 U. S. T., at 326. The body of the Protocol says specifically that “any party” that has consented to the ICJ’s “compulsory jurisdiction” may bring a “dispute” before the court against any other such party. Art. I, ibid. And the Protocol contrasts proceedings of the compulsory kind with an alternative “conciliation procedure,” the recommendations of which a party may decide “not” to “accep[t].” Art. III, id., at 327. Thus, the Optional Protocol’s basic objective is not just to provide a forum for settlement but to provide a forum for compulsory settlement. Moreover, in accepting Article 94(1) of the Charter, “[e]ach Member … undertakes to comply with the decision” of the ICJ “in any case to which it is a party.” 59 Stat. 1051. And the ICJ Statute (part of the U. N. Charter) makes clear that, a decision of the ICJ between parties that have consented to the ICJ’s compulsory jurisdiction has “ binding force … between the parties and in respect of that particular case.” Art. 59, id., at 1062 (emphasis added). Enforcement of a court’s judgment that has “binding force” involves quintessential judicial activity. True, neither the Protocol nor the Charter explicitly states that the obligation to comply with an ICJ judgment automatically binds a party as a matter of domestic law without further domestic legislation. But how could the language of those documents do otherwise? The treaties are multilateral. And, as I have explained, some signatories follow British further-legislation-always-needed principles, others follow United States Supremacy Clause principles, and still others, e.g. , the Netherlands, can directly incorporate treaty provisions into their domestic law in particular circumstances. See Hollis 9–50. Why, given national differences, would drafters, seeking as strong a legal obligation as is practically attainable, use treaty language that requires all signatories to adopt uniform domestic-law treatment in this respect? The absence of that likely unobtainable language can make no difference. We are considering the language for purposes of applying the Supremacy Clause. And for that purpose, this Court has found to be self-executing multilateral treaty language that is far less direct or forceful (on the relevant point) than the language set forth in the present treaties. See, e.g. , Trans World Airlines , 466 U. S., at 247, 252; Bacardi , 311 U. S., at 160, and n. 9, 161. The language here in effect tells signatory nations to make an ICJ compulsory jurisdiction judgment “as bind- ing as you can.” Thus, assuming other factors favor self-execution, the language adds, rather than subtracts ,support. Indeed, as I have said, supra , at 4, the United States has ratified approximately 70 treaties with ICJ dispute resolution provisions roughly similar to those contained in the Optional Protocol; many of those treaties contemplate ICJ adjudication of the sort of substantive matters (property, commercial dealings, and the like) that the Court has found self-executing, or otherwise appear addressed to the judicial branch. See Appendix B, infra. None of the ICJ provisions in these treaties contains stronger language about self-execution than the language at issue here. See, e.g. , Treaty of Friendship, Commerce and Navigation between the United States of America and the Kingdom of Denmark, Art. XXIV(2), Oct. 1, 1951, [1961] 12 U. S. T. 935, T. I. A. S. No. 4797 (“Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means”). In signing these treaties (in respect to, say, alien land ownership provisions) was the United States engaging in a near useless act? Does the majority believe the drafters expected Congress to enact further legislation about, say, an alien’s inheritance rights, decision by decision? I recognize, as the majority emphasizes, that the U. N. Charter uses the words “undertakes to comply,” rather than, say, “shall comply” or “must comply.” But what is inadequate about the word “undertak[e]”? A leading contemporary dictionary defined it in terms of “lay[ing] oneself under obligation … to perform or to execute.” Webster’s New International Dictionary 2770 (2d ed. 1939). And that definition is just what the equally authoritative Spanish version of the provision (familiar to Mexico) says directly: The words “compromete a cumplir” indicate a present obligation to execute, without any tentativeness of the sort the majority finds in the English word “undertakes.” See Carta de las Naciones Unidas, Articulo 94, 59 Stat. 1175 (1945); Spanish and English Legal and Commercial Dictionary 44 (1945) (defining “comprometer” as “become liable”); id., at 59 (defining “cumplir” as “to perform, discharge, carry out, execute”); see also Art. 111, 59 Stat. 1054 (Spanish-language version equally valid); Percheman , 7 Pet., at 88–89 (looking to Spanish version of a treaty to clear up ambiguity in English version). Compare Todok v. Union State Bank of Harvard , 281 U. S. 449 , 453 (1930) (treating a treaty provision as self-executing even though it expressly stated what the majority says the word “undertakes” implicitly provides: that “ ‘[t]he United States … shall be at liberty to make respecting this matter, such laws as they think proper’ ”). And even if I agreed with Justice Stevens that the language is perfectly ambiguous (which I do not), I could not agree that “the best reading … is … one that contemplates future action by the political branches.” Ante , at 3. The consequence of such a reading is to place the fate of an international promise made by the United States in the hands of a single State. See ante , at 4–6. And that is precisely the situation that the Framers sought to prevent by enacting the Supremacy Clause. See 3 Story 696 (purpose of Supremacy Clause “was probably to obviate” the “difficulty” of system where treaties were “dependent upon the good will of the states for their execution”); see also Ware , 3 Dall., at 277–278 (opinion of Iredell, J.). I also recognize, as the majority emphasizes ( ante , at 13–14), that the U. N. Charter says that “[i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the [ICJ], the other party may have recourse to the Security Council.” Art. 94(2), 59 Stat. 1051. And when the Senate ratified the charter, it took comfort in the fact that the United States has a veto in the Security Council. See 92 Cong. Rec. 10694–10695 (1946) (statements of Sens. Pepper and Connally). But what has that to do with the matter? To begin with, the Senate would have been contemplating politically significant ICJ decisions, not, e.g. , the bread-and-butter commercial and other matters that are the typical subjects of self-executing treaty provisions. And in any event, both the Senate debate and U. N. Charter provision discuss and describe what happens (or does not happen) when a nation decides not to carry out an ICJ decision. See Charter of the United Nations for the Maintenance of International Peace and Security: Hearing before the Senate Committee on Foreign Relations, 79th Cong., 1st Sess., 286 (1945) (statement of Leo Pasvolsky, Special Assistant to the Secretary of State for International Organization and Security Affairs) (“[W]hen the Court has rendered a judgment and one of the parties refuses to accept it, then the dispute becomes political rather than legal”). The debates refer to remedies for a breach of our promise to carry out an ICJ decision. The Senate understood, for example, that Congress (unlike legislatures in other nations that do not permit domestic legislation to trump treaty obligations, Hollis 47–49) can block through legislation self-executing, as well as non-self-executing determinations. The debates nowhere refer to the method we use for affirmatively carrying out an ICJ obligation that no political branch has decided to dishonor, still less to a decision that the President (without congressional dissent) seeks to enforce. For that reason, these aspects of the ratification debates are here beside the point. See infra , at 23–24. The upshot is that treaty language says that an ICJ decision is legally binding, but it leaves the implementation of that binding legal obligation to the domestic law of each signatory nation. In this Nation, the Supremacy Clause, as long and consistently interpreted, indicates that ICJ decisions rendered pursuant to provisions for binding adjudication must be domestically legally binding and enforceable in domestic courts at least sometimes. And for purposes of this argument, that conclusion is all that I need. The remainder of the discussion will explain why, if ICJ judgments sometimes bind domestic courts , then they have that effect here. Second, the Optional Protocol here applies to a dispute about the meaning of a Vienna Convention provision that is itself self-executing and judicially enforceable. The Convention provision is about an individual’s “rights,” namely, his right upon being arrested to be informed of his separate right to contact his nation’s consul. See Art. 36(1)(b), 21 U. S. T., at 101. The provision language is precise. The dispute arises at the intersection of an individual right with ordinary rules of criminal procedure; it consequently concerns the kind of matter with which judges are familiar. The provisions contain judicially enforceable standards. See Art. 36(2), ibid. (providing for exercise of rights “in conformity with the laws and regulations” of the arresting nation provided that the “laws and regulations . . . enable full effect to be given to the purposes for which the rights accorded under this Article are intended”). And the judgment itself requires a further hearing of a sort that is typically judicial. See infra , at 25–26. This Court has found similar treaty provisions self-executing. See, e.g. , Rauscher , 119 U. S., at 410–411, 429–430 (violation of extradition treaty could be raised as defense in criminal trial); Johnson v. Browne , 205 U. S. 309 , 317–322 (1907) (extradition treaty required grant of writ of habeas corpus); Wildenhus’s Case , 120 U. S., at 11, 17–18 (treaty defined scope of state jurisdiction in a criminal case). It is consequently not surprising that, when Congress ratified the Convention, the State Department reported that the “Convention is considered entirely self-executive and does not require any implementing or complementing legislation.” S. Exec. Rep. No. 91–9, p. 5 (1969); see also id., at 18 (“To the extent that there are conflicts with Federal legislation or State laws the Vienna Convention, after ratification, would govern”). And the Executive Branch has said in this Court that other, indistinguishable Vienna Convention provisions are self-executing. See Brief for United States as Amicus Curiae in Sanchez-Llamas v. Oregon , O. T. 2005, Nos. 05–51 and 04–10566, p. 14, n. 2; cf. ante, at 10, n. 4 (majority leaves question open). Third, logic suggests that a treaty provision providing for “final” and “binding” judgments that “settl[e]” treaty-based disputes is self-executing insofar as the judgment in question concerns the meaning of an underlying treaty provision that is itself self-executing. Imagine that two parties to a contract agree to binding arbitration about whether a contract provision’s word “grain” includes rye. They would expect that, if the arbitrator decides that the word “grain” does include rye, the arbitrator will then simply read the relevant provision as if it said “grain including rye.” They would also expect the arbitrator to issue a binding award that embodies whatever relief would be appropriate under that circumstance. Why treat differently the parties’ agreement to binding ICJ determination about, e.g. , the proper interpretation of the Vienna Convention clauses containing the rights here at issue? Why not simply read the relevant Vienna Convention provisions as if (between the parties and in respect to the 51 individuals at issue) they contain words that encapsulate the ICJ’s decision? See Art. 59, 59 Stat. 1062 (ICJ decision has “binding force … between the parties and in respect of [the] particular case”). Why would the ICJ judgment not bind in precisely the same way those words would bind if they appeared in the relevant Vienna Convention provisions—just as the ICJ says, for purposes of this case, that they do? To put the same point differently: What sense would it make (1) to make a self-executing promise and (2) to promise to accept as final an ICJ judgment interpreting that self-executing promise, yet (3) to insist that the judgment itself is not self-executing ( i.e. , that Congress must enact specific legislation to enforce it)? I am not aware of any satisfactory answer to these questions. It is no answer to point to the fact that in Sanchez-Llamas v. Oregon , 548 U. S. 331 (2006), this Court interpreted the relevant Convention provisions differently from the ICJ in Avena . This Court’s Sanchez-Llamas interpretation binds our courts with respect to individuals whose rights were not espoused by a state party in Avena . Moreover, as the Court itself recognizes, see ante , at 1–2, and as the President recognizes, see President’s Memorandum, the question here is the very different question of applying the ICJ’s Avena judgment to the very parties whose interests Mexico and the United States espoused in the ICJ Avena proceeding. It is in respect to these individuals that the United States has promised the ICJ decision will have binding force. Art. 59, 59 Stat. 1062. See 1 Restatement (Second) of Conflict of Laws §98 (1969); 2 Restatement (Third) of Foreign Relations §481 (1986); 1 Restatement (Second) of Judgments §17 (1980) (all calling for recognition of judgment rendered after fair hearing in a contested proceeding before a court with adjudicatory authority over the case). See also 1 Restatement (Second) of Conflict of Laws §106 (“A judgment will be recognized and enforced in other states even though an error of fact or law was made in the proceedings before judgment …”); id., §106, Comment a (“Th[is] rule is … applicable to judgments rendered in foreign nations …”); Reese, The Status in This Country of Judgments Rendered Abroad, 50 Colum. L. Rev. 783, 789 (1950) (“[Foreign] judgments will not be denied effect merely because the original court made an error either of fact or of law”). Contrary to the majority’s suggestion, see ante , at 15–16, that binding force does not disappear by virtue of the fact that Mexico, rather than Medellín himself, presented his claims to the ICJ. Mexico brought the Avena case in part in “the exercise of its right of diplomatic protection of its nationals,” e.g. , 2004 I. C. J., at 21, ¶¶13(1), (3), including Medellín, see id., at 25, ¶16. Such derivative claims are a well-established feature of international law, and the United States has several times asserted them on behalf of its own citizens. See 2 Restatement (Third) of Foreign Relations, supra , §713, Comments a , b , at 217; Case Concerning Elettronic Sicula S. p. A. (U. S. v. Italy) , 1989 I. C. J. 15, 20 (Judgment of July 20); Case Concerning United States Diplomatic and Consular Staff in Tehran (U. S. v. Iran) , 1979 I. C. J. 7, 8 (Judgment of Dec. 15); Case Concerning Rights of Nationals of the United States of America in Morocco (Fr. v. U. S.) , 1952 I. C. J. 176, 180–181 (Judgment of Aug. 27). They are treated in relevant respects as the claims of the represented individuals themselves. See 2 Restatement (Third) of Foreign Relations, supra , §713, Comments a , b . In particular, they can give rise to remedies, tailored to the individual, that bind the Nation against whom the claims are brought (here, the United States). See ibid.; see also, e.g. , Frelinghuysen v. Key , 110 U. S. 63 , 71–72 (1884). Nor does recognition of the ICJ judgment as binding with respect to the individuals whose claims were espoused by Mexico in any way derogate from the Court’s holding in Sanchez-Llamas , supra . See ante , at 16, n. 8. This case does not implicate the general interpretive question answered in Sanchez-Llamas: whether the Vienna Convention displaces state procedural rules. We are instead confronted with the discrete question of Texas’ obligation to comply with a binding judgment issued by a tribunal with undisputed jurisdiction to adjudicate the rights of the individuals named therein. “It is inherent in international adjudication that an international tribunal may reject one country’s legal position in favor of another’s—and the United States explicitly accepted this possibility when it ratified the Optional Protocol.” Brief for United States as Amicus Curiae 22. Fourth, the majority’s very different approach has seriously negative practical implications. The United States has entered into at least 70 treaties that contain provisions for ICJ dispute settlement similar to the Protocol before us. Many of these treaties contain provisions similar to those this Court has previously found self-executing—provisions that involve, for example, property rights, contract and commercial rights, trademarks, civil liability for personal injury, rights of foreign diplomats, taxation, domestic-court jurisdiction, and so forth. Compare Appendix A, infra, with Appendix B, infra. If the Optional Protocol here, taken together with the U. N. Charter and its annexed ICJ Statute, is insufficient to warrant enforcement of the ICJ judgment before us, it is difficult to see how one could reach a different conclusion in any of these other instances. And the consequence is to undermine longstanding efforts in those treaties to create an effective international system for interpreting and applying many, often commercial, self-executing treaty provisions. I thus doubt that the majority is right when it says, “We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments.” Ante , at 23–24. In respect to the 70 treaties that currently refer disputes to the ICJ’s binding adjudicatory authority, some multilateral, some bilateral, that is just what the majority has done. Nor can the majority look to congressional legislation for a quick fix. Congress is unlikely to authorize automatic judicial enforceability of all ICJ judgments, for that could include some politically sensitive judgments and others better suited for enforcement by other branches: for example, those touching upon military hostilities, naval activity, handling of nuclear material, and so forth. Nor is Congress likely to have the time available, let alone the will, to legislate judgment-by-judgment enforcement of, say, the ICJ’s (or other international tribunals’) resolution of non-politically-sensitive commercial disputes. And as this Court’s prior case law has avoided laying down bright-line rules but instead has adopted a more complex approach, it seems unlikely that Congress will find it easy to develop legislative bright lines that pick out those provisions (addressed to the Judicial Branch) where self-execution seems warranted. But, of course, it is not necessary for Congress to do so—at least not if one believes that this Court’s Supremacy Clause cases already embody criteria likely to work reasonably well. It is those criteria that I would apply here. Fifth , other factors, related to the particular judgment here at issue, make that judgment well suited to direct judicial enforcement. The specific issue before the ICJ concerned “ ‘review and reconsideration’ ” of the “possible prejudice” caused in each of the 51 affected cases by an arresting State’s failure to provide the defendant with rights guaranteed by the Vienna Convention. Avena, 2004 I. C. J., at 65, ¶138. This review will call for an understanding of how criminal procedure works, including whether, and how, a notification failure may work prejudice. Id., at 56–57. As the ICJ itself recognized, “it is the judicial process that is suited to this task.” Id., at 66, ¶140. Courts frequently work with criminal procedure and related prejudice. Legislatures do not. Judicial standards are readily available for working in this technical area. Legislative standards are not readily available. Judges typically determine such matters, deciding, for example, whether further hearings are necessary, after reviewing a record in an individual case. Congress does not normally legislate in respect to individual cases. Indeed, to repeat what I said above, what kind of special legislation does the majority believe Congress ought to consider? Sixth, to find the United States’ treaty obligations self-executing as applied to the ICJ judgment (and consequently to find that judgment enforceable) does not threaten constitutional conflict with other branches; it does not require us to engage in nonjudicial activity; and it does not require us to create a new cause of action. The only question before us concerns the application of the ICJ judgment as binding law applicable to the parties in a particular criminal proceeding that Texas law creates independently of the treaty. I repeat that the question before us does not involve the creation of a private right of action (and the majority’s reliance on authority regarding such a circumstance is misplaced, see ante , at 9, n. 3). Seventh, neither the President nor Congress has expressed concern about direct judicial enforcement of the ICJ decision. To the contrary, the President favors enforcement of this judgment. Thus, insofar as foreign policy impact, the interrelation of treaty provisions, or any other matter within the President’s special treaty, military, and foreign affairs responsibilities might prove relevant, such factors favor, rather than militate against, enforcement of the judgment before us. See, e.g., Jama v. Immigration and Customs Enforcement , 543 U. S. 335, 348 (2005) (noting Court’s “customary policy of deference to the President in matters of foreign affairs”). For these seven reasons, I would find that the United States’ treaty obligation to comply with the ICJ judgment in Avena is enforceable in court in this case without further congressional action beyond Senate ratification of the relevant treaties. The majority reaches a different conclusion because it looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language). Hunting for what the text cannot contain, it takes a wrong turn. It threatens to deprive individuals, including businesses, property owners, testamentary beneficiaries, consular officials, and others, of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide. In a world where commerce, trade, and travel have become ever more international, that is a step in the wrong direction. Were the Court for a moment to shift the direction of its legal gaze, looking instead to the Supremacy Clause and to the extensive case law interpreting that Clause as applied to treaties, I believe it would reach a better supported, more felicitous conclusion. That approach, well embedded in Court case law, leads to the conclusion that the ICJ judgment before us is judicially enforceable without further legislative action. II A determination that the ICJ judgment is enforceable does not quite end the matter, for the judgment itself requires us to make one further decision. It directs the United States to provide further judicial review of the 51 cases of Mexican nationals “by means of its own choosing.” Avena, 2004 I. C. J., at 72, ¶153(9). As I have explained, I believe the judgment addresses itself to the Judicial Branch. This Court consequently must “choose” the means. And rather than, say, conducting the further review in this Court, or requiring Medellín to seek the review in another federal court, I believe that the proper forum for review would be the Texas-court proceedings that would follow a remand of this case. Beyond the fact that a remand would be the normal course upon reversing a lower court judgment, there are additional reasons why further state-court review would be particularly appropriate here. The crime took place in Texas, and the prosecution at issue is a Texas prosecution. The President has specifically endorsed further Texas court review. See President’s Memorandum. The ICJ judgment requires further hearings as to whether the police failure to inform Medellín of his Vienna Convention rights prejudiced Medellín, even if such hearings would not otherwise be available under Texas’ procedural default rules. While Texas has already considered that matter, it did not consider fully, for example, whether appointed counsel’s coterminous 6-month suspension from the practice of the law “caused actual prejudice to the defendant”—prejudice that would not have existed had Medellín known he could contact his consul and thereby find a different lawyer. Id., at 60, ¶121. Finally, Texas law authorizes a criminal defendant to seek postjudgment review. See Tex. Code Crim. Proc. Ann., Art. 11.071, §5(a)(1) (Vernon Supp. 2006). And Texas law provides for further review where American law provides a “legal basis” that was previously “unavailable.” See Ex parte Medellín , 223 S. W. 3d 315, 352 (Tex. Crim. App. 2006). Thus, I would send this case back to the Texas courts, which must then apply the Avena judgment as binding law. See U. S. Const., Art. VI, cl. 2; see also, e.g. , Dominguez v. State , 90 Tex. Crim. 92, 99, 234 S. W. 79, 83 (1921) (recognizing that treaties are “part of the supreme law of the land” and that “it is the duty of the courts of the state to take cognizance of, construe and give effect” to them (internal quotation marks omitted)). III Because the majority concludes that the Nation’s international legal obligation to enforce the ICJ’s decision is not automatically a domestic legal obligation, it must then determine whether the President has the constitutional authority to enforce it. And the majority finds that he does not. See Part III, ante . In my view, that second conclusion has broader implications than the majority suggests. The President here seeks to implement treaty provisions in which the United States agrees that the ICJ judgment is binding with respect to the Avena parties. Consequently, his actions draw upon his constitutional authority in the area of foreign affairs. In this case, his exercise of that power falls within that middle range of Presidential authority where Congress has neither specifically authorized nor specifically forbidden the Presidential action in question. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 637 (1952) (Jackson, J., concurring). At the same time, if the President were to have the authority he asserts here, it would require setting aside a state procedural law. It is difficult to believe that in the exercise of his Article II powers pursuant to a ratified treaty, the President can never take action that would result in setting aside state law. Cf. United States v. Pink , 315 U. S. 203 , 233 (1942) (“No State can rewrite our foreign policy to conform to its own domestic policies”). Suppose that the President believes it necessary that he implement a treaty provision requiring a prisoner exchange involving someone in state custody in order to avoid a proven military threat. Cf. Ware , 3 Dall., at 205. Or suppose he believes it necessary to secure a foreign consul’s treaty-based rights to move freely or to contact an arrested foreign national. Cf. Vienna Convention, Art. 34, 21 U. S. T., at 98. Does the Constitution require the President in each and every such instance to obtain a special statute authorizing his action? On the other hand, the Constitution must impose significant restrictions upon the President’s ability, by invoking Article II treaty-implementation authority, to circumvent ordinary legislative processes and to pre-empt state law as he does so. Previously this Court has said little about this question. It has held that the President has a fair amount of authority to make and to implement executive agreements, at least in respect to international claims settlement, and that this authority can require contrary state law to be set aside. See, e.g. , Pink , supra, at 223, 230–231, 233–234; United States v. Belmont , 301 U. S. 324 , 326–327 (1937). It has made clear that principles of foreign sovereign immunity trump state law and that the Executive, operating without explicit legislative authority, can assert those principles in state court. See Ex parte Peru , 318 U. S. 578 , 588 (1943). It has also made clear that the Executive has inherent power to bring a lawsuit “to carry out treaty obligations.” Sanitary Dist. of Chicago v. United States , 266 U. S. 405 , 425, 426 (1925). But it has reserved judgment as to “the scope of the President’s power to preempt state law pursuant to authority delegated by . . . a ratified treaty”—a fact that helps to explain the majority’s inability to find support in precedent for its own conclusions. Barclays Bank PLC v. Franchise Tax Bd. of Cal. , 512 U. S. 298 , 329 (1994). Given the Court’s comparative lack of expertise in foreign affairs; given the importance of the Nation’s foreign relations; given the difficulty of finding the proper constitutional balance among state and federal, executive and legislative, powers in such matters; and given the likely future importance of this Court’s efforts to do so, I would very much hesitate before concluding that the Constitution implicitly sets forth broad prohibitions (or permissions) in this area. Cf. ante , at 27–28, n. 13 (stating that the Court’s holding is “limited” by the facts that (1) this treaty is non-self-executing and (2) the judgment of an international tribunal is involved). I would thus be content to leave the matter in the constitutional shade from which it has emerged. Given my view of this case, I need not answer the question. And I shall not try to do so. That silence, however, cannot be taken as agreement with the majority’s Part III conclusion. IV The majority’s two holdings taken together produce practical anomalies. They unnecessarily complicate the President’s foreign affairs task insofar as, for example, they increase the likelihood of Security Council Avena enforcement proceedings, of worsening relations with our neighbor Mexico, of precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation’s reputation abroad as a result of our failure to follow the “rule of law” principles that we preach. The holdings also encumber Congress with a task (postratification legislation) that, in respect to many decisions of international tribunals, it may not want and which it may find difficult to execute. See supra , at 23–24 (discussing the problems with case-by-case legislation). At the same time, insofar as today’s holdings make it more difficult to enforce the judgments of international tribunals, including technical non-politically-controversial judgments, those holdings weaken that rule of law for which our Constitution stands. Compare Hughes Defends Foreign Policies in Plea for Lodge, N. Y. Times, Oct. 31, 1922, p. 1, col. 1, p. 4, col. 1 (then-Secretary of State Charles Evans Hughes stating that “we favor, and always have favored, an international court of justice for the determination according to judicial standards of justiciable international disputes”); Mr. Root Discusses International Problems, N. Y. Times, July 9, 1916, section 6, book review p. 276 (former Secretary of State and U. S. Senator Elihu Root stating that “ ‘a court of international justice with a general obligation to submit all justiciable questions to its jurisdiction and to abide by its judgment is a primary requisite to any real restraint of law’ ”); Mills, The Obligation of the United States Toward the World Court, 114 Annals of the American Academy of Political and Social Science 128 (1924) (Congressman Ogden Mills describing the efforts of then-Secretary of State John Hay, and others, to establish a World Court, and the support therefor). These institutional considerations make it difficult to reconcile the majority’s holdings with the workable Constitution that the Founders envisaged. They reinforce the importance, in practice and in principle, of asking Chief Justice Marshall’s question: Does a treaty provision address the “Judicial” Branch rather than the “Political Branches” of Government. See Foster , 2 Pet., at 314. And they show the wisdom of the well-established precedent that indicates that the answer to the question here is “yes.” See Parts I and II, supra . V In sum, a strong line of precedent, likely reflecting the views of the Founders, indicates that the treaty provisions before us and the judgment of the International Court of Justice address themselves to the Judicial Branch and consequently are self-executing. In reaching a contrary conclusion, the Court has failed to take proper account of that precedent and, as a result, the Nation may well break its word even though the President seeks to live up to that word and Congress has done nothing to suggest the contrary. For the reasons set forth, I respectfully dissent. APPENDIXES TO OPINION OF BREYER, J. A Examples of Supreme Court decisions considering a treaty provision to be self-executing. Parentheticals indicate the subject matter; an asterisk indicates that the Court applied the provision to invalidate a contrary state or territorial law or policy. 1. Olympic Airways v. Husain , 540 U. S. 644 , 649, 657 (2004) (air carrier liability) 2. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng , 525 U. S. 155 , 161–163, 176 (1999) (same)* 3. Zicherman v. Korean Air Lines Co. , 516 U. S. 217 , 221, 231 (1996) (same) 4. Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa , 482 U. S. 522 , 524, 533 (1987) (international discovery rules) 5. Sumitomo Shoji America, Inc. v. Avagliano , 457 U. S. 176 , 181, 189–190 (1982) (employment practices) 6. Trans World Airlines, Inc. v. Franklin Mint Corp. , 466 U. S. 243 , 245, 252 (1984) (air carrier liability) 7. Kolovrat v. Oregon , 366 U. S. 187 , 191, n. 6, 198 (1961) (property rights and inheritance)* 8. Clark v. Allen , 331 U. S. 503 , 507–508, 517–518 (1947) (same)* 9. Bacardi Corp. of America v. Domenech , 311 U. S. 150 , 160, and n. 9, 161 (1940) (trademark)* 10. Todok v. Union State Bank of Harvard , 281 U. S. 449 , 453, 455 (1930) (property rights and inheritance) 11. Nielsen v. Johnson , 279 U. S. 47 , 50, 58 (1929) (taxation)* 12. Jordan v. Tashiro , 278 U. S. 123 , 126–127, n. 1, 128–129 (1928) (trade and commerce) 13. Asakura v. Seattle , 265 U. S. 332 , 340, 343–344 (1924) (same)* 14. Maiorano v. Baltimore & Ohio R. Co. , 213 U. S. 268 , 273–274 (1909) (travel, trade, access to courts) 15. Johnson v. Browne , 205 U. S. 309 , 317–322 (1907) (extradition) 16. Geofroy v. Riggs , 133 U. S. 258 , 267–268, 273 (1890) (inheritance)* 17. Wildenhus’s Case , 120 U. S. 1 , 11, 17–18 (1887) (criminal jurisdiction) 18. United States v. Rauscher , 119 U. S. 407 , 410–411, 429–430 (1886) (extradition) 19. Hauenstein v. Lynham , 100 U. S. 483 , 485–486, 490–491 (1880) (property rights and inheritance)* 20. American Ins. Co. v. 356 Bales of Cotton , 1 Pet. 511, 542 (1828) (property) 21. United States v. Percheman , 7 Pet. 51, 88–89 (1833) (land ownership) 22. United States v. Arredondo , 6 Pet. 691, 697, 749 (1832) (same) 23. Orr v. Hodgson , 4 Wheat. 453, 462–465 (1819) (same)* 24. Chirac v. Lessee of Chirac , 2 Wheat. 259, 270–271, 274, 275 (1817) (land ownership and inheritance)* 25. Martin v. Hunter’s Lessee , 1 Wheat. 304, 356–357 (1816) (land ownership) 26. Hannay v. Eve , 3 Cranch 242, 248 (1806) (monetary debts) 27. Hopkirk v. Bell , 3 Cranch 454, 457–458 (1806) (same)* 28. Ware v. Hylton , 3 Dall. 199, 203–204, 285 (1796) (same)* 29. Georgia v. Brailsford , 3 Dall. 1, 4 (1794) (same) B United States treaties in force containing provisions for the submission of treaty-based disputes to the International Court of Justice. Parentheticals indicate subject matters that can be the subject of ICJ adjudication that are of the sort that this Court has found self-executing. Economic Cooperation Agreements 1. Economic Aid Agreement Between the United States of America and Spain, Sept. 26, 1953, [1953] 4 U. S. T. 1903, 1920–1921, T. I. A. S. No. 2851 (property and contract) 2. Agreement for Economic Assistance Between the Government of the United States of America and the Government of Israel Pursuant to the General Agreement for Technical Cooperation, May 9, 1952, [1952] 3 U. S. T. 4174, 4177, T. I. A. S. No. 2561 (same) 3. Economic Cooperation Agreement Between the United States of America and Portugal, 62 Stat. 2861–2862 (1948) (same) 4. Economic Cooperation Agreement Between the United States of America and the United Kingdom, 62 Stat. 2604 (1948) (same) 5. Economic Cooperation Agreement Between the United States of America and the Republic of Turkey, 62 Stat. 2572 (1948) (same) 6. Economic Cooperation Agreement Between the United States of America and Sweden, 62 Stat. 2557 (1948) (same) 7. Economic Cooperation Agreement Between the United States of America and Norway, 62 Stat. 2531 (1948) (same) 8. Economic Cooperation Agreement Between the Governments of the United States of America and the Kingdom of the Netherlands, 62 Stat. 2500 (1948) (same) 9. Economic Cooperation Agreement Between the United States of America and the Grand Duchy of Luxembourg, 62 Stat. 2468 (1948) (same) 10. Economic Cooperation Agreement Between the United States of America and Italy, 62 Stat. 2440 (1948) (same) 11. Economic Cooperation Agreement Between the United States of America and Iceland, 62 Stat. 2390 (1948) (same) 12. Economic Cooperation Agreement Between the United States of America and Greece, 62 Stat. 2344 (1948) (same) 13. Economic Cooperation Agreement Between the United States of America and France, 62 Stat. 2232, 2233 (1948) (same) 14. Economic Cooperation Agreement Between the United States of America and Denmark, 62 Stat. 2214 (1948) (same) 15. Economic Cooperation Agreement Between the United States of America and the Kingdom of Belgium, 62 Stat. 2190 (1948) (same) 16. Economic Cooperation Agreement Between the United States of America and Austria, 62 Stat. 2144 (1948) (same) Bilateral Consular Conventions 1. Consular Convention Between the United States of America and the Kingdom of Belgium, Sept. 2, 1969, [1974] 25 U. S. T. 41, 47–49, 56–57, 60–61, 75, T. I. A. S. No. 7775 (domestic court jurisdiction and authority over consular officers, taxation of consular officers, consular notification) 2. Consular Convention Between the United States of America and the Republic of Korea, Jan. 8, 1963, [1963] 14 U. S. T. 1637, 1641, 1644–1648, T. I. A. S. No. 5469 (same) Friendship, Commerce, and Navigation Treaties 1. Treaty of Amity and Economic Relations Between the United States of America and the Togolese Republic, Feb. 8, 1966, [1967] 18 U. S. T. 1, 3–4, 10, T. I. A. S. No. 6193 (contracts and property) 2. Treaty of Friendship, Establishment and Navigation Between the United States of America and The Kingdom of Belgium, Feb. 21, 1961, [1963] 14 U. S. T. 1284, 1290–1291, 1307, T. I. A. S. No. 5432 (same) 3. Treaty of Friendship, Establishment and Navigation between the United States of America and the Grand Duchy of Luxembourg, Feb. 23, 1962, [1963] 14 U. S. T. 251, 254–255, 262, T. I. A. S. No. 5306 (consular notification; contracts and property) 4. Treaty of Friendship, Commerce and Navigation between the United States of America and the Kingdom of Denmark, Oct. 1, 1951, [1961] 12 U. S. T. 908, 912–913, 935, T. I. A. S. No. 4797 (contracts and property) 5. Treaty of Friendship and Commerce Between the United States of America and Pakistan, Nov. 12, 1959, [1961] 12 U. S. T. 110, 113, 123, T. I. A. S. No. 4863 (same) 6. Convention of Establishment Between the United States of America and France, Nov. 25, 1959, [1960] 11 U. S. T. 2398, 2401–2403, 2417, T. I. A. S. No. 4625 (same) 7. Treaty of Friendship, Commerce and Navigation Between the United States of America and the Republic of Korea, Nov. 28, 1956, [1957] 8 U. S. T. 2217, 2221–2222, 2233, T. I. A. S. No. 3947 (same) 8. Treaty of Friendship, Commerce and Navigation between the United States of America and the Kingdom of the Netherlands, Mar. 27, 1956, [1957] 8 U. S. T. 2043, 2047–2050, 2082–2083, T. I. A. S. No. 3942 (freedom to travel, consular notification, contracts and property) 9. Treaty of Amity, Economic Relations, and Consular Rights Between the United States of America and Iran, Aug. 15, 1955, [1957] 8 U. S. T. 899, 903, 907, 913, T. I. A. S. No. 3853 (property and freedom of commerce) 10. Treaty of Friendship, Commerce and Navigation Between the United States of America and the Federal Republic of Germany, Oct. 29, 1954, [1956] 7 U. S. T. 1839, 1844–1846, 1867, T. I. A. S. No. 3593 (property and contract) 11. reaty of Friendship, Commerce and Naviga- tion Between the United States of America and Greece, Aug. 3, 1951, [1954] 5 U. S. T. 1829, 1841–1847, 1913–1915, T. I. A. S. No. 3057 (same) 12. Treaty of Friendship, Commerce and Navigation Between the United States of America and Israel, Aug. 23, 1951, [1954] 5 U. S. T 550, 555–556, 575, T. I. A. S. No. 2948 (same) 13. Treaty of Amity and Economic Relations Between the United States of America and Ethiopia, Sept. 7, 1951, [1953] 4 U. S. T. 2134, 2141, 2145, 2147, T. I. A. S. No. 2864 (property and freedom of commerce) 14. Treaty of Friendship, Commerce and Navigation Between the United States of America and Japan, Apr. 2, 1953, [1953] 4 U. S. T. 2063, 2067–2069, 2080, T. I. A. S. No. 2863 (property and contract) 15. Treaty of Friendship, Commerce and Navigation between the United States of America and Ireland, Jan. 21, 1950, [1950] 1 U. S. T. 785, 792–794, 801, T. I. A. S. No. 2155 (same) 16. Treaty of Friendship, Commerce and Navigation between the United States of America and the Italian Republic, 63 Stat. 2262, 2284, 2294 (1948) (property and freedom of commerce) Multilateral Conventions 1. Patent Cooperation Treaty, June 19, 1970, [1976–77] 28 U. S. T. 7645, 7652–7676, 7708, T. I. A. S. No. 8733 (patents) 2. Universal Copyright Convention, July 24, 1971, [1974] 25 U. S. T. 1341, 1345, 1366, T. I. A. S. No. 7868 (copyright) 3. Vienna Convention on Diplomatic Relations and Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 18, 1961, [1972] 23 U. S. T. 3227, 3240–3243, 3375, T. I. A. S. No. 7502 (rights of diplomats in foreign nations) 4. Paris Convention for the Protection of Industrial Property, July 14, 1967, [1970] 21 U. S. T. 1583, 1631–1639, 1665–1666, T. I. A. S. No. 6923 (patents) 5. Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, [1970] 21 U. S. T. 1418, 1426–1428, 1430–1432, 1438–1440, T. I. A. S. No. 6900 (rights of U. N. diplomats and officials) 6. Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, [1969] 20 U. S. T. 2941, 2943–2947, 2952, T. I. A. S. No. 6768 (airlines’ treatment of passengers) 7. Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character, July 15, 1949, [1966] 17 U. S. T. 1578, 1581, 1586, T. I. A. S. No. 6116 (customs duties on importation of films and recordings) 8. Universal Copyright Convention, Sept. 6, 1952, [1955] 6 U. S. T. 2731, 2733–2739, 2743, T. I. A. S. No. 3324 (copyright) 9. Treaty of Peace with Japan, Sept. 8, 1951, [1952] 3 U. S. T. 3169, 3181–3183, 3188, T. I. A. S. No. 2490 (property) 10. Convention on Road Traffic, Sept. 19, 1949, [1952] 3 U. S. T. 3008, 3012–3017, 3020, T. I. A. S. No. 2487 (rights and obligations of drivers) 11. Convention on International Civil Aviation, 61 Stat. 1204 (1944) (seizure of aircraft to satisfy patent claims)

Here is a summary of the case: **Medellin v. Texas (2008)** **Summary:** The Supreme Court ruled that neither the International Court of Justice's (ICJ) judgment in the Avena case nor the President's Memorandum constitutes directly enforceable federal law that overrides state limitations on successive habeas petitions. **Background:** - José Ernesto Medellín, a Mexican national, was convicted and sentenced for murder in Texas state court. - The ICJ, in Avena, held that 51 Mexican nationals, including Medellín, were entitled to review and reconsideration of their US convictions due to Vienna Convention violations. - President Bush issued a Memorandum stating that the US would comply with the Avena decision. - Medellín filed for habeas corpus in Texas, but the state court dismissed it as an abuse of the writ under state law. **Issues:** - Is the ICJ's Avena judgment directly enforceable in US state courts? - Does the President's Memorandum require states to provide review without regard to state procedural rules? **Decision:** The Supreme Court affirmed the Texas court's decision, holding that neither Avena nor the Memorandum pre-empts state law, and that Medellín's Vienna Convention claim was procedurally defaulted.

Separation of Powers

NLRB v. Canning

https://supreme.justia.com/cases/federal/us/573/513/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–1281 _________________ NATIONAL LABOR RELATIONS BOARD, PETITIONER v. NOEL CANNING, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 26, 2014]      Justice Breyer delivered the opinion of the Court.      Ordinarily the President must obtain “the Advice and Consent of the Senate” before appointing an “Office[r] of the United States.” U. S. Const., Art. II, §2, cl. 2. But the Recess Appointments Clause creates an exception. It gives the President alone the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Art. II, §2, cl. 3. We here consider three questions about the application of this Clause.      The first concerns the scope of the words “recess of the Senate.” Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? We conclude that the Clause applies to both kinds of recess.      The second question concerns the scope of the words “vacancies that may happen.” Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? We conclude that the Clause applies to both kinds of vacancy.      The third question concerns calculation of the length of a “recess.” The President made the appointments here at issue on January 4, 2012. At that time the Senate was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess? We conclude that we cannot ignore these pro forma sessions.      Our answer to the third question means that, when the appointments before us took place, the Senate was in the midst of a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue. I      The case before us arises out of a labor dispute. The National Labor Relations Board (NLRB) found that a Pepsi-Cola distributor, Noel Canning, had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. The Board ordered the distributor to execute the agreement and to make employees whole for any losses. Noel Canning, 358 N. L. R. B. No. 4 (2012).      The Pepsi-Cola distributor subsequently asked the Court of Appeals for the District of Columbia Circuit to set the Board’s order aside. It claimed that three of the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act. See 29 U. S. C. §160(f) (providing for judicial review); §153(a) (providing for a 5-member Board); §153(b) (providing for a 3-member quorum); New Process Steel, L. P. v. NLRB, 560 U. S. 674 –688 (2010) (in the absence of a lawfully appointed quorum, the Board cannot exercise its powers).      The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011 the President had nominated each of them to the Board. As of January 2012, Flynn’s nomination had been pending in the Senate awaiting confirmation for approximately a year. The nominations of each of the other two had been pending for a few weeks. On January 4, 2012, the President, invoking the Recess Appointments Clause, appointed all three to the Board.      The distributor argued that the Recess Appointments Clause did not authorize those appointments. It pointed out that on December 17, 2011, the Senate, by unanimous consent, had adopted a resolution providing that it would take a series of brief recesses beginning the following day. See 2011 S. J. 923. Pursuant to that resolution, the Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. Ibid.; 158 Cong. Rec. S1–S11 (Jan. 3–20, 2012). The President’s January 4 appointments were made between the January 3 and January 6 pro forma sessions. In the distributor’s view, each pro forma session terminated the immediately preceding recess. Accordingly, the appointments were made during a 3-day adjournment, which is not long enough to trigger the Recess Appointments Clause.      The Court of Appeals agreed that the appointments fell outside the scope of the Clause. But the court set forth different reasons. It held that the Clause’s words “the recess of the Senate” do not include recesses that occur within a formal session of Congress, i.e., intra-session recesses. Rather those words apply only to recesses between those formal sessions, i.e., inter-session recesses. Since the second session of the 112th Congress began on January 3, 2012, the day before the President’s appointments, those appointments occurred during an intra-session recess, and the appointments consequently fell outside the scope of the Clause. 705 F. 3d 490, 499–507 (CADC 2013).      The Court of Appeals added that, in any event, the phrase “vacancies that may happen during the recess” applies only to vacancies that come into existence during a recess. Id., at 507–512. The vacancies that Members Block, Griffin, and Flynn were appointed to fill had arisen before the beginning of the recess during which they were appointed. For this reason too the President’s appointments were invalid. And, because the Board lacked a quorum of validly appointed members when it issued its order, the order was invalid. 29 U. S. C. §153(b); New Process Steel, supra.      We granted the Solicitor General’s petition for certio-rari. We asked the parties to address not only the Court of Appeals’ interpretation of the Clause but also the distributor’s initial argument, namely, “[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.” 570 U. S. ___ (2013).      We shall answer all three questions presented. We recognize that the President has nominated others to fill the positions once occupied by Members Block, Griffin, and Flynn, and that the Senate has confirmed these successors. But, as the parties recognize, the fact that the Board now unquestionably has a quorum does not moot the controversy about the validity of the previously entered Board order. And there are pending before us petitions from decisions in other cases involving challenges to the appointment of Board Member Craig Becker. The President appointed Member Becker during an intra-session recess that was not punctuated by pro forma ses-sions, and the vacancy Becker filled had come into existence prior to the recess. See Congressional Research Service, H. Hogue, M. Carey, M. Greene, & M. Bearden, The Noel Canning Decision and Recess Appointments Made from 1981–2013, p. 28 (Feb. 4, 2013) (hereinaf-ter The Noel Canning Decision); NLRB, Members ofthe NLRB since 1935, online at http://www.nlrb.gov/who-we-are/board/members-nlrb-1935 (all Internet materials as visited June 24, 2014, and available in Clerk of Court’s case file). Other cases involving similar challenges are also pending in the Courts of Appeals. E.g., NLRB v. New Vista Nursing & Rehabilitation, No. 11–3440 etc. (CA3). Thus, we believe it is important to answer all three questions that this case presents. II      Before turning to the specific questions presented, we shall mention two background considerations that we find relevant to all three. First, the Recess Appointments Clause sets forth a subsidiary, not a primary, method for appointing officers of the United States. The immediately preceding Clause—Article II, Section 2, Clause 2—provides the primary method of appointment. It says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States” (emphasis added).      The Federalist Papers make clear that the Founders intended this method of appointment, requiring Senate approval, to be the norm (at least for principal officers). Alexander Hamilton wrote that the Constitution vests the power of nomination in the President alone because “one man of discernment is better fitted to analise and estimate the peculiar qualities adapted to particular offices, than a body of men of equal, or perhaps even of superior dis-cernment.” The Federalist No. 76, p. 510 (J. Cooke ed. 1961). At the same time, the need to secure Senate approval provides “an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Id., at 513. Hamilton further explained that the “ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers; and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorise the President singly to make temporary appointments.” Id., No. 67, at 455.      Thus the Recess Appointments Clause reflects the tension between, on the one hand, the President’s continuous need for “the assistance of subordinates,” Myers v. United States, 272 U. S. 52, 117 (1926) , and, on the other, the Senate’s practice, particularly during the Republic’s early years, of meeting for a single brief session each year, see Art. I, §4, cl. 2; Amdt. 20, §2 (requiring the Senate to “assemble” only “once in every year”); 3 J. Story, Commentaries on the Constitution of the United States §1551, p. 410 (1833) (it would be “burthensome to the senate, and expensive to the public” to require the Senate to be “perpetually in session”). We seek to interpret the Clause as granting the President the power to make appointments during a recess but not offering the President the author-ity routinely to avoid the need for Senate confirmation.      Second, in interpreting the Clause, we put significant weight upon historical practice. For one thing, the inter-pretive questions before us concern the allocation of power between two elected branches of Government. Long ago Chief Justice Marshall wrote that “a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice.” McCulloch v. Maryland, 4 Wheat. 316, 401 (1819). And we later confirmed that “[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions” regulating the relationship between Congress and the President. The Pocket Veto Case, 279 U. S. 655, 689 (1929) ; see also id., at 690 (“[A] practice of at least twenty years duration ‘on the part of the executive department, acquiesced in by the legislative department, . . . is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning’ ” (quoting State v. South Norwalk, 77 Conn. 257, 264, 58 A. 759, 761 (1904))).      We recognize, of course, that the separation of powers can serve to safeguard individual liberty, Clinton v. City of New York, 524 U. S. 417 –450 (1998) (Kennedy, J., concurring), and that it is the “duty of the judicial department”—in a separation-of-powers case as in any other—“to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803). But it is equally true that the longstanding “practice of the government,” McCulloch, supra, at 401, can inform our determination of “what the law is,” Marbury, supra, at 177.      That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases have continually confirmed Madison’s view. E.g., Mistretta v. United States, 488 U. S. 361, 401 (1989) ; Dames & Moore v. Regan, 453 U. S. 654, 686 (1981) ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 –611 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra, at 689–690; Ex parte Grossman, 267 U. S. 87 –119 (1925); United States v. Midwest Oil Co., 236 U. S. 459 –474 (1915); McPherson v. Blacker, 146 U. S. 1, 27 (1892) ; McCulloch, supra; Stuart v. Laird, 1 Cranch 299 (1803).      These precedents show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400–401 (“While these [practices] spawned spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give meaning’ to the Constitution” (quoting Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan, supra, at 684 (“[E]ven if the pre-1952 [practice] should be disregarded, congressional acquiescence in [a practice] since that time supports the President’s power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution).      There is a great deal of history to consider here. Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that recess appointments can be both necessary and appropriate in certain circumstances. We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached. III      The first question concerns the scope of the phrase “the recess of the Senate.” Art. II, §2, cl. 3 (emphasis added). The Constitution provides for congressional elections every two years. And the 2-year life of each elected Congress typically consists of two formal 1-year sessions, each separated from the next by an “inter-session recess.” Congressional Research Service, H. Hogue, Recess Appointments: Frequently Asked Questions 2 (2013). The Senate or the House of Representatives announces an inter-session recess by approving a resolution stating that it will “adjourn sine die,” i.e., without specifying a date to return (in which case Congress will reconvene when the next formal session is scheduled to begin).      The Senate and the House also take breaks in the midst of a session. The Senate or the House announces any such “intra-session recess” by adopting a resolution stating that it will “adjourn” to a fixed date, a few days or weeks or even months later. All agree that the phrase “the recess of the Senate” covers inter-session recesses. The question is whether it includes intra-session recesses as well.      In our view, the phrase “the recess” includes an intra-session recess of substantial length. Its words taken literally can refer to both types of recess. Founding-era dictionaries define the word “recess,” much as we do today, simply as “a period of cessation from usual work.” 13 The Oxford English Dictionary 322–323 (2d ed. 1989) (hereinafter OED) (citing 18th- and 19th-century sources for that definition of “recess”); 2 N. Webster, An American Dictionary of the English Language (1828) (“[r]emission or suspension of business or procedure”); 2 S. Johnson, A Dictionary of the English Language 1602–1603 (4th ed. 1773) (hereinafter Johnson) (same). The Founders themselves used the word to refer to intra-session, as well as to inter-session, breaks. See, e.g., 3 Records of the Federal Convention of 1787, p. 76 (M. Farrand rev. 1966) (hereinafter Farrand) (letter from George Washington to John Jay using “the recess” to refer to an intra-session break of the Constitutional Convention); id., at 191 (speech of Luther Martin with a similar usage); 1 T. Jefferson, A Manualof Parliamentary Practice §LI, p. 165 (2d ed. 1812) (describing a “recess by adjournment” which did not end a session).      We recognize that the word “the” in “the recess” might suggest that the phrase refers to the single break separating formal sessions of Congress. That is because the word “the” frequently (but not always) indicates “a particular thing.” 2 Johnson 2003. But the word can also refer “to a term used generically or universally.” 17 OED 879. The Constitution, for example, directs the Senate to choose a President pro tempore “in the Absence of the Vice-President.” Art. I, §3, cl. 5 (emphasis added). And the Federalist Papers refer to the chief magistrate of an ancient Achaean league who “administered the government in the recess of the Senate.” The Federalist No. 18, at 113 (J. Madison) (emphasis added). Reading “the” generically in this way, there is no linguistic problem applying the Clause’s phrase to both kinds of recess. And, in fact, the phrase “the recess” was used to refer to intra-session recesses at the time of the founding. See, e.g., 3 Farrand 76 (letter from Washington to Jay); New Jersey Legislative-Council Journal, 5th Sess., 1st Sitting 70, 2d Sitting 9 (1781) (twice referring to a 4-month, intra-session break as “the Recess”); see also Brief for Petitioner 14–16 (listing examples).      The constitutional text is thus ambiguous. And we believe the Clause’s purpose demands the broader interpretation. The Clause gives the President authority to make appointments during “the recess of the Senate” so that the President can ensure the continued functioning of the Federal Government when the Senate is away. The Senate is equally away during both an inter-session and an intra-session recess, and its capacity to participate in the appointments process has nothing to do with the words it uses to signal its departure.      History also offers strong support for the broad interpretation. We concede that pre-Civil War history is not helpful. But it shows only that Congress generally took long breaks between sessions, while taking no significant intra-session breaks at all (five times it took a break of a week or so at Christmas). See Appendix A, infra. Obviously, if there are no significant intra-session recesses, there will be no intra-session recess appointments. In 1867 and 1868, Congress for the first time took substantial, nonholiday intra-session breaks, and President Andrew Johnson made dozens of recess appointments. The Federal Court of Claims upheld one of those specific appointments, writing “[w]e have no doubt that a vacancy occurring while the Senate was thus temporarily adjourned” during the “first session of the Fortieth Congress” was “legally filled by appointment of the President alone.” Gould v. United States, 19 Ct. Cl. 593, 595–596 (1884) (emphasis added). Attorney General Evarts also issued three opinions concerning the constitutionality of President Johnson’s appointments, and it apparently did not occur to him that the distinction between intra-session and inter-session recesses was significant. See 12 Op. Atty. Gen. 449 (1868); 12 Op. Atty. Gen. 455 (1868); 12 Op. Atty. Gen. 469 (1868). Similarly, though the 40th Congress impeached President Johnson on charges relating to his appointment power, he was not accused of violating the Constitution by mak-ing intra-session recess appointments. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 409 (2005).      In all, between the founding and the Great Depression, Congress took substantial intra-session breaks (other than holiday breaks) in four years: 1867, 1868, 1921, and 1929. Appendix A, infra. And in each of those years the President made intra-session recess appointments. See App. to Brief for Petitioner 1a–11a.      Since 1929, and particularly since the end of World War II, Congress has shortened its inter-session breaks as it has taken longer and more frequent intra-session breaks; Presidents have correspondingly made more intra-session recess appointments. Indeed, if we include military appointments, Presidents have made thousands of intra-session recess appointments. Id., at 11a–64a. President Franklin Roosevelt, for example, commissioned Dwight Eisenhower as a permanent Major General during an intra-session recess; President Truman made Dean Acheson Under Secretary of State; and President George H. W. Bush reappointed Alan Greenspan as Chairman of the Federal Reserve Board. Id., at 11a, 12a, 40a. Justice Scalia does not dispute any of these facts.      Not surprisingly, the publicly available opinions of Presidential legal advisers that we have found are nearly unanimous in determining that the Clause authorizes these appointments. In 1921, for example, Attorney General Daugherty advised President Harding that he could make intra-session recess appointments. He reasoned: “If the President’s power of appointment is to be defeated because the Senate takes an adjournment to a specified date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions. I can not bring myself to believe that the framers of the Constitution ever intended such a catastrophe to happen.” 33 Op. Atty. Gen. 20, 23. We have found memoranda offering similar advice to President Eisenhower and to every President from Carter to the present. See 36 Opinion of Office of Legal Counsel (Op. OLC) ___, ___ (2012), online at www.justice.gov/olc/opiniondocslpro-forma-sessions-opinion.pdf; 25 Op. OLC 182 (2001); 20 Op. OLC 124, 161 (1996); 16 Op. OLC 15 (1992); 13 Op. OLC 271 (1989); 6 Op. OLC 585, 586 (1982); 3 Op. OLC 314, 316 (1979); 41 Op. Atty. Gen. 463, 466 (1960).      We must note one contrary opinion authored by President Theodore Roosevelt’s Attorney General Philander Knox. Knox advised the President that the Clause did not cover a 19–day intra-session Christmas recess. 23 Op. Atty. Gen. 599 (1901). But in doing so he relied heavily upon the use of the word “the,” a linguistic point that we do not find determinative. See supra, at 10. And Knox all but confessed that his interpretation ran contrary to the basic purpose of the Clause. For it would permit the Senate to adjourn for “several months,” to a fixed date, and thereby “seriously curtail the President’s power of making recess appointments.” 23 Op. Atty. Gen., at 603. Moreover, only three days before Knox gave his opinion, the Solicitor of the Treasury came to the opposite conclusion. Reply Brief 7, n. 5. We therefore do not think Knox’s isolated opinion can disturb the consensus advice within the Executive Branch taking the opposite position.      What about the Senate? Since Presidents began making intra-session recess appointments, individual Senators have taken differing views about the proper definition of “the recess.” See, e.g., 130 Cong. Rec. 23234 (1984) (resolution introduced by Senator Byrd urging limits on the length of applicable intra-session recesses); Brief for Sen. Mitch McConnell et al. as Amici Curiae 26 (an intra-session adjournment does not count as “the recess”); Brief for Sen. Edward M. Kennedy as Amicus Curiae in Franklin v. United States, O. T. 2004, No. 04–5858, p. 5 (same). But neither the Senate considered as a body nor its committees, despite opportunities to express opposition to the practice of intra-session recess appointments, has done so. Rather, to the extent that the Senate or a Senate committee has expressed a view, that view has favored a functional definition of “recess,” and a functional definition encompasses intra-session recesses.      Most notably, in 1905 the Senate Committee on the Judiciary objected strongly to President Theodore Roosevelt’s use of the Clause to make more than 160 recess appointments during a “fictitious” inter-session recess. S. Rep. No. 4389, 58th Cong., 3d Sess., p. 2 (hereinafter 1905 Senate Report). At noon on December 7, 1903, the Senate President pro tempore had “declare[d]” a formal, “extraordinary session” of the Senate “adjourned without day,” and the next formal Senate session began immediately afterwards. 37 Cong. Rec. 544 (1903). President Roosevelt made over 160 recess appointments during the instantaneous inter-session interval. The Judiciary Committee, when stating its strong objection, defined “recess” in functional terms as “the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress . . . ; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.” 1905 Senate Report, at 2 (emphasisdeleted). That functional definition encompasses intra-session, as well as inter-session, recesses. Justice Scalia is right that the 1905 Report did not specifically address the dis-tinction between inter-session and intra-session recesses. But the animating principle of the Report—that “recess” should be practically construed to mean a time when the Senate is unavailable to participate in the appointments process—is inconsistent with the formalistic approach that Justice Scalia endorses.      Similarly, in 1940 the Senate helped to enact a law regulating the payment of recess appointees, and the Comptroller General of the United States has interpreted that law functionally. An earlier 1863 statute had denied pay to individuals appointed to fill up vacancies first arising prior to the beginning of a recess. The Senate Judiciary Committee then believed that those vacancies fell outside the scope of the Clause. See infra, at 30. In 1940, however, the Senate amended the law to permit many of those recess appointees to be paid. Act of July 11, 54Stat. 751. Interpreting the amendments in 1948, the Comptroller General—who, unlike the Attorney General, is an “officer of the Legislative Branch,” Bowsher v. Synar, 478 U. S. 714, 731 (1986) —wrote: “I think it is clear that [the Pay Act amendments’] primary purpose was to relieve ‘recess appointees’ of the burden of serving without compensation during periods when the Senate is not actually sitting and is not available to give its advice and consent in respect to the appointment, irrespective of whether the recess of the Senate is attributable to a final adjournment sine die or to an adjournment to a specified date.” 28 Comp. Gen. 30, 37.      We recognize that the Senate cannot easily register opposition as a body to every governmental action that many, perhaps most, Senators oppose. But the Senate has not been silent or passive regarding the meaning of the Clause: A Senate Committee did register opposition to President Theodore Roosevelt’s use of the Clause, and the Senate as a whole has legislated in an effort to discourage certain kinds of recess appointments. And yet we are not aware of any formal action it has taken to call into question the broad and functional definition of “recess” firstset out in the 1905 Senate Report and followed by the Executive Branch since at least 1921. Nor has Justice Scalia identified any. All the while, the President has made countless recess appointments during intra-session recesses.      The upshot is that restricting the Clause to inter-session recesses would frustrate its purpose. It would make the President’s recess-appointment power dependent on a formalistic distinction of Senate procedure. Moreover, the President has consistently and frequently interpreted the word “recess” to apply to intra-session recesses, and has acted on that interpretation. The Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century. And three-quarters of a century of settled practice is long enough to entitle a practice to “great weight in a proper interpretation” of the constitutional provision. The Pocket Veto Case, 279 U. S., at 689.      We are aware of, but we are not persuaded by, three important arguments to the contrary. First, some argue that the Founders would likely have intended the Clause to apply only to inter-session recesses, for they hardly knew any other. See, e.g., Brief for Originalist Scholars as Amici Curiae 27–29. Indeed, from the founding until the Civil War inter-session recesses were the only kind of significant recesses that Congress took. The problem with this argument, however, is that it does not fully describe the relevant founding intent. The question is not: Did the Founders at the time think about intra-session recesses? Perhaps they did not. The question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances? The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is “intended to endure for ages to come,” and must adapt itself to a future that can only be “seen dimly,” if at all. McCulloch, 4 Wheat., at 415. We therefore think the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language.      Second, some argue that the intra-session interpretation permits the President to make “illogic[ally]” long recess appointments. Brief for Respondent Noel Canning 13; post, at 10 (Scalia, J., concurring in judgment). A recess appointment made between Congress’ annual sessions would permit the appointee to serve for about a year, i.e., until the “end” of the “next” Senate “session.” Art. II, §2, cl. 3. But an intra-session appointment made at the beginning or in the middle of a formal session could permit the appointee to serve for 1½ or almost 2 years (until the end of the following formal session).      We agree that the intra-session interpretation permits somewhat longer recess appointments, but we do not agree that this consequence is “illogical.” A President who makes a recess appointment will often also seek to make a regular appointment, nominating the appointee and securing ordinary Senate confirmation. And the Clause ensures that the President and Senate always have at least a full session to go through the nomination and confirmation process. That process may take several months. See O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 967 (2009) (from 1987 to 2005 the nomination and confirmation process took an average of 236 days for noncabinet agency heads). A recess appointment that lasts somewhat longer than a year will ensure the President the continued assistance of subordinates that the Clause permits him to obtain while he and the Senate select a regular appointee. An appointment should last until the Senate has “an opportunity to act on the subject,” Story, §1551, at 410, and the Clause embodies a determination that a full session is needed to select and vet a replacement.      Third, the Court of Appeals believed that application of the Clause to intra-session recesses would introduce “vagueness” into a Clause that was otherwise clear. 705 F. 3d, at 504. One can find problems of uncertainty, however, either way. In 1867, for example, President Andrew Johnson called a special session of Congress, which took place during a lengthy intra-session recess. Consider the period of time that fell just after the conclusion of that special session. Did that period remain an intra-session recess, or did it become an inter-session recess? Historians disagree about the answer. Compare Hartnett, 26 Cardozo L. Rev., at 408–409, with Brief for Constitutional Law Scholars as Amici Curiae 23–24.      Or suppose that Congress adjourns sine die, but it does so conditionally, so that the leadership can call the members back into session when “the public interest shall warrant it.” E.g., 155 Cong. Rec. 33429 (2009); 152 Cong. Rec. 23731–23732 (2006); 150 Cong. Rec. 25925–25926 (2004). If the Senate Majority Leader were to reconvene the Senate, how would we characterize the preceding recess? Is it still inter-session? On the narrower interpretation the label matters; on the broader it does not.      The greater interpretive problem is determining how long a recess must be in order to fall within the Clause. Is a break of a week, or a day, or an hour too short to count as a “recess”? The Clause itself does not say. And Justice Scalia claims that this silence itself shows that the Framers intended the Clause to apply only to an inter-session recess. Post, at 12–13.      We disagree. For one thing, the most likely reason the Framers did not place a textual floor underneath the word “recess” is that they did not foresee the need for one. They might have expected that the Senate would meet for a single session lasting at most half a year. The Federalist No. 84, at 596 (A. Hamilton). And they might not have anticipated that intra-session recesses would become lengthier and more significant than inter-session ones. The Framers’ lack of clairvoyance on that point is not dispositive. Unlike Justice Scalia, we think it most consistent with our constitutional structure to presume that the Framers would have allowed intra-session recess appointments where there was a long history of such practice.      Moreover, the lack of a textual floor raises a problem that plagues both interpretations—Justice Scalia’s and ours. Today a brief inter-session recess is just as possible as a brief intra-session recess. And though Justice Scalia says that the “notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting,” he must immediately concede (in a footnote) that the President “can make recess appointments during any break between sessions, no matter how short.” Post, at 11, 15, n. 4 (emphasis added).      Even the Solicitor General, arguing for a broader interpretation, acknowledges that there is a lower limit applicable to both kinds of recess. He argues that the lower limit should be three days by analogy to the Adjournments Clause of the Constitution. Tr. of Oral Arg. 11. That Clause says: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” Art. I, §5, cl. 4.      We agree with the Solicitor General that a 3-day recess would be too short. (Under Senate practice, “Sunday is generally not considered a day,” and so is not counted for purposes of the Adjournments Clause. S. Doc. No. 101–28, F. Riddick & A. Frumin, Riddick’s Senate Procedure: Precedents and Practices 1265 (hereinafter Riddick’s).) The Adjournments Clause reflects the fact that a 3-day break is not a significant interruption of legislative business. As the Solicitor General says, it is constitutionally de minimis. Brief for Petitioner 18. A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess-appointment power.      That is not to say that the President may make recess appointments during any recess that is “more than three days.” Art. I, §5, cl. 4. The Recess Appointments Clause seeks to permit the Executive Branch to function smoothly when Congress is unavailable. And though Congress has taken short breaks for almost 200 years, and there have been many thousands of recess appointments in that time, we have not found a single example of a recess ap-pointment made during an intra-session recess that was shorter than 10 days. Nor has the Solicitor General. Reply Brief 23. Indeed, the Office of Legal Counsel once informally advised against making a recess appointment during a 6-day intra-session recess. 3 Op. OLC, at 315–316. The lack of examples suggests that the recess-appointment power is not needed in that context. (The length of a recess is “ordinarily calculated by counting the calendar days running from the day after the recess begins and including the day the recess ends.” 36 Op. OLC, at ___, n. 1 (citation omitted).)      There are a few historical examples of recess appointments made during inter-session recesses shorter than 10 days. We have already discussed President Theodore Roosevelt’s appointments during the instantaneous, “fictitious” recess. President Truman also made a recess appointment to the Civil Aeronautics Board during a 3-day inter-session recess. Hogue, Recess Appointments: Fre-quently Asked Questions, at 5–6. President Taft made a few appointments during a 9-day recess following his inauguration, and President Lyndon Johnson made sev-eral appointments during an 8-day recess several weeks after assuming office. Hogue, The Law: Recess Appointments to Article III Courts, 34 Presidential Studies Q. 656, 671 (2004); 106 S. Exec. J. 2 (1964); 40 S. Exec. J. 12 (1909). There may be others of which we are unaware. But when considered against 200 years of settled practice, we regard these few scattered examples as anomalies. We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance—a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response—could demand the exercise of the recess-appointment power during a shorter break. (It should go without saying—except that Justice Scalia compels us to say it—that political opposition in the Senate would not qualify as an unusual circumstance.)      In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well. IV      The second question concerns the scope of the phrase “vacancies that may happen during the recess of the Senate.” Art. II, §2, cl. 3 (emphasis added). All agree that the phrase applies to vacancies that initially occur during a recess. But does it also apply to vacancies that initially occur before a recess and continue to exist during the recess? In our view the phrase applies to both kinds of vacancy.      We believe that the Clause’s language, read literally, permits, though it does not naturally favor, our broader interpretation. We concede that the most natural meaning of “happens” as applied to a “vacancy” (at least to a modern ear) is that the vacancy “happens” when it ini-tially occurs. See 1 Johnson 913 (defining “happen” in relevant part as meaning “[t]o fall out; to chance; to come to pass”). But that is not the only possible way to use the word.      Thomas Jefferson wrote that the Clause is “certainly susceptible of [two] constructions.” Letter to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433 (B. Oberg ed., 2009). It “may mean ‘vacancies that may happen to be’ or ‘may happen to fall’ ” during a recess. Ibid. Jefferson used the phrase in the first sense when he wrote to a job seeker that a particular position was unavailable, but that he (Jefferson) was “happy that another vacancy happens wherein I can . . . avail the public of your integrity & talents,” for “the office of Treasurer of the US. is vacant by the resignation of mr Meredith.” Letter to Thomas Tudor Tucker (Oct. 31, 1801), in 35 id., at 530 (B. Oberg ed. 2008) (emphasis added). See also Laws Passed by the Legislature of Florida, No. 31, An Act to Organize and Regulate the Militia of the Territory of Florida §13, H. R. Exec. Doc. No. 72, 27th Cong., 3d Sess., 22 (1842) (“[W]hen any vacancy shall take place in the office of any lieutenant colonel, it shall be the duty of the colonel of the regiment in which such vacancy may happen to order an election to be held at the several precincts in the battalion in which such vacancy may happen” (emphasis added)).      Similarly, when Attorney General William Wirt advised President Monroe to follow the broader interpretation, he wrote that the “expression seems not perfectly clear. It may mean ‘happen to take place:’ that is, ‘to originate,’ ” or it “may mean, also, without violence to the sense, ‘happen to exist.’ ” 1 Op. Atty. Gen. 631, 631–632 (1823). The broader interpretation, he added, is “most accordant with” the Constitution’s “reason and spirit.” Id., at 632.      We can still understand this earlier use of “happen” if we think of it used together with another word that, like “vacancy,” can refer to a continuing state, say, a financial crisis. A statute that gives the President authority to act in respect to “any financial crisis that may happen during his term” can easily be interpreted to include crises that arise before, and continue during, that term. Perhaps that is why the Oxford English Dictionary defines “happen” in part as “chance to be,” rather than “chance to occur.” 6 OED 1096 (emphasis added); see also 19 OED 383 (defining “vacancy” as the “condition of an office or post being . . . vacant”).      In any event, the linguistic question here is not whether the phrase can be, but whether it must be, read more narrowly. The question is whether the Clause is ambiguous. The Pocket Veto Case, 279 U. S., at 690. And the broader reading, we believe, is at least a permissible reading of a “ ‘doubtful’ ” phrase. Ibid. We consequently go on to consider the Clause’s purpose and historical practice.      The Clause’s purpose strongly supports the broader interpretation. That purpose is to permit the President to obtain the assistance of subordinate officers when the Senate, due to its recess, cannot confirm them. Attorney General Wirt clearly described how the narrower interpretation would undermine this purpose: “Put the case of a vacancy occurring in an office, held in a distant part of the country, on the last day of the Senate’s session. Before the vacancy is made known to the President, the Senate rises. The office may be an important one; the vacancy may paralyze a whole line of action in some essential branch of our internal police; the public interests may imperiously demand that it shall be immediately filled. But the vacancy happened to occur during the session of the Senate; and if the President’s power is to be limited to such vacancies only as happen to occur during the recess of the Senate, the vacancy in the case put must continue, however ruinous the consequences may be to the public.” 1 Op. Atty. Gen., at 632. Examples are not difficult to imagine: An ambassadorial post falls vacant too soon before the recess begins for the President to appoint a replacement; the Senate rejects a President’s nominee just before a recess, too late to select another. Wirt explained that the “substantial purpose of the constitution was to keep these offices filled,” and “if the President shall not have the power to fill a vacancy thus circumstanced, . . . the substance of the constitution will be sacrificed to a dubious construction of its letter.” Ibid. Thus the broader construction, encompassing vacancies that initially occur before the beginning of a recess, is the “only construction of the constitution which is compatible with its spirit, reason, and purposes; while, at the same time, it offers no violence to its language.” Id., at 633.      We do not agree with Justice Scalia’s suggestion that the Framers would have accepted the catastrophe envisioned by Wirt because Congress can always provide for acting officers, see 5 U. S. C. §3345, and the President can always convene a special session of Congress, see U. S. Const., Art. II, §3. Acting officers may have less authority than Presidential appointments. 6 Op. OLC 119, 121 (1982). Moreover, to rely on acting officers would lessen the President’s ability to staff the Executive Branch with people of his own choosing, and thereby limit the President’s control and political accountability. Cf. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 –498 (2010). Special sessions areburdensome (and would have been especially so at the time of the founding). The point of the Recess Appointments Clause was to avoid reliance on these inadequate expedients.      At the same time, we recognize one important purpose-related consideration that argues in the opposite direction. A broad interpretation might permit a President to avoid Senate confirmations as a matter of course. If the Clause gives the President the power to “fill up all vacancies” that occur before, and continue to exist during, the Senate’s recess, a President might not submit any nominations to the Senate. He might simply wait for a recess and then provide all potential nominees with recess appointments. He might thereby routinely avoid the constitutional need to obtain the Senate’s “advice and consent.”      Wirt thought considerations of character and politics would prevent Presidents from abusing the Clause in this way. 1 Op. Atty. Gen., at 634. He might have added that such temptations should not often arise. It is often less desirable for a President to make a recess appointment. A recess appointee only serves a limited term. That, combined with the lack of Senate approval, may diminish the recess appointee’s ability, as a practical matter, to get a controversial job done. And even where the President and Senate are at odds over politically sensitive appointments, compromise is normally possible. Indeed, the 1940 Pay Act amendments represent a general compromise, for they foresee payment of salaries to recess appointees where vacancies occur before the recess began but not too long before (namely, within 30 days before). 5 U. S. C. §5503(a)(1); see infra, at 32. Moreover, the Senate, like the President, has institutional “resources,” including political resources, “available to protect and assert its interests.” Goldwater v. Carter, 444 U. S. 996, 1004 (1979) (Rehnquist, J., concurring in judgment). In an unusual instance, where a matter is important enough to the Sen-ate, that body can remain in session, preventing recess appointments by refusing to take a recess. See Part V, infra. In any event, the Executive Branch has adhered to the broader interpretation for two centuries, and Senate confirmation has always remained the norm for officers that require it.      While we concede that both interpretations carry with them some risk of undesirable consequences, we believe the narrower interpretation risks undermining constitutionally conferred powers more seriously and more often. It would prevent the President from making any recess appointment that arose before a recess, no matter who the official, no matter how dire the need, no matter how uncontroversial the appointment, and no matter how late in the session the office fell vacant. Overall, like Attorney General Wirt, we believe the broader interpretation more consistent with the Constitution’s “reason and spirit.” 1 Op. Atty. Gen., at 632.      Historical practice over the past 200 years strongly favors the broader interpretation. The tradition of applying the Clause to pre-recess vacancies dates at least to President James Madison. There is no undisputed record of Presidents George Washington, John Adams, or Thomas Jefferson making such an appointment, though the Solicitor General believes he has found records showing that Presidents Washington and Jefferson did so. We know that Edmund Randolph, Washington’s Attorney General, favored a narrow reading of the Clause. Randolph believed that the “Spirit of the Constitution favors the participation of the Senate in all appointments,” though he did not address—let alone answer—the powerful purposive and structural arguments subsequently made by Attorney General Wirt. See Edmund Randolph’s Opinion on Recess Appointments (July 7, 1792), in 24 Papers of Thomas Jefferson 166 (J. Catanzariti ed. 1990).      President Adams seemed to endorse the broader view of the Clause in writing, though we are not aware of any appointments he made in keeping with that view. See Letter to J. McHenry (Apr. 16, 1799), in 8 Works of John Adams 632–633 (C. Adams ed. 1853). His Attorney General, Charles Lee, later informed Jefferson that, in the Adams administration, “whenever an office became vacant so short a time before Congress rose, as not to give an opportunity of enquiring for a proper character, they let it lie always till recess.” 36 Papers of Thomas Jefferson 433. We know that President Jefferson thought that the broad interpretation was linguistically supportable, though his actual practice is not clear. But the evidence suggests that James Madison—as familiar as anyone with the workings of the Constitutional Convention—appointed Theodore Gaillard to replace a district judge who had left office before a recess began. Hartnett, 26 Cardozo L. Rev., at 400–401. It also appears that in 1815 Madison signed a bill that created two new offices prior to a recess which he then filled later during the recess. See Act of Mar. 3, ch. 95, 3Stat. 235; S. J. 13th Cong., 3d Sess., 689–690 (1815); 3 S. Exec. J. 19 (1828) (for Monday, Jan. 8, 1816). He also made recess appointments to “territorial” United States attorney and marshal positions, both of which had been created when the Senate was in session more than two years before. Act of Feb. 27, 1813, ch. 35, 2Stat. 806; 3 S. Exec. J. 19. Justice Scalia refers to “written evidence of Madison’s own beliefs,” post, at 36, but in fact we have no direct evidence of what President Madison believed. We only know that he declined to make one appointment to a pre-recess vacancy after his Secretary of War advised him that he lacked the power. On the other hand, he did apparently make at least five other appointments to pre-recess vacancies, as Justice Scalia does not dispute.      The next President, James Monroe, received and presumably acted upon Attorney General Wirt’s advice, namely that “all vacancies which, from any casualty, happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President.” 1 Op. Atty. Gen., at 633. Nearly every subsequent Attorney General to consider the question throughout the Nation’s history has thought the same. E.g., 2 Op. Atty. Gen. 525, 528 (1832); 7 Op. Atty. Gen. 186, 223 (1855); 10 Op. Atty. Gen. 356, 356–357 (1862); 12 Op. Atty. Gen. 32, 33 (1866); 12 Op. Atty. Gen., at 452; 14 Op. Atty. Gen. 562, 564 (1875); 15 Op. Atty. Gen. 207 (1877); 16 Op. Atty. Gen. 522, 524 (1880); 17 Op. Atty. Gen. 521 (1883); 18 Op. Atty. Gen. 29, 29–30 (1884); 19 Op. Atty. Gen. 261, 262 (1889); 26 Op. Atty. Gen. 234, 234–235 (1907); 30 Op. Atty. Gen. 314, 315 (1914); 41 Op. Atty. Gen. 463, 465 (1960); 3 Op. OLC 314 (1979); 6 Op. OLC 585, 586 (1982); 20 Op. OLC 124, 161 (1996); 36 Op. OLC ___ (2012). Indeed, as early as 1862, Attorney General Bates advised President Lincoln that his power to fill pre-recess vacancies was “settled . . . as far . . . as a constitutional question can be settled,” 10 Op. Atty. Gen., at 356, and a century later Acting Attorney General Walsh gave President Eisenhower the same advice “without any doubt,” 41 Op. Atty. Gen., at 466.      This power is important. The Congressional Research Service is “unaware of any official source of information tracking the dates of vacancies in federal offices.” The Noel Canning Decision 3, n. 6. Nonetheless, we have enough information to believe that the Presidents since Madison have made many recess appointments filling vacancies that initially occurred prior to a recess. As we have just said, nearly every 19th- and 20th-century Attorney General expressing a view on the matter has agreed with William Wirt, and Presidents tend to follow the legal advice of their chief legal officers. Moreover, the Solicitor General has compiled a list of 102 (mostly uncontested) recess appointments made by Presidents going back to the founding. App. to Brief for Petitioner 65a–89a. Given the difficulty of finding accurate information about vacancy dates, that list is undoubtedly far smaller than the actual number. No one disputes that every President since James Buchanan has made recess appointments to pre-existing vacancies.      Common sense also suggests that many recess appointees filled vacancies that arose before the recess began. We have compared the list of intra-session recess appointments in the Solicitor General’s brief with the chart of congressional recesses. Where a specific date of appointment can be ascertained, more than half of those intra-session appointments were made within two weeks of the beginning of a recess. That short window strongly suggests that many of the vacancies initially arose prior to the recess. See App. to Brief for Petitioner 1a–64a; Appendix A, infra. Thus, it is not surprising that the Congressional Research Service, after examining the vacancy dates associated with a random sample of 24 inter-session recess appointments since 1981, concluded that “[i]n most of the 24 cases, the preponderance of evidence indicated that the vacancy arose prior to the recess during which the appointment was made.” The Noel Canning Decision 3. Further, with research assistance from the Supreme Court Library, we have examined a random sample of the recess appointments made by our two most recent Presidents, and have found that almost all of those appointments filled pre-recess vacancies: Of a sample of 21 recess appointments, 18 filled pre-recess vacancies and only 1 filled a vacancy that arose during the recess in which he was appointed. The precise date on which 2 of the vacancies arose could not be determined. See Appendix B, infra. Taken together, we think it is a fair inference that a large proportion of the recess appointments in the history of the Nation have filled pre-existing vacancies.      Did the Senate object? Early on, there was some sporadic disagreement with the broad interpretation. In 1814 Senator Gore said that if “the vacancy happen at another time, it is not the case described by the Constitution.” 26 Annals of Cong. 653. In 1822 a Senate committee, while focusing on the President’s power to fill a new vacancy created by statute, used language to the same effect. 38 id., at 489, 500. And early Congresses enacted statutes authorizing certain recess appointments, see post, at 31, a fact that may or may not suggest they accepted the narrower interpretation of the Clause. Most of those statutes—including the one passed by the First Congress—authorized appointments to newly created offices, and may have been addressed to the separate question of whether new offices are vacancies within the meaning of the Clause. See Letter from Alexander Hamilton to James McHenry (May 3, 1799), in 23 Papers of Alexander Hamilton 94 (H. Syrett ed. 1976) (“Vacancy is a relative term, and presupposes that the Office has been once filled”); Reply Brief 17. In any event, by 1862 Attorney General Bates could still refer to “the unbroken acquiescence of the Senate” in support of the broad interpretation. 10 Op. Atty. Gen., at 356.      Then in 1863 the Senate Judiciary Committee disagreed with the broad interpretation. It issued a report concluding that a vacancy “must have its inceptive point after one session has closed and before another session has begun.” S. Rep. No. 80, 37th Cong., 3d Sess., p. 3. And the Senate then passed the Pay Act, which provided that “no money shall be paid . . . as a salary, to any person appointed during the recess of the Senate, to fill a vacancy . . . which . . . existed while the Senate was in session.” Act of Feb. 9, 1863, §2, 12Stat. 646. Relying upon the floor statement of a single Senator, Justice Scalia suggests that the passage of the Pay Act indicates that the Senate as a whole endorsed the position in the 1863 Report. But the circumstances are more equivocal. During the floor debate on the bill, not a single Senator referred to the Report. Cong. Globe, 37th Cong., 3d Sess. 564–565 (1863). Indeed, Senator Trumbull, who introduced the Pay Act, acknowledged that there was disagreement about the underlying constitutional question. Id., at 565 (“[S]ome other persons think he has that power”). Further, if a majority of the Senate had believed appointments to pre-recess vacancies were unconstitutional, it could have attempted to do far more than temporarily dock the appointees’ pay. Cf. Tenure of Office Act of 1867, §5, 14Stat. 431 (making it a federal crime for “any person” to “accept any appointment” in certain circumstances).      In any event, the Senate subsequently abandoned its hostility. In the debate preceding the 1905 Senate Report regarding President Roosevelt’s “constructive” recess appointments, Senator Tillman—who chaired the Committee that authored the 1905 Report—brought up the 1863 Report, and another Senator responded: “Whatever that report may have said in 1863, I do not think that has been the view the Senate has taken” of the issue. 38 Cong. Rec. 1606 (1904). Senator Tillman then agreed that “the Senate has acquiesced” in the President’s “power to fill” pre-recess vacancies. Ibid. And Senator Tillman’s 1905 Report described the Clause’s purpose in terms closely echoing Attorney General Wirt. 1905 Senate Report, at 2 (“Its sole purpose was to render it certain that at all times there should be, whether the Senate was in session or not, an officer for every office” (emphasis added)).      In 1916 the Senate debated whether to pay a recess appointee who had filled a pre-recess vacancy and had not subsequently been confirmed. Both Senators to address the question—one on each side of the payment debate—agreed that the President had the constitutional power to make the appointment, and the Senate voted to pay the appointee for his service. 53 Cong. Rec. 4291–4299; 39Stat. 818–819. In 1927 the Comptroller General, a legislative officer, wrote that “there is no question but that the President has authority to make a recess appointment to fill any vacancy,” including those that “existed while the Senate was in session.” 7 Comp. Gen. 10, 11 (emphasis added). Meanwhile, Presidents continued to make appointments to pre-recess vacancies. The Solicitor General has identified 40 between 1863 and 1940, but that number is clearly not comprehensive. See, e.g., 32 Op. Atty. Gen. 271–272 (1920) (listing 5 appointments that are not in the Solicitor General’s appendix); Recess Appointments, Washington Post, July 7, 1880, p. 1 (noting that President Hayes had made “quite a number of appointments” to pre-recess vacancies).      Then in 1940 Congress amended the Pay Act to authorize salary payments (with some exceptions) where (1) the “vacancy arose within thirty days prior to the termination of the session,” (2) “at the termination of the session” a nomination was “pending,” or (3) a nominee was “rejected by the Senate within thirty days prior to the termination of the session.” Act of July 11, 54Stat. 751 (codified, as amended, at 5 U. S. C. §5503). All three circumstances concern a vacancy that did not initially occur during a recess but happened to exist during that recess. By paying salaries to this kind of recess appointee, the 1940 Senate (and later Senates) in effect supported the President’s interpretation of the Clause.      The upshot is that the President has consistently and frequently interpreted the Recess Appointments Clause to apply to vacancies that initially occur before, but continue to exist during, a recess of the Senate. The Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer. See A. Amar, The Unwritten Constitution 576–577, n. 16 (2012) (for nearly 200 years “the overwhelming mass of actual practice” supports the President’s interpretation); Mistretta v. United States, 488 U. S. 361, 401 (1989) (a “200–year tradition” can “ ‘give meaning’ to the Constitution” (quot-ing Youngstown, 343 U. S., at 610 (Frankfurter, J., concurring))). The tradition is long enough to entitle the practice “to great regard in determining the true construction” of the constitutional provision. The Pocket Veto Case, 279 U. S., at 690. And we are reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long.      In light of some linguistic ambiguity, the basic purpose of the Clause, and the historical practice we have described, we conclude that the phrase “all vacancies” includes vacancies that come into existence while the Senate is in session. V      The third question concerns the calculation of the length of the Senate’s “recess.” On December 17, 2011, the Senate by unanimous consent adopted a resolution to convene “pro forma session[s]” only, with “no business . . . transacted,” on every Tuesday and Friday from December 20, 2011, through January 20, 2012. 2011 S. J. 923. At the end of each pro forma session, the Senate would “adjourn until” the following pro forma session. Ibid. During that period, the Senate convened and adjourned as agreed. It held pro forma sessions on December 20, 23, 27, and 30, and on January 3, 6, 10, 13, 17, and 20; and at the end of each pro forma session, it adjourned until the time and date of the next. Id., at 923–924; 158 Cong. Rec. S1–S11.      The President made the recess appointments before us on January 4, 2012, in between the January 3 and the January 6 pro forma sessions. We must determine the significance of these sessions—that is, whether, for purposes of the Clause, we should treat them as periods when the Senate was in session or as periods when it was in recess. If the former, the period between January 3 and January 6 was a 3-day recess, which is too short to trigger the President’s recess-appointment power, see supra, at 19–21. If the latter, however, then the 3-day period was part of a much longer recess during which the President did have the power to make recess appointments, see ibid.      The Solicitor General argues that we must treat the pro forma sessions as periods of recess. He says that these “sessions” were sessions in name only because the Senate was in recess as a functional matter. The Senate, he contends, remained in a single, unbroken recess from January 3, when the second session of the 112th Congress began by operation of the Twentieth Amendment, until January 23, when the Senate reconvened to do regular business.      In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here.      The standard we apply is consistent with the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business. The Constitution explicitly empowers the Senate to “determine the Rules of its Proceedings.” Art. I, §5, cl. 2. And we have held that “all matters of method are open to the determination” of the Senate, as long as there is “a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained” and the rule does not “ignore constitutional restraints or violate fundamental rights.” United States v. Ballin, 144 U. S. 1, 5 (1892) .      In addition, the Constitution provides the Senate with extensive control over its schedule. There are only limited exceptions. See Amdt. 20, §2 (Congress must meet once a year on January 3, unless it specifies another day by law); Art. II, §3 (Senate must meet if the President calls it into special session); Art. I, §5, cl. 4 (neither House may adjourn for more than three days without consent of the other). See also Art. II, §3 (“[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper”). The Constitution thus gives the Senate wide latitude to determine whether and when to have a session, as well as how to conduct the session. This suggests that the Senate’s determination about what constitutes a session should merit greatrespect.      Furthermore, this Court’s precedents reflect the breadth of the power constitutionally delegated to the Senate. We generally take at face value the Senate’s own report of its actions. When, for example, “the presiding officers” of the House and Senate sign an enrolled bill (and the President “approve[s]” it), “its authentication as a bill that has passed Congress should be deemed complete and unimpeachable.” Marshall Field & Co. v. Clark, 143 U. S. 649, 672 (1892) . By the same principle, when the Journal of the Senate indicates that a quorum was present, under a valid Senate rule, at the time the Senate passed a bill, we will not consider an argument that a quorum was not, in fact, present. Ballin, supra, at 9. The Constitution requires the Senate to keep its Journal, Art. I, §5, cl. 3 (“Each House shall keep a Journal of its proceedings . . .”), and “if reference may be had to” it, “it must be assumed to speak the truth,” Ballin, supra, at 4.      For these reasons, we conclude that we must give great weight to the Senate’s own determination of when it is and when it is not in session. But our deference to the Senate cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares. See Tr. of Oral Arg. 69 (acknowledgment by counsel for amici Senators that if the Senate had left the Capitol and “effectively given up . . . the business of legislating” then it might be in recess, even if it said it was not). In that circumstance, the Senate is not simply unlikely or unwilling to act upon nominations of the President. It is unable to do so. The purpose of the Clause is to ensure the continued functioning of the Federal Government while the Senate is unavailable. See supra, at 5–6. This purpose would count for little were we to treat the Senate as though it were in session even when it lacks the ability to provide its “advice and consent.” Art. II, §2, cl. 2. Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the Clause.      Applying this standard, we find that the pro forma sessions were sessions for purposes of the Clause. First, the Senate said it was in session. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly “sessions” from December 20 through January 20. 2011 S. J. 923–924; 158 Cong. Rec. S1–S11. (The Journal of the Senate for 2012 has not yet been published.) And these reports of the Senate “must be assumed to speak the truth.” Ballin, supra, at 4.      Second, the Senate’s rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct business. During any pro forma session, the Senate could have conducted business simply by passing a unanimous consent agreement. See Riddick’s 1313. The Senate in fact conducts much of its business through unanimous consent. Id., at 1311–1312. Senate rules presume that a quorum is present unless a present Senator questions it. Id., at 1041–1042. And when the Senate has a quorum, an agreement is unanimously passed if, upon its proposal, no present Senator objects. Id., at 1329–1330. It is consequently unsurprising that the Senate has enacted legislation during pro forma sessions even when it has said that no business will be transacted. Indeed, the Senate passed a bill by unanimous consent during the second pro forma session after its December 17 adjournment. 2011 S. J. 924. And that bill quickly became law. Pub. L. 112–78, 125Stat. 1280.      By way of contrast, we do not see how the Senate could conduct business during a recess. It could terminate the recess and then, when in session, pass a bill. But in that case, of course, the Senate would no longer be in recess. It would be in session. And that is the crucial point. Senate rules make clear that, once in session, the Senate can act even if it has earlier said that it would not.      The Solicitor General argues that more is required. He contends that what counts is not the Senate’s capacity to conduct business but what the Senate actually does (or here, did) during its pro forma sessions. And he looks for support to the functional definition of “recess” set forth in the 1905 Senate Report discussed above. See supra, at 14. That Report describes a “recess” of the Senate as “the period of time . . . when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.” 1905 Senate Report, at 2.      Even were we, for argument’s sake, to accept all of these criteria as authoritative, they would here be met. Taking the last criterion first, could the Senate, during its pro forma sessions, “participate as a body in making appointments”? It could. It could confirm nominees by unanimous consent, just as it passed the bill mentioned above. See Riddick’s 1313.      Could the Senate “receive communications from the President”? It could. The Congressional Record indicates that the Senate “received” a message from the President on January 12, during a 3-day adjournment between two pro forma sessions. See 158 Cong. Rec. S37 (Jan. 23, 2012). If the Senate could receive Presidential messages between two pro forma sessions, it could receive them during a pro forma session.      Was the Senate’s Chamber “empty”? It was not. By its official rules, the Senate operates under the presumption that a quorum is present until a present Senator suggests the absence of a quorum, Riddick’s 1041–1042, and nothing in the Journal of the Senate or the Congressional Record reflects any such suggestion.      Did Senators “owe [a] duty of attendance”? They did. The Senate’s rules dictate that Senators are under a duty to attend every session. See Riddick’s 214; Standing Rule of the Senate VI(2), S. Doc. No. 112–1, p. 5 (2011) (“No Senator shall absent himself from the service of the Senate without leave”). Nothing excused the Senators from this duty during the Senate’s pro forma sessions. If any present Senator had raised a question as to the presence of a quorum, and by roll call it had become clear that a quorum was missing, the Senators in attendance could have directed the Sergeant at Arms to bring in the missing Senators. Rule VI(4).      The Solicitor General asks us to engage in a more realistic appraisal of what the Senate actually did. He argues that, during the relevant pro forma sessions, business was not in fact conducted; messages from the President could not be received in any meaningful way because they could not be placed before the Senate; the Senate Chamber was, according to C-SPAN coverage, almost empty; and in practice attendance was not required. See Brief for Petitioner 48–49, 54–55.      We do not believe, however, that engaging in the kind of factual appraisal that the Solicitor General suggests is either legally or practically appropriate. From a legal perspective, this approach would run contrary to prece-dent instructing us to “respect . . . coequal and independent departments” by, for example, taking the Senate’s report of its official action at its word. Field, 143 U. S., at 672; see Ballin, 144 U. S., at 4. From a practical perspective, judges cannot easily determine such matters as who is, and who is not, in fact present on the floor during a particular Senate session. Judicial efforts to engage in these kinds of inquiries would risk undue judicial interference with the functioning of the Legislative Branch.      Finally, the Solicitor General warns that our holding may “ ‘disrup[t] the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.’ ” Brief for Petitioner 64 (quoting Morrison v. Olson, 487 U. S. 654, 695 (1988) ; alteration in original). We do not see, however, how our holding could significantly alter the constitutional balance. Most appointments are not controversial and do not produce friction between the branches. Where political controversy is serious, the Senate unquestionably has other methods of preventing recess appointments. As the Solicitor General concedes, the Senate could preclude the President from making recess appointments by holding a series of twice-a-week ordinary (not pro forma) sessions. And the nature of the business conducted at those ordinary sessions—whether, for example, Senators must vote on nominations, or may return totheir home States to meet with their constituents—is a matter for the Senate to decide. The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, §3 (“[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper”). Moreover, the President and Senators engage with each other in many different ways and have a variety of methods of encouraging each other to accept their points of view.      Regardless, the Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure. See Myers, 272 U. S., at 293 (Brandeis, J., dissenting). That structure foresees resolution not only through judicial interpretation and compromise among the branches but also by the ballot box. VI      The Recess Appointments Clause responds to a structural difference between the Executive and Legislative Branches: The Executive Branch is perpetually in operation, while the Legislature only acts in intervals separated by recesses. The purpose of the Clause is to allow the Executive to continue operating while the Senate is unavailable. We believe that the Clause’s text, standing alone, is ambiguous. It does not resolve whether the President may make appointments during intra-session recesses, or whether he may fill pre-recess vacancies. But the broader reading better serves the Clause’s structural function. Moreover, that broader reading is reinforced by centuries of history, which we are hesitant to disturb. We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.      Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an “anachronism,” he would basically read it out of the Constitution. Post, at 12. He performs this act of judicial excision in the name of liberty. We fail to see how excising the Recess Appointments Clause preserves freedom. In fact, Alexander Hamilton observed in the very first Feder-alist Paper that “the vigour of government is essential to the security of liberty.” The Federalist No. 1, at 5. And the Framers included the Recess Appointments Clause to preserve the “vigour of government” at times when an important organ of Government, the United States Senate, is in recess. Justice Scalia’s interpretation of the Clause would defeat the power of the Clause to achieve that objective.      The foregoing discussion should refute Justice Scalia’s claim that we have “embrace[d]” an “adverse-possession theory of executive power.” Post, at 48. Instead, as inall cases, we interpret the Constitution in light of itstext, purposes, and “our whole experience” as a Nation. Missouri v. Holland, 252 U. S. 416, 433 (1920) . And we look to the actual practice of Government to inform our interpretation.      Given our answer to the last question before us, we conclude that the Recess Appointments Clause does not give the President the constitutional authority to make the appointments here at issue. Because the Court of Appeals reached the same ultimate conclusion (though for reasons we reject), its judgment is affirmed. It is so ordered. APPENDIXES A      The following table contains the dates of all the intra-session and inter-session recesses that Congress has taken since the founding. The information (including the footnotes) is taken from 2011–2012 Official Congressional Directory, 112th Cong., 522–539. SESSIONS OF CONGRESS, 1st–112th CONGRESSES, 1789–2011 1 For the purposes of this table, a session’s ‘‘length in days’’ is defined as the total number of calendar days from the convening date to the adjournment date, inclusive. It does not mean the actual number of days that Congress met during that session. 2 For the purposes of this table, a ‘‘recess’’ is defined as a break in House or Senate proceedings of three or more days, excluding Sundays. According to Article I, section 5 of the U. S. Constitution, neither house may adjourn for more than three days without the consent of the other. On occasion, both chambers have held one or more pro forma sessions because of this constitutional obligation or for other purposes. Treated here as recesses, usually no business is conducted during these time periods. On this table, beginning in the 1990s, such pro forma sessions are indicated with a P. B      The following table shows the proportion of recent appointments that have filled pre-recess vacancies. It was compiled with research assistance from the Supreme Court Library. It contains a random sample of the recess appointments by President George W. Bush and President Barack Obama. The last column indicates whether the vacancy arose during the recess in which it was filled. “A” indicates a vacancy that arose during the recess, “P” indicates a vacancy that arose before the recess, and “U” indicates that the vacancy date could not be ascertained. SUPREME COURT OF THE UNITED STATES _________________ No. 12–1281 _________________ NATIONAL LABOR RELATIONS BOARD, PETITIONER v. NOEL CANNING, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 26, 2014]      Justice Scalia, with whom The Chief Justice, Justice Thomas, and Justice Alito join, concurring in the judgment.      Except where the Constitution or a valid federal law provides otherwise, all “Officers of the United States” must be appointed by the President “by and with the Advice and Consent of the Senate.” U. S. Const., Art. II, §2, cl. 2. That general rule is subject to an exception: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Id., §2, cl. 3. This case requires us to decide whether the Recess Appointments Clause authorized three appointments made by President Obama to the National Labor Relations Board in January 2012 without the Senate’s consent.      To prevent the President’s recess-appointment power from nullifying the Senate’s role in the appointment process, the Constitution cabins that power in two significant ways. First, it may be exercised only in “the Recess of the Senate,” that is, the intermission between two formal legislative sessions. Second, it may be used to fill only those vacancies that “happen during the Recess,” that is, offices that become vacant during that intermission. Both conditions are clear from the Constitution’s text and structure, and both were well understood at the founding. The Court of Appeals correctly held that the appointments here at issue are invalid because they did not meet either condition.      Today’s Court agrees that the appointments were in-valid, but for the far narrower reason that they were made during a 3-day break in the Senate’s session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, first, that the President can make appointments without the Senate’s participation even during short breaks in the middle of the Senate’s session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled. The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not “upset the compromises and working arrangements that the elected branches of Government themselves have reached.” Ante, at 9.      The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates. To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government. I concur in the judgment only. I. Our Responsibility      Today’s majority disregards two overarching principles that ought to guide our consideration of the questions presented here.      First, the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights. Indeed, “[s]o convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary.” Clinton v. City of New York, 524 U. S. 417, 450 (1998) (Kennedy, J., concurring). Those structural provisions reflect the founding generation’s deep conviction that “checks and balances were the foundation of a structure of government that would protect liberty.” Bowsher v. Synar, 478 U. S. 714, 722 (1986) . It is for that reason that “the claims of individuals—not of Government departments—have been the principal source of judicial decisions concerning separation of powers and checks and balances.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 10); see, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010) ; Clinton, supra; Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995) ; Bowsher, supra; INS v. Chadha, 462 U. S. 919 (1983) ; Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982) . Those decisions all rest on the bedrock principle that “the constitutional structure of our Government” is designed first and foremost not to look after the interests of the respective branches, but to “protec[t] individual liberty.” Bond, supra, at ___ (slip op., at 11).      Second and relatedly, when questions involving the Constitution’s government-structuring provisions are presented in a justiciable case, it is the solemn responsibility of the Judicial Branch “ ‘to say what the law is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). This Court does not defer to the other branches’ resolution of such controversies; as Justice Kennedy has previously written, our role is in no way “lessened” because it might be said that “the two political branches are adjusting their own powers between themselves.” Clinton, supra, at 449 (concurring opinion). Since the separation of powers exists for the protection of individual liberty, its vitality “does not depend” on “whether ‘the encroached-upon branch approves the encroachment.’ ” Free Enterprise Fund, supra, at 497 (quoting New York v. United States, 505 U. S. 144, 182 (1992) ); see also Freytag v. Commissioner, 501 U. S. 868 –880 (1991); Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 –277 (1991). Rather, policing the “enduring structure” of constitutional government when the political branches fail to do so is “one of the most vital functions of this Court.” Public Citizen v. Department of Justice, 491 U. S. 440, 468 (1989) (Kennedy, J., concurring in judgment).      Our decision in Chadha illustrates that principle. There, we held that a statutory provision authorizing one House of Congress to cancel an executive action taken pursuant to statutory authority—a so-called “legislative veto”—exceeded the bounds of Congress’s authority under the Constitution. 462 U. S., at 957–959. We did not hesitate to hold the legislative veto unconstitutional even though Congress had enacted, and the President had signed, nearly 300 similar provisions over the course of 50 years. Id., at 944–945. Just the opposite: We said the other branches’ enthusiasm for the legislative veto “sharpened rather than blunted” our review. Id., at 944. Likewise, when the charge is made that a practice “enhances the President’s powers beyond” what the Constitution permits, “[i]t is no answer . . . to say that Congress surrendered its authority by its own hand.” Clinton, 524 U. S., at 451 (Kennedy, J., concurring). “[O]ne Congress cannot yield up its own powers, much less those of other Congresses to follow. Abdication of responsibility is not part of the constitutional design.” Id., at 452 (citations omitted).      Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision. See, e.g., Alden v. Maine, 527 U. S. 706 –744 (1999); Bowsher, supra, at 723–724; Myers v. United States, 272 U. S. 52 –175 (1926); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610 (1952) (Frankfurter, J., concurring) (arguing that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned” should inform interpretation of the “Executive Power” vested in the President); Rutan v. Republican Party of Ill., 497 U. S. 62 , and n. 1 (1990) (Scalia, J., dissenting). But “ ‘[p]ast practice does not, by itself, create power.’ ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U. S. 654, 686 (1981) ). That is a necessary corollary of the principle that the political branches cannot by agreement alter the constitutional structure. Plainly, then, a self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.      Ignoring our more recent precedent in this area, which is extensive, the majority relies on The Pocket Veto Case, 279 U. S. 655, 689 (1929) , for the proposition that when interpreting a constitutional provision “regulating the relationship between Congress and the President,” we must defer to the settled practice of the political branches if the provision is “ ‘ “in any respect of doubtful meaning.” ’ ” Ante, at 7; see ante, at 8, 16, 23, 33. The language the majority quotes from that case was pure dictum. The Pocket Veto Court had to decide whether a bill passed by the House and Senate and presented to the President less than 10 days before the adjournment of the first session of a particular Congress, but neither signed nor vetoed by the President, became a law. Most of the opinion analyzed that issue like any other legal question and concluded that treating the bill as a law would have been inconsistent with the text and structure of the Constitution. Only near the end of the opinion did the Court add that its conclusion was “confirmed” by longstanding Presidential practice in which Congress appeared to have acquiesced. 279 U. S., at 688–689. We did not suggest that the case would have come out differently had the longstanding practice been otherwise.[ 1 ] II. Intra-Session Breaks      The first question presented is whether “the Recess of the Senate,” during which the President’s recess-appointment power is active, is (a) the period between two of the Senate’s formal sessions, or (b) any break in the Senate’s proceedings. I would hold that “the Recess” is the gap between sessions and that the appointments at issue here are invalid because they undisputedly were made during the Senate’s session. The Court’s contrary conclusion—that “the Recess” includes “breaks in the midst of a session,” ante, at 9—is inconsistent with the Constitution’s text and structure, and it requires judicial fabrication of vague, unadministrable limits on the recess-appointment power (thus defined) that overstep the judicial role. And although the majority relies heavily on “historical practice,” no practice worthy of our deference supports the majority’s conclusion on this issue. A. Plain Meaning      A sensible interpretation of the Recess Appointments Clause should start by recognizing that the Clause uses the term “Recess” in contradistinction to the term “Session.” As Alexander Hamilton wrote: “The time within which the power is to operate ‘during the recess of the Senate’ and the duration of the appointments ‘to the end of the next session’ of that body, conspire to elucidate the sense of the provision.” The Federalist No. 67, p. 455 (J. Cooke ed. 1961).      In the founding era, the terms “recess” and “session” had well-understood meanings in the marking-out of legislative time. The life of each elected Congress typically consisted (as it still does) of two or more formal sessions separated by adjournments “sine die,” that is, without a specified return date. See GPO, Congressional Directory, 113th Cong., pp. 524–542 (2013–2014) (hereinafter Congressional Directory) (listing sessions of Congress from 1789 through 2013); 705 F. 3d 490, 512, and nn. 1–2 (CADC 2013) (case below); ante, at 9. The period between two sessions was known as “the recess.” See 26 Annals of Cong. 748 (1814) (Sen. Gore) (“The time of the Senate consists of two periods, viz: their session and their recess”). As one scholar has thoroughly demonstrated, “in government practice the phrase ‘the Recess’ always referred to the gap between sessions.” Natelson, The Origins and Meaning of “Vacancies that May Happen During the Recess” in the Constitution’s Recess Appointments Clause, 37 Harv. J. L. & Pub. Pol’y 199, 213 (2014) (hereinafter Natelson); see id., at 214–227 (providing dozens of examples). By contrast, other provisions of the Constitution use the verb “adjourn” rather than “recess” to refer to the commencement of breaks during a formal legislative session. See, e.g., Art. I, §5, cl. 1; id., §5, cl. 4.[ 2 ]      To be sure, in colloquial usage both words, “recess” and “session,” could take on alternative, less precise meanings. A session could include any short period when a legislature’s members were “assembled for business,” and a recess could refer to any brief “suspension” of legislative “business.” 2 N. Webster, American Dictionary of the English Language (1828). So the Continental Congress could complain of the noise from passing carriages disrupting its “daily Session,” 29 Journals of the Continental Congress 1774–1789, p. 561 (1785) (J. Fitzpatrick ed. 1933), and the House could “take a recess” from 4 o’clock to 6 o’clock, Journal of the House of Representatives, 17th Cong., 2d Sess., p. 259 (1823). But as even the majority acknowledges, the Constitution’s use of “the word ‘the’ in ‘the [R]ecess’ ” tends to suggest “that the phrase refers to the single break separating formal sessions.” Ante, at 10.      More importantly, neither the Solicitor General nor the majority argues that the Clause uses “session” in its loose, colloquial sense. And if “the next Session” denotes a formal session, then “the Recess” must mean the break between formal sessions. As every commentator on the Clause until the 20th century seems to have understood, the “Recess” and the “Session” to which the Clause refers are mutually exclusive, alternating states. See, e.g., The Federalist No. 67, at 455 (explaining that appointments would require Senatorial consent “during the session of the Senate” and would be made by the President alone “in their recess”); 1 Op. Atty. Gen. 631 (1823) (contrasting vacancies occurring “during the recess of the Senate” with those occurring “during the session of the Senate”); 2 Op. Atty Gen. 525, 527 (1832) (discussing a vacancy that “took place while the Senate was in session, and not during the recess”). It is linguistically implausible to suppose—as the majority does—that the Clause uses one of those terms (“Recess”) informally and the other (“Session”) formally in a single sentence, with the result that an event can occur during both the “Recess” and the “Session.”      Besides being linguistically unsound, the majority’s reading yields the strange result that an appointment made during a short break near the beginning of one official session will not terminate until the end of the following official session, enabling the appointment to last for up to two years. The majority justifies that result by observing that the process of confirming a nominee “may take several months.” Ante, at 17. But the average duration of the confirmation process is irrelevant. The Clause’s self-evident design is to have the President’s unilateral appointment last only until the Senate has “had an opportunity to act on the subject.” 3 J. Story, Commentaries on the Constitution of the United States §1551, p. 410 (1833) (emphasis added).      One way to avoid the linguistic incongruity of the majority’s reading would be to read both “the Recess” and “the next Session” colloquially, so that the recess-appointment power would be activated during any temporary suspension of Senate proceedings, but appointments made pursuant to that power would last only until the beginning of the next suspension (which would end the next colloquial session). See, e.g., Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1569 (2005) (hereinafter Rappaport, Original Meaning). That approach would be more linguistically defensible than the majority’s. But it would not cure the most fundamental problem with giving “Recess” its colloquial, rather than its formal, meaning: Doing so leaves the recess-appointment power without a textually grounded principle limiting the time of its exercise.      The dictionary definitions of “recess” on which the majority relies provide no such principle. On the contrary, they make clear that in colloquial usage, a recess could include any suspension of legislative business, no matter how short. See 2 S. Johnson, A Dictionary of the English Language 1602 (4th ed. 1773). Webster even provides a stark illustration: “[T]he house of representatives had a recess of half an hour.” 2 Webster, supra. The notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority’s view, is what the text authorizes.      The boundlessness of the colloquial reading of “the Recess” thus refutes the majority’s assertion that the Clause’s “purpose” of “ensur[ing] the continued functioning of the Federal Government” demands that it apply to intra-session breaks as well as inter-session recesses. Ante, at 11. The majority disregards another self-evident purpose of the Clause: to preserve the Senate’s role in the appointment process—which the founding generation regarded as a critical protection against “ ‘despotism,’ ” Freytag, 501 U. S., at 883—by clearly delineating the times when the President can appoint officers without the Senate’s consent. Today’s decision seriously undercuts that purpose. In doing so, it demonstrates the folly of interpreting constitutional provisions designed to establish “a structure of government that would protect liberty,” Bowsher, 478 U. S., at 722, on the narrow-minded assumption that their only purpose is to make the government run as efficiently as possible. “Convenience and efficiency,” we have repeatedly recognized, “are not the primary objectives” of our constitutional framework. Free Enterprise Fund, 561 U. S., at 499 (internal quotation marks omitted).      Relatedly, the majority contends that the Clause’s supposed purpose of keeping the wheels of government turning demands that we interpret the Clause to maintain its relevance in light of the “new circumstance” of the Senate’s taking an increasing number of intra-session breaks that exceed three days. Ante, at 17. Even if I accepted the canard that courts can alter the Constitution’s meaning to accommodate changed circumstances, I would be hard pressed to see the relevance of that notion here. The rise of intra-session adjournments has occurred in tandem with the development of modern forms of communication and transportation that mean the Senate “is always available” to consider nominations, even when its Members are temporarily dispersed for an intra-session break. Tr. of Oral Arg. 21 (Ginsburg, J.). The Recess Appointments Clause therefore is, or rather, should be, an anachronism—“essentially an historic relic, something whose original purpose has disappeared.” Id., at 19 (Kagan, J.). The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process. That does not justify “read[ing] it out of the Constitution” and, contra the majority, ante, at 40, I would not do so; but neither would I distort the Clause’s original meaning, as the majority does, to ensure a prominent role for the recess-appointment power in an era when its influence is far more pernicious than beneficial.      To avoid the absurd results that follow from its collo-quial reading of “the Recess,” the majority is forced to declare that some intra-session breaks—though undisputedly within the phrase’s colloquial meaning—are simply “too short to trigger the Recess Appointments Clause.” Ante, at 21. But it identifies no textual basis whatsoever for limiting the length of “the Recess,” nor does it point to any clear standard for determining how short is too short. It is inconceivable that the Framers would have left the circumstances in which the President could exercise such a significant and potentially dangerous power so utterly indeterminate. Other structural provisions of the Constitution that turn on duration are quite specific: Neither House can adjourn “for more than three days” without the other’s consent. Art. I, §5, cl. 4. The President must return a passed bill to Congress “within ten Days (Sundays excepted),” lest it become a law. Id., §7, cl. 2. Yet on the majority’s view, when the first Senate considered taking a 1-month break, a 3-day weekend, or a half-hour siesta, it had no way of knowing whether the President would be constitutionally authorized to appoint officers in its absence. And any officers appointed in those circumstances would have served under a cloud, unable to determine with any degree of confidence whether their appointments were valid.[ 3 ]      Fumbling for some textually grounded standard, the majority seizes on the Adjournments Clause, which bars either House from adjourning for more than three days without the other’s consent. Id., §5, cl. 4. According to the majority, that clause establishes that a 3-day break is always “too short” to trigger the Recess Appointments Clause. Ante, at 19. It goes without saying that nothing in the constitutional text supports that disposition. If (as the majority concludes) “the Recess” means a recess in the colloquial sense, then it necessarily includes breaks shorter than three days. And the fact that the Constitution includes a 3-day limit in one clause but omits it from the other weighs strongly against finding such a limit to be implicit in the clause in which it does not appear. In all events, the dramatically different contexts in which the two clauses operate make importing the 3-day limit from the Adjournments Clause into the Recess Appointments Clause “both arbitrary and mistaken.” Rappaport, Original Meaning 1556.      And what about breaks longer than three days? The majority says that a break of four to nine days is “presumptively too short” but that the presumption may be rebutted in an “unusual circumstance,” such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response.” Ante, at 21. The majority must hope that the in terrorem effect of its “presumptively too short” pronouncement will deter future Presidents from making any recess appointments during 4-to-9-day breaks and thus save us from the absurd spectacle of unelected judges evaluating (after an evidentiary hearing?) whether an alleged “catastrophe” was sufficiently “urgent” to trigger the recess-appointment power. The majority also says that “political opposition in the Senate would not qualify as an unusual circumstance.” Ibid. So if the Senate should refuse to confirm a nominee whom the President considers highly qualified; or even if it should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being; the President’s power would not be triggered during a 4-to-9-day break, no matter how “urgent” the President’s perceived need for the officer’s assistance. (The majority protests that this “should go without saying—except that Justice Scalia compels us to say it,” ibid., seemingly forgetting that the appointments at issue in this very case were justified on those grounds and that the Solicitor General has asked us to view the recess-appointment power as a “safety valve” against Senatorial “intransigence.” Tr. of Oral Arg. 21.)      As for breaks of 10 or more days: We are presumably to infer that such breaks do not trigger any “presumpt[ion]” against recess appointments, but does that mean the President has an utterly free hand? Or can litigants seek invalidation of an appointment made during a 10-day break by pointing to an absence of “unusual” or “urgent” circumstances necessitating an immediate appointment, albeit without the aid of a “presumpt[ion]” in their favor? Or, to put the question as it will present itself to lawyers in the Executive Branch: Can the President make an appointment during a 10-day break simply to overcome “political opposition in the Senate” despite the absence of any “national catastrophe,” even though it “go[es] without saying” that he cannot do so during a 9-day break? Who knows? The majority does not say, and neither does the Constitution.[ 4 ]      Even if the many questions raised by the majority’s failure to articulate a standard could be answered, alarger question would remain: If the Constitution’s text empowers the President to make appointments during any break in the Senate’s proceedings, by what right does the majority subject the President’s exercise of that power to vague, court-crafted limitations with no textual basis? The majority claims its temporal guideposts are informed by executive practice, but a President’s self-restraint cannot “bind his successors by diminishing their powers.” Free Enterprise Fund, 561 U. S., at 497; cf. Clinton v. Jones, 520 U. S. 681, 718 (1997) (Breyer, J., concurring in judgment) (“voluntary actions” by past Presidents “tel[l] us little about what the Constitution commands”).      An interpretation that calls for this kind of judicial adventurism cannot be correct. Indeed, if the Clause really did use “Recess” in its colloquial sense, then there would be no “judicially discoverable and manageable standard for resolving” whether a particular break was long enough to trigger the recess-appointment power, making that a nonjusticiable political question. Zivotofsky, 566 U. S., at ___ (slip op., at 5) (internal quotation marks omitted). B. Historical Practice      For the foregoing reasons, the Constitution’s text and structure unambiguously refute the majority’s freewheeling interpretation of “the Recess.” It is not plausible that the Constitution uses that term in a sense that authorizes the President to make unilateral appointments during any break in Senate proceedings, subject only to hazy, atextual limits crafted by this Court centuries after ratification. The majority, however, insists that history “offers strong support” for its interpretation. Ante, at 11. The historical practice of the political branches is, of course, irrelevant when the Constitution is clear. But even if the Constitution were thought ambiguous on this point, history does not support the majority’s interpretation. 1. 1789 to 1866      To begin, the majority dismisses the 78 years of history from the founding through 1866 as “not helpful” because during that time Congress took hardly any “significant” intra-session breaks, by which the majority evidently means breaks longer than three days. Ibid. (citing table in Appendix A, which does not include breaks of three or fewer days). In fact, Congress took 11 intra-session breaks of more than three days during that time, see Congressional Directory 524–527, and it appears Presidents made recess appointments during none of them.      More importantly, during those eight decades, Congress must have taken thousands of breaks that were three days or shorter. On the majority’s reading, every one of those breaks would have been within the Clause’s text—the majority’s newly minted limitation not yet having been announced. Yet there is no record of anyone, ever, having so much as mentioned the possibility that the recess-appointment power was activated during those breaks. That would be surprising indeed if the text meant what the majority thinks it means. Cf. Printz v. United States, 521 U. S. 898 –908 (1997). 2. 1867 and 1868      The first intra-session recess appointments in our his-tory almost certainly were made by President Andrew John-son in 1867 and 1868.[ 5 ] That was, of course, a period of dramatic conflict between the Executive and Congress that saw the first-ever impeachment of a sitting President. The Solicitor General counts 57 intra-session recess appointments during those two years. App. to Brief for Petitioner 1a–9a. But the precise nature and historical understanding of many of those appointments is subject to debate. See, e.g., Brief for Constitutional Law Scholars as Amici Curiae 23–24; Rappaport, Nonoriginalism 27–33. It seems likely that at least 36 of the 57 appointments were made with the understanding that they took place during a recess between sessions. See id., at 27–31.      As for the remainder, the historical record reveals nothing about how they were justified, if at all. There is no indication that Johnson’s Attorney General or anyone else considered at the time whether those appointments were made between or during formal legislative sessions or, if the latter, how they could be squared with the constitutional text. The majority drives that point home by citing a judicial opinion that upheld one of the appointments nearly two decades later with no analysis of the question presented here. See ante, at 11 (citing Gould v. United States, 19 Ct. Cl. 593 (1884)). Johnson’s intra-session appointments were disavowed by the first Attorney General to address that question, see infra, at 20, and were not followed as precedent by the Executive Branch for more than 50 years, see infra, at 22. Thus, the relevance of those appointments to our constitutional inquiry is severely limited. Cf. Brief for Political Scientists and Historians as Amici Curiae 21 (Johnson’s appointments “should be viewed as anomalies” that were “sui generis in the first 130 years of the Republic”). 3. 1869 to 1920      More than half a century went by before any other President made an intra-session recess appointment, and there is strong reason to think that during that period neither the Executive nor the Senate believed such a power existed. For one thing, the Senate adjourned for more than 3 days 45 times during that period, and 43 of those adjournments exceeded 10 days (and thus would not even be subject to the majority’s “presumption” against the availability of recess appointments). See Congres-sional Directory 527–529. Yet there is no evidence that a single appointment was made during any of those adjournments or that any President before the 20th century even considered making such appointments.      In 1901 Philander Knox, the first Attorney General known to have opined on the question, explicitly stated that the recess-appointment power was limited to the period between formal sessions. 23 Op. Atty. Gen. 599. Knox advised President Theodore Roosevelt that he could not appoint an appraiser of merchandise during an intra-session adjournment. He explained: “[T]he Constitution and laws make it clear that in our legislative practice an adjournment during a session of Congress means a merely temporary suspension of business from day to day . . . whereas the recess means the period after the final adjournment of Congress for the session, and before the next session begins. . . . It is this period following the final adjournment for the session which is the recess during which the President has power to fill vacancies . . . . Any intermediate temporary adjournment is not such recess, although it may be a recess in the general and ordinary use of that term.” Id., at 601.[ 6 ] Knox went on to observe that none of the “many elaborate opinions” of previous Attorneys General concerning the recess-appointment power had asserted that the power could be exercised “during a temporary adjournment of the Senate,” rather than “during the recess of the Senate between two sessions of Congress.” Id., at 602. He acknowledged the contrary example furnished by Johnson’s appointments in 1867 and 1868, but noted (with perhaps too much tact) that “[t]he public circumstances producing this state of affairs were unusual and involved results which should not be viewed as precedents.” Id.,at 603.      That was where things stood when, in 1903, Roosevelt made a number of controversial recess appointments. At noon on December 7, the Senate moved seamlessly from a special session into a regular one scheduled to begin at that hour. See 37 Cong. Rec. 544; 38 Cong. Rec. 1. Roosevelt claimed to have made the appointments in a “constructive” recess between the two sessions. See Special Session Is Merged Into Regular, N. Y. Times, Dec. 8, 1903, p. 1. He and his allies in the Senate justified the appointments on the theory that “at the moment the gavel falls to summon the regular session into being there is an infinitesimal fraction of a second, which is the recess between the two sessions.” Extra Session Muddle, N. Y. Times, Dec. 7, 1903, p. 3. In 1905, the Senate Judiciary Committee published a report criticizing the appointments on the ground that “the Constitution means a real recess, not a constructive one.” S. Rep. No. 4389, 58th Cong., 3d Sess., p. 4. The report explained that the recess is “the period of time when the Senate is not sitting in regular or extraordinary session . . . when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.” Id., at 2 (emphasis deleted).      The majority seeks support in this episode, claiming that the Judiciary Committee embraced a “broad and functional definition of ‘recess’ ” consistent with the one the majority adopts. Ante, at 16. On the contrary, the episode powerfully refutes the majority’s theory. Roosevelt’s legal justification for his appointments was extremely aggressive, but even he recognized that “the Recess ofthe Senate” could take place only between formal sessions. If the majority’s view of the Clause had been considered plausible, Roosevelt could have strengthened his position considerably by making the appointments during an intra-session break of a few days, or at least a few hours. (Just 10 minutes after the new session began on December 7, the Senate took “a recess for one hour.” 38 Cong. Rec. 2.) That he instead strained to declare a dubious inter-session recess of an “infinitesimal fraction of a second” is powerful evidence that the majority’s view of “the Recess” was not taken seriously even as late as the beginning of the 20th century.      Yet the majority contends that “to the extent that the Senate or a Senate committee has expressed a view, that view has favored a functional definition of ‘recess’ [that] encompasses intra-session recesses.” Ante, at 14. It rests that contention entirely on the 1905 Judiciary Committee Report. This distorts what the committee said when it denied Roosevelt’s claim that there had been a recess. If someone avers that a catfish is a cat, and I respond by pointing out that a catfish lives in water and does not have four legs, I have not endorsed the proposition that every land-dwelling quadruped is a cat. Likewise, when the Judiciary Committee explained that an instantaneous transition from one session to another is not a recess because the Senate is never absent, it did not suggest that the Senate’s absence is enough to create a recess. To assume otherwise, as the majority does, is to commit the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q. Contrary to that fallacious assumption, the Judiciary Committee surely believed, consistent with the Executive’s clear position at the time, that “the Recess” was limited to (actual, not constructive) breaks between sessions. 4. 1921 to the Present      It is necessary to skip over the first 13 decades of our Nation’s history in order to find a Presidential legal ad-viser arguably embracing the majority’s interpretation of “the Recess.” In 1921 President Harding’s Attorney General, Harry Daugherty, advised Harding that he could make recess appointments while the Senate stood adjourned for 28 days during the session because “the term ‘recess’ must be given a practical construction.” 33 Op. Atty. Gen. 20, 25. Daugherty acknowledged Knox’s 1901 opinion to the contrary, id., at 21, but he (committing the same fallacy as today’s majority) thought the 1905 Judiciary Committee report had come to the opposite conclusion, id., at 23–24. He also recognized the fundamental flaw in this interpretation: that it would be impossible to “accurately dra[w]” a line between intra-session breaks that constitute “the Recess” and those that do not. Id., at 25. But he thought the absence of a standard gave the President “discretion to determine when there is a real and genuine recess.” Ibid. While a “palpable abuse of discretion might subject his appointment to review,” Daugherty thought that “[e]very presumption [should] be indulged in favor of the validity of whatever action he may take.” Ibid.[ 7 ]      Only after Daugherty’s opinion did the flow of intra-session recess appointments start, and for several years it was little more than a trickle. The Solicitor General has identified 22 such appointments made by Presidents Harding, Coolidge, Hoover, and Franklin Roosevelt between 1921 and 1944. App. to Brief for Petitioner 9a–12a. Intra-session recess appointments experienced a brief heyday after World War II, with President Truman making about 150 such appointments to civilian positions and several thousand to military posts from 1945 through 1950. Id., at 12a–27a. (The majority’s impressive-sounding claim that “Presidents have made thousands of intra-session recess appointments,” ante, at 12, depends entirely on post-war military appointments that Truman made in just two years, 1947 and 1948.) President Eisenhower made only 43 intra-session recess appointments, id., at 27a–30a, after which the practice sank back into relative obscurity. Presidents Kennedy, Lyndon Johnson, and Ford made none, while Nixon made just 7. Id., at 30a–31a. The practice rose again in the last decades of the 20th century: President Carter made 17 intra-session recess appointments, Reagan 72, George H. W. Bush 37, Clinton 53, and George W. Bush 135. Id., at 31a–61a. When the Solicitor General filed his brief, President Obama had made 26. Id., at 62a–64a. Even excluding Truman’s military appointments, roughly 90 percent of all the intra-session recess appointments in our history have been made since 1945.      Legal advisers in the Executive Branch during this period typically endorsed the President’s authority to make intra-session recess appointments by citing Daugherty’s opinion with little or no additional analysis. See, e.g., 20 Opinions of Office of Legal Counsel (Op. OLC) 124, 161 (1996) (finding the question to have been “settled within the executive branch” by Daugherty’s “often-cited opinion”). The majority’s contention that “opinions of Presidential legal advisers . . . are nearly unanimous in determining that the Clause authorizes [intra-session recess] appointments,” ante, at 12, is thus true but misleading: No Presidential legal adviser approved that practice before 1921, and subsequent approvals have rested more on precedent than on independent examination.      The majority is correct that during this period, the Senate “as a body” did not formally repudiate the emerging executive practice. Ante, at 14. And on one occasion, Comptroller General Lindsay Warren cited Daugherty’s opinion as representing “the accepted view” on the question, 28 Comp. Gen. 30, 34 (1948), although there is no evidence he consulted any Senators or that his statement reflected their views. But the rise of intra-session recess appointments in the latter half of the 20th century drew sharp criticism from a number of Senators on both sides of the aisle. At first, their objections focused on the length of the intra-session breaks at issue. See, e.g., 130 Cong. Rec. 22774–22776 (1984) (Sen. Sarbanes) (decrying recess appointment during a 3-week intra-session adjournment as “a circumvention of the Senate confirmation power”); id., at 23235 (resolution offered by Sen. Byrd, with 39 cosponsors, urging that no recess appointments occur during intra-session breaks of fewer than 30 days).      Later, many Senators sought to end intra-session recess appointments altogether. In 1993, the Senate Legal Counsel prepared a brief to be filed on behalf of the Senate in Mackie v. Clinton, 827 F. Supp. 56 (DC 1993), vacated in part as moot, 1994 WL 163761 (CADC 1994) (percuriam), but “Republican opposition” blocked the filing. 139 Cong. Rec. 15266–15267. The brief argued that “the recess[-appointment] power is limited to Congress’ annual recess between sessions,” that no contrary executive practice “of any appreciable magnitude” had existed before “the past fifty years,” and that the Senate had not “acquiesced in this steady expansion of presidential power.” Id., at 15268, 15270. It explained that some Senators had limited their objections to shorter intra-session breaks out of a desire “to coexist with the Executive” but that “the Executive’s subsequent, steady chipping away at the length of recess sufficient for making recess appointments ha[d] demonstrated the need to return to the Framers’ original intent and limit the power to intersession adjournments.” Id., at 15267, 15272. Senator Kennedy reiterated that position in a brief to this Court in 2004. Brief for Sen. Edward M. Kennedy as Amicus Curiae in Franklin v. United States, O. T. 2004, No. 04–5858, p. 5. Today the partisan tables are turned, and that position is urged on us by the Senate’s Republican Members. See Brief for Sen. McConnell et al. as Amici Curiae 26. *  *  *      What does all this amount to? In short: Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional by the first Attorney General to address them, were not openly defended by the Executive until 1921, were not made in significant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties. It is astonishing for the majority to assert that this history lends “strong support,” ante, at 11, to its interpretation of the Recess Appointments Clause. And the majority’s contention that recent executive practice in this area merits deference because the Senate has not done more to oppose it is utterly divorced from our precedent. “The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic,” Freytag, 501 U. S., at 880, and the Senate could not give away those protections even if it wanted to. See Chadha, 462 U. S., at 957–958; Clinton, 524 U. S., at 451–452 (Kennedy, J., concurring).      Moreover, the majority’s insistence that the Senate gainsay an executive practice “as a body” in order to prevent the Executive from acquiring power by adverse possession, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress. In any con-troversy between the political branches over a separation-of-powers question, staking out a position and defendingit over time is far easier for the Executive Branch thanfor the Legislative Branch. See generally Bradley and Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 439–447 (2012). All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party. (The majority would not be able to point to a lack of “formal action” by the Senate “as a body” challenging intra-session recess appointments, ante, at 15–16, had the appointing President’s party in the Senate not blocked such action on multiple occasions.) And when the President wants to assert a power and establish a precedent, he faces neither the collective-action problems nor the procedural inertia inherent in the legislative process. The majority’s methodology thus all but guarantees the continuing aggrandizement of the Executive Branch. III. Pre-Recess Vacancies      The second question presented is whether vacancies that “happen during the Recess of the Senate,” which the President is empowered to fill with recess appointments, are (a) vacancies that arise during the recess, or (b) all vacancies that exist during the recess, regardless of when they arose. I would hold that the recess-appointment power is limited to vacancies that arise during the recess in which they are filled, and I would hold that the appointments at issue here—which undisputedly filled pre-recess vacancies—are invalid for that reason as well as for the reason that they were made during the session. The Court’s contrary conclusion is inconsistent with the Constitution’s text and structure, and it further undermines the balance the Framers struck between Presidential and Senatorial power. Historical practice also fails to support the majority’s conclusion on this issue. A. Plain Meaning      As the majority concedes, “the most natural meaning of ‘happens’ as applied to a ‘vacancy’ . . . is that the vacancy ‘happens’ when it initially occurs.” Ante, at 22. The majority adds that this meaning is most natural “to a modern ear,” ibid., but it fails to show that founding-era ears heard it differently. “Happen” meant then, as it does now, “[t]o fall out; to chance; to come to pass.” 1 Johnson, Dictionary of the English Language 913. Thus, a vacancy that happened during the Recess was most reasonably understood as one that arose during the recess. It was, of course, possible in certain contexts for the word “happen” to mean “happen to be” rather than “happen to occur,” as in the idiom “it so happens.” But that meaning is not at all natural when the subject is a vacancy, a state of affairs that comes into existence at a particular moment in time.[ 8 ]      In any event, no reasonable reader would have understood the Recess Appointments Clause to use the word “happen” in the majority’s “happen to be” sense, and thus to empower the President to fill all vacancies that might exist during a recess, regardless of when they arose. For one thing, the Clause’s language would have been a surpassingly odd way of giving the President that power. The Clause easily could have been written to convey that meaning clearly: It could have referred to “all Vacancies that may exist during the Recess,” or it could have omitted the qualifying phrase entirely and simply authorized the President to “fill up all Vacancies during the Recess.” Given those readily available alternative phrasings, the reasonable reader might have wondered, why would any intelligent drafter intending the majority’s reading have inserted the words “that may happen”—words that, as the majority admits, make the majority’s desired reading awkward and unnatural, and that must be effectively read out of the Clause to achieve that reading?      For another thing, the majority’s reading not only strains the Clause’s language but distorts its constitutional role, which was meant to be subordinate. As Hamilton explained, appointment with the advice and consent of the Senate was to be “the general mode of appointing officers of the United States.” The Federalist No. 67, at 455. The Senate’s check on the President’s appointment power was seen as vital because “ ‘manipulation of official appointments’ had long been one of the American revolutionary generation’s greatest grievances against executive power.” Freytag, 501 U. S., at 883. The unilateral power conferred on the President by the Recess Appointments Clause was therefore understood to be “nothing more than a supplement” to the “general method” of advice and consent. The Federalist No. 67, at 455.      If, however, the Clause had allowed the President to fill all pre-existing vacancies during the recess by granting commissions that would last throughout the following session, it would have been impossible to regard it—as the Framers plainly did—as a mere codicil to the Constitution’s principal, power-sharing scheme for filling federal offices. On the majority’s reading, the President would have had no need ever to seek the Senate’s advice and consent for his appointments: Whenever there was a fair prospect of the Senate’s rejecting his preferred nominee, the President could have appointed that individual unilaterally during the recess, allowed the appointment to expire at the end of the next session, renewed the appointment the following day, and so on ad infinitum. (Circumvention would have been especially easy if, as the majority also concludes, the President was authorized to make such appointments during any intra-session break of more than a few days.) It is unthinkable that such an obvious means for the Executive to expand its power would have been overlooked during the ratification debates.[ 9 ]      The original understanding of the Clause was consistent with what the majority concedes is the text’s “most natural meaning.” Ante, at 22. In 1792, Attorney General Edmund Randolph, who had been a leading member of the Constitutional Convention, provided the Executive Branch’s first formal interpretation of the Clause. He advised President Washington that the Constitution did not authorize a recess appointment to fill the office of Chief Coiner of the United States Mint, which had been created by Congress on April 2, 1792, during the Senate’s session. Randolph wrote: “[I]s it a vacancy which has happened during the recess of the Senate? It is now the same and no other vacancy, than that, which existed on the 2nd. of April 1792. It commenced therefore on that day or may be said to have happened on that day.” Opinion on Recess Appointments (July 7, 1792), in 24 Papers of Thomas Jefferson 165–166 (J. Catanzariti ed. 1990). Randolph added that his interpretation was the most congruent with the Constitution’s structure, which made the recess-appointment power “an exception to the general participation of the Senate.” Ibid. (footnote omitted).      President John Adams’ Attorney General, Charles Lee, was in agreement. See Letter to George Washington (July 7, 1796) (the President may “fill for a limited time an old office become vacant during [the] recess” (emphasis added)), online at http://‌founders.‌archives.‌gov/‌documents/‌Washington/‌99-01-02-00702; Letter from James McHenry to John Adams (May 7, 1799) (hereinafter 1799 McHenry Letter) (conveying Lee’s advice that certain offices were “ ‘vacanc[ies] happening during the session, which the President cannot fill, during the recess, by the powers vested in him by the constitution’ ”), online at http://‌wardepartmentpapers.‌org‌/document.‌php?id=31766.[ 10 ] One of the most prominent early academic commenters on the Constitution read the Clause the same way. See 1 St. George Tucker, Blackstone’s Commentaries, App. 342–343 (1803) (assuming the President could appoint during the recess only if “the office became vacant during the recess”).      Early Congresses seem to have shared Randolph’s and Lee’s view. A statute passed by the First Congress authorized the President to appoint customs inspectors “with the advice and consent of the Senate” and provided that “if the appointment . . . shall not be made during the present session of Congress, the President . . . is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Act of Mar. 3, 1791, §4, 1Stat. 200. That authorization would have been superfluous if the Recess Appointments Clause had been understood to apply to pre-existing vacancies. We have recognized that an action taken by the First Congress “provides ‘contemporaneous and weighty evidence’ of the Constitution’s meaning.” Bowsher, 478 U. S., at 723–724. And other statutes passed in the early years of the Republic contained similar authorizations. See App. to Brief for Respondent Noel Canning 1a–17a.[ 11 ]      Also illuminating is the way the Third Congress interpreted the Constitution’s Senate Vacancies Clause, which uses language similar to that of the Recess Appointments Clause. Before the passage of the Seventeenth Amendment, the Constitution provided that “if Vacancies [in the Senate] happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature.” Art. I, §3, cl. 2. Senator George Read of Delaware resigned in December 1793; the state legislature met in January and February 1794; and the Governor appointed Kensey Johns to fill the seat in March 1794. The Senate refused to seat Johns, resolving that he was “not entitled to a seat in the Senate of the United States; a session of the Legislature of the said State having intervened, between the resignation . . . and the appointment.” 4 Annals of Cong. 77–78 (1794). It is thus clear that the phrase “happen . . . during the Recess” in the Senate Vacancies Clause was understood to refer to vacancies that arose, not merely existed, during the recess in which the appointment was made. It is not apparent why the nearly identical language of the Recess Appointments Clause would have been understood differently.      The majority, however, relies heavily on a contrary account of the Clause given by Attorney General William Wirt in 1823. See 1 Op. Atty. Gen 631. Wirt notably began—as does the majority—by acknowledging that his predecessors’ reading was “most accordant with the letter of the constitution.” Id., at 632. But he thought the “most natural” reading had to be rejected because it would interfere with the “substantial purpose of the constitution,” namely, “keep[ing] . . . offices filled.” Id., at 631–632. He was chiefly concerned that giving the Clause its plain meaning would produce “embarrassing inconveniences” if a distant office were to become vacant during the Senate’s session, but news of the vacancy were not to reach the President until the recess. Id., at 632, 634. The majority fully embraces Wirt’s reasoning. Ante, at 22–25.      Wirt’s argument is doubly flawed. To begin, the Constitution provides ample means, short of rewriting its text, for dealing with the hypothetical dilemma Wirt posed. Congress can authorize “acting” officers to perform the duties associated with a temporarily vacant office—and has done that, in one form or another, since 1792. See 5 U. S. C. §3345; Act of May 8, 1792, ch. 37, §8, 1Stat. 281; 705 F. 3d, at 511; Rappaport, Original Meaning 1514–1517. And on “extraordinary Occasions” the President can call the Senate back into session to consider a nomination. Art. II, §3. If the Framers had thought those options insufficient and preferred to authorize the President to make recess appointments to fill vacancies arising late in the session, they would have known how to do so. Massachusetts, for example, had authorized its Governor to make certain recess appointments “in case a vacancy shall happen . . . in the recess of the General Court [i.e., the state legislature], or at so late a period in any session of the same Court, that the vacancy . . . shall not be supplied in the same session thereof.” 1783 Mass. Acts ch. 12, in Acts and Laws of the Commonwealth of Massachusetts 523 (1890) (emphasis added).      The majority protests that acting appointments, unlike recess appointments, are an “inadequate” solution to Wirt’s hypothetical dilemma because acting officers “may have less authority than Presidential appointments.” Ante, at 24–25. It cites an OLC opinion which states that “an acting officer . . . is frequently considered merely a caretaker without a mandate to take far-reaching measures.” 6 Op. OLC 119, 121 (1982). But just a few lines later, the majority says that “the lack of Senate approval . . . may diminish the recess appointee’s ability, as a practical matter, to get a controversial job done.” Ante, at 25. The majority does not explain why an acting officer would have less authority “as a practical matter” than a recess appointee. The majority also objects that requiring the President to rely on acting officers would “lessen the President’s ability to staff the Executive Branch with people of his own choosing,” ante, at 24—a surprising charge, since that is the very purpose of the Constitution’s advice-and-consent requirement. As for special sessions, the majority thinks it a sufficient answer to say that they are “burdensome,” ibid., an observation that fails to distinguish them from many procedures required by our structural Constitution.      More fundamentally, Wirt and the majority are mistaken to say that the Constitution’s “ ‘substantial purpose’ ” isto “ ‘keep . . . offices filled.’ ” Ibid. (quoting 1 Op. Atty. Gen., at 632). The Constitution is not a road map for maximally efficient government, but a system of “carefully crafted restraints” designed to “protect the people from the improvident exercise of power.” Chadha, 462 U. S., at 957, 959. Wirt’s and the majority’s argumentum ab inconvenienti thus proves far too much. There are many circumstances other than a vacancy that can produce similar inconveniences if they arise late in the session: For example, a natural disaster might occur to which the Executive cannot respond effectively without a supplemental appropriation. But in those circumstances, the Constitution would not permit the President to appropriate funds himself. See Art. I, §9, cl. 7. Congress must either anticipate such eventualities or be prepared to be haled back into session. The troublesome need to do so is not a bug to be fixed by this Court, but a calculated feature of the constitutional framework. As we have recognized, while the Constitution’s government-structuring provisions can seem “clumsy” and “inefficient,” they reflect “hard choices . . . consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” Chadha, supra, at 959. B. Historical Practice      For the reasons just given, it is clear that the Constitution authorizes the President to fill unilaterally only those vacancies that arise during a recess, not every vacancy that happens to exist during a recess. Again, however, the majority says “[h]istorical practice” requires the broader interpretation. Ante, at 26. And again the majority is mistaken. Even if the Constitution were wrongly thought to be ambiguous on this point, a fair recounting of the relevant history does not support the majority’s interpretation. 1. 1789 to 1822      The majority correctly admits that there is “no undisputed record of Presidents George Washington, John Adams, or Thomas Jefferson” using a recess appointment to fill a pre-recess vacancy. Ibid. That is not surprising in light of Randolph’s early conclusion that doing so would be unconstitutional. Adams on one occasion contemplated filling pre-recess vacancies but was dissuaded by, among others, Attorney General Lee, who said the Constitution did not permit him to do so. See 1799 McHenry Letter.[ 12 ] And the Solicitor General does not allege that even a single appointment made by Adams filled a pre-recess vacancy. Jefferson, too, at one point thought the Clause “susceptible of” the majority’s reading, 1802 Jefferson Letter, but his administration, like Adams’, appears never to have adopted that reading.      James Madison’s administration seems to have rejected the majority’s reading as well. In 1814, Madison wanted to appoint Andrew Jackson to a vacant major-generalship in the Army during the Senate’s recess, but he accepted, without contradiction or reservation, his Secretary of War’s advice that he lacked the power to do so because the post’s previous occupant had resigned before the recess. He therefore ordered that Jackson be given a “brevet of Major General,” i.e., a warrant conferring the nominal rank without the salary thereof. Letter from John Armstrong to Madison (May 14, 1814); Letter from Madison to Armstrong (May 17, 1814). In conveying the brevet, Madison’s Secretary of War explained to Jackson that “ ‘[t]he vacancy produced by General Hampton’s resignation, not having been filled during the late session of the Senate, cannot be supplied constitutionally, during the recess.’ ” Letter from Armstrong to Jackson (May 22, 1814). A week later, when Madison learned that a different major general had resigned during the recess, he thought that development would enable him to appoint Jackson “at once.” Letter from Madison to Armstrong (May 24, 1814); see Letter from Armstrong to Madison (May 20, 1814) (reporting the resignation).[ 13 ]      The majority discounts that evidence of an occasion when Madison and his advisers actually considered the precise constitutional question presented here. It does so apparently because Madison, in acting on the advice he was given without questioning the interpretation of the recess-appointment power that was offered as the reason for that advice, did not explicitly say “I agree.” The majority prefers to focus on five appointments by Madison, unremarked by anyone at the time, that “the evidence suggests” filled pre-recess vacancies. Ante, at 27. Even if the majority is correct about those appointments, there is no indication that any thought was given to their constitutionality, either within or outside the Executive Branch. A handful of appointments that appear to contravene the written opinions of Attorneys General Randolph and Lee and the written evidence of Madison’s own beliefs about what the Constitution authorized, and that lack any contemporaneous explanation, are not convincing evidence of the Constitution’s original meaning.[ 14 ]      If Madison or his predecessors made any appointments in reliance on the broader reading, those appointments must have escaped general notice. In 1822, the Senate Committee on Military Affairs declared that the President had “no power to make [appointments] in the recess” where “the vacancies did not happen in the recess.” 38 Annals of Cong. 500. The Committee believed its construction had been “heretofore observed” and that “no instance ha[d] before occurred . . . where the President ha[d] felt himself authorized to fill such vacancies, without special authority by law.” Ibid.; see also T. Sergeant, Constitutional Law 373 (2d ed. 1830) (“[I]t seemed distinctly understood to be the sense of the senate, that [it] is only in offices that become vacant during the recess, that the president is authorised to exercise the right of appointing”). 2. 1823 to 1862      The Executive Branch did not openly depart from Randolph and Lee’s interpretation until 1823, when Wirt issued the opinion discussed earlier. Even within that branch, Wirt’s view was hotly contested: William Crawford, Monroe’s Treasury Secretary, argued “with great pertinacity” that the Clause authorized the President to fill only “vacancies which happen during the recess” and not those “which happen while Congress are in session.” 5 Memoirs of John Quincy Adams 486–487 (C. Adams ed. 1875). Wirt’s analysis nonetheless gained ground in the Executive Branch over the next four decades; but it did so slowly and fitfully.      In 1830, Attorney General Berrien disagreed with Wirt when he wrote that “[i]f the vacancy exist during the session of the Senate, . . . the President cannot appoint during the recess.” 2 Op. Atty. Gen. 333, 334. Two years later, Attorney General Taney endorsed Wirt’s view al-though doing so was, as he acknowledged, unnecessary to resolve the issue before him: whether the President could, during the recess, fill a vacancy resulting from the expiration of a prior recess appointment at the end of the Senate’s session. 2 Op. Atty Gen. 525, 528 (1832). Addressing the same issue in 1841, Attorney General Legaré appeared to believe the dispositive question was whether the office could be said to have “becom[e] vacant” during the recess. 3 Op. Atty. Gen. 673, 674. And in 1845, Attorney General Mason thought it “well established” that “[i]f vacancies are known to exist during the session of the Senate, and nominations are not then made, they cannot be filled by executive appointments in the recess.” 4 Op. Atty. Gen. 361, 363.[ 15 ]      The tide seemed to turn—as far as the Executive Branch was concerned—in the mid-19th century: Attorney General Cushing in 1855 and Attorney General Bates in 1862 both treated Wirt’s position as settled without subjecting it to additional analysis. 7 Op. Atty. Gen. 186, 223; 10 Op. Atty. Gen. 356. Bates, however, entertained “serious doubts” about its validity. Ibid. And as one 19th-century court shrewdly observed in rejecting Wirt’s interpretation, the frequency with which Attorneys General during this period were called upon to opine on the question likely “indicate[s] that no settled administrative usage had been . . . established.” In re District Attorney of United States, 7 F. Cas. 731, 738 (No. 3,924) (DC Pa. 1868). The Solicitor General identifies only 10 recess appointments made between 1823 and 1863 that filled pre-recess vacancies—about one every four years. App. to Brief for Petitioner 68a–71a. That is hardly an impressive number, and most of the appointments were to minor offices (like Deputy Postmaster for Janesville, Wisconsin, id., at 70a) unlikely to have gotten the Senate’s attention. But the Senate did notice when, in 1862, President Lincoln recess-appointed David Davis to fill a seat on this Court that had become vacant before the recess, id., at 71a—and it reacted with vigor. 3. 1863 to 1939      Two months after Lincoln’s recess appointment of Davis, the Senate directed the Judiciary Committee “to inquire whether the practice . . . of appointing officers to fill vacancies which have not occurred during the recess of Congress, but which existed at the preceding session of Congress, is in accordance with the Constitution; and if not, what remedy shall be applied.” Cong. Globe, 37th Cong., 3d Sess., 100 (1862). The committee responded with a report denouncing Wirt’s interpretation of the Clause as “artificial,” “forced and unnatural,” “unfounded,” and a “perversion of language.” S. Rep. No. 80, 37th Cong., 3d Sess., pp. 4–6 (1863). Because the majority all but ignores this evidence of the Senate’s views, it is worth quoting the report at some length:      “When must the vacancy . . . accrue or spring into existence? May it begin during the session of the Senate, or must it have its beginning during the recess? We think the language too clear to admit of reasonable doubt, and that, upon principles of just construction, this period must have its inceptive point after one session has closed and before another session has begun. . . . .     .     .     .     .      “We . . . dissent from the construction implied by the substituted reading, ‘happened to exist,’ for the word ‘happen’ in the clause. . . . [I]f a vacancy once exists, it has in law happened; for it is in itself an instantaneous event. It implies no continuance of the act that produces it, but takes effect, and is complete and perfect at an indivisible point of time, like the beginning or end of a recess. Once in existence, it has happened, and the mere continuance of the condition of things which the occurrence produces, cannot, without confounding the most obvious distinctions, be taken or treated as the occurrence itself, as Mr. Wirt seems to have done. . . .      “Again, we see no propriety in forcing the language from its popular meaning in order to meet and fulfill one confessedly great purpose, (the keeping the office filled,) while there is plainly another purpose of equal magnitude and importance (fitting qualifications)attached to and inseparable from the former.” Id.,at 3–6. The Committee acknowledged that the broad reading “ha[d] been, from time to time, sanctioned by Attorneys General . . . and that the Executive ha[d], from time to time, practiced upon it,” but it said the Executive’s practice was entitled to no weight because the Constitution’s text was “too plain to admit of a doubt or to need interpretation.” Id., at 7.      On the same day the Committee published its scathing report, its chairman, Senator Trumbull, proposed a law barring the payment of any officer appointed during the recess to fill a pre-recess vacancy. Cong. Globe, 37th Cong., 3d Sess., 564. Senator Fessenden spoke in support of the proposal: “It ought to be understood distinctly, that when an officer does not come within the rules of law, and is appointed in that way in defiance of the wishes of the Senate, he shall not be paid. It may not be in our power to prevent the appointment, but it is in our power to prevent the payment; and when payment is prevented, I think that will probably put an end to the habit of making such appointments.” Id., at 565. The amendment was adopted by the Senate, ibid., and after passing the House became the Pay Act, which provided that “no money shall be paid . . . out of the Treasury, as salary, to any person appointed during the recess of the Senate, to fill a vacancy . . . which . . . existed while the Senate was in session.” Act of Feb. 9, 1863, §2, 12Stat. 646 (codified at Rev. Stat. §1761; subsequently codified as amended at 5 U. S. C. §56 (1925–1926 ed.)).      The Pay Act would remain in force without significant modification for nearly eight decades. The Executive Branch, however, refused to acknowledge that the Act embodied the Senate’s rejection of the broad reading of “happen.” Several Attorneys General continued to treat Wirt’s interpretation as settled without so much as mentioning the Act. See 12 Op. Atty. Gen. 32 (1866); 12 Op. Atty. Gen. 449 (1868); 14 Op. Atty. Gen. 562 (1875); 15 Op. Atty. Gen. 207 (1877). And when, 17 years after its passage, Attorney General Devens deigned to acknowledge the Act, he preposterously described it as “conced[ing]” the President’s power to make the appointments for which the Act barred payment. 16 Op. Atty. Gen. 522, 531 (1880).      The majority is not that bold. Instead, it relegates the 1863 Judiciary Committee report to a pair of anodyne sentences in which it says only that the committee “dis-agreed with” Wirt’s interpretation. Ante, at 30. (With like understatement, one could say that Shakespeare’s Mark Antony “disagreed with” Caesar’s detractors.) Even more remarkably, the majority goes on to claim that the Senate’s passage of the Pay Act on the same day the committee issued its report was not a strong enough statement to impede the constitutionalization-by-adverse-possession of the power asserted by the Executive. Why not? Because, the majority says, some Senators may have disagreed with the report, and because the Senate did not go so far as to make acceptance of a recess appointment that filled a pre-recess vacancy “a federal crime.” Ante, at 30–31. That reasoning starkly illustrates the excessive burden the majority places on the Legislative Branch in contests with the Executive over the separation of powers. See supra,at 26.      Despite its minimization by subsequent Attorneys General and by today’s majority, there is no reason to doubt that the Pay Act had a deterrent effect. The Solicitor General has identified just 40 recess appointments that filled pre-recess vacancies during the nearly eight decades between the Act’s passage in 1863 and its amendment in 1940. App. to Brief for Petitioner 71a–79a.[ 16 ] 4. 1940 to the Present      The majority finds it highly significant that in 1940, Congress created a few carefully limited exceptions to the Pay Act’s prohibition on paying recess appointees who filled pre-recess vacancies. See Act of July 11, 1940, ch. 580, 54Stat. 751, now codified with nonsubstantive amendments at 5 U. S. C. §5503. Under the current version of the Act, “[p]ayment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy” that “existed while the Senate was in session” unless either the vacancy arose, or a different individual’s nomination to fill the vacancy was rejected, “within 30 days before the end of the session”; or a nomination was pending before the Senate at the end of the session, and the individual nominated was not himself a recess appointee. §5503(a)(1)–(3). And if the President fills a pre-recess vacancy under one of the circumstances specified in the Act, the law requires that he submit a nomination for that office to the Senate “not later than 40 days after the beginning of the next session.” §5503(b).      The majority says that by allowing salaries to be paid to recess appointees in these narrow circumstances, “the 1940 Senate (and later Senates) in effect supported” the majority’s interpretation of the Clause. Ante, at 32. Nonsense. Even as amended, the Act strictly regulates payment to recess appointees who fill pre-recess vacancies, and it still forbids payment to many officers whose appointments are constitutional under the majority’s interpretation. As amici Senators observe, the 1940 amendments “reflect at most a desire not to punish public servants caught in the crossfire” of interbranch conflict. Brief for Sen. McConnell et al. as Amici Curiae 30. Surely that inference is more reasonable than the majority’s supposition that Congress, by permitting some of the appointees covered by the Act to be paid, meant to signal that it now believed all of the covered appointments were valid.      Moreover, given the majority’s interpretation of the Recess Appointments Clause, it is fairly debatable whether the current version of the Pay Act is constitutional (and a fortiori, whether the pre-1940 version was constitutional). Even as amended, the Act seeks to limit and channelthe President’s exercise of the recess-appointment power by prohibiting payment to officers whose appointmentsare (per the majority) within the President’s sole constitutional authority if those appointments do not comply with conditions imposed by Congress, and by requiring the President to submit a nominee to the Senate in the first 40 days of the ensuing session. There is a colorable argument—which is routinely made by lawyers in the Executive Branch—that Congress “ ‘cannot use the appropriations power to control a Presidential power that is beyond its direct control.’ ” 33 Op. OLC ___, ___ (2009), online at http://‌www.‌justice.‌gov/‌olc/‌opiniondocs/‌section7054.pdf (quoting 20 Op. OLC 253, 267 (1996)). Consistent with that view, the Office of Legal Counsel has maintained that Congress could not “condition . . . the funding of an officer’s salary on being allowed to appoint the officer.” 13 Op. OLC 258, 261 (1989).      If that is correct, then the Pay Act’s attempt to control the President’s exercise of the recess-appointment power at least raises a substantial constitutional question under the majority’s reading of the Recess Appointments Clause. See Rappaport, Original Meaning 1544–1546. The Executive has not challenged the Act’s constitutionality in this case, and I express no opinion on whether such a challenge would succeed. I simply point out that it is impossible to regard the amended Pay Act as evidence of Senatorial acquiescence in the majority’s reading when that reading has the potential to invalidate the Act.      Since the Pay Act was amended, individual Senators have continued to maintain that recess appointments may not constitutionally be used to fill pre-recess vacancies. See, e.g., 130 Cong. Rec. 22780 (statement of seven Senators that a recess appointment to the Federal Reserve Board in 1984 was unconstitutional because the vacancy “did not happen during the recess”); Brief for Sen. McConnell et al. as Amici Curiae 26 (45 Senators taking that view of the Clause). And there is no evidence that the watering-down of the Pay Act produced an immediate flood of recess appointments filling pre-recess vacancies. The Solicitor General has pointed us to only 40 such appointments between 1940 and the present. App. to Brief for Petitioner 79a–89a.      The majority, however, finds it significant that in two small “random sample[s]” of contemporary recess appointments—24 since 1981 and 21 since 2000—the bulk of the appointments appear to have filled pre-existing vacancies. Ante, at 29. Based on that evidence, the majority thinks it “a fair inference that a large proportion of the recess appointments in the history of the Nation have filled pre-existing vacancies.” Ibid. The extrapolation of that sweeping conclusion from a small set of recent data does not bear even the slightest scrutiny. The majority ignores two salient facts: First, from the founding until the mid-19th century, the President’s authority to make such appointments was far from settled even within the Executive Branch. Second, from 1863 until 1940, it was illegal to pay any recess appointee who filled a pre-recess va-cancy, which surely discouraged Presidents from making, and nominees from accepting, such appointments. Consequently, there is no reason to assume that the majority’s sampling—even if it accurately reflects practices during the last three decades—is at all typical of practices that prevailed throughout “the history of the Nation.”[ 17 ] *  *  *      In sum: Washington’s and Adams’ Attorneys General read the Constitution to restrict recess appointments to vacancies arising during the recess, and there is no evidence that any of the first four Presidents consciously departed from that reading. The contrary reading was first defended by an executive official in 1823, was vehemently rejected by the Senate in 1863, was vigorously resisted by legislation in place from 1863 until 1940, and is arguably inconsistent with legislation in place from 1940 to the present. The Solicitor General has identified only about 100 appointments that have ever been made under the broader reading, and while it seems likely that a good deal more have been made in the last few decades, there is good reason to doubt that many were made before 1940 (since the appointees could not have been compensated). I can conceive of no sane constitutional theory under which this evidence of “historical practice”—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch. IV. Conclusion      What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice. Even if the Executive could accumulate power through adverse possession by engaging in a consistent and unchallenged practice over a long period of time, the oft-disputed practices at issue here would not meet that standard. Nor have those practices created any justifiable expectations that could be disappointed by enforcing the Constitution’s original meaning. There is thus no ground for the majority’s deference to the unconstitutional recess-appointment practices of the Executive Branch.      The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the President’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted. Ante, at 33–34. How this new regime will work in practice remains to be seen. Perhaps it will reduce the prevalence of recess appointments. But perhaps not: Members of the President’s party in Congress may be able to prevent the Senate from holding pro forma sessions with the necessary frequency, and if the House and Senate disagree, the President may be able to adjourn both “to such Time as he shall think proper.” U. S. Const., Art. II, §3. In any event, the limitation upon the President’s appointment power is there not for the benefit of the Senate, but for the protection of the people; it should not be dependent on Senate action for its existence.      The real tragedy of today’s decision is not simply the abolition of the Constitution’s limits on the recess-appointment power and the substitution of a novel framework invented by this Court. It is the damage done to our separation-of-powers jurisprudence more generally. It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions. Most of the time, the interpretation of those provisions is left to the political branches—which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court’s embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.      I concur in the judgment only. Notes 1 The other cases cited by the majority in which we have afforded significant weight to historical practice, at 8, are consistent with the principles described above. Nearly all involved venerable and unchallenged practices, and constitutional provisions that were either deeply ambiguous or plainly supportive of the practice. See v. , –681, and n. 8, 686 (1981) (citing Presidential practice dating from 1799 and never questioned by Congress to inform meaning of “Executive Power”); , –119 (1925) (citing unchallenged Presidential practice dating from 1841 as support for a construction of the pardon power based on the “common law,” the “history of the clause in the Convention,” and “the ordinary meaning of its words”); v. , –471, 474 (1915) (citing Presidential practice dating from “an early period in the history of the government,” “uniformly and repeatedly acquiesced in” by Congress and previously upheld by this Court, to establish “a recognized administrative power of the Executive in the management of the public lands”); v. , –35 (1892) (citing method of choosing Presidential electors prevalent among the States “from the formation of the government until now,” as to the constitutionality of which “ ‘no question ha[d] ever arisen,’ ” in support of construction consistent with the constitutional text and its drafting history); v. , 4 Wheat. 316, 401–402 (1819) (citing power “exercised by the first Congress elected under the present constitution,” “recognized by many successive legislatures, and . . . acted upon by the judicial department,” in support of the conclusion that the Necessary and Proper Clause allowed Congress to incorporate a bank); v. , 1 Cranch 299, 309 (1803) (citing practice that “commence[d] with the organization of the judicial system” in rejecting challenge to Supreme Court Justices’ riding circuit). Even v. , , which concluded that the constitutional text did not prohibit judges from undertaking extrajudicial duties and found “additional evidence” for that conclusion in a longstanding practice that it acknowledged had been “controversial,” emphasized that it was relying on “contemporaneous practice by the Founders themselves” that had been “frequent and continuing” since ratification. at 397–400. 2 The majority claims that “the phrase ‘the recess’ was used to refer to intra-session recesses at the time of the founding,” at 10, but it offers strikingly little support for that assertion. It first cites a letter from George Washington that is quite obviously an example of imprecise, colloquial usage. See 3 Records of the Federal Convention of 1787, p. 76 (M. Farrand rev. 1966) (“I had put my carriage in the hands of a workman to be repaired and had not the means of mooving [sic] during the recess”). It next cites an example from the New Jersey Legislature that simply reflects that body’s practice of dividing its time not only into “sessions” but also into distinct, formal “sittings” within each session, with “the recess” denoting the period between sittings. See Brief for Respondent Noel Canning 23; see also Natelson 207. Finally, the majority cites three pages from the Solicitor General’s brief without acknowledging the arguments offered in response to the Solicitor General’s few supposed counterexamples. See, Brief for Respondent Noel Canning 21–24; Natelson 222, n. 120. 3 The majority insists that “the most likely reason the Framers did not place a textual floor underneath the word ‘recess’ is that they did not foresee the for one” because they did not anticipate that intra-session breaks “would become lengthier and more significant than inter-session ones.” at 19. The majority’s logic escapes me. The Framers’ supposed failure to anticipate “length[y]” intra-session breaks might explain why (as I maintain) they did not bother to authorize recess appointments during intra-session breaks at all; but it cannot explain why (as the majority holds) they would have enacted a text that authorizes appointments during intra-session breaks—even the short ones the majority says they anticipate—without placing a temporal limitation on that power. 4 The majority erroneously suggests that the “lack of a textual floor raises a problem that plagues” both interpretations of “the Recess.” at 19. Not so. If the Clause is given its plain meaning, the President cannot make recess appointments during the session but can make recess appointments during any break sessions, no matter how short. Contra the majority, that is not a “problem.” True, the recess-appointment power applies even during very short inter-session breaks. But inter-session breaks typically occur at most a few times a year, and the recess-appointment power is of limited utility during very short inter-session breaks since, as explained below, the President can fill only those vacancies that arise during the break. See Part III, . Of course, as the Senate Judiciary Committee has argued, the break must be actual and not “constructive”; the Senate must adjourn for some measurable period of time between the two sessions. See at 20–22. But the requirement that there actually a recess does not involve anywhere near the level of indeterminacy entailed by the majority’s requirement that the recess be (or the circumstances unusual enough), as determined by a court, to trigger the recess-appointment power. 5 The majority does not contend otherwise. The Solicitor General claims that President Lincoln appointed a handful of brigadier generals during intra-session breaks in 1862 and 1863, but he does not include those appointments in his list of known intra-session recess appointments. Compare Brief for Petitioner 22 with App. to Brief for Petitioner 1a. Noel Canning convincingly argues that the generals were not given recess appointments but only unofficial “acting appointments” for which they received no commissions. Brief for Respondent Noel Canning 25; see Rappaport, Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause (manuscript, at 27, n. 79) (hereinafter Rappaport, Nonoriginalism), online at http://‌papers.‌ssrn.‌com/‌sol3/‌papers.‌cfm?abstract_‌id=‌2374563 (all Internet materials as visited June 24, 2014, and available in the Clerk of Court’s case file). 6 The majority dismisses Knox’s opinion as overly formalistic because it “relied heavily upon the use of the word ‘the’ ” in the phrase “the Recess.” at 13. It did not. As the passage quoted above makes clear, Knox was relying on the common understanding of what “the Recess” meant in the context of marking out legislative time. 7 I say Daugherty “arguably” embraced the majority’s view because he may have been endorsing, not the majority’s position, but the intermediate view that reads both “the Recess” and “the next Session” in functional terms, so that intra-session appointments would last only until the next intra-session break. See at 10; Rappaport, Nonoriginalism 34–35. 8 Despite initially admitting that the text “does not naturally favor” its interpretation, the majority halfheartedly suggests that the “ ‘happen to be’ ” reading may be admissible when the subject, like “vacancy,” denotes a “continuing state.” at 22–23. That suggestion distorts ordinary English usage. It is indeed natural to say that an ongoing activity or event, like a war, a parade, or a financial crisis, is “happening” for as long as it continues. But the same is not true when the subject is a settled state of affairs, like death, marriage, or vacancy, all of which “happen” when they come into being. 9 The majority insists that “character and politics” will ordinarily prevent the President from circumventing the Senate, and that the Senate has “political resources” to respond to attempts at circumvention. at 25. Neither character nor politics prevented Theodore Roosevelt from proclaiming a fictitious recess lasting an “infinitesimal fraction of a second.” In any event, the Constitution does not entrust the Senate’s role in the appointments process to the vagaries of character and politics. See, v. , –880 (1991). 10 The majority does not deny that Lee took those positions, but it claims he also “later informed [Thomas] Jefferson that, in the Adams administration, ‘whenever an office became vacant, so short a time before Congress rose, as not to give an opportunity of enquiring for a proper character, they let it lie always till recess.’ ” at 27 (quoting Letter from Jefferson to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433 (B. Oberg ed. 2009) (hereinafter 1802 Jefferson Letter)). Assuming Lee in fact made the statement attributed to him by Jefferson, and further assuming that Lee endorsed the constitutionality of the practice described in that statement (which Jefferson does not say), that practice could only have been regarded as a pragmatic exception to the general view of the Clause that Lee, like Randolph, espoused. And the practice must not have been extensive, since the Solicitor General has been unable to identify even a single appointment made by Adams that filled a pre-recess vacancy. See at 36. 11 The majority suggests that these statutes may have reflected, not a belief that the recess-appointment power was limited to vacancies arising during the recess, but a “separate” belief that the power could not be used for “new offices” created by Congress and not previously filled. at 30. But the latter view (which the majority does not endorse) was inseparably linked with the former (which the majority rejects), as is made clear by the very source the majority cites. See Letter from Alexander Hamilton to James McHenry (May 3, 1799), in 23 Papers of Alexander Hamilton 94 (H. Syrett ed. 1976) (“[T]he power to fill the vacancy is not the power to make an original appointment. The phrase ‘Which may have happened’ serves to confirm this construction. . . . [I]ndependent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate”); see also 2 Op. Atty. Gen., at 334 (“If the vacancy exist during the session of the Senate, as in the first creation of an office by law, it has been held that the President cannot appoint during the recess, unless he is specially authorized so to do by law”); W. Rawle, A View of the Constitution of the United States of America 163 (2d ed. 1829) (reprint 2009) (“It has been held by [the Senate], that if new offices are created by congress, the president cannot, after the adjournment of the senate, make appointments to fill them. The vacancies do not during the recess of the senate”). 12 See also Letter from Adams to James McHenry (April 16, 1799), in 8 Works of John Adams 632 (C. Adams ed. 1853) (proposing the appointments); Letter from Adams to McHenry (May 16, 1799), in at 647 (agreeing to “suspend [the appointments] for the present, perhaps till the meeting of the Senate”). Before advising Adams, McHenry also consulted Alexander Hamilton, who agreed that the appointments would be unlawful. See Letter from McHenry to Hamilton (Apr. 26, 1799), in 23 Papers of Alexander Hamilton, at 69, 70 (“It would seem that, under this Constitutional power, the President cannot alone . . . fill up vacancies that may happen during a session of the senate”); Letter from Hamilton to McHenry (May 3, 1799), in at 94 (“It is clear, that independent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate”). 13 All the letters cited in this paragraph are available onlinecourtesy of the Library of Congress. See James Madison Papers, http://memory.loc.gov/ammem/collections/madison_papers. 14 The same can be said of the Solicitor General’s claim to have found two recess appointments by Washington and four by Jefferson that filled pre-existing vacancies. Noel Canning disputes that claim, pointing out that Washington told the Senate the offices in question had “ ‘fallen vacant during the recess’ ” and arguing that Jefferson may have removed the incumbent officers during the recess. Brief for Respondent Noel Canning 44. Suffice it to say that if either Washington or Jefferson had adopted the broader reading, against the written advice of Attorneys General Randolph and Lee, one would expect a good deal more evidence of that fact. 15 A year later Mason, like Taney and Legaré before him, concluded that when a recess appointment expired at the end of the Senate’s session, the President could fill the resulting vacancy during the ensuing recess. In reaching that conclusion, Mason reiterated that the recess-appointment power “depends on the happening of vacancies when the Senate is not in session” and said the vacancy at issue was “within the meaning of” the Clause because the happening of the vacancy and the termination of the session had “occurred .” 4 Op. Atty. Gen. 523, 526–527 (1846). 16 In the early 20th century, some Senators acceded to the majority’s reading of the Clause, as the majority is eager to point out, at 31. In 1904, Senator Tillman allowed that “the Senate ha[d] acquiesced” in the President’s use of the recess-appointment power to fill pre-existing vacancies, 38 Cong. Rec. 1606, though he also quoted at length from the 1863 Judiciary Committee report and said he did “not see how anybody can find any argument to controvert the position [the report] takes,” at 1608. And in 1916, Senators Robinson and Sutherland accepted the majority’s reading without analysis. 53 Cong. Rec. 4298. The reader can decide whether those statements by three Senators justify the assertion that the Senate “abandoned its hostility” to the broad reading, at 31. 17 The majority also notes that many of the recess appointments identified by the Solicitor General were made “within two weeks of the beginning of the recess,” which, according to the majority, “strongly suggests that many of the vacancies initially arose prior to the recess.” at 29. The inference is unwarranted, since there are many circumstances other than random chance that could cause a vacancy to arise early in the recess: For example, the prior officeholder may have been another recess appointee whose commission expired at the end of the Senate’s session, or he may have waited until the recess to resign so that his successor could be compensated without violating the Pay Act. In any event, the overwhelming majority of the intra-session recess appointments on the Solicitor General’s list occurred after 1945 and do not shed light on earlier practices.

The National Labor Relations Board case, Noel Canning v. NLRB, centres on three questions regarding the Recess Appointments Clause of the US Constitution. The Supreme Court concluded that: 1. The phrase "recess of the Senate" refers to both inter-session and intra-session recesses. 2. "Vacancies that may happen" include those that arise before a recess and continue during it. 3. Pro forma sessions cannot be ignored when calculating the length of a recess, and thus the appointments in question, made during a 3-day recess, are invalid.

Separation of Powers

Trump v. Mazars USA, LLP

https://supreme.justia.com/cases/federal/us/591/19-715/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–715 and 19–760 _________________ DONALD J. TRUMP, et al., PETITIONERS 19–715 v. MAZARS USA, LLP, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit DONALD J. TRUMP, et al., PETITIONERS 19–760 v. DEUTSCHE BANK AG, et al. on writ of certiorari to the united states court of appeals for the second circuit [July 9, 2020] Chief Justice Roberts delivered the opinion of the Court. Over the course of five days in April 2019, three committees of the U. S. House of Representatives issued four subpoenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses. We have held that the House has authority under the Constitution to issue subpoenas to assist it in carrying out its legislative responsibilities. The House asserts that the financial information sought here—encompassing a decade’s worth of transactions by the President and his family—will help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections. The President contends that the House lacked a valid legislative aim and instead sought these records to harass him, expose personal matters, and conduct law enforcement activities beyond its authority. The question presented is whether the subpoenas exceed the authority of the House under the Constitution. We have never addressed a congressional subpoena for the President’s information. Two hundred years ago, it was established that Presidents may be subpoenaed during a federal criminal proceeding, United States v. Burr , 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, Cir. J.), and earlier today we extended that ruling to state criminal proceedings, Trump v. Vance , ante , p. ___. Nearly fifty years ago, we held that a federal prosecutor could obtain information from a President despite assertions of executive privilege, United States v. Nixon , 418 U.S. 683 (1974), and more recently we ruled that a private litigant could subject a President to a damages suit and appropriate discovery obligations in federal court, Clinton v. Jones , 520 U.S. 681 (1997). This case is different. Here the President’s information is sought not by prosecutors or private parties in connection with a particular judicial proceeding, but by committees of Congress that have set forth broad legislative objectives. Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reciprocity. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison); Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 635 (1952) (Jackson, J., concurring). That distinctive aspect necessarily informs our analysis of the question before us. I A Each of the three committees sought overlapping sets of financial documents, but each supplied different justifications for the requests. The House Committee on Financial Services issued two subpoenas, both on April 11, 2019. App. 128, 154, 226. The first, issued to Deutsche Bank, seeks the financial information of the President, his children, their immediate family members, and several affiliated business entities. Specifically, the subpoena seeks any document related to account activity, due diligence, foreign transactions, business statements, debt schedules, statements of net worth, tax returns, and suspicious activity identified by Deutsche Bank. The second, issued to Capital One, demands similar financial information with respect to more than a dozen business entities associated with the President. The Deutsche Bank subpoena requests materials from “2010 through the present,” and the Capital One subpoena covers “2016 through the present,” but both subpoenas impose no time limitations for certain documents, such as those connected to account openings and due diligence. Id., at 128, 155. According to the House, the Financial Services Committee issued these subpoenas pursuant to House Resolution 206, which called for “efforts to close loopholes that allow corruption, terrorism, and money laundering to infiltrate our country’s financial system.” H. Res. 206, 116th Cong., 1st Sess., 5 (Mar. 13, 2019). Such loopholes, the resolution explained, had allowed “illicit money, including from Russian oligarchs,” to flow into the United States through “anonymous shell companies” using investments such as “luxury high-end real estate.” Id. , at 3. The House also invokes the oversight plan of the Financial Services Committee, which stated that the Committee intends to review banking regulation and “examine the implementation, effectiveness, and enforcement” of laws designed to prevent money laundering and the financing of terrorism. H. R. Rep. No. 116–40, p. 84 (2019). The plan further provided that the Committee would “consider proposals to prevent the abuse of the financial system” and “address any vulnerabilities identified” in the real estate market. Id. , at 85. On the same day as the Financial Services Committee, the Permanent Select Committee on Intelligence issued an identical subpoena to Deutsche Bank—albeit for different reasons. According to the House, the Intelligence Committee subpoenaed Deutsche Bank as part of an investigation into foreign efforts to undermine the U. S. political process. Committee Chairman Adam Schiff had described that investigation in a previous statement, explaining that the Committee was examining alleged attempts by Russia to influence the 2016 election; potential links between Russia and the President’s campaign; and whether the President and his associates had been compromised by foreign actors or interests. Press Release, House Permanent Select Committee on Intelligence, Chairman Schiff Statement on House Intelligence Committee Investigation (Feb. 6, 2019). Chairman Schiff added that the Committee planned “to develop legislation and policy reforms to ensure the U. S. government is better positioned to counter future efforts to undermine our political process and national security.” Ibid. Four days after the Financial Services and Intelligence Committees, the House Committee on Oversight and Reform issued another subpoena, this time to the President’s personal accounting firm, Mazars USA, LLP. The subpoena demanded information related to the President and several affiliated business entities from 2011 through 2018, including statements of financial condition, independent auditors’ reports, financial reports, underlying source documents, and communications between Mazars and the President or his businesses. The subpoena also requested all engagement agreements and contracts “[w]ithout regard to time.” App. to Pet. for Cert. in 19–715, p. 230. Chairman Elijah Cummings explained the basis for the subpoena in a memorandum to the Oversight Committee. According to the chairman, recent testimony by the President’s former personal attorney Michael Cohen, along with several documents prepared by Mazars and supplied by Cohen, raised questions about whether the President had accurately represented his financial affairs. Chairman Cummings asserted that the Committee had “full authority to investigate” whether the President: (1) “may have engaged in illegal conduct before and during his tenure in office,” (2) “has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,” (3) “is complying with the Emoluments Clauses of the Constitution,” and (4) “has accurately reported his finances to the Office of Government Ethics and other federal entities.” App. in No. 19–5142 (CADC), p. 107. “The Committee’s interest in these matters,” Chairman Cummings concluded, “informs its review of multiple laws and legislative proposals under our jurisdiction.” Ibid. B Petitioners—the President in his personal capacity, along with his children and affiliated businesses—filed two suits challenging the subpoenas. They contested the subpoena issued by the Oversight Committee in the District Court for the District of Columbia ( Mazars , No. 19–715), and the subpoenas issued by the Financial Services and Intelligence Committees in the Southern District of New York ( Deutsche Bank , No. 19–760). In both cases, petitioners contended that the subpoenas lacked a legitimate legislative purpose and violated the separation of powers. The President did not, however, resist the subpoenas by arguing that any of the requested records were protected by executive privilege. For relief, petitioners asked for declaratory judgments and injunctions preventing Mazars and the banks from complying with the subpoenas. Although named as defendants, Mazars and the banks took no positions on the legal issues in these cases, and the House committees intervened to defend the subpoenas. Petitioners’ challenges failed. In Mazars , the District Court granted judgment for the House, 380 F. Supp. 3d 76 (DC 2019), and the D. C. Circuit affirmed, 940 F.3d 710 (2019). In upholding the subpoena issued by the Oversight Committee to Mazars, the Court of Appeals found that the subpoena served a “valid legislative purpose” because the requested information was relevant to reforming financial disclosure requirements for Presidents and presidential candidates. Id. , at 726–742 (internal quotation marks omitted). Judge Rao dissented. As she saw it, the “gravamen” of the subpoena was investigating alleged illegal conduct by the President, and the House must pursue such wrongdoing through its impeachment powers, not its legislative powers. Id. , at 773–774. Otherwise, the House could become a “roving inquisition over a co-equal branch of government.” Id. , at 748. The D. C. Circuit denied rehearing en banc over several more dissents. 941 F.3d 1180, 1180–1182 (2019). In Deutsche Bank , the District Court denied a preliminary injunction, 2019 WL 2204898 (SDNY, May 22, 2019), and the Second Circuit affirmed “in substantial part,” 943 F.3d 627, 676 (2019). While acknowledging that the subpoenas are “surely broad in scope,” the Court of Appeals held that the Intelligence Committee properly issued its subpoena to Deutsche Bank as part of an investigation into alleged foreign influence over petitioners and Russian interference with the U. S. political process. Id. , at 650, 658–659. That investigation, the court concluded, could inform legislation to combat foreign meddling and strengthen national security. Id. , at 658–659, and n. 59. As to the subpoenas issued by the Financial Services Committee to Deutsche Bank and Capital One, the Court of Appeals concluded that they were adequately related to potential legislation on money laundering, terrorist financing, and the global movement of illicit funds through the real estate market. Id. , at 656–659. Rejecting the contention that the subpoenas improperly targeted the President, the court explained in part that the President’s financial dealings with Deutsche Bank made it “appropriate” for the House to use him as a “case study” to determine “whether new legislation is needed.” Id. , at 662–663, n. 67.[ 1 ] Judge Livingston dissented, seeing no “clear reason why a congressional investigation aimed generally at closing regulatory loopholes in the banking system need focus on over a decade of financial information regarding this President, his family, and his business affairs.” Id. , at 687. We granted certiorari in both cases and stayed the judgments below pending our decision. 589 U. S. ___ (2019). II A The question presented is whether the subpoenas exceed the authority of the House under the Constitution. Historically, disputes over congressional demands for presidential documents have not ended up in court. Instead, they have been hashed out in the “hurly-burly, the give-and-take of the political process between the legislative and the executive.” Hearings on S. 2170 et al. before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 94th Cong., 1st Sess., 87 (1975) (A. Scalia, Assistant Attorney General, Office of Legal Counsel). That practice began with George Washington and the early Congress. In 1792, a House committee requested Executive Branch documents pertaining to General St. Clair’s campaign against the Indians in the Northwest Territory, which had concluded in an utter rout of federal forces when they were caught by surprise near the present-day border between Ohio and Indiana. See T. Taylor, Grand Inquest: The Story of Congressional Investigations 19–23 (1955). Since this was the first such request from Congress, President Washington called a Cabinet meeting, wishing to take care that his response “be rightly conducted” because it could “become a precedent.” 1 Writings of Thomas Jefferson 189 (P. Ford ed. 1892). The meeting, attended by the likes of Alexander Hamilton, Thomas Jefferson, Edmund Randolph, and Henry Knox, ended with the Cabinet of “one mind”: The House had authority to “institute inquiries” and “call for papers” but the President could “exercise a discretion” over disclosures, “communicat[ing] such papers as the public good would permit” and “refus[ing]” the rest. Id. , at 189–190. President Washington then dispatched Jefferson to speak to individual congressmen and “bring them by persuasion into the right channel.” Id. , at 190. The discussions were apparently fruitful, as the House later narrowed its request and the documents were supplied without recourse to the courts. See 3 Annals of Cong. 536 (1792); Taylor, supra , at 24. Jefferson, once he became President, followed Washington’s precedent. In early 1807, after Jefferson had disclosed that “sundry persons” were conspiring to invade Spanish territory in North America with a private army, 16 Annals of Cong. 686–687, the House requested that the President produce any information in his possession touching on the conspiracy (except for information that would harm the public interest), id. , at 336, 345, 359. Jefferson chose not to divulge the entire “voluminous” correspondence on the subject, explaining that much of it was “private” or mere “rumors” and “neither safety nor justice” permitted him to “expos[e] names” apart from identifying the conspiracy’s “principal actor”: Aaron Burr. Id. , at 39–40. Instead of the entire correspondence, Jefferson sent Congress particular documents and a special message summarizing the conspiracy. Id. , at 39–43; see generally Vance , ante , at 3–4. Neither Congress nor the President asked the Judiciary to intervene.[ 2 ] Ever since, congressional demands for the President’s information have been resolved by the political branches without involving this Court. The Reagan and Clinton presidencies provide two modern examples: During the Reagan administration, a House subcommittee subpoenaed all documents related to the Department of the Interior’s decision whether to designate Canada a reciprocal country for purposes of the Mineral Lands Leasing Act. President Reagan directed that certain documents be withheld because they implicated his confidential relationship with subordinates. While withholding those documents, the administration made “repeated efforts” at accommodation through limited disclosures and testimony over a period of several months. 6 Op. of Office of Legal Counsel 751, 780 (1982). Unsatisfied, the subcommittee and its parent committee eventually voted to hold the Secretary of the Interior in contempt, and an innovative compromise soon followed: All documents were made available, but only for one day with no photocopying, minimal notetaking, and no participation by non-Members of Congress. Id. , at 780–781; see H. R. Rep. No. 97–898, pp. 3–8 (1982). In 1995, a Senate committee subpoenaed notes taken by a White House attorney at a meeting with President Clinton’s personal lawyers concerning the Whitewater controversy. The President resisted the subpoena on the ground that the notes were protected by attorney-client privilege, leading to “long and protracted” negotiations and a Senate threat to seek judicial enforcement of the subpoena. S. Rep. No. 104–204, pp. 16–17 (1996). Eventually the parties reached an agreement, whereby President Clinton avoided the threatened suit, agreed to turn over the notes, and obtained the Senate’s concession that he had not waived any privileges. Ibid. ; see L. Fisher, Congressional Research Service, Congressional Investigations: Subpoenas and Contempt Power 16–18 (2003). Congress and the President maintained this tradition of negotiation and compromise—without the involvement of this Court—until the present dispute. Indeed, from President Washington until now, we have never considered a dispute over a congressional subpoena for the President’s records. And, according to the parties, the appellate courts have addressed such a subpoena only once, when a Senate committee subpoenaed President Nixon during the Watergate scandal. See infra , at 13 (discussing Senate Select Committee on Presidential Campaign Activities v. Nixon , 498 F.2d 725 (CADC 1974) (en banc)). In that case, the court refused to enforce the subpoena, and the Senate did not seek review by this Court. This dispute therefore represents a significant departure from historical practice. Although the parties agree that this particular controversy is justiciable, we recognize that it is the first of its kind to reach this Court; that disputes of this sort can raise important issues concerning relations between the branches; that related disputes involving congressional efforts to seek official Executive Branch information recur on a regular basis, including in the context of deeply partisan controversy; and that Congress and the Executive have nonetheless managed for over two centuries to resolve such disputes among themselves without the benefit of guidance from us. Such longstanding practice “ ‘is a consideration of great weight’ ” in cases concerning “the allocation of power between [the] two elected branches of Government,” and it imposes on us a duty of care to ensure that we not needlessly disturb “the compromises and working arrangements that [those] branches . . . themselves have reached.” NLRB v. Noel Canning , 573 U.S. 513 , 524–526 (2014) (quoting The Pocket Veto Case , 279 U.S. 655 , 689 (1929)). With that in mind, we turn to the question presented. B Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but we have held that each House has power “to secure needed information” in order to legislate. McGrain v. Daugherty , 273 U.S. 135 , 161 (1927). This “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Id. , at 174. Without information, Congress would be shooting in the dark, unable to legislate “wisely or effectively.” Id. , at 175. The congressional power to obtain information is “broad” and “indispensable.” Watkins v. United States , 354 U.S. 178 , 187, 215 (1957). It encompasses inquiries into the administration of existing laws, studies of proposed laws, and “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.” Id. , at 187. Because this power is “justified solely as an adjunct to the legislative process,” it is subject to several limitations. Id. , at 197. Most importantly, a congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” Id. , at 187. The subpoena must serve a “valid legislative purpose,” Quinn v. United States , 349 U.S. 155 , 161 (1955); it must “concern[ ] a subject on which legislation ‘could be had,’ ” Eastland v. United States Servicemen’s Fund , 421 U.S. 491 , 506 (1975) (quoting McGrain , 273 U. S., at 177). Furthermore, Congress may not issue a subpoena for the purpose of “law enforcement,” because “those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn , 349 U. S., at 161. Thus Congress may not use subpoenas to “try” someone “before [a] committee for any crime or wrongdoing.” McGrain , 273 U. S., at 179. Congress has no “ ‘general’ power to inquire into private affairs and compel disclosures,” id. , at 173–174, and “there is no congressional power to expose for the sake of exposure,” Watkins , 354 U. S., at 200. “Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Id. , at 187. Finally, recipients of legislative subpoenas retain their constitutional rights throughout the course of an investigation. See id. , at 188, 198. And recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege. See, e.g. , Congressional Research Service, supra, at 16–18 (attorney-client privilege); Senate Select Committee , 498 F. 2d, at 727, 730–731 (executive privilege). C The President contends, as does the Solicitor General appearing on behalf of the United States, that the usual rules for congressional subpoenas do not govern here because the President’s papers are at issue. They argue for a more demanding standard based in large part on cases involving the Nixon tapes—recordings of conversations between President Nixon and close advisers discussing the break-in at the Democratic National Committee’s headquarters at the Watergate complex. The tapes were subpoenaed by a Senate committee and the Special Prosecutor investigating the break-in, prompting President Nixon to invoke executive privilege and leading to two cases addressing the showing necessary to require the President to comply with the subpoenas. See Nixon , 418 U.S. 683 ; Senate Select Committee , 498 F.2d 725. Those cases, the President and the Solicitor General now contend, establish the standard that should govern the House subpoenas here. Quoting Nixon , the President asserts that the House must establish a “demonstrated, specific need” for the financial information, just as the Watergate special prosecutor was required to do in order to obtain the tapes. 418 U. S., at 713. And drawing on Senate Select Committee —the D. C. Circuit case refusing to enforce the Senate subpoena for the tapes—the President and the Solicitor General argue that the House must show that the financial information is “demonstrably critical” to its legislative purpose. 498 F. 2d, at 731. We disagree that these demanding standards apply here. Unlike the cases before us, Nixon and Senate Select Committee involved Oval Office communications over which the President asserted executive privilege. That privilege safeguards the public interest in candid, confidential deliberations within the Executive Branch; it is “fundamental to the operation of Government.” Nixon , 418 U. S., at 708. As a result, information subject to executive privilege deserves “the greatest protection consistent with the fair administration of justice.” Id. , at 715. We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations. The standards proposed by the President and the Solicitor General—if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities. The President and the Solicitor General would apply the same exacting standards to all subpoenas for the President’s information, without recognizing distinctions between privileged and nonprivileged information, between official and personal information, or between various legislative objectives. Such a categorical approach would represent a significant departure from the longstanding way of doing business between the branches, giving short shrift to Congress’s important interests in conducting inquiries to obtain the information it needs to legislate effectively. Confounding the legislature in that effort would be contrary to the principle that: “It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served.” United States v. Rumely , 345 U.S. 41 , 43 (1953) (internal quotation marks omitted). Legislative inquiries might involve the President in appropriate cases; as noted, Congress’s responsibilities extend to “every affair of government.” Ibid. (internal quotation marks omitted). Because the President’s approach does not take adequate account of these significant congressional interests, we do not adopt it. D The House meanwhile would have us ignore that these suits involve the President. Invoking our precedents concerning investigations that did not target the President’s papers, the House urges us to uphold its subpoenas because they “relate[ ] to a valid legislative purpose” or “concern[ ] a subject on which legislation could be had.” Brief for Respondent 46 (quoting Barenblatt v. United States , 360 U.S. 109 , 127 (1959), and Eastland , 421 U. S., at 506). That approach is appropriate, the House argues, because the cases before us are not “momentous separation-of-powers disputes.” Brief for Respondent 1. Largely following the House’s lead, the courts below treated these cases much like any other, applying precedents that do not involve the President’s papers. See 943 F. 3d, at 656–670; 940 F. 3d, at 724–742. The Second Circuit concluded that “this case does not concern separation of powers” because the House seeks personal documents and the President sued in his personal capacity. 943 F. 3d, at 669. The D. C. Circuit, for its part, recognized that “separation-of-powers concerns still linger in the air,” and therefore it did not afford deference to the House. 940 F. 3d, at 725–726. But, because the House sought only personal documents, the court concluded that the case “present[ed] no direct interbranch dispute.” Ibid. The House’s approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. Congress and the President have an ongoing institutional relationship as the “opposite and rival” political branches established by the Constitution. The Federalist No. 51, at 349. As a result, congressional subpoenas directed at the President differ markedly from congressional subpoenas we have previously reviewed, e.g. , Barenblatt , 360 U. S., at 127; Eastland , 421 U. S., at 506, and they bear little resemblance to criminal subpoenas issued to the President in the course of a specific investigation, see Vance , ante , p. ___; Nixon , 418 U.S. 683 . Unlike those subpoenas, congressional subpoenas for the President’s information unavoidably pit the political branches against one another. Cf. In re Sealed Case , 121 F.3d 729, 753 (CADC 1997) (“The President’s ability to withhold information from Congress implicates different constitutional considerations than the President’s ability to withhold evidence in judicial proceedings.”). Far from accounting for separation of powers concerns, the House’s approach aggravates them by leaving essentially no limits on the congressional power to subpoena the President’s personal records. Any personal paper possessed by a President could potentially “relate to” a conceivable subject of legislation, for Congress has broad legislative powers that touch a vast number of subjects. Brief for Respondent 46. The President’s financial records could relate to economic reform, medical records to health reform, school transcripts to education reform, and so on. Indeed, at argument, the House was unable to identify any type of information that lacks some relation to potential legislation. See Tr. of Oral Arg. 52–53, 62–65. Without limits on its subpoena powers, Congress could “exert an imperious controul” over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared. The Federalist No. 71, at 484 (A. Hamilton); see id. , No. 48, at 332–333 (J. Madison); Bowsher v. Synar , 478 U.S. 714 , 721–722, 727 (1986). And a limitless subpoena power would transform the “established practice” of the political branches. Noel Canning , 573 U. S., at 524 (internal quotation marks omitted). Instead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court. The House and the courts below suggest that these separation of powers concerns are not fully implicated by the particular subpoenas here, but we disagree. We would have to be “blind” not to see what “[a]ll others can see and understand”: that the subpoenas do not represent a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved. Rumely , 345 U. S., at 44 (quoting Child Labor Tax Case , 259 U.S. 20 , 37 (1922) (Taft, C. J.)). The interbranch conflict here does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs. “The interest of the man” is often “connected with the constitutional rights of the place.” The Federalist No. 51, at 349. Given the close connection between the Office of the President and its occupant, congressional demands for the President’s papers can implicate the relationship between the branches regardless whether those papers are personal or official. Either way, a demand may aim to harass the President or render him “complaisan[t] to the humors of the Legislature.” Id. , No. 71, at 483. In fact, a subpoena for personal papers may pose a heightened risk of such impermissible purposes, precisely because of the documents’ personal nature and their less evident connection to a legislative task. No one can say that the controversy here is less significant to the relationship between the branches simply because it involves personal papers. Quite the opposite. That appears to be what makes the matter of such great consequence to the President and Congress. In addition, separation of powers concerns are no less palpable here simply because the subpoenas were issued to third parties. Congressional demands for the President’s information present an interbranch conflict no matter where the information is held—it is, after all, the President’s information. Were it otherwise, Congress could sidestep constitutional requirements any time a President’s information is entrusted to a third party—as occurs with rapidly increasing frequency. Cf. Carpenter v. United States , 585 U. S. ___, ___, ___ (2018) (slip op., at 15, 17). Indeed, Congress could declare open season on the President’s information held by schools, archives, internet service providers, e-mail clients, and financial institutions. The Constitution does not tolerate such ready evasion; it “deals with substance, not shadows.” Cummings v. Missouri , 4 Wall. 277, 325 (1867). E Congressional subpoenas for the President’s personal information implicate weighty concerns regarding the separation of powers. Neither side, however, identifies an approach that accounts for these concerns. For more than two centuries, the political branches have resolved information disputes using the wide variety of means that the Constitution puts at their disposal. The nature of such interactions would be transformed by judicial enforcement of either of the approaches suggested by the parties, eroding a “[d]eeply embedded traditional way[ ] of conducting government.” Youngstown Sheet & Tube Co. , 343 U. S., at 610 (Frankfurter, J., concurring). A balanced approach is necessary, one that takes a “considerable impression” from “the practice of the government,” McCulloch v. Maryland , 4 Wheat. 316, 401 (1819); see Noel Canning , 573 U. S., at 524–526, and “resist[s]” the “pressure inherent within each of the separate Branches to exceed the outer limits of its power,” INS v. Chadha , 462 U.S. 919 , 951 (1983). We therefore conclude that, in assessing whether a subpoena directed at the President’s personal information is “related to, and in furtherance of, a legitimate task of the Congress,” Watkins , 354 U. S., at 187, courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the “unique position” of the President, Clinton , 520 U. S., at 698 (internal quotation marks omitted). Several special considerations inform this analysis. First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. “ ‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.” Cheney v. United States Dist. Court for D. C. , 542 U.S. 367 , 389–390 (2004) (quoting Nixon , 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. The President’s unique constitutional position means that Congress may not look to him as a “case study” for general legislation. Cf. 943 F. 3d, at 662–663, n. 67. Unlike in criminal proceedings, where “[t]he very integrity of the judicial system” would be undermined without “full disclosure of all the facts,” Nixon , 418 U. S., at 709, efforts to craft legislation involve predictive policy judgments that are “not hamper[ed] . . . in quite the same way” when every scrap of potentially relevant evidence is not available, Cheney , 542 U. S., at 384; see Senate Select Committee , 498 F. 2d, at 732. While we certainly recognize Congress’s important interests in obtaining information through appropriate inquiries, those interests are not sufficiently powerful to justify access to the President’s personal papers when other sources could provide Congress the information it needs. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Cheney , 542 U. S., at 387. Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress’s legislative purpose, the better. See Watkins , 354 U. S., at 201, 205 (preferring such evidence over “vague” and “loosely worded” evidence of Congress’s purpose). That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. In such cases, it is “impossible” to conclude that a subpoena is designed to advance a valid legislative purpose unless Congress adequately identifies its aims and explains why the President’s information will advance its consideration of the possible legislation. Id. , at 205–206, 214–215. Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. We have held that burdens on the President’s time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines. See Vance , ante, at 12–14; Clinton , 520 U. S., at 704–705. But burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list. When Congress seeks information “needed for intelligent legislative action,” it “unquestionably” remains “the duty of all citizens to cooperate.” Watkins , 354 U. S., at 187 (emphasis added). Congressional subpoenas for information from the President, however, implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns. The judgments of the Courts of Appeals for the D. C. Circuit and the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The Court of Appeals directed a “limited” remand for the District Court to consider whether it was necessary to disclose certain “sensitive personal details” (such as documents reflecting medical services received by employees of the Trump business entities) and a “few” documents that might not relate to the committees’ legislative purposes. 943 F.3d 627, 667–668, 675 (2019). The Court of Appeals ordered that all other documents be “promptly transmitted” to the committees. Id. , at 669. 2 By contrast, later that summer, the Judiciary was called on to resolve whether President Jefferson could be issued a subpoena duces tecum arising from Burr’s criminal trial. See United States v. Burr , 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807); see also Trump v. Vance , ante , at 5–7. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–715 and 19–760 _________________ DONALD J. TRUMP, et al., PETITIONERS 19–715 v. MAZARS USA, LLP, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit DONALD J. TRUMP, et al., PETITIONERS 19–760 v. DEUTSCHE BANK AG, et al. on writ of certiorari to the united states court of appeals for the second circuit [July 9, 2020] Justice Thomas, dissenting. Three Committees of the U. S. House of Representatives issued subpoenas to several accounting and financial firms to obtain the personal financial records of the President, his family, and several of his business entities. The Committees do not argue that these subpoenas were issued pursuant to the House’s impeachment power. Instead, they argue that the subpoenas are a valid exercise of their legislative powers. Petitioners challenge the validity of these subpoenas. In doing so, they call into question our precedents to the extent that they allow Congress to issue legislative subpoenas for the President’s private, nonofficial documents. I would hold that Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not. Congress may be able to obtain these documents as part of an investigation of the President, but to do so, it must proceed under the impeachment power. Accordingly, I would reverse the judgments of the Courts of Appeals. I I begin with the Committees’ claim that the House’s legislative powers include the implied power to issue legislative subpoenas. Although the Founders understood that the enumerated powers in the Constitution included implied powers, the Committees’ test for the scope of those powers is too broad. “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison , 1 Cranch 137, 176 (1803). The structure of limited and enumerated powers in our Constitution denotes that “[o]ur system of government rests on one overriding principle: All power stems from the consent of the people.” U. S. Term Limits , Inc. v. Thornton , 514 U.S. 779 , 846 (1995) (Thomas, J., dissenting). As a result, Congress may exercise only those powers given by the people of the States through the Constitution. The Founders nevertheless understood that an enumerated power could necessarily bring with it implied powers. The idea of implied powers usually arises in the context of the Necessary and Proper Clause, which gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Art. I, §8, cl. 18. As I have previously explained, the Necessary and Proper Clause simply “made explicit what was already implicit in the grant of each enumerated power.” United States v. Comstock , 560 U.S. 126 , 161 (2010) (dissenting opinion). That is, “the grant of a general power includes the grant of incidental powers for carrying it out.” Bray, “Necessary and Proper” and “Cruel and Unusual”: Hendiadys in the Constitution, 102 Va. L. Rev. 687, 741 (2016). The scope of these implied powers is very limited. The Constitution does not sweep in powers “of inferior importance, merely because they are inferior.” McCulloch v. Maryland , 4 Wheat. 316, 408 (1819). Instead, Congress “can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.” Martin v. Hunter’s Lessee , 1 Wheat. 304, 326 (1816). In sum, while the Committees’ theory of an implied power is not categorically wrong, that power must be necessarily implied from an enumerated power. II At the time of the founding, the power to subpoena private, nonofficial documents was not included by necessary implication in any of Congress’ legislative powers. This understanding persisted for decades and is consistent with the Court’s first decision addressing legislative subpoenas, Kilbourn v. Thompson , 103 U.S. 168 (1881). The test that this Court created in McGrain v. Daugherty , 273 U.S. 135 (1927), and the majority’s variation on that standard today, are without support as applied to private, nonofficial documents.[ 1 ] A The Committees argue that Congress wields the same investigatory powers that the British Parliament did at the time of the founding. But this claim overlooks one of the fundamental differences between our Government and the British Government: Parliament was supreme. Congress is not. I have previously explained that “the founding generation did not subscribe to Blackstone’s view of parliamentary supremacy.” Department of Transportation v. Association of American Railroads , 575 U.S. 43, 74 (2015) (opinion concurring in judgment). “Parliament’s violations of the law of the land had been a significant complaint of the American Revolution.” Id., at 74–75. “And experiments in legislative supremacy in the States had confirmed the idea that even the legislature must be made subject to the law.” Id. , at 75. James Wilson, signer of the Constitution and future Justice, explained this difference to the Pennsylvania ratifying convention: “Blackstone will tell you, that in Britain [the supreme power] is lodged in the British Parliament; and I believe there is no writer on the other side of the Atlantic” who thought otherwise. 2 Documentary History of the Ratification of the Constitution 471 (M. Jensen ed. 1976) (Documentary History). In the United States, however, “the supreme, absolute, and uncontrollable authority, remains with the people.” Id. , at 472. And “[t]he Constitution plainly sets forth the ‘few and defined’ powers that Congress may exercise.” Comstock , 560 U. S., at 159 (Thomas, J., dissenting); see also McCulloch , 4 Wheat., at 405; Marbury , 1 Cranch, at 176. This significant difference means that Parliament’s powers and Congress’ powers are not necessarily the same. In fact, the plain text of the Constitution makes clear that they are not. The Constitution expressly denies to Congress some of the powers that Parliament exercised. Article I, for example, prohibits bills of attainder, §9, cl. 3, which Parliament used to “sentenc[e] to death one or more specific persons.” United States v. Brown , 381 U.S. 437 , 441 (1965). A legislature can hardly be considered supreme if it lacks the power to pass bills of attainder, which Justice Story called the “highest power of sovereignty.” 3 Commentaries on the Constitution of the United States §1338, p. 210 (1833). Relatedly, the Constitution prohibits ex post facto laws, §9, cl. 3, reinforcing the fact that Congress’ power to punish is limited.[ 2 ] And in a system in which Congress is not supreme, the individual protections in the Bill of Rights, such as the prohibition on unreasonable searches and seizures, meaningfully constrain Congress’ power to compel documents from private citizens. Cf. 1 St. George Tucker, Blackstone’s Commentaries 203–205, n. § (1803); see also D. Currie, The Constitution in Congress: The Federalist Period, 1789–1801, p. 268 (1997). Furthermore, Kilbourn —this Court’s first decision on the constitutionality of legislative subpoenas—emphasized that Parliament had more powers than Congress. There, the congressional respondents relied on Parliament’s investigatory power to support a legislative subpoena for testimony and documents. The Court rejected the analogy because the judicial powers of the House of Commons—the lower house of Parliament—exceeded the judicial functions of the House of Representatives. Kilbourn , supra, at 189. At bottom, Kilbourn recognized that legislative supremacy was decisively rejected in the framing and ratification of our Constitution, which casts doubt on the Committees’ claim that they have power to issue legislative subpoenas to private parties. B The subpoenas in these cases also cannot be justified based on the practices of 18th-century American legislatures. Amici supporting the Committees resist this conclusion, but the examples they cite materially differ from the legislative subpoenas at issue here. First, amici cite investigations in which legislatures sought to compel testimony from government officials on government matters. The subjects included military affairs, taxes, government finances, and the judiciary. Potts, Power of Legislative Bodies To Punish for Contempt, 74 U. Pa. L. Rev. 691, 708, 709, 710, 716–717 (1926) (Potts); see also E. Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress To Investigate and Punish for Contempt 18 (1928) (Eberling). But the information sought in these examples was official, not private. Underscoring this distinction, at least one revolutionary-era State Constitution permitted the legislature to “call for all public or official papers and records, and send for persons, whom they may judge necessary in the course of their inquiries, concerning affairs relating to the public interest.” Md. Const., Art. X (1776) (emphasis added). Second, 18th-century legislatures conducted nonlegislative investigations. For example, the New York colonial legislature tasked one committee with investigating a nuisance complaint and gave it the “power to send for persons, papers and records.” Eberling 18; see also id. , at 19 (investigation of a government contract obtained by alleged wrongdoing); Potts 716 (investigation of armed resistance). But to describe this category is to distinguish it. Here, the Committees assert only a legislative purpose. Third, colonial and state legislatures investigated and punished insults, libels, and bribery of members. For example, the Pennsylvania colonial assembly investigated “injurious charges, and slanderous Aspersions against the Conduct of the late Assembly” made by two individuals. Id. , at 710 (internal quotation marks omitted); see also id. , at 717; Eberling 20–21. But once again, to describe this category is to distinguish it because the subpoenas here are justified only as incidental to the power to legislate, not the power to punish libels or bribery. In short, none of the examples from 18th-century colonial and state history support a power to issue a legislative subpoena for private, nonofficial documents. C Given that Congress has no exact precursor in England or colonial America, founding-era congressional practice is especially informative about the scope of implied legislative powers. Thus, it is highly probative that no founding-era Congress issued a subpoena for private, nonofficial documents. Although respondents could not identify the first such legislative subpoena at oral argument, Tr. of Oral Arg. 56, Congress began issuing them by the end of the 1830s. However, the practice remained controversial in Congress and this Court throughout the first century of the Republic. 1 In an attempt to establish the power of Congress to issue legislative subpoenas, the Committees point to an investigation of Government affairs and an investigation under one of Congress’ enumerated privileges. Both precedents are materially different from the subpoenas here. In 1792, the House authorized a Committee to investigate a failed military expedition led by General Arthur St. Clair. 3 Hinds’ Precedents of the House of Representatives of the United States §1725, pp. 79–80 (1907) (Hinds). The Committee was “empowered to call for such persons, papers and records as may be necessary to assist their inquiries.” Ibid. But the Committee never subpoenaed private, nonofficial documents, which is telling. Whereas a subpoena for Government documents does not implicate concerns about property rights or the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” a subpoena for private, nonofficial documents raises those questions. Thus, the power to subpoena private documents, which the Committee did not exercise, is a far greater power and much less likely to be implied in Congress’ legislative powers. In 1832, the House investigated Representative Samuel Houston for assaulting Representative William Stanberry. Stanberry had accused Houston of collusion with Secretary of War John Eaton in connection with a bid for a Government contract, and the House initiated an investigation into the truthfulness of Stanberry’s accusation. 8 Cong. Deb. 2550, 3022–3023 (1832). The House subpoenaed witnesses to testify, and one of them brought official correspondence between the Secretary of War and the President. H. R. Rep. No. 502, 22d Cong., 1st Sess. 64, 66–67 (1832). But official documents are obviously different from nonofficial documents. Moreover, the subpoenas were issued pursuant to the House’s enumerated privilege of punishing its own Members, Art. I, §5, not as part of its legislative powers. Because these subpoenas were not issued pursuant to a legislative power, they do not aid the Committees’ case. 2 As late as 1827, a majority of the House declined to authorize the Committee on Manufactures to subpoena documents, amid concerns that it was unprecedented. During the debate over the resolution, one opponent remarked that “[t]here is no instance under this Government, within my recollection, where this power has been given for the mere purpose of enabling a committee of this House to adjust the details of an ordinary bill.” 4 Cong. Deb. 865–866 (Rep. Strong); see also id. , at 862 (referring to “authority to bring any citizens of the United States . . . whom they might choose to send for, and compel them to give answers to every inquiry which should be addressed to them” as “very extraordinary”). Another opponent stated that the Committee had requested a power that had “not heretofore been thought necessary to enable that Committee to acquire correct information.” Id. , at 866 (Rep. Storrs). A third called it “not only novel and extraordinary, but wholly unnecessary.” Id. , at 874 (Rep. Stewart); see also id. , at 884–885 (Rep. Wright). No supporter of the resolution offered a specific precedent for doing so, and the House ultimately authorized the Committee to send for persons only. Id. , at 889–890. This debate is particularly significant because of the arguments made by both sides. Proponents made essentially the same arguments the Committees raise here—that the power to send for persons and papers was necessary to inform Congress as it legislated. Id. , at 871 (Rep. Livingston). Opponents argued that this power was not part of any legislative function. Id. , at 865–866 (Rep. Strong). They also argued that the House of Commons provided no precedent because Congress was a body of limited and enumerated powers. Id. , at 882 (Rep. Wood). And in the end, the opponents prevailed. Thus, through 1827, the idea that Congress had the implied power to issue subpoenas for private documents was considered “novel,” “extraordinary,” and “unnecessary.” Id. , at 874. 3 By the end of the 1830s, Congress began issuing legislative subpoenas for private, nonofficial documents. See Eberling 123–126. Still, the power to demand information from private parties during legislative investigations remained controversial. In 1832, the House authorized a Committee to “inspect the books, and to examine into the proceedings of the Bank of the United States, to report thereon, and to report whether the provisions of its charter have been violated or not.” 8 Cong. Deb. 2160, 2164. The House gave the Committee “power to send for persons and papers.” Id., at 2160 . The power to inspect the books of the Bank of the United States is not itself a clear example of a legislative subpoena for private, nonofficial documents, because the Bank was a federally chartered corporation and was required to allow Congress to inspect its books. App. to 8 Cong. Deb. 54 (1833). The investigation itself appears to have ranged more widely, however, leading Congressman John Quincy Adams to criticize “investigations which must necessarily implicate not only the president and directors of the bank, and their proceedings, but the rights, the interests, the fortunes, and the reputation of individuals not responsible for those proceedings, and whom neither the committee nor the House had the power to try, or even accuse before any other tribunal.” Ibid. Adams continued that such an investigation “bears all the exceptionable and odious properties of general warrants and domiciliary visits.” Ibid. He also objected that the Committee’s investigation of the Bank was tantamount to punishment and thus was in tension with the constitutional prohibitions on “passing any bill of attainder [or] ex post facto law.” Id., at 60. Thus, even when Congress authorized a Committee to send for private papers, the constitutionality of doing so was questioned. An 1859 Senate investigation, which the Court of Appeals cited as precedent, underscores that legislative subpoenas to private parties were a 19th-century innovation. Following abolitionist John Brown’s raid at Harper’s Ferry, Senate Democrats opened an investigation apparently designed to embarrass opponents of slavery. As part of the investigation, they called private individuals to testify. Senator Charles Sumner, a leading opponent of slavery, railed against the proceedings: “I know it is said that this power is necessary in aid of legislation . I deny the necessity. Convenient , at times, it may be; but necessary , never . We do not drag the members of the Cabinet or the President to testify before a committee in aid of legislation ; but I say, without hesitation, they can claim no immunity which does not belong equally to the humblest citizen.” Cong. Globe, 36th Cong., 1st Sess., 3007 (1860). Sumner also addressed the matter of Parliament’s powers, calling them “more or less inapplicable” because “[w]e live under a written Constitution, with certain specified powers; and all these are restrained by the tenth amendment.” Ibid. For Sumner, as for Adams, the power to issue legislative subpoenas to private parties was a “dangerous absurdity” with no basis in the text or history of the Constitution. Ibid. [ 3 ] 4 When this Court first addressed a legislative subpoena, it refused to uphold it. After casting doubt on legislative subpoenas generally, the Court in Kilbourn v. Thompson , 103 U.S. 168 , held that the subpoena at issue was unlawful because it sought to investigate private conduct. In 1876, the House created a special Committee to investigate the failure of a major bank, which caused the loss of federal funds and related to financial speculation in the District of Columbia. Id. , at 171. The Committee issued a subpoena to Kilbourn, an employee of the bank. Id., at 172. When he refused to answer questions or produce documents, the House held him in contempt and arrested him. Id. , at 173. After his release, he sued the Speaker, several Committee members, and the Sergeant at Arms for damages. The Court discussed the arguments for an “impli[ed]” power to issue legislative subpoenas. Id. , at 183. As the Court saw it, there were two arguments: “1, its exercise by the House of Commons of England . . . and, 2d, the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the powers which the Constitution has conferred on them.” Ibid. The Court rejected the first argument. It found “no difference of opinion as to [the] origin” of the House of Commons’ subpoena power: “[T]he two Houses of Parliament were each courts of judicature originally, which, though divested by usage, and by statute, probably, of many of their judicial functions, have yet retained so much of that power as enables them, like any other court, to punish for a contempt of these privileges and authority that the power rests.” Id., at 184. Even after the division of Parliament into two houses, “[t]o the Commons was left the power of impeachment, and, perhaps, others of a judicial character, and jointly they exercised, until a very recent period, the power of passing bills of attainder for treason and other high crimes which are in their nature punishment for crime declared judicially by the High Court of Parliament.” Ibid. By contrast, the House of Representatives “is in no sense a court, . . . exercises no functions derived from its once having been a part of the highest court of the realm,” and has no judicial functions beyond “punishing its own members and determining their election.” Id. , at 189. The Court thus rejected the notion that Congress inherited from Parliament an implied power to issue legislative subpoenas. The Court did not reach a conclusion on the second theory that a legislative subpoena power was necessary for Congress to carry out its legislative duties. But it observed that, based on British judicial opinions, not “much aid [is] given to the doctrine, that this power exists as one necessary to enable either House of Congress to exercise successfully their function of legislation.” Ibid. The Court referred to a collection of 18th- and 19th-century English decisions grounding the Parliamentary subpoena power in that body’s judicial origins. Id., at 184–189 (citing Burdett v. Abbott , 104 Eng. Rep. 501 (K. B. 1811); Brass Crosby’s Case , 95 Eng. Rep. 1005 (C. P. 1771); Stockdale v. Hansard , 112 Eng. Rep. 1112 (K. B. 1839); and Kielley v. Carson , 13 Eng. Rep. 225 (P. C. 1841)). The Court placed particular emphasis on Kielley , in which the Privy Council held that the Legislative Assembly of Newfoundland lacked a power to punish for contempt. The Privy Council expressly stated that the House of Commons could punish for contempt “ ‘not because it is a representative body with legislative functions, but by virtue of ancient usage and prescription . . . which forms a part of the common law of the land, and according to which the High Court of Parliament before its division, and the Houses of Lords and Commons since, are invested with many privileges, that of punishment for contempt being one.’ ” Kilbourn , 103 U. S., at 188–189. This Court also noted that the Privy Council “discusse[d] at length the necessity of this power in a legislative body for its protection, and to enable it to discharge its law-making functions, and decide[d] against the proposition.” Id. , at 189. Although the Court did not have occasion to decide whether the legislative subpoena in that case was necessary to the exercise of Congress’ legislative powers, its discussion strongly suggests the subpoena was unconstitutional.[ 4 ] The Court instead based its decision on the fact that the subpoena at issue “ma[de] inquiry into the private affairs of the citizen.” Id. , at 190. Such a power, the Court reasoned, “is judicial and not legislative,” id. , at 193, and “no judicial power is vested in the Congress or either branch of it, save in the cases” of punishing Members, compelling Members’ attendance, judging elections and qualifications, and impeachment and trial, id. , at 192–193. Notably, the Court found no indication that the House “avowed to impeach the secretary,” or else “the whole aspect of the case would have been changed.” Id. , at 193. Even though the Court decided Kilbourn narrowly, it clearly entertained substantial doubts about the constitutionality of legislative subpoenas for private documents. D Nearly half a century later, in McGrain v. Daugherty , the Court reached the question reserved in Kilbourn —whether Congress has the power to issue legislative subpoenas. It rejected Kilbourn ’s reasoning and upheld the power to issue legislative subpoenas as long as they were relevant to a legislative power. Although McGrain involved oral testimony, the Court has since extended this test to subpoenas for private documents. The Committees rely on McGrain , but this line of cases misunderstands both the original meaning of Article I and the historical practice underlying it. 1 Shortly before Attorney General Harry Daugherty resigned in 1924, the Senate opened an investigation into his “ ‘alleged failure’ ” to prosecute monopolists, the protagonists of the Teapot Dome scandal, and “ ‘many others.’ ” McGrain , 273 U. S . , at 151. The investigating Committee issued subpoenas to Daugherty’s brother, Mally, who refused to comply and was arrested in Ohio for failure to testify. Id. , at 152–154. Mally petitioned for a writ of habeas corpus, and the District Court discharged him, based largely on Kilbourn . Ex parte Daugherty , 299 F. 620 (SD Ohio 1924). The Deputy Sergeant at Arms who arrested Mally directly appealed to this Court, which reversed. The Court concluded that, “[i]n actual legislative practice[,] power to secure needed information by [investigating and compelling testimony] has long been treated as an attribute of the power to legislate.” McGrain , 273 U. S., at 161. The Court specifically found that “[i]t was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution” and that “a like view has prevailed and been carried into effect in both houses of Congress and in most of the state legislatures.” Ibid. But the authority cited by the Court did not support that proposition. The Court cited the 1792 investigation of St. Clair’s defeat, in which it appears no subpoena was issued, supra, at 7–8, and the 1859 Senate investigation of John Brown’s raid on Harper’s Ferry, which led to an impassioned debate. 273 U. S., at 162–164. Thus, for the reasons explained above, the examples relied on in McGrain are materially different from issuing a legislative subpoena for private, nonofficial documents. See supra, at 7, 10–11.[ 5 ] The Court acknowledged Kilbourn, but erroneously distinguished its discussion regarding the constitutionality of legislative subpoenas as immaterial dicta. McGrain , supra , at 170–171 (quoting Kilbourn , supra, at 189). The Court concluded that “the two houses of Congress, in their separate relations, possess not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective.” McGrain , supra, at 173. Instead of relying on Kilbourn ’s analysis, McGrain developed a test that rested heavily on functional considerations. The Court wrote that “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” 273 U. S., at 175. Because “mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete,” “some means of compulsion are essential to obtain what is needed.” Ibid. The Court thus concluded that Congress could issue legislative subpoenas, provided that “the purpose for which the witness’s testimony was sought was to obtain information in aid of the legislative function.” Id., at 176. The Court has since applied this test to subpoenas for papers without any further analysis of the text or history of the Constitution. See Eastland v. United States Servicemen’s Fund , 421 U.S. 491 , 504–505 (1975). The majority today modifies that test for cases involving the President, but it leaves the core of the power untouched. Ante , at 18–20. 2 The opinion in McGrain lacks any foundation in text or history with respect to subpoenas for private, nonofficial documents. It fails to recognize that Congress, unlike Parliament, is not supreme. It does not cite any specific precedent for issuing legislative subpoenas for private documents from 18th-century colonial or state practice. And it identifies no founding-era legislative subpoenas for private documents.[ 6 ] Since McGrain , the Court has pared back Congress’ authority to compel testimony and documents. It has held that certain convictions of witnesses for contempt of Congress violated the Fifth Amendment. See Watkins v. United States , 354 U.S. 178 (1957) (Due Process Clause); Quinn v. United States , 349 U.S. 155 (1955) (Self-Incrimination Clause); see also Barenblatt v. United States , 360 U.S. 109 , 153–154 (1959) (Black, J., dissenting). It has also affirmed the reversal of a conviction on the ground that the Committee lacked authority to issue the subpoena. See United States v. Rumely , 345 U.S. 41 (1953). And today, it creates a new four-part, nonexhaustive test for cases involving the President. Ante , at 18–20. Rather than continue our trend of trying to compensate for McGrain , I would simply decline to apply it in these cases because it is readily apparent that the Committees have no constitutional authority to subpoena private, nonofficial documents. III If the Committees wish to investigate alleged wrongdoing by the President and obtain documents from him, the Constitution provides Congress with a special mechanism for doing so: impeachment.[ 7 ] A It is often acknowledged, “if only half-heartedly honored,” that one of the motivating principles of our Constitution is the separation of powers. Association of American Railroads , 575 U. S., at 74 (Thomas, J., concurring in judgment). The Framers recognized that there are three forms of governmental power: legislative, executive and judicial. The Framers also created three branches: Congress, the President, and the Judiciary. The three powers largely align with the three branches. To a limited extent, however, the Constitution contains “a partial intermixture of those departments for special purposes.” The Federalist No. 66, p. 401 (C. Rossiter ed. 1961) (A. Hamilton). One of those special purposes is the system of checks and balances, and impeachment is one of those checks. The Constitution grants the House “the sole Power of Impeachment,” Art. I, §2, cl. 5, and it specifies that the President may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors,” Art. II, §4. The founding generation understood impeachment as a check on Presidential abuses. In response to charges that impeachment “confounds legislative and judiciary authorities in the same body,” Alexander Hamilton called it “an essential check in the hands of [Congress] upon the encroachments of the executive.” The Federalist No. 66, at 401–402. And, in the Virginia ratifying convention, James Madison identified impeachment as a check on Presidential abuse of the treaty power. 10 Documentary History 1397. B The power to impeach includes a power to investigate and demand documents. Impeachments in the States often involved an investigation. In 1781, the Virginia Legislature began what Edmund Randolph called an “impeachment” of then-Governor Thomas Jefferson. P. Hoffer & N. Hull, Impeachment in America, 1635–1805, p. 85 (1984). This “most publicized and far-reaching impeachment inquiry for incompetence” included an “ ‘inquir[y] into the conduct of the executive of this state for the last two months.’ ” Ibid. The legislatures of New Jersey, id. , at 92, and Pennsylvania, id. , at 93–95, similarly investigated officials through impeachment proceedings. Reinforcing this understanding, the founding generation repeatedly referred to impeachment as an “inquest.” See 4 Debates on the Constitution 44 (J. Elliot ed. 1854) (speech of A. Maclaine) (referring to the House as “the grand inquest of the Union at large”); The Federalist No. 65, at 397 (Hamilton) (referring to the House as “a method of National Inquest”); 2 Records of the Federal Convention 154 (M. Farrand ed. 1911) (record from the Committee of Detail stating that “[t]he House of Representatives shall be the grand Inquest of this Nation; and all Impeachments shall be made by them”); see also Mass. Const., ch. 1, §3, Art. VI (1780) (referring to the Massachusetts House of Representatives as “the Grand Inquest of this Commonwealth”). At the time, an “inquest” referred to an “[i]nquiry, especially that made by a Jury” or “the Jury itself.” N. Bailey, Universal Etymological Dictionary (22d ed. 1770). The Founders were also aware of the contemporaneous impeachment of Warren Hastings in England, in which the House of Commons heard witnesses before voting to impeach. P. Marshall, The Impeachment of Warren Hastings 40–41, 58 (1965). In the first impeachment under the new Constitution, Congressmen cited the Hastings impeachment as precedent for several points, including the power to take testimony before impeaching. 7 Annals of Cong. 456 (1797) (Rep. Rutledge); id. , at 459 (Rep. Sitgreaves); id., at 460 (Rep. Gallatin). Other evidence from the 1790s confirms that the power to investigate includes the power to demand documents. When the House of Representatives sought documents related to the Jay Treaty from President George Washington, he refused to provide them on the ground that the House had no legislative powers relating to the ratification of treaties. 5 Annals of Cong. 760–762 (1796). But he carefully noted that “[i]t does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed.” Id., at 760. In other words, he understood that the House can demand documents as part of its power to impeach. This Court has also long recognized the power of the House to demand documents. Even as it questioned the power to issue legislative subpoenas, the Court in Kilbourn acknowledged the ability to “compel the attendance of witnesses, and their answer to proper questions” when “the question of . . . impeachment is before either body acting in its appropriate sphere on that subject.” 103 U. S., at 190. I express no view today on the boundaries of the power to demand documents in connection with impeachment proceedings. But the power of impeachment provides the House with authority to investigate and hold accountable Presidents who commit high crimes or misdemeanors. That is the proper path by which the Committees should pursue their demands. IV For nearly two centuries, until the 1970s, Congress never attempted to subpoena documents to investigate wrongdoing by the President outside the context of impeachment. Congress investigated Presidents without opening impeachment proceedings. See, e.g., 2 Hinds §1596, at 1043–1045 (President James Buchanan). But it never issued a subpoena for private, nonofficial documents as part of those non-impeachment inquiries. Perhaps most strikingly, one proposed request for official documents from the President was amended after objection so that it “ ‘requested’ ” them rather than “ ‘direct[ing]’ ” the President to provide them. 3 id. , §1895, at 193. Insisting that the House proceed through its impeachment power is not a mere formality. Unlike contempt, which is governed by the rules of each chamber, impeachment and removal constitutionally requires a majority vote by the House and a two-thirds vote by the Senate. Art. I, §2, cl. 5; §3, cl. 6. In addition, Congress has long thought it necessary to provide certain procedural safeguards to officials facing impeachment and removal. See, e.g. , 3 Annals of Cong. 903 (1793) (Rep. W. Smith). Finally, initiating impeachment proceedings signals to the public the gravity of seeking the removal of a constitutional officer at the head of a coordinate branch. 940 F.3d 710, 776 (CADC 2019) (Rao, J., dissenting). *  *  * Congress’ legislative powers do not authorize it to engage in a nationwide inquisition with whatever resources it chooses to appropriate for itself. The majority’s solution—a nonexhaustive four-factor test of uncertain origin—is better than nothing. But the power that Congress seeks to exercise here has even less basis in the Constitution than the majority supposes. I would reverse in full because the power to subpoena private, nonofficial documents is not a necessary implication of Congress’ legislative powers. If Congress wishes to obtain these documents, it should proceed through the impeachment power. Accordingly, I respectfully dissent. Notes 1 I express no opinion about the constitutionality of legislative subpoenas for other kinds of evidence. 2 The Constitution also enumerates a limited set of congressional privileges. Although I express no opinion on the question, at least one early commentator thought the canon of expressio unius meant that Congress had no unenumerated privileges, such as the power to hold nonmembers in contempt. 1 St. George Tucker, Blackstone’s Commentaries 200, n. § (1803). 3 I note as well that Sumner expressly distinguished legislative subpoenas from subpoenas issued during “those inquiries which are in their nature preliminary to an impeachment.” Cong. Globe, 36th Cong., 1st Sess., 3007 (1860). 4 According to Justice Miller’s private letters, “a majority of the Court, including Miller himself, were of the opinion that neither House nor Senate had power to punish for contempt witnesses who refused to testify before investigating committees.” T. Taylor, Grand Inquest: The Story of Congressional Investigations 49 (1955). Only Justice Miller’s desire to “ ‘decid[e] no more than is necessary’ ” caused the Court to avoid the broader question. Ibid. 5 The Court also cited decisions between 1858 and 1913 from state courts and a Canadian court, none of which are persuasive evidence about the original meaning of the U. S. Constitution. McGrain , 273 U. S., at 165–167. 6 The Court further observed that Congress has long exercised the power to hold nonmembers in contempt for reasons other than failure to comply with a legislative subpoena. McGrain , supra, at 168–169. The earliest case it cited, Anderson v. Dunn , 6 Wheat. 204 (1821), relied on arguments about Congress’ power of self-protection, id., at 226–227. Members of Congress defending the use of contempt for these other purposes made similar arguments about self-protection. 5 Annals of Cong. 181–182 (1795) (Rep. W. Smith); id., at 189 (Rep. I. Smith). But the failure to respond to a subpoena does not pose a fundamental threat to Congress’ ability to exercise its powers. 7 I express no view on whether there are any limitations on the impeachment power that would prevent the House from subpoenaing the documents at issue. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–715 and 19–760 _________________ DONALD J. TRUMP, et al., PETITIONERS 19–715 v. MAZARS USA, LLP, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit DONALD J. TRUMP, et al., PETITIONERS 19–760 v. DEUTSCHE BANK AG, et al. on writ of certiorari to the united states court of appeals for the second circuit [July 9, 2020] Justice Alito, dissenting. Justice Thomas makes a valuable argument about the constitutionality of congressional subpoenas for a President’s personal documents. In these cases, however, I would assume for the sake of argument that such subpoenas are not categorically barred. Nevertheless, legislative subpoenas for a President’s personal documents are inherently suspicious. Such documents are seldom of any special value in considering potential legislation, and subpoenas for such documents can easily be used for improper non-legislative purposes. Accordingly, courts must be very sensitive to separation of powers issues when they are asked to approve the enforcement of such subpoenas. In many cases, disputes about subpoenas for Presidential documents are fought without judicial involvement. If Congress attempts to obtain such documents by subpoenaing a President directly, those two heavyweight institutions can use their considerable weapons to settle the matter. See ante , at 10 (opinion of the Court) (“Congress and the President maintained this tradition of negotiation and compromise—without the involvement of this Court—until the present dispute”). But when Congress issues such a subpoena to a third party, Congress must surely appreciate that the Judiciary may be pulled into the dispute, and Congress should not expect that the courts will allow the subpoena to be enforced without seriously examining its legitimacy. Whenever such a subpoena comes before a court, Congress should be required to make more than a perfunctory showing that it is seeking the documents for a legitimate legislative purpose and not for the purpose of exposing supposed Presidential wrongdoing. See ante , at 12. The House can inquire about possible Presidential wrongdoing pursuant to its impeachment power, see ante , at 17–21 (Thomas, J., dissenting), but the Committees do not defend these subpoenas as ancillary to that power. Instead, they claim that the subpoenas were issued to gather information that is relevant to legislative issues, but there is disturbing evidence of an improper law enforcement purpose. See 940 F.3d 710, 767–771 (CADC 2019) (Rao, J., dissenting). In addition, the sheer volume of documents sought calls out for explanation. See 943 F.3d 627, 676–681 (CA2 2019) (Livingston, J., concurring in part and dissenting in part). The Court recognizes that the decisions below did not give adequate consideration to separation of powers concerns. Therefore, after setting out a non-exhaustive list of considerations for the lower courts to take into account, ante , at 18–20, the Court vacates the judgments of the Courts of Appeals and sends the cases back for reconsideration. I agree that the lower courts erred and that these cases must be remanded, but I do not think that the considerations outlined by the Court can be properly satisfied unless the House is required to show more than it has put forward to date. Specifically, the House should provide a description of the type of legislation being considered, and while great specificity is not necessary, the description should be sufficient to permit a court to assess whether the particular records sought are of any special importance. The House should also spell out its constitutional authority to enact the type of legislation that it is contemplating, and it should justify the scope of the subpoenas in relation to the articulated legislative needs. In addition, it should explain why the subpoenaed information, as opposed to information available from other sources, is needed. Unless the House is required to make a showing along these lines, I would hold that enforcement of the subpoenas cannot be ordered. Because I find the terms of the Court’s remand inadequate, I must respectfully dissent.

The Supreme Court ruled that the House of Representatives has the authority to issue subpoenas as part of its legislative responsibilities, but in this case, the subpoenas seeking financial information about President Donald Trump and his family were issued with an improper law enforcement purpose and lacked a valid legislative aim. The Court sent the case back to the lower courts for reconsideration, with instructions to consider a range of factors, including the type of legislation being considered and the House's constitutional authority to enact it. The Court also emphasized the need for the House to provide a more detailed justification for the scope of the subpoenas and the specific information sought.

Antitrust

Loewe v. Lawlor

https://supreme.justia.com/cases/federal/us/208/274/

U.S. Supreme Court Loewe v. Lawlor, 208 U.S. 274 (1908) Loewe v. Lawlor No. 388 Argued December 4, 5, 1907 Decided February 3, 1908 208 U.S. 274 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus After the Circuit Court of Appeals has certified questions to this court and this court has issued its writ of certiorari requiring the whole record to be sent up, it devolves upon this court under § 6 of the Judiciary Act of 1891, to decide the whole matter in controversy in the same manner as if it had been brought here for review by writ of error or appeal. The Anti-Trust Act of July 2, 1890, 26 Stat. 209, has a broader application that the prohibition of restraints of trade unlawful at common law. Page 208 U. S. 275 It prohibits any combination which essentially obstructs the free flow of commerce between the States, or restricts, in that regard, the liberty of a trader to engage in business, and this includes restraints of trade aimed at compelling third parties and strangers involuntarily not to engage in the course of interstate trade except on conditions that the combination imposes. A combination may be in restraint of interstate trade and within the meaning of the Anti-Trust Act although the persons exercising the restraint may not themselves be engaged in interstate trade, and some of the means employed may be acts within a State and individually beyond the scope of Federal authority, and operate to destroy intrastate trade as interstate trade, but the acts must be considered as a whole, and if the purposes are to prevent interstate transportation, the plan is open to condemnation under the Anti-Trust Act of July 2, 1890. Swift v. United States, 196 U. S. 375 . The Anti-Trust Act of July 2, 1890, makes no distinction between classes. Organizations of farmers and laborers were not exempted from its operation, notwithstanding the efforts which the records of Congress show were made in that direction. A combination of labor organizations and the members thereof, to compel a manufacturer whose goods are almost entirely sold in other States to unionize his shops and, on his refusal so to do to, boycott his goods and prevent their sale in States other than his own until such time as the resulting damage forces him to comply with their demands is, under the conditions of this case, a combination in restraint of interstate trade or commerce within the meaning of the Anti-Trust Act of July 2, 1890, and the manufacturer may maintain an action for threefold damages under 7 of that act. The facts are stated in the opinion. Page 208 U. S. 283 MR. CHIEF JUSTICE FULLER delivered the opinion of the court. This was an action brought in the Circuit Court for the District of Connecticut under § 7 of the Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209, claiming threefold damages for injuries inflicted on plaintiffs by a combination or conspiracy declared to be unlawful by the act. Defendants filed a demurrer to the complaint, assigning general and special grounds. The demurrer was sustained as to the first six paragraphs, which rested on the ground that the combination stated was not within the Sherman Act, and this rendered it unnecessary to pass upon any other questions in the case, and, upon plaintiffs declining to amend their complaint, the court dismissed it with costs. 148 Fed.Rep. 924, and see 142 Fed.Rep. 216; 130 Fed.Rep. 633. Page 208 U. S. 284 The case was then carried by writ of error to the Circuit Court of Appeals for the Second Circuit, and that court, desiring the instruction of this court upon a question arising on the writ of error, certified that question to this court. The certificate consisted of a brief statement of facts, and put the question thus: "Upon this state of facts, can plaintiffs maintain an action against defendants under section 7 of the Anti-Trust Act of July 2, 1890?" After the case on certificate had been docketed here, plaintiffs in error applied, and defendants in error joined in the application, to this court to require the whole record and cause to be sent up for its consideration. The application was granted, and the whole record and cause being thus brought before this court, it devolved upon the court, under § 6 of the Judiciary Act of 1891, to "decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal." The case comes up, then, on complaint and demurrer, and we give the complaint in the margin. * Page 208 U. S. 285 The question is whether, upon the facts therein averred and admitted by the demurrer, this action can be maintained under the Anti-Trust Act. The first, second and seventh sections of that act are as follows: Page 208 U. S. 286 "1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such Page 208 U. S. 287 contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. " Page 208 U. S. 288 "2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty Page 208 U. S. 289 of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. " Page 208 U. S. 290 "7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any Circuit Court of the United States in the district in Page 208 U. S. 291 which the defendant resides or is found, without respect to the amount in controversy, and shall recover three fold the damages by him sustained, and the costs of suit; including a reasonable attorney's fee. " Page 208 U. S. 292 In our opinion, the combination described in the declaration is a combination "in restraint of trade or commerce among the several States," in the sense in which those words are used in the act, and the action can be maintained accordingly. Page 208 U. S. 293 And that conclusion rests on many judgments of this court, to the effect that the act prohibits any combination whatever to secure action which essentially obstructs the free flow of commerce between the States, or restricts, in that regard, the liberty of a trader to engage in business. Page 208 U. S. 294 The combination charged falls within the class of restraints of trade aimed at compelling third parties and strangers involuntarily not to engage in the course of trade except on conditions that the combination imposes, and there is no doubt Page 208 U. S. 295 that (to quote from the well known work of Chief Justice Erle on Trade Unions), "at common law, every person has individually, and the public also, has collectively, a right to require that the course of trade should be kept free from unreasonable Page 208 U. S. 296 obstruction." But the objection here is to the jurisdiction, because, even conceding that the declaration states a case good at common law, it is contended that it does not state one within the statute. Thus, it is said that the restraint alleged would operate to entirely destroy plaintiffs' business, and thereby include intrastate trade as well; that physical obstruction Page 208 U. S. 297 is not alleged as contemplated, and that defendants are not themselves engaged in interstate trade. We think none of these objections is tenable, and that they are disposed of by previous decisions of this court. United States v. Trans-Missouri Freight Association, 166 U. S. 290 ; United States v. Joint Traffic Association, 171 U. S. 505 , and Northern Securities Company v. United States, 193 U. S. 197 , hold, in effect, that the Anti-Trust law has a broader application than the prohibition of restraints of trade unlawful at common law. Thus, in the Trans-Missouri Case, 166 U. S. 290 , it was said that, "assuming that agreements of this nature are not void at common law, and that the various cases cited by the learned courts below show it, the answer to the statement of their validity is to be found in the terms of the statute under consideration;" and, in the Northern Securities Case, 193 U. S. 331 , that "the act declares illegal every contract, combination or conspiracy, in whatever form, of whatever nature, and whoever may be the parties to it, which directly or necessarily operates in restraint of trade or commerce among the several States." We do not pause to comment on cases, such as United States v. Knight, 156 U. S. 1 ; Hopkins v. United States, 171 U. S. 578 , and Anderson v. United States, 171 U. S. 60 ; in which the undisputed facts showed that the purpose of the agreement was not to obstruct or restrain interstate commerce. The object and intention of the combination determined its legality. In Swift v. United States, 196 U. S. 375 , a bill was brought against a number of corporations, firms and individuals of different States alleging that they were engaged in interstate commerce in the purchase, sale, transportation and delivery, and subsequent resale at the point of delivery of meats, and that they combined to refrain from bidding against each other in the purchase of cattle; to maintain a uniform price at which the meat should be sold, and to maintain uniform charges in delivering meats thus sold through the channels of interstate trade to the various dealers and consumers in other States. Page 208 U. S. 298 And that, thus, they artificially restrained commerce in fresh meats from the purchase and shipment of livestock from the plains to the final distribution of the meats to the consumers in the markets of the country. Mr. Justice Holmes, speaking for the court, said (pp. 196 U. S. 395 , 196 U. S. 396 , 196 U. S. 398 ): "Commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business. When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase, in another, and when, in effect, they do so with only the interruption necessary to find a purchaser at the stockyards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce." " * * * *" "The general objection is urged that the bill does not set forth sufficient, definite or specific facts. This objection is serious, but it seems to us inherent in the nature of the case. The scheme alleged is so vast that it presents a new problem in pleading. If, as we must assume, the scheme is entertained, it is, of course, contrary to the very words of the statute. Its size makes the violation of the law more conspicuous, and yet the same thing makes it impossible to fasten the principal fact to a certain time and place. The elements, too, are so numerous and shifting, even the constituent parts alleged are and, from their nature must be, so extensive in time and space that something of the same impossibility applies to them." " * * * *" "The scheme as a whole seems to us to be within reach of the law. The constituent elements, as we have stated them, are enough to give to the scheme a body and, for all that we can say, to accomplish it. Moreover, whatever we may think of them separately, when we take them up as distinct charges, they are alleged sufficiently as elements of the scheme. It is Page 208 U. S. 299 suggested that the several acts charged are lawful, and that intent can make no difference. But they are bound together as parts of a single plan. The plan may make the parts unlawful." And the same principle was expressed in Aikens v. Wisconsin, 195 U. S. 194 , 195 U. S. 205 , involving a statute of Wisconsin prohibiting combinations "for the purpose of willfully or maliciously injuring another in his reputation, trade, business or profession by any means whatever," etc., in which Mr. Justice Holmes said: "The statute is directed against a series of acts, and acts of several, the acts of combining, with intent to do other acts, 'The very plot is an act in itself.' Mulcahy v. The Queen, L.R. 3 H.L. 306, 317. But an act which in itself is merely a voluntary muscular contraction derives all its character from the consequences which will follow it under the circumstances in which it was done. When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct which might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and, if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law." In Addyston Pipe and Steel Company v. United States, 175 U. S. 211 , the petition alleged that the defendants were practically the only manufacturers of cast iron within thirty-six States and Territories, that they had entered into a combination by which they agreed not to compete with each other in the sale of pipe, and the territory through which the constituent companies could make sales was allotted between them. This court held that the agreement which, prior to any act of transportation, limited the prices at which the pipe could be Page 208 U. S. 300 sold after transportation, was within the law. Mr. Justice Peckham, delivering the opinion, said (p. 175 U. S. 242 ): "And when Congress has enacted a statute such as the one in question, any agreement or combination which directly operates not alone upon the manufacture, but upon the sale, transportation and delivery of an article of interstate commerce by preventing or restricting its sale, etc., thereby regulates interstate commerce." In Montague & Company v. Lowry, 193 U. S. 38 , which was an action brought by a private citizen under § 7 against a combination engaged in the manufacture of tiles, defendants were wholesale dealers in tiles in California, and combined with manufacturers in other States to restrain the interstate traffic in tiles by refusing to sell any tiles to any wholesale dealer in California who was not a member of the association, except at a prohibitive rate. The case was a commercial boycott against such dealers in California as would not or could not obtain membership in the association. The restraint did not consist in a physical obstruction of interstate commerce, but in the fact that the plaintiff and other independent dealers could not purchase their tiles from manufacturers in other States because such manufacturers had combined to boycott them. This court held that this obstruction to the purchase of tiles, a fact antecedent to physical transportation, was within the prohibition of the act. Mr. Justice Peckham, speaking for the court, said (p. 193 U. S. 45 ), concerning the agreement, that it "restrained trade, for it narrowed the market for the sale of tiles in California from the manufacturers and dealers therein in other States, so that they could only be sold to the members of the association, and it enhanced prices to the nonmember." The averments here are that there was an existing interstate traffic between plaintiffs and citizens of other States, and that, for the direct purpose of destroying such interstate traffic, defendants combined not merely to prevent plaintiffs from manufacturing articles then and there intended for transportation beyond the State, but also to prevent the vendees from reselling the hats which they had imported from Connecticut, or from Page 208 U. S. 301 further negotiating with plaintiffs for the purchase and intertransportation of such hats from Connecticut to the various places of destination. So that, although some of the means whereby the interstate traffic was to be destroyed were acts within a State, and some of them were, in themselves, as a part of their obvious purpose and effect, beyond the scope of Federal authority, still, as we have seen, the acts must be considered as a whole, and the plan is open to condemnation notwithstanding a negligible amount of intrastate business might be affected in carrying it out. If the purposes of the combination were, as alleged, to prevent any interstate transportation at all, the fact that the means operated at one end before physical transportation commenced, and at the other end after the physical transportation ended, was immaterial. Nor can the act in question be held inapplicable because defendants were not themselves engaged in interstate commerce. The act made no distinction between classes. It provided that "every" contract, combination or conspiracy in restraint of trade was illegal. The records of Congress show that several efforts were made to exempt, by legislation, organizations of farmers and laborers from the operation of the act, and that all these efforts failed, so that the act remained as we have it before us. In an early case, United States v. Workingmen's Amalgamated Council, 54 Fed.Rep. 994, the United States filed a bill under the Sherman act in the Circuit Court for the Eastern District of Louisiana, averring the existence of "a gigantic and widespread combination of the members of a multitude of separate organizations for the purpose of restraining the commerce among the several States and with foreign countries," and it was contended that the statute did not refer to combinations of laborers. But the court, granting the injunction, said: "I think the Congressional debates show that the statute had its origin in the evils of massed capital; but, when the Congress came to formulating the prohibition, which is the yardstick for measuring the complainant's right to the injunction, Page 208 U. S. 302 it expressed it in these words:" "Every contract or combination in the form of trust, or otherwise in restraint of trade or commerce among the several States or with foreign nations, is hereby declared to be illegal." "The subject had so broadened in the minds of the legislators that the source of the evil was not regarded as material, and the evil in its entirety is dealt with. They made the interdiction include combinations of labor, as well as of capital; in fact, all combinations in restraint of commerce, without reference to the character of the persons who entered into them. It is true this statute has not been much expounded by judges, but, as it seems to me, its meaning, as far as relates to the sort of combinations to which it is to apply, is manifest, and that it includes combinations which are composed of laborers acting in the interest of laborers." " * * * *" "It is the successful effort of the combination of the defendants to intimidate and overawe others who were at work in conducting or carrying on the commerce of the country in which the court finds their error and their violation of the statute. One of the intended results of their combined action was the forced stagnation of all the commerce which flowed through New Orleans. This intent and combined action are nonetheless unlawful because they included in their scope the paralysis of all other business within the city as well." The case was affirmed on appeal by the Circuit Court of Appeals for the Fifth Circuit. 57 Fed.Rep. 85. Subsequently came the litigation over the Pullman strike and the decisions, In re Debs, 64 Fed.Rep. 724, 745, 755; S.C., 158 U. S. 158 U.S. 564. The bill in that case was filed by the United States against the officers of the American Railway Union, which alleged that a labor dispute existed between the Pullman Palace Car Company and its employes; that thereafter the four officers of the railway union combined together and with others to compel an adjustment of such dispute by creating a boycott against the cars of the car company; that, to make such boycott effective, they had already prevented certain Page 208 U. S. 303 of the railroads running out of Chicago from operating their trains; that they asserted that they could and would tie up, paralyze and break down any and every railroad which did not accede to their demands, and that the purpose and intention of the combination was "to secure unto themselves the entire control of the interstate, industrial and commercial business in which the population of the city of Chicago and of other communities along the lines of road of said railways are engaged with each other, and to restrain any and all other persons from any independent control or management of such interstate, industrial or commercial enterprises, save according to the will and with the consent of the defendants." The Circuit Court proceeded principally upon the Sherman Anti-Trust law, and granted an injunction. In this court, the case was rested upon the broader ground that the Federal Government had full power over interstate commerce and over the transmission of the mails, and, in the exercise of those powers, could remove everything put upon highways, natural or artificial, to obstruct the passage of interstate commerce, or the carrying of the mails. But, in reference to the Anti-Trust Act, the court expressly stated (158 U.S. 158 U. S. 600 ): "We enter into no examination of the act of July 2, 1890, c. 647, 26 Stat. 209, upon which the Circuit Court relied mainly to sustain its jurisdiction. It must not be understood from this that we dissent from the conclusions of that court in reference to the scope of the act, but simply that we prefer to rest our judgment on the broader ground which has been discussed in this opinion, believing it of importance that the principles underlying it should be fully stated and affirmed." And, in the opinion, Mr. Justice Brewer, among other things, said (p. 158 U. S. 581 ): "It is curious to note the fact that, in a large proportion of the cases in respect to interstate commerce brought to this court, the question presented was of the validity of state legislation in its bearings upon interstate commerce, and the uniform course of decision has been to declare that it is not within Page 208 U. S. 304 the competency of a State to legislate in such a manner as to obstruct interstate commerce. If a State, with its recognized powers of sovereignty, is impotent to obstruct interstate commerce, can it be that any mere voluntary association of individuals within the limits of that State has a power which the State itself does not possess?" The question answers itself, and, in the light of the authorities, the only inquiry is as to the sufficiency of the averments of fact. We have given the declaration in full in the margin, and it appears therefrom that it is charged that defendants formed a combination to directly restrain plaintiffs' trade; that the trade to be restrained was interstate; that certain means to attain such restraint were contrived to be used and employed to that end; that those means were so used and employed by defendants, and that thereby they injured plaintiffs' property and business. At the risk of tediousness, we repeat that the complaint averred that plaintiffs were manufacturers of hats in Danbury, Connecticut, having a factory there, and were then and there engaged in an interstate trade in some twenty States other than the State of Connecticut; that they were practically dependent upon such interstate trade to consume the product of their factory, only a small percentage of their entire output being consumed in the State of Connecticut; that, at the time the alleged combination was formed, they were in the process of manufacturing a large number of hats for the purpose of fulfilling engagements then actually made with consignees and wholesale dealers in States other than Connecticut, and that, if prevented from carrying on the work of manufacturing these hats, they would be unable to complete their engagements. That defendants were members of a vast combination called The United Hatters of North America, comprising about 9,000 members and including a large number of subordinate unions, and that they were combined with some 1,400,000 others into another association known as The American Federation of Page 208 U. S. 305 Labor, of which they were members, whose members resided in all the places in the several States where the wholesale dealers in hats and their customers resided and did business; that defendants were "engaged in a combined scheme and effort to force all manufacturers of fur hats in the United States, including the plaintiffs, against their will and their previous policy of carrying on their business, to organize their workmen in the departments of making and finishing, in each of their factories, into an organization, to be part and parcel of the said combination known as The United Hatters of North America, or, as the defendants and their confederates term it, to unionize their shops, with the intent thereby to control the employment of labor in and the operation of said factories and to subject the same to the direction and control of persons, other than the owners of the same, in a manner extremely onerous and distasteful to such owners, and to carry out such scheme, effort and purpose by restraining and destroying the interstate trade and commerce of such manufacturers by means of intimidation of and threats made to such manufacturers and their customers in the several States of boycotting them, their product and their customers, using therefor all the powerful means at their command, as aforesaid, until such time as, from the damage and loss of business resulting therefrom, the said manufacturers should yield to the said demand to unionize their factories." That the conspiracy or combination was so far progressed that, out of eighty-two manufacturers of this country engaged in the production of fur hats, seventy had accepted the terms and acceded to the demand that the shop should be conducted in accordance, so far as conditions of employment were concerned, with the will of the American Federation of Labor; that the local union demanded of plaintiffs that they should unionize their shop under peril of being boycotted by this combination, which demand defendants declined to comply with; that thereupon the American Federation of Labor, acting through its official organ and through its organizers, declared a boycott. Page 208 U. S. 306 The complaint then thus continued: "20. On or about July 25, 1902, the defendants, individually and collectively and as members of said combinations and associations, and with other persons whose names are unknown to the plaintiffs, associated with them, in pursuance of the general scheme and purpose aforesaid, to force all manufacturers of fur hats, and particularly the plaintiffs, to so unionize their factories, wantonly, wrongfully, maliciously, unlawfully and in violation of the provisions of the 'Act of Congress, approved July 2, 1890,' and entitled 'An Act to Protect Trade and Commerce Against Unlawful Restraints and Monopolies,' and with intent to injure the property and business of the plaintiffs by.means of acts done which are forbidden and declared to be unlawful by said act of Congress, entered into a combination and conspiracy to restrain the plaintiffs and their customers in States other than Connecticut, in carrying on said trade and commerce among the several States, and to wholly prevent them from engaging in and carrying on said trade and commerce between them and to prevent the plaintiffs from selling their hats to wholesale dealers and purchasers in said States other than Connecticut, and to prevent said dealers and customers in said other States from buying the same, and to prevent the plaintiffs from obtaining orders for their hats from such customers, and filling the same, and shipping said hats to said customers in said States as aforesaid, and thereby injure the plaintiffs in their property and business and to render unsalable the product and output of their said factory, so the subject of interstate commerce, in whosoever's hands the same might be or come, through said interstate trade and commerce, and to employ as means to carry out said combination and conspiracy and the purposes thereof, and accomplish the same, the following measures and acts, viz: " "To cause, by means of threats and coercion, and without warning or information to the plaintiffs, the concerted and simultaneous withdrawal of all the makers and finishers of hats then working for them, who were not members of their said Page 208 U. S. 307 combination, The United Hatters of North America, as well as those who were such members, and thereby cripple the operation of the plaintiffs' factory, and prevent the plaintiffs from filling a large number of orders then on hand from such wholesale dealers in States other than Connecticut which they had engaged to fill and were then in the act of filling, as was well known to the defendants; in connection therewith to declare a boycott against all hats made for sale and sold and delivered, or to be so sold or delivered, by the plaintiffs to said wholesale dealers in States other than Connecticut, and to actively boycott the same and the business of those who should deal in them, and thereby prevent the sale of the same by those in whose hands they might be or come through said interstate trade in said several States; to procure and cause others of said combinations united with them in said American Federation of Labor, in like manner to declare a boycott against and to actively boycott the same and the business of such wholesale dealers as should buy or sell them, and of those who should purchase them from such wholesale dealers; to intimidate such wholesale dealers from purchasing or dealing in the hats of the plaintiffs by informing them that the American Federation of Labor had declared a boycott against the product of the plaintiffs and against any dealer who should handle it, and that the same was to be actively pressed against them, and by distributing circulars containing notices that such dealers and their customers were to be boycotted; to threaten with a boycott those customers who should buy any goods whatever, even though union made, of such boycotted dealers, and at the same time to notify such wholesale dealers that they were at liberty to deal in the hats of any other nonunion manufacturer of similar quality to those made by the plaintiffs, but must not deal in the hats made by the plaintiffs under threats of such boycotting; to falsely represent to said wholesale dealers and their customers, that the plaintiffs had discriminated against the union men in their employ, had thrown them out of employment because they refused to give up their union cards and Page 208 U. S. 308 teach boys, who were intended to take their places after seven months' instruction, and had driven their employes to extreme measures" "by their persistent, unfair and un-American policy of antagonizing union labor, forcing wages to a starvation scale, and given boys and cheap, unskilled foreign labor preference over experienced and capable union workmen," "in order to intimidate said dealers from purchasing said hats by reason of the prejudice thereby created against the plaintiffs and the hats made by them among those who might otherwise purchase them; to use the said union label of said The United Hatters of North America as an instrument to aid them in carrying out said conspiracy and combination against the plaintiffs' and their customers' interstate trade aforesaid, and, in connection with the boycotting above-mentioned, for the purpose of describing and identifying the hats of the plaintiffs and singling them out to be so boycotted; to employ a large number of agents to visit said wholesale dealers and their customers, at their several places of business, and threaten them with loss of business if they should buy or handle the hats of the plaintiffs, and thereby prevent them from buying said hats, and in connection therewith to cause said dealers to be waited upon by committees representing large combinations of persons in their several localities to make similar threats to them; to use the daily press in the localities where such wholesale dealers reside, and do business, to announce and advertise the said boycotts against the hats of the plaintiffs and said wholesale dealers, and thereby make the same more effective and oppressive, and to use the columns of their said paper, The Journal of the United Hatters of North America, for that purpose, and to describe the acts of their said agents in prosecuting the same." And then followed the averments that the defendants proceeded to carry out their combination to restrain and destroy interstate trade and commerce between plaintiffs and their customers in other States by employing the identical means contrived for that purpose, and that, by reason of those acts, Page 208 U. S. 309 plaintiffs were damaged in their business and property in some $80,000. We think a case within the statute was set up, and that the demurrer should have been overruled. Judgment reversed, and case remanded with a direction to proceed accordingly. * The complaint alleged that the defendants were residents of the District of Connecticut, and that complainants resided in Danbury, in that district, were copartners, and located and doing business as manufacturers and sellers of hats there; that they had "a factory for the making of hats, for sale by them in the various States of the Union, and have for many years employed, at said factory, a large number of men in the manufacture and sale of said hats, and have invested in that branch of their business a large amount of capital, and, in their business of selling the product of their factory and filling orders for said hats, have built up and established a large interstate trade, employing more than two hundred and thirty (230) persons in making and annually selling hats of a value exceeding four hundred thousand (400,000) dollars." "4. The plaintiffs, deeming it their right to manage and conduct their business without interference from individuals or associations not connected therewith, have for many years maintained the policy of refusing to suffer or permit any person or organization to direct or control their said business, and, in consequence of said policy, have conducted their said business upon the broad and patriotic principle of not discriminating against any person seeking employment because of his being or not being connected with any labor or other organization, and have refused to enter into agreement with any person or organization whereby the rights and privileges, either of themselves or any employee, would be jeopardized, surrendered to or controlled by said person or organization, and have believed said policy, which was and is well known to the defendants, to be absolutely necessary to the successful conduct of their said business and the welfare of their employes." "5. The plaintiffs, for many years, have been and now are engaged in trade and commerce among the several States of the Union, in selling and shipping almost the whole of the product of their said factory by common carriers, from said Danbury to wholesale dealers residing and doing business in each of the States of Maine, Massachusetts, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Virginia, Ohio, Illinois, Michigan, Wisconsin, Missouri, Nebraska, Arkansas, California and other States, to the amount of many hundreds of thousands of dollars, and in sending agents with samples from said Danbury into and through each of said States to visit said wholesale dealers at their places of business in said several States, and solicit and procure from them orders for said hats, to be filled by hats to be shipped from their said factory at said Danbury, by common carriers to said wholesale dealers, to be by them paid for after the delivery thereof at their several places of business." "6. On July 25, 1902, the amount of capital invested by the plaintiffs in said business of making and selling hats, approximated one hundred and thirty thousand dollars, and the value of the hats annually sold and shipped by them in previous years to said dealers in States other than Connecticut exceeded four hundred thousand dollars, while the value of hats sold by them in the State of Connecticut did not exceed ten thousand dollars." "7. On July 25, 1902, the plaintiffs had made preparations to do a large and profitable business with said wholesale dealers in other States, and the condition of their business was such as to warrant the full belief that the ensuing year would be the most successful in their experience. Their factory was then running to its full capacity in filling a large number of orders from such wholesale dealers in other States. They were then employing about one hundred and sixty men in the making and finishing departments, a large number in the trimming and other departments, whose work was dependent upon the previous work of the makers and finishers, and they then had about one hundred and fifty dozens of hats in process of manufacture, and in such condition as to be perishable and ruined if work was stopped upon them." "8. The plaintiffs then were and now are almost wholly dependent upon the sale and shipments of hats as aforesaid, to said dealers in States other than Connecticut, to keep their said factory running and to dispose of its product and their capital in said business profitably employed, and the restraint, curtailment and destruction of their said trade and commerce with their said customers in said States other than Connecticut, by the combination, conspiracy and acts of the defendants, as hereinafter set forth, have been and now are of serious damage to the property and business of the plaintiffs, as hereinafter set forth." "9. The individual defendants, named in this writ, are all members of a combination or association of persons, styling themselves The United Hatters of North America, and said combination includes more than nine thousand persons, residing in the several States of Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Indiana, Illinois, Missouri, California, and the Province of Ontario in the Dominion of Canada. The said combination is subdivided into twenty subcombinations, each of which is by themselves styled a local union of The United Hatters of North America. Six of said subcombinations are in the State of Connecticut, and known as local Unions 1 and 2, 10 and 11, and 15 and 16 of The United Hatters of North America, and have an aggregate membership of more than three thousand persons residing in the State of Connecticut." "10. Said combination of persons, collectively known as The United Hatters of North America, owns, controls, edits, publishes, and issues a paper styled The Journal of the United Hatters of North America, in which are published reports of many of the acts of its agents, hereinafter mentioned, which circulates widely among its members and the public, and which affords a ready, convenient, powerful and effective vehicle for the dissemination of information to its members and the public as to boycotts declared and pushed by them, and of the acts and measures of its members and agents for carrying such boycotts into effect, and was so used by them in connection with the acts of the defendants hereinafter set forth." "11. Said combination owns and absolutely controls the use of a certain label or distinguishing mark, which it styles the Union Label of the United Hatters of North America, which mark, when so used by them, affords to them a ready, convenient and effective instrument and means of boycotting the hats of any manufacturer against whom they may desire to use it for that purpose." "12. The defendants in this suit are also all members of a combination or association of persons calling themselves and known as The American Federation of Labor, which includes more than a million and four hundred thousand members residing in the several States and Territories of the Union, and in the Dominion of Canada, and in all the places in the several States, where the wholesale dealers in hats, hereinbefore mentioned, and their customers reside, and do business. Said combination is subdivided in subordinate groups, or combinations, comprising one hundred and ten national and international unions and combination, of which the said combinations of persons styling themselves The United Hatters of North America is one, composed of twelve thousand local unions, twenty-eight State federations or combinations, more than five hundred central labor unions or combinations, and more than two thousand local unions or combinations, which are not included in the above-mentioned national and international combinations." "13. Said combination of persons collectively known as The American Federation of Labor owns, controls, edits, publishes, and issues a paper or magazine called The American Federationist, which it declares to be its official organ and mouthpiece, which has a very wide circulation among its members and others, and which affords a ready, convenient, powerful and effective vehicle and instrument for the dissemination of information, as to persons, their products and manufactures, boycotted or to be boycotted, by its members, and as to measures adopted and statements to be published, detrimental to such persons and to the sale of their manufactures and for boycotting such persons, their manufactures, and said paper has been and now is constantly used, printed and distributed for said purposes among its members and the public and was so used by the defendants and their confederates in boycotting the products of the firm of F. Berg & Co., of Orange, New Jersey, and H. H. Roelofs & Co., of Philadelphia, Pa., hat manufacturers, to their very great injury and until the said firms successively yielded to their demands in pursuance of the general scheme of the defendants hereinafter set forth." "14. The persons united in said combination, known as The American Federation of Labor, including the persons in said subcombination known as The United Hatters of North America, constantly employ more than one thousand agents in the States and Territories of the United States, to push, enforce and carry into effect all boycotts declared by the said members, including those in aid of the combined scheme, purpose and effort hereinafter stated, to force all the manufacturers of fur hats in the United States, including the plaintiffs, to unionize their factories by restraining and destroying their interstate trade and commerce, as hereinafter stated, all of which said agents act under the immediate supervision and personal direction of one Samuel Gompers, who is chief agent of the said combination of persons for said purpose, and of each of the said combinations, and the said agents make monthly reports of their doings in pushing and enforcing and causing to be pushed and enforced said boycotts, and publish the same monthly in said paper known as The American Federationist, of which he is the editor, appointed by the said members, which said paper, in connection with said statement or summary, is declared to be the authorized and official mouthpiece of each of said subcombinations, including the said United Hatters of North America. Said statement is declared by the defendants to be a faithful record of the doings of said agents, and each of said statements, made during the period covered by the acts of the defendants against the plaintiffs herein stated, contains the announcement to the members of said combination and the public that all boycotts declared by them are being by them and their agents pushed, enforced and observed." "15. Said combination of persons collectively known as The American Federation of Labor, of which the defendants are members, was by the defendants and their other members formed for the purpose among others, of facilitating the declaration and successful maintenance of boycotts, by and for said combination of persons known as The United Hatters of North America, acting through the said Federation of Labor and its other component parts or members, and it and its component parts have frequently declared boycotts, at the request of the defendants, against the business and product of various hat manufacturers, and have vigorously prosecuted the same by and through the powerful machinery at their command as aforesaid, in carrying out their general scheme herein stated, to the great damage and loss of business of said manufacturers, and particularly during the years of 1901 and 1902, they declared, prosecuted and waged, at the request of the defendants and their agents, a boycott against the hats made by and the business of H. H. Roelofs Co., of Philadelphia, Pa. until, by causing them great damage and loss of business, they coerced them into yielding to the demand of the defendants and their agents, that the said factory of said Roelofs & Co. be unionized, as termed by the defendants, and into agreeing to employ, and employing exclusively, members of their said combination in the making and finishing departments of said factory, and in large measure surrendering to the defendants and their agents the control of said factory and business, all of which was well known to the plaintiffs, their customers, wholesale dealers and the public, and was, by the defendants and their agents, widely proclaimed through all their agencies above mentioned, in connection with their acts against the plaintiffs, as hereinafter set forth, for the purpose of intimidating and coercing said wholesale dealers and their customers from buying the hats of the plaintiffs, by creating in their minds the fear that the defendants would invoke and put into operation against them all said powerful means, measures and machinery if they should handle the hats of the plaintiffs." "16. The defendants, together with the other persons united with them in said combination, known as The United Hatters of North America, have been for many years, and now are, engaged in a combined scheme and effort to force all manufacturers of fur hats in the United States, including the plaintiffs, against their will and their previous policy of carrying on their business, to organize their workmen in the departments of making and finishing, in each of their factories, into an organization, to be part and parcel of the said combination known as The United Hatters of North America, or as the defendants and their confederates term it, to unionize their shops, with the intent thereby to control the employment of labor in and the operation of said factories, and to subject the same to the direction and control of persons, other than the owners of the same, in a manner extremely onerous and distasteful to such owners, and to carry out such scheme, effort and purpose, by restraining and destroying the interstate trade and commerce of such manufacturers by means of intimidation of and threats made to such manufacturers and their customers in the several States, of boycotting them, their product and their customers, using therefor all the powerful means at their command as aforesaid, until such time as, from the damage and loss of business resulting therefrom, the said manufacturers should yield to the said demand to unionize their factories." "17. The defendants and other members of said United Hatters of North America, acting with them and in pursuance of said general combined scheme and purpose, and in carrying the same into effect against said manufacturers, including the plaintiffs, and by use of the means above stated, and the fear thereof, have, within a very few years, forced the following named manufacturers of hats in the United States to yield to their demand, and unionize their factories, viz.: [here follow 70 names of corporations and individuals] and until there remained, according to the statements of the defendants, only twelve hat factories in the United States which had not submitted to their said demands, and the defendants, in pursuing their warfare against the plaintiffs, as hereinafter set forth, and in connection with their said acts against them, have made public announcement of that fact and of the firms so coerced by them, in order thereby to increase the effectiveness of their acts in intimidating said wholesale dealers and their customers in States other than Connecticut, from buying hats from plaintiffs, as hereinafter set forth." "18. To carry out said scheme and purpose, the defendants have appointed, and employed and do steadily employ, certain special agents to act in their behalf, with full and express authority from them and the other members of said combination, and under explicit instructions from them, to use every means in their power to compel all such manufacturers of hats to so unionize their factories, and each and all of the defendants in this suit did the several acts hereinafter stated, either by themselves or their agents, by them thereto fully authorized." "19. On or about March 1, 1901, in pursuance of said general scheme and purpose, the defendants and the other members of said combination, The United Hatters of North America, through their agents, the said John A. Moffit, Martin Lawlor, John Phillips, James P. Maher and Charles J. Barrett, who acted for themselves and the other defendants, demanded of the plaintiffs that they should unionize their said factory, in the making and finishing departments, and also thereby acquire the right to use and use the said union label, subject to the right of the defendants to recall the same at pleasure, in all hats made by them, and then notified the plaintiffs that, if they failed to yield to said demand, the defendants and all the other members of the said combination known as The United Hatters of North America, would resort to their said usual and well known methods to compel them so to do. After several conferences, and in April, 1901, the plaintiffs replied to the said demand of the defendants as follows:" " Firmly believing that we are acting for the best interests of our firm, for the best interests of those whom we employ, and for the best interests of Danbury, by operating an independent or open factory, we hereby notify you that we decline to have our shop unionized, and if attacked, shall use all lawful means to protect our business interests." "The plaintiffs were then employing many union and non-union men, and their said factory was running smoothly and satisfactorily both to the plaintiffs and their employes. The defendants, their confederates and agents, deferred the execution of their said threat against the plaintiffs until the conclusion of their attack made in pursuance of the same general scheme and purpose against H. H. Roelofs & Co., which resulted in the surrender of Roelofs & Co., on July 15, 1902, except that the defendants, their confederates and agents, in November, 1901, caused the said American Federation of Labor to declare a boycott against any dealer or dealers who should handle the products of the plaintiffs." "20. On or about July 25, 1902, the defendants individually and collectively, and as members of said combinations and associations, and with other persons whose names are unknown to the plaintiffs, associated with them, in pursuance of the general scheme and purpose aforesaid, to force all manufacturers of fur hats, and particularly the plaintiffs, to so unionize their factories, wantonly, wrongfully, maliciously, unlawfully and in violation of the provisions of the 'Act of Congress, approved July 2, 1890,' and entitled 'An Act to Protect Trade and Commerce Against Unlawful Restraints and Monopolies,' and with intent to injure the property and business of the plaintiffs by means of acts done which are forbidden and declared to be unlawful, by said act of Congress, entered into a combination and conspiracy to restrain the plaintiffs and their customers in States other than Connecticut, in carrying on said trade and commerce among the several States and to wholly prevent them from engaging in and carrying on said trade and commerce between them and to prevent the plaintiffs from selling their hats to wholesale dealers and purchasers in said States other than Connecticut, and to prevent said dealers and customers in said other States from buying the same, and to prevent the plaintiffs from obtaining orders for their hats from such customers, and filling the same, and shipping said hats to said customers in said States as aforesaid, and thereby injure the plaintiffs in their property and business and to render unsalable the product and output of their said factory, so the subject of interstate commerce, in whosoever's hands the same might be or come, through said interstate trade and commerce, and to employ as means to carry out said combination and conspiracy and the purposes thereof, and accomplish the same, the following measures and acts, viz: " "To cause, by means of threats and coercion, and without warning or information to the plaintiffs, the concerted and simultaneous withdrawal of all the makers and finishers of hats then working for them who were not members of their said combination, The United Hatters of North America, as well as those who were such members, and thereby cripple the operation of the plaintiffs' factory, and prevent the plaintiffs from filling a large number of orders then on hand, from such wholesale dealers in States other than Connecticut, which they had engaged to fill and were then in the act of filling, as was well known to the defendants; in connection therewith to declare a boycott against all hats made for sale and sold and delivered, or to be sold or delivered, by the plaintiffs to said wholesale dealers in States other than Connecticut, and to actively boycott the same and the business of those who should deal in them, and thereby prevent the sale of the same by those in whose hands they might be or come through said interstate trade in said several States; to procure and cause others of said combinations united with them in said American Federation of Labor, in like manner to declare a boycott against and to actively boycott the same and the business of such wholesale dealers as should buy or sell them, and of those who should purchase them from such wholesale dealers; to intimidate such wholesale dealers from purchasing or dealing in the hats of the plaintiff by informing them that the American Federation of Labor had declared a boycott against the product of the plaintiffs and against any dealer who should handle it, and that the same was to be actively pressed against them, and by distributing circulars containing notices that such dealers and their customers were to be boycotted; to threaten with a boycott those customers who should buy any goods whatever, even though union made, of such boycotted dealers, and at the same time to notify such wholesale dealers that they were at liberty to deal in the hats of any other non-union manufacturer of similar quality to those made by the plaintiffs, but must not deal in the hats made by the plaintiffs under threats of such boycotting; to falsely represent to said wholesale dealers and their customers that the plaintiffs had discriminated against the union men in their employ, had thrown them out of employment because they refused to give up their union cards and teach boys, who were intended to take their places after seven months' instruction, and had driven their employes to extreme measures" "by their persistent, unfair and un-American policy of antagonizing union labor, forcing wages to a starvation scale, and given boys and cheap, unskilled foreign labor preference over experienced and capable union workmen," "in order to intimidate said dealers from purchasing said hats by reason of the prejudice thereby created against the plaintiffs and the hats made by them among those who might otherwise purchase them; to use the said union label of said The United Hatters of North America as an instrument to aid them in carrying out said conspiracy and combination against the plaintiffs' and their customers' interstate trade aforesaid, and in connection with the boycotting above-mentioned, for the purpose of describing and identifying the hats of the plaintiffs, and singling them out to be so boycotted; to employ a large number of agents to visit said wholesale dealers and their customers, at their several places of business, and threaten them with loss of business if they should buy or handle the hats of the plaintiffs, and thereby prevent them from buying said hats, and, in connection therewith, to cause said dealers to be waited upon by committees representing large combinations of persons in their several localities to make similar threats to them; to use the daily press in the localities where such wholesale dealers reside and do business to announce and advertise the said boycotts against the hats of the plaintiffs and said wholesale dealers, and thereby make the same more effective and impressive, and to use the columns of their said paper, The Journal of the United Hatters of North America, for that purpose, and to describe the acts of their said agents in prosecuting the same." "21. Afterwards, to-wit, on July 25, 1902, and on divers days since hitherto, the defendants, in pursuance of said combination and conspiracy, and to carry the same into effect, did cause the concerted and simultaneous withdrawal, by means of threats and coercion made by them, and without previous warning or information thereof to the plaintiffs, of all but ten of the nonunion makers and finishers of hats then working for them, as well as all of their union makers and finishers, leaving large numbers of hats in an unfinished and perishable condition, with intent to cripple, and did thereby cripple, the operation of the plaintiffs' factory until the latter part of October, 1902, and thereby prevented the plaintiffs from filling a large number of orders then on hand from such wholesale dealers in States other than Connecticut, which they had engaged to fill and were then in the act of filling, as well known to the defendants, and thereby caused the loss to the plaintiffs of many orders from said wholesale dealers in other States, and greatly hindered and delayed them in filling such orders, and falsely representing to said wholesale dealers, their customers, and the public generally in States other than Connecticut that the plaintiffs had discriminated against the union men in their employ, and had discharged or thrown out of employment their union men in August, 1902; that they had driven their employes to extreme measures by their persistent, unfair and un-American policy of antagonizing union labor, forcing wages down to a starvation scale and giving boys and cheap, unskilled foreign labor preference over experienced and capable workmen; that skilled hatters had been discharged from said factory for no other cause than their devotion and adherence to the principles of organized labor in refusing to give up their union cards, and to teach the trade to boys who were intended to take the place of union workmen after seven months' instruction, and that, unable to submit longer to a system of petty tyrannies that might be tolerated in Siberia but could not be borne by independent Americans, the workmen in the factory inaugurated the strike to compel the firm to recognize their rights, in order to prejudice, and did thereby prejudice, the public, against the plaintiffs and their product, and in order to intimidate, and did thereby intimidate said wholesale dealers and their customers, in States other than Connecticut, from purchasing hats from the plaintiffs by reason of the fear of the prejudice created against said hats, and in connection therewith declared a boycott " brk: against all hats made for and so sold and delivered, and to be so sold and delivered to said wholesale dealers, in States other than Connecticut, and actively boycotted the same and the business of those who dealt in them in such other States, and thereby restrained and prevented the purchase of the same from the plaintiffs, and the sale of the same by those in whose hands they were, or might thereafter be, in the course of such interstate trade, and caused and procured others of said combinations united with them in the said American Federation of Labor to declare a boycott against the plaintiffs, their product and against the business of such wholesale dealers in States other than Connecticut, as should buy or sell them, and of those who should purchase from such wholesale dealers any goods whatever, and further intimidated said wholesale dealers from purchasing or dealing in hats made by the plaintiffs, as aforesaid, by informing them that the American Federation of Labor had declared a boycott against the hats of the plaintiffs and against any dealer who should handle them, and that said boycott was to be actively pressed against them, and by sending agents and committees from various of said labor organizations, to threaten said wholesale dealers and their customers with a boycott from them if they purchased or handled the goods of plaintiffs, and by distributing in San Francisco, California, and other places, circulars containing notices that such dealers, and their customers were to be boycotted, and threatened with a boycott, and did actively boycott the customers who did or should buy any goods whatever, even though union made, of such wholesale dealers so boycotted, and used the daily press to advertise and announce said boycott and the measures taken in pursuance thereof by said labor organizations, particularly The San Francisco Bulletin, in its issues of July 2 and July 4, 1903, and a daily paper published in Richmond, Virginia, on December 10, 1902, and notified such wholesale dealers in States other than Connecticut that they were at liberty to deal in the hats of any other nonunion hat manufacturer of similar quality to those of the plaintiffs, but they must not deal in hats made by the plaintiffs, under threats of being boycotted for so doing, and used the said union label of the United Hatters of North America as an instrument to aid them in carrying out said combination and conspiracy against the plaintiffs' and their customers' interstate trade, as aforesaid, and in connection with such boycotting by using the same and its absence from the hats of the plaintiffs, as an insignia or device to indicate to the purchaser that the hats of the plaintiffs were to be boycotted, and to point them out for that purpose, and employed a large number of agents to visit said wholesale dealers and their customers at their several places of business in each of said States, particularly Philadelphia and other places in the State of Pennsylvania, in Baltimore in the State of Maryland, in Richmond and other places in the State of Virginia, and in San Francisco and other place in the State of California, to intimidate and threaten them, if they should continue to deal in or handle the hats of the plaintiffs, and among many other instances of like kind, the said William C. Hennelly and Daniel P. Kelly, in behalf of all said defendants, and acting for them, demanded the firm of Triest & Co., wholesale dealers in hats, doing business in said San Francisco, that they should agree not to buy or deal in the hats made by the plaintiffs, under threats made by them to said firm of boycotting their business and that of their customers, and, upon their refusing to comply with such demand and yield to such threats, the defendants by their aid agents caused announcement to be made in the newspapers of said city that said Triest & Co. were to be boycotted therefor, and that the labor council of San Francisco would be addressed by them for that purpose, and that they had procured a boycott to be declared by said labor council, and thereupon the defendants, through their said agents, Hennelly and Kelly, printed, published, issued and distributed to the retail dealers in hat, in several States upon the Pacific coast, the following circular, to-wit: " San Francisco Labor Council" " Affiliated with the American Federation of Labor" " Secretary's Office, 927 Market Street" " Rooms 405, 406, 407 Emma Spreckel's Building" " Meets every Friday, at 1159 Mission St." "Telephone South 447" Address all communications to 927 Market Street " San Francisco, July 3, 1903" "To whom it may concern:" " At a special meeting of the San Francisco Labor Council held on the above date, the hat jobbing concern known as Triest & Co., 116 Sansome St., San Francisco, was declared unfair for persistently patronizing the unfair hat manufacturing concern of D. E. Loewe & Co., Danbury, Connecticut, where the union hatters have been on strike, for union conditions, since August 20, 1902. Triest & Co. will be retained on the unfair list as long as they handle the product of this unfair hat manufacturing concern. Union men do not usually patronize retail stores who buy from unfair jobbing houses or manufacturers. Under these circumstances, all friends of organized labor, and those desiring the patronage of organized workers, will not buy goods from Triest & Co., 116 Sansome St., San Francisco." " Yours respectfully," " G. B. BENHAM," " President S.F. Labor Council " "T. E. ZANT" " Secretary S.F. Labor Council. [L.S.]" "W. C. HENNELLY," "D. F. KELLY" " Representing United Hatters of North America " " Also the following, to-wit:" " San Francisco Labor Council" " Affiliated with American Federation of Labor," " Secretary's Office, 927 Market Street" " Rooms 405, 406, 407 Emma Spreckel's Building" " Meets every Friday at 1159 Mission St." " Telephone South 447" " Address all communications to 927 Market Street" " San Francisco, July 14, 1903" "Messrs. _____ _____." " Gentlemen: We beg leave to call your attention to the following products which are on the unfair list of the American Federation of Labor." " We do this in order that you refrain from handling these goods, as the patronage of the firms named below is taken by the organized worker as an evidence of a desire to patronize those who are opposed to the interest of organized labor. The declaration of unfairness regarding the firms mentioned is fully sanctioned, and will be supported to the fullest degree by the San Francisco Labor Council." " Trusting that you will be able to avoid the handling of these goods in the future, we are," " Yours respectfully," " G. B. BENHAM, President." "T. E. ZANT, Secretary [L.S.]" " UnfairList." " Loewe & Co., Danbury, Conn. and Triest & Co., 116 Sansome St., San Francisco, Hat Manufacturer;" " Cluett, Peabody & Co., Shirts and Collars, Troy, New York, and 562 Mission St., San Francisco, Cal.;" " United Shirt and Collar Co., Troy, New York, and 25 Sansome St., San Francisco, Cal.;" " Van Zandt, Jacob & Co., Troy, New York; Greenbaum, Weil & Michaels, Selling Agent, 27 Sansome St., San Francisco, Cal." "and caused said circulars to be mailed to and personally delivered to the retail dealer in hats, and the other customers of said Triest & Co., upon the Pacific coast, and to many others, thereby causing the loss of many orders and customers to said Triest & Co., and to the plaintiffs, for the purpose of intimidating and coercing said Triest & Co. not to deal with the plaintiff, and thereby cause the loss of many orders and customers to said Triest & Co., and to the plaintiffs." "22. By means of each and all of said acts done by the defendants in pursuance of said combination and conspiracy, they have greatly restrained, diminished, and, in many places destroyed the trade and commerce of the plaintiffs with said wholesale dealer, in said States other than Connecticut, by the loss of many orders and customers directly resulting therefrom, and the plaintiff have been injured in their business and property by reason of said combination and conspiracy, and the act of the defendants done in pursuance thereof, and to carry the same into effect, which are declared to be unlawful by said act of Congress, to the amount of eighty thousand ($80,000) dollars, to recover threefold which damages, under section 7 of said act this suit is brought."

In Loewe v. Lawlor (1908), the US Supreme Court ruled that a labor union's boycott of a hat manufacturer, Loewe, constituted an illegal restraint on interstate commerce under the Sherman Antitrust Act of 1890. The union's actions, aimed at forcing Loewe to unionize his shops, included preventing the sale of his goods in states other than his own. The Court found that such a combination of labor organizations to restrict interstate trade was unlawful, and that Loewe could seek damages under the Antitrust Act. This case set a precedent for interpreting the Act's applicability to labor unions and their activities.

Separation of Powers

Free Enterprise Fund v. Public Company Accounting Oversight Board

https://supreme.justia.com/cases/federal/us/561/477/

OPINION OF THE COURT FREE ENTERPRISE FUND V. PUBLIC COMPANYACCOUNTING OVERSIGHT BD. 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-861 FREE ENTERPRISE FUND and BECKSTEAD AND WATTS, LLP, PETITIONERS v. PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 28, 2010]    Chief Justice Roberts delivered the opinion of the Court.    Our Constitution divided the “powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.” INS v. Chadha , 462 U. S. 919 , 951 (1983). Article II vests “[t]he executive Power … in a President of the United States of America,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. In light of “[t]he impossibility that one man should be able to perform all the great business of the State,” the Constitution provides for executive officers to “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939).    Since 1789, the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary. See generally Myers v. United States , 272 U. S. 52 (1926). This Court has determined, however, that this authority is not without limit. In Humphrey’s Executor v. United States , 295 U. S. 602 (1935), we held that Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause. Likewise, in United States v. Perkins , 116 U. S. 483 (1886), and Morrison v. Olson , 487 U. S. 654 (1988), the Court sustained similar restrictions on the power of principal executive officers—themselves responsible to the President—to remove their own inferiors. The parties do not ask us to reexamine any of these precedents, and we do not do so.    We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States?    We hold that such multilevel protection from removal is contrary to Article II’s vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead committed to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagrees with him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.” Id., at 693. I A    After a series of celebrated accounting debacles, Congress enacted the Sarbanes-Oxley Act of 2002 (or Act), 116 Stat. 745. Among other measures, the Act introduced tighter regulation of the accounting industry under a new Public Company Accounting Oversight Board. The Board is composed of five members, appointed to staggered 5-year terms by the Securities and Exchange Commission. It was modeled on private self-regulatory organizations in the securities industry—such as the New York Stock Exchange—that investigate and discipline their own members subject to Commission oversight. Congress created the Board as a private “nonprofit corporation,” and Board members and employees are not considered Government “officer[s] or employee[s]” for statutory purposes. 15 U. S. C. §§7211(a), (b). The Board can thus recruit its members and employees from the private sector by paying salaries far above the standard Government pay scale. See §§7211(f)(4), 7219.[ Footnote 1 ]    Unlike the self-regulatory organizations, however, the Board is a Government-created, Government-appointed entity, with expansive powers to govern an entire industry. Every accounting firm—both foreign and domestic—that participates in auditing public companies under the securities laws must register with the Board, pay it an annual fee, and comply with its rules and oversight. §§7211(a), 7212(a), (f), 7213, 7216(a)(1). The Board is charged with enforcing the Sarbanes-Oxley Act, the securities laws, the Commission’s rules, its own rules, and professional accounting standards. §§7215(b)(1), (c)(4). To this end, the Board may regulate every detail of an accounting firm’s practice, including hiring and professional development, promotion, supervision of audit work, the acceptance of new business and the continuation of old, internal inspection procedures, professional ethics rules, and “such other requirements as the Board may prescribe.” §7213(a)(2)(B).    The Board promulgates auditing and ethics standards, performs routine inspections of all accounting firms, demands documents and testimony, and initiates formal investigations and disciplinary proceedings. §§7213–7215 (2006 ed. and Supp. II). The willful violation of any Board rule is treated as a willful violation of the Securities Exchange Act of 1934, 48 Stat. 881, 15 U. S. C. §78a et seq. —a federal crime punishable by up to 20 years’ imprisonment or $25 million in fines ($5 million for a natural person). §§78ff(a), 7202(b)(1) (2006 ed.). And the Board itself can issue severe sanctions in its disciplinary proceedings, up to and including the permanent revocation of a firm’s registration, a permanent ban on a person’s associating with any registered firm, and money penalties of $15 million ($750,000 for a natural person). §7215(c)(4). Despite the provisions specifying that Board members are not Government officials for statutory purposes, the parties agree that the Board is “part of the Government” for constitutional purposes, Lebron v. National Railroad Passenger Corporation , 513 U. S. 374 , 397 (1995), and that its members are “ ‘Officers of the United States’ ” who “exercis[e] significant authority pursuant to the laws of the United States,” Buckley v. Valeo , 424 U. S. 1 , 125–126 (1976) ( per curiam ) (quoting Art. II, §2, cl. 2); cf. Brief for Petitioners 9, n. 1; Brief for United States 29, n. 8.    The Act places the Board under the SEC’s oversight, particularly with respect to the issuance of rules or the imposition of sanctions (both of which are subject to Commission approval and alteration). §§7217(b)–(c). But the individual members of the Board—like the officers and directors of the self-regulatory organizations—are substantially insulated from the Commission’s control. The Commission cannot remove Board members at will, but only “for good cause shown,” “in accordance with” certain procedures. §7211(e)(6).    Those procedures require a Commission finding, “on the record” and “after notice and opportunity for a hearing,” that the Board member “(A)   has willfully violated any provision of th[e] Act, the rules of the Board, or the securities laws; “(B)   has willfully abused the authority of that member; or “(C)   without reasonable justification or excuse, has failed to enforce compliance with any such provision or rule, or any professional standard by any registered public accounting firm or any associated person thereof.” §7217(d)(3). Removal of a Board member requires a formal Commission order and is subject to judicial review. See 5 U. S. C. §§554(a), 556(a), 557(a), (c)(B); 15 U. S. C. §78y(a)(1). Similar procedures govern the Commission’s removal of officers and directors of the private self-regulatory organizations. See §78s(h)(4). The parties agree that the Commissioners cannot themselves be removed by the President except under the Humphrey’s Executor standard of “inefficiency, neglect of duty, or malfeasance in office,” 295 U. S., at 620 (internal quotation marks omitted); see Brief for Petitioners 31; Brief for United States 43; Brief for Respondent Public Company Accounting Oversight Board 31 (hereinafter PCAOB Brief); Tr. of Oral Arg. 47, and we decide the case with that understanding. B    Beckstead and Watts, LLP, is a Nevada accounting firm registered with the Board. The Board inspected the firm, released a report critical of its auditing procedures, and began a formal investigation. Beckstead and Watts and the Free Enterprise Fund, a nonprofit organization of which the firm is a member, then sued the Board and its members, seeking (among other things) a declaratory judgment that the Board is unconstitutional and an injunction preventing the Board from exercising its powers. App. 71.    Before the District Court, petitioners argued that the Sarbanes-Oxley Act contravened the separation of powers by conferring wide-ranging executive power on Board members without subjecting them to Presidential control. Id., at 67–68. Petitioners also challenged the Act under the Appointments Clause, which requires “Officers of the United States” to be appointed by the President with the Senate’s advice and consent. Art. II, §2, cl. 2. The Clause provides an exception for “inferior Officers,” whose appointment Congress may choose to vest “in the President alone, in the Courts of Law, or in the Heads of Departments.” Ibid. Because the Board is appointed by the SEC, petitioners argued that (1) Board members are not “inferior Officers” who may be appointed by “Heads of Departments”; (2) even if they are, the Commission is not a “Departmen[t]”; and (3) even if it is, the several Commissioners (as opposed to the Chairman) are not its “Hea[d].” See App. 68–70. The United States intervened to defend the Act’s constitutionality. Both sides moved for summary judgment; the District Court determined that it had jurisdiction and granted summary judgment to respondents. App. to Pet. for Cert. 110a–117a.    A divided Court of Appeals affirmed. 537 F. 3d 667 (CADC 2008). It agreed that the District Court had jurisdiction over petitioners’ claims. Id., at 671. On the merits, the Court of Appeals recognized that the removal issue was “a question of first impression,” as neither that court nor this one “ha[d] considered a situation where a restriction on removal passes through two levels of control.” Id., at 679. It ruled that the dual restraints on Board members’ removal are permissible because they do not “render the President unable to perform his constitutional duties.” Id., at 683. The majority reasoned that although the President “does not directly select or supervise the Board’s members,” id., at 681, the Board is subject to the comprehensive control of the Commission, and thus the President’s influence over the Commission implies a constitutionally sufficient influence over the Board as well. Id., at 682–683. The majority also held that Board members are inferior officers subject to the Commission’s direction and supervision, id., at 672–676, and that their appointment is otherwise consistent with the Appointments Clause, id., at 676–678.    Judge Kavanaugh dissented. He agreed that the case was one of first impression, id., at 698, but argued that “the double for-cause removal provisions in the [Act] … combine to eliminate any meaningful Presidential control over the [Board],” id., at 697. Judge Kavanaugh also argued that Board members are not effectively supervised by the Commission and thus cannot be inferior officers under the Appointments Clause. Id., at 709–712.    We granted certiorari. 556 U. S. ___ (2009). II    We first consider whether the District Court had jurisdiction. We agree with both courts below that the statutes providing for judicial review of Commission action did not prevent the District Court from considering petitioners’ claims.    The Sarbanes-Oxley Act empowers the Commission to review any Board rule or sanction. See 15 U. S. C. §§7217(b)(2)–(4), (c)(2). Once the Commission has acted, aggrieved parties may challenge “a final order of the Commission” or “a rule of the Commission” in a court of appeals under §78y, and “[n]o objection … may be considered by the court unless it was urged before the Commission or there was reasonable ground for failure to do so.” §§78y(a)(1), (b)(1), (c)(1).    The Government reads §78y as an exclusive route to review. But the text does not expressly limit the jurisdiction that other statutes confer on district courts. See, e.g., 28 U. S. C. §§1331, 2201. Nor does it do so implicitly. Provisions for agency review do not restrict judicial review unless the “statutory scheme” displays a “fairly discernible” intent to limit jurisdiction, and the claims at issue “are of the type Congress intended to be reviewed within th[e] statutory structure.” Thunder Basin Coal Co. v. Reich , 510 U. S. 200 , 207, 212 (1994) (internal quotation marks omitted). Generally, when Congress creates procedures “designed to permit agency expertise to be brought to bear on particular problems,” those procedures “are to be exclusive.” Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans & Trust Co. , 379 U. S. 411 , 420 (1965). But we presume that Congress does not intend to limit jurisdiction if “a finding of preclusion could foreclose all meaningful judicial review”; if the suit is “wholly collateral to a statute’s review provisions”; and if the claims are “outside the agency’s expertise.” Thunder Basin , supra , at 212–213 (internal quotation marks omitted). These considerations point against any limitation on review here.    We do not see how petitioners could meaningfully pursue their constitutional claims under the Government’s theory. Section 78y provides only for judicial review of Commission action, and not every Board action is encapsulated in a final Commission order or rule.    The Government suggests that petitioners could first have sought Commission review of the Board’s “auditing standards, registration requirements, or other rules.” Brief for United States 16. But petitioners object to the Board’s existence, not to any of its auditing standards. Petitioners’ general challenge to the Board is “collateral” to any Commission orders or rules from which review might be sought. Cf. McNary v. Haitian Refugee Center, Inc. , 498 U. S. 479 , 491–492 (1991). Requiring petitioners to select and challenge a Board rule at random is an odd procedure for Congress to choose, especially because only new rules, and not existing ones, are subject to challenge. See 15 U. S. C. §§78s(b)(2), 78y(a)(1), 7217(b)(4).    Alternatively, the Government advises petitioners to raise their claims by appealing a Board sanction. Brief for United States 16–17. But the investigation of Beckstead and Watts produced no sanction, see id., at 7, n. 5; Reply Brief for Petitioners 29, n. 11 (hereinafter Reply Brief), and an uncomplimentary inspection report is not subject to judicial review, see §7214(h)(2). So the Government proposes that Beckstead and Watts incur a sanction (such as a sizable fine) by ignoring Board requests for documents and testimony. Brief for United States 17. If the Commission then affirms, the firm will win access to a court of appeals—and severe punishment should its challenge fail. We normally do not require plaintiffs to “bet the farm … by taking the violative action” before “testing the validity of the law,” MedImmune, Inc. v. Genentech, Inc. , 549 U. S. 118 , 129 (2007); accord, Ex parte Young , 209 U. S. 123 (1908), and we do not consider this a “meaningful” avenue of relief. Thunder Basin , 510 U. S., at 212.    Petitioners’ constitutional claims are also outside the Commission’s competence and expertise. In Thunder Basin , the petitioner’s primary claims were statutory; “at root … [they] ar[o]se under the Mine Act and f[e]ll squarely within the [agency’s] expertise,” given that the agency had “extensive experience” on the issue and had “recently addressed the precise … claims presented.” Id., at 214–215. Likewise, in United States v. Ruzicka , 329 U. S. 287 (1946), on which the Government relies, we reserved for the agency fact-bound inquiries that, even if “formulated in constitutional terms,” rested ultimately on “factors that call for [an] understanding of the milk industry,” to which the Court made no pretensions. Id., at 294. No similar expertise is required here, and the statutory questions involved do not require “technical considerations of [agency] policy.” Johnson v. Robison , 415 U. S. 361 , 373 (1974). They are instead standard questions of administrative law, which the courts are at no disadvantage in answering.    We therefore conclude that §78y did not strip the District Court of jurisdiction over these claims, which are properly presented for our review.[ Footnote 2 ] III    We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution’s separation of powers. A    The Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America.” Art. II, §1, cl. 1. As Madison stated on the floor of the First Congress, “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong. 463 (1789).    The removal of executive officers was discussed extensively in Congress when the first executive departments were created. The view that “prevailed, as most consonant to the text of the Constitution” and “to the requisite responsibility and harmony in the Executive Department,” was that the executive power included a power to oversee executive officers through removal; because that traditional executive power was not “expressly taken away, it remained with the President.” Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004). “This Decision of 1789 provides contemporaneous and weighty evidence of the Constitution’s meaning since many of the Members of the First Congress had taken part in framing that instrument.” Bowsher v. Synar , 478 U. S. 714 , 723–724 (1986) (internal quotation marks omitted). And it soon became the “settled and well understood construction of the Constitution.” Ex parte Hennen , 13 Pet. 230, 259 (1839).    The landmark case of Myers v. United States reaffirmed the principle that Article II confers on the President “the general administrative control of those executing the laws.” 272 U. S., at 164. It is his responsibility to take care that the laws be faithfully executed. The buck stops with the President, in Harry Truman’s famous phrase. As we explained in Myers , the President therefore must have some “power of removing those for whom he can not continue to be responsible.” Id., at 117.    Nearly a decade later in Humphrey’s Executor , this Court held that Myers did not prevent Congress from conferring good-cause tenure on the principal officers of certain independent agencies. That case concerned the members of the Federal Trade Commission, who held 7-year terms and could not be removed by the President except for “ ‘inefficiency, neglect of duty, or malfeasance in office.’ ” 295 U. S., at 620 (quoting 15 U. S. C. §41). The Court distinguished Myers on the ground that Myers concerned “an officer [who] is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is.” 295 U. S., at 627. By contrast, the Court characterized the FTC as “quasi-legislative and quasi-judicial” rather than “purely executive,” and held that Congress could require it “to act … independently of executive control.” Id., at 627–629. Because “one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will,” the Court held that Congress had power to “fix the period during which [the Commissioners] shall continue in office, and to forbid their removal except for cause in the meantime.” Id. , at 629. Humphrey’s Executor did not address the removal of inferior officers, whose appointment Congress may vest in heads of departments. If Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal. See Myers , supra, at 119, 127; Hennen , supra, at 259–260. This Court has upheld for-cause limitations on that power as well.    In Perkins , a naval cadet-engineer was honorably discharged from the Navy because his services were no longer required. 116 U. S. 483 . He brought a claim for his salary under statutes barring his peacetime discharge except by a court-martial or by the Secretary of the Navy “for misconduct.” Rev. Stat. §§1229, 1525. This Court adopted verbatim the reasoning of the Court of Claims, which had held that when Congress “ ‘vests the appointment of inferior officers in the heads of Departments[,] it may limit and restrict the power of removal as it deems best for the public interest.’ ” 116 U. S., at 485. Because Perkins had not been “ ‘dismissed for misconduct … [or upon] the sentence of a court-martial,’ ” the Court agreed that he was “ ‘still in office and … entitled to [his] pay.’ ” Ibid.[ Footnote 3 ] We again considered the status of inferior officers in Morrison . That case concerned the Ethics in Government Act, which provided for an independent counsel to investigate allegations of crime by high executive officers. The counsel was appointed by a special court, wielded the full powers of a prosecutor, and was removable by the Attorney General only “ ‘for good cause.’ ” 487 U. S., at 663 (quoting 28 U. S. C. §596(a)(1)). We recognized that the independent counsel was undoubtedly an executive officer, rather than “ ‘quasi-legislative’ ” or “ ‘quasi-judicial,’ ” but we stated as “our present considered view” that Congress had power to impose good-cause restrictions on her removal. 487 U. S., at 689–691. The Court noted that the statute “g[a]ve the Attorney General,” an officer directly responsible to the President and “through [whom]” the President could act, “several means of supervising or controlling” the independent counsel—“[m]ost importantly … the power to remove the counsel for good cause.” Id. , at 695–696 (internal quotation marks omitted). Under those circumstances, the Court sustained the statute. Morrison did not, however, address the consequences of more than one level of good-cause tenure—leaving the issue, as both the court and dissent below recognized, “a question of first impression” in this Court. 537 F. 3d, at 679; see id., at 698 (dissenting opinion). B    As explained, we have previously upheld limited restrictions on the President’s removal power. In those cases, however, only one level of protected tenure separated the President from an officer exercising executive power. It was the President—or a subordinate he could remove at will—who decided whether the officer’s conduct merited removal under the good-cause standard.    The Act before us does something quite different. It not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested instead in other tenured officers—the Commissioners—none of whom is subject to the President’s direct control. The result is a Board that is not accountable to the President, and a President who is not responsible for the Board.    The added layer of tenure protection makes a difference. Without a layer of insulation between the Commission and the Board, the Commission could remove a Board member at any time, and therefore would be fully responsible for what the Board does. The President could then hold the Commission to account for its supervision of the Board, to the same extent that he may hold the Commission to account for everything else it does.    A second level of tenure protection changes the nature of the President’s review. Now the Commission cannot remove a Board member at will. The President therefore cannot hold the Commission fully accountable for the Board’s conduct, to the same extent that he may hold the Commission accountable for everything else that it does. The Commissioners are not responsible for the Board’s actions. They are only responsible for their own determination of whether the Act’s rigorous good-cause standard is met. And even if the President disagrees with their determination, he is powerless to intervene—unless that determination is so unreasonable as to constitute “inefficiency, neglect of duty, or malfeasance in office.” Humphrey’s Executor , 295 U. S., at 620 (internal quotation marks omitted).    This novel structure does not merely add to the Board’s independence, but transforms it. Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the Board. The President is stripped of the power our precedents have preserved, and his ability to execute the laws—by holding his subordinates accountable for their conduct—is impaired.    That arrangement is contrary to Article II’s vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board’s failings to those whom he can oversee, the President is no longer the judge of the Board’s conduct. He is not the one who decides whether Board members are abusing their offices or neglecting their duties. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member’s breach of faith. This violates the basic principle that the President “cannot delegate ultimate responsibility or the active obligation to supervise that goes with it,” because Article II “makes a single President responsible for the actions of the Executive Branch.” Clinton v. Jones , 520 U. S. 681 , 712–713 (1997) (Breyer, J., concurring in judgment).[ Footnote 4 ]    Indeed, if allowed to stand, this dispersion of responsibility could be multiplied. If Congress can shelter the bureaucracy behind two layers of good-cause tenure, why not a third? At oral argument, the Government was unwilling to concede that even five layers between the President and the Board would be too many. Tr. of Oral Arg. 47–48. The officers of such an agency—safely encased within a Matryoshka doll of tenure protections—would be immune from Presidential oversight, even as they exercised power in the people’s name.    Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, see Freytag v. Commissioner , 501 U. S. 868 , 879–880 (1991), nor on whether “the encroached-upon branch approves the encroachment,” New York v. United States , 505 U. S. 144 , 182 (1992). The President can always choose to restrain himself in his dealings with subordinates. He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own.    The diffusion of power carries with it a diffusion of accountability. The people do not vote for the “Officers of the United States.” Art. II, §2, cl. 2. They instead look to the President to guide the “assistants or deputies … subject to his superintendence.” The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton). Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.” Id., No. 70, at 476 (same). That is why the Framers sought to ensure that “those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” 1 Annals of Cong., at 499 (J. Madison).    By granting the Board executive power without the Executive’s oversight, this Act subverts the President’s ability to ensure that the laws are faithfully executed—as well as the public’s ability to pass judgment on his efforts. The Act’s restrictions are incompatible with the Constitution’s separation of powers. C    Respondents and the dissent resist this conclusion, portraying the Board as “the kind of practical accommodation between the Legislature and the Executive that should be permitted in a ‘workable government.’ ” Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc. , 501 U. S. 252 , 276 (1991) ( MWAA ) (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579 , 635 (1952) (Jackson, J., concurring)); see, e.g., post, at 6 (opinion of Breyer, J.). According to the dissent, Congress may impose multiple levels of for-cause tenure between the President and his subordinates when it “rests agency independence upon the need for technical expertise.” Post , at 18. The Board’s mission is said to demand both “technical competence” and “apolitical expertise,” and its powers may only be exercised by “technical professional experts.” Post, at 18 (internal quotation marks omitted). In this respect the statute creating the Board is, we are told, simply one example of the “vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different problems, [that] provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives.” Post, at 8.    No one doubts Congress’s power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws. And the “ ‘fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution,’ ” for “ ‘[c]onvenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.’ ” Bowsher , 478 U. S., at 736 (quoting Chadha , 462 U. S., at 944).    One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people. This concern is largely absent from the dissent’s paean to the administrative state.    For example, the dissent dismisses the importance of removal as a tool of supervision, concluding that the President’s “power to get something done” more often depends on “who controls the agency’s budget requests and funding, the relationships between one agency or department and another, … purely political factors (including Congress’ ability to assert influence),” and indeed whether particular unelected officials support or “resist” the President’s policies. Post, at 11, 13 (emphasis deleted). The Framers did not rest our liberties on such bureaucratic minutiae. As we said in Bowsher , supra, at 730, “[t]he separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress.”    In fact, the multilevel protection that the dissent endorses “provides a blueprint for extensive expansion of the legislative power.” MWAA , supra, at 277. In a system of checks and balances, “[p]ower abhors a vacuum,” and one branch’s handicap is another’s strength. 537 F. 3d, at 695, n. 4 (Kavanaugh, J., dissenting) (internal quotation marks omitted). “Even when a branch does not arrogate power to itself,” therefore, it must not “impair another in the performance of its constitutional duties.” Loving v. United States , 517 U. S. 748 , 757 (1996).[ Footnote 5 ] Congress has plenary control over the salary, duties, and even existence of executive offices. Only Presidential oversight can counter its influence. That is why the Constitution vests certain powers in the President that “the Legislature has no right to diminish or modify.” 1 Annals of Cong., at 463 (J. Madison).[ Footnote 6 ]    The Framers created a structure in which “[a] dependence on the people” would be the “primary controul on the government.” The Federalist No. 51, at 349 (J. Madison). That dependence is maintained, not just by “parchment barriers,” id., No. 48, at 333 (same), but by letting “[a]mbition … counteract ambition,” giving each branch “the necessary constitutional means, and personal motives, to resist encroachments of the others,” id., No. 51, at 349. A key “constitutional means” vested in the President—perhaps the key means—was “the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong., at 463. And while a government of “opposite and rival interests” may sometimes inhibit the smooth functioning of administration, The Federalist No. 51, at 349, “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Bowsher , supra, at 730.    Calls to abandon those protections in light of “the era’s perceived necessity,” New York , 505 U. S., at 187, are not unusual. Nor is the argument from bureaucratic expertise limited only to the field of accounting. The failures of accounting regulation may be a “pressing national problem,” but “a judiciary that licensed extraconstitutional government with each issue of comparable gravity would, in the long run, be far worse.” Id., at 187–188. Neither respondents nor the dissent explains why the Board’s task, unlike so many others, requires more than one layer of insulation from the President—or, for that matter, why only two. The point is not to take issue with for-cause limitations in general; we do not do that. The question here is far more modest. We deal with the unusual situation, never before addressed by the Court, of two layers of for-cause tenure. And though it may be criticized as “elementary arithmetical logic,” post, at 23, two layers are not the same as one.    The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman’s lament, to “persuad[ing]” his unelected subordinates “to do what they ought to do without persuasion.” Post, at 11 (internal quotation marks omitted). In its pursuit of a “workable government,” Congress cannot reduce the Chief Magistrate to a cajoler-in-chief. D    The United States concedes that some constraints on the removal of inferior executive officers might violate the Constitution. See Brief for United States 47. It contends, however, that the removal restrictions at issue here do not.    To begin with, the Government argues that the Commission’s removal power over the Board is “broad,” and could be construed as broader still, if necessary to avoid invalidation. See, e.g., id., at 51, and n. 19; cf. PCAOB Brief 22–23. But the Government does not contend that simple disagreement with the Board’s policies or priorities could constitute “good cause” for its removal. See Tr. of Oral Arg. 41–43, 45–46. Nor do our precedents suggest as much. Humphrey’s Executor , for example, rejected a removal premised on a lack of agreement “ ‘on either the policies or the administering of the Federal Trade Commission,’ ” because the FTC was designed to be “ ‘independent in character,’ ” “free from ‘political domination or control,’ ” and not “ ‘subject to anybody in the government’ ” or “ ‘to the orders of the President.’ ” 295 U. S., at 619, 625. Accord, Morrison , 487 U. S., at 693 (noting that “the congressional determination to limit the removal power of the Attorney General was essential . . . to establish the necessary independence of the office”); Wiener v. United States , 357 U. S. 349 , 356 (1958) (describing for-cause removal as “involving the rectitude” of an officer). And here there is judicial review of any effort to remove Board members, see 15 U. S. C. §78y(a)(1), so the Commission will not have the final word on the propriety of its own removal orders. The removal restrictions set forth in the statute mean what they say.    Indeed, this case presents an even more serious threat to executive control than an “ordinary” dual for-cause standard. Congress enacted an unusually high standard that must be met before Board members may be removed. A Board member cannot be removed except for willful violations of the Act, Board rules, or the securities laws; willful abuse of authority; or unreasonable failure to enforce compliance—as determined in a formal Commission order, rendered on the record and after notice and an opportunity for a hearing. §7217(d)(3); see §78y(a). The Act does not even give the Commission power to fire Board members for violations of other laws that do not relate to the Act, the securities laws, or the Board’s authority. The President might have less than full confidence in, say, a Board member who cheats on his taxes; but that discovery is not listed among the grounds for removal under §7217(d)(3).[ Footnote 7 ]    The rigorous standard that must be met before a Board member may be removed was drawn from statutes concerning private organizations like the New York Stock Exchange. Cf. §§78s(h)(4), 7217(d)(3). While we need not decide the question here, a removal standard appropriate for limiting Government control over private bodies may be inappropriate for officers wielding the executive power of the United States.    Alternatively, respondents portray the Act’s limitations on removal as irrelevant, because—as the Court of Appeals held—the Commission wields “at-will removal power over Board functions if not Board members.” 537 F. 3d, at 683 (emphasis added); accord, Brief for United States 27–28; PCAOB Brief 48. The Commission’s general “oversight and enforcement authority over the Board,” §7217(a), is said to “blun[t] the constitutional impact of for-cause removal,” 537 F. 3d, at 683, and to leave the President no worse off than “if Congress had lodged the Board’s functions in the SEC’s own staff,” PCAOB Brief 15.    Broad power over Board functions is not equivalent to the power to remove Board members. The Commission may, for example, approve the Board’s budget, §7219(b), issue binding regulations, §§7202(a), 7217(b)(5), relieve the Board of authority, §7217(d)(1), amend Board sanctions, §7217(c), or enforce Board rules on its own, §§7202(b)(1), (c). But altering the budget or powers of an agency as a whole is a problematic way to control an inferior officer. The Commission cannot wield a free hand to supervise individual members if it must destroy the Board in order to fix it.    Even if Commission power over Board activities could substitute for authority over its members, we would still reject respondents’ premise that the Commission’s power in this regard is plenary. As described above, the Board is empowered to take significant enforcement actions, and does so largely independently of the Commission. See supra, at 3–4. Its powers are, of course, subject to some latent Commission control. See supra, at 4–5. But the Act nowhere gives the Commission effective power to start, stop, or alter individual Board investigations, executive activities typically carried out by officials within the Executive Branch.    The Government and the dissent suggest that the Commission could govern and direct the Board’s daily exercise of prosecutorial discretion by promulgating new SEC rules, or by amending those of the Board. Brief for United States 27; post, at 15. Enacting general rules through the required notice and comment procedures is obviously a poor means of micromanaging the Board’s affairs. See §§78s(c), 7215(b)(1), 7217(b)(5); cf. 5 U. S. C. §553, 15 U. S. C. §7202(a), PCAOB Brief 24, n. 6.[ Footnote 8 ] So the Government offers another proposal, that the Commission require the Board by rule to “secure SEC approval for any actions that it now may take itself.” Brief for United States 27. That would surely constitute one of the “limitations upon the activities, functions, and operations of the Board” that the Act forbids, at least without Commission findings equivalent to those required to fire the Board instead. §7217(d)(2). The Board thus has significant independence in determining its priorities and intervening in the affairs of regulated firms (and the lives of their associated persons) without Commission preapproval or direction.    Finally, respondents suggest that our conclusion is contradicted by the past practice of Congress. But the Sarbanes-Oxley Act is highly unusual in committing substantial executive authority to officers protected by two layers of for-cause removal—including at one level a sharply circumscribed definition of what constitutes “good cause,” and rigorous procedures that must be followed prior to removal.    The parties have identified only a handful of isolated positions in which inferior officers might be protected by two levels of good-cause tenure. See, e.g., PCAOB Brief 43. As Judge Kavanaugh noted in dissent below: “Perhaps the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity. Neither the majority opinion nor the PCAOB nor the United States as intervenor has located any historical analogues for this novel structure. They have not identified any independent agency other than the PCAOB that is appointed by and removable only for cause by another independent agency.” 537 F. 3d, at 669.    The dissent here suggests that other such positions might exist, and complains that we do not resolve their status in this opinion. Post, at 23–31. The dissent itself, however, stresses the very size and variety of the Federal Government, see post, at 7–8, and those features discourage general pronouncements on matters neither briefed nor argued here. In any event, the dissent fails to support its premonitions of doom; none of the positions it identifies are similarly situated to the Board. See post, at 28–31.    For example, many civil servants within independent agencies would not qualify as “Officers of the United States,” who “exercis[e] significant authority pursuant to the laws of the United States,” Buckley , 424 U. S., at 126.[ Footnote 9 ] The parties here concede that Board members are executive “Officers,” as that term is used in the Constitution. See supra, at 4; see also Art. II, §2, cl. 2. We do not decide the status of other Government employees, nor do we decide whether “lesser functionaries subordinate to officers of the United States” must be subject to the same sort of control as those who exercise “significant authority pursuant to the laws.” Buckley , supra, at 126, and n. 162.    Nor do the employees referenced by the dissent enjoy the same significant and unusual protections from Presidential oversight as members of the Board. Senior or policymaking positions in government may be excepted from the competitive service to ensure Presidential control, see 5 U. S. C. §§2302(a)(2)(B), 3302, 7511(b)(2), and members of the Senior Executive Service may be reassigned or reviewed by agency heads (and entire agencies may be excluded from that Service by the President), see, e.g., §§3132(c), 3395(a), 4312(d), 4314(b)(3), (c)(3); cf. §2302(a)(2)(B)(ii). While the full extent of that authority is not before us, any such authority is of course wholly absent with respect to the Board. Nothing in our opinion, therefore, should be read to cast doubt on the use of what is colloquially known as the civil service system within independent agencies.[ Footnote 10 ]    Finally, the dissent wanders far afield when it suggests that today’s opinion might increase the President’s authority to remove military officers. Without expressing any view whatever on the scope of that authority, it is enough to note that we see little analogy between our Nation’s armed services and the Public Company Accounting Oversight Board. Military officers are broadly subject to Presidential control through the chain of command and through the President’s powers as Commander in Chief. Art. II, §2, cl. 1; see, e.g., 10 U. S. C. §§162, 164(g). The President and his subordinates may also convene boards of inquiry or courts-martial to hear claims of misconduct or poor performance by those officers. See, e.g., §§822(a)(1), 823(a)(1), 892(3), 933–934, 1181–1185. Here, by contrast, the President has no authority to initiate a Board member’s removal for cause.    There is no reason for us to address whether these positions identified by the dissent, or any others not at issue in this case, are so structured as to infringe the President’s constitutional authority. Nor is there any substance to the dissent’s concern that the “work of all these various officials” will “be put on hold.” Post, at 31. As the judgment in this case demonstrates, restricting certain officers to a single level of insulation from the President affects the conditions under which those officers might some day be removed, and would have no effect, absent a congressional determination to the contrary, on the validity of any officer’s continuance in office. The only issue in this case is whether Congress may deprive the President of adequate control over the Board, which is the regulator of first resort and the primary law enforcement authority for a vital sector of our economy. We hold that it cannot. IV    Petitioners’ complaint argued that the Board’s “freedom from Presidential oversight and control” rendered it “and all power and authority exercised by it” in violation of the Constitution. App. 46. We reject such a broad holding. Instead, we agree with the Government that the unconstitutional tenure provisions are severable from the remainder of the statute.    “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving the remainder intact.” Ayotte v. Planned Parenthood of Northern New Eng. , 546 U. S. 320 , 328–329 (2006). Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” Champlin Refining Co. v. Corporation Comm’n of Okla. , 286 U. S. 210 , 234 (1932), the “normal rule” is “that partial, rather than facial, invalidation is the required course,” Brockett v. Spokane Arcades, Inc. , 472 U. S. 491 , 504 (1985). Putting to one side petitioners’ Appointments Clause challenges (addressed below), the existence of the Board does not violate the separation of powers, but the substantive removal restrictions imposed by §§7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the power of appointment. See, e.g., Sampson v. Murray , 415 U. S. 61 , 70, n. 17 (1974); Myers , 272 U. S., at 119; Ex parte Hennen , 13 Pet., at 259–260. Concluding that the removal restrictions are invalid leaves the Board removable by the Commission at will, and leaves the President separated from Board members by only a single level of good-cause tenure. The Commission is then fully responsible for the Board’s actions, which are no less subject than the Commission’s own functions to Presidential oversight.    The Sarbanes-Oxley Act remains “ ‘fully operative as a law’ ” with these tenure restrictions excised. New York , 505 U. S., at 186 (quoting Alaska Airlines, Inc. v. Brock , 480 U. S. 678 , 684 (1987)). We therefore must sustain its remaining provisions “[u]nless it is evident that the Legislature would not have enacted those provisions … independently of that which is [invalid].” Ibid. (internal quotation marks omitted). Though this inquiry can sometimes be “elusive,” Chadha , 462 U. S., at 932, the answer here seems clear: The remaining provisions are not “incapable of functioning independently,” Alaska Airlines , 480 U. S., at 684, and nothing in the statute’s text or historical context makes it “evident” that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will. Ibid. ; see also Ayotte , supra, at 330.    It is true that the language providing for good-cause removal is only one of a number of statutory provisions that, working together, produce a constitutional violation. In theory, perhaps, the Court might blue-pencil a sufficient number of the Board’s responsibilities so that its members would no longer be “Officers of the United States.” Or we could restrict the Board’s enforcement powers, so that it would be a purely recommendatory panel. Or the Board members could in future be made removable by the President, for good cause or at will. But such editorial freedom—far more extensive than our holding today—belongs to the Legislature, not the Judiciary. Congress of course remains free to pursue any of these options going forward. V    Petitioners raise three more challenges to the Board under the Appointments Clause. None has merit.    First, petitioners argue that Board members are principal officers requiring Presidential appointment with the Senate’s advice and consent. We held in Edmond v. United States , 520 U. S. 651 , 662–663 (1997), that “[w]hether one is an ‘inferior’ officer depends on whether he has a superior,” and that “ ‘inferior officers’ are officers whose work is directed and supervised at some level” by other officers appointed by the President with the Senate’s consent. In particular, we noted that “[t]he power to remove officers” at will and without cause “is a powerful tool for control” of an inferior. Id., at 664. As explained above, the statutory restrictions on the Commission’s power to remove Board members are unconstitutional and void. Given that the Commission is properly viewed, under the Constitution, as possessing the power to remove Board members at will, and given the Commission’s other oversight authority, we have no hesitation in concluding that under Edmond the Board members are inferior officers whose appointment Congress may permissibly vest in a “Hea[d] of Departmen[t].”    But, petitioners argue, the Commission is not a “Departmen[t]” like the “Executive departments” ( e.g., State, Treasury, Defense) listed in 5 U. S. C. §101. In Freytag , 501 U. S., at 887, n. 4, we specifically reserved the question whether a “principal agenc[y], such as … the Securities and Exchange Commission,” is a “Departmen[t]” under the Appointments Clause. Four Justices, however, would have concluded that the Commission is indeed such a “Departmen[t],” see id., at 918 (Scalia, J., concurring in part and concurring in judgment), because it is a “free-standing, self-contained entity in the Executive Branch,” id., at 915.    Respondents urge us to adopt this reasoning as to those entities not addressed by our opinion in Freytag , see Brief for United States 37–39; PCAOB Brief 30–33, and we do. Respondents’ reading of the Appointments Clause is consistent with the common, near-contemporary definition of a “department” as a “separate allotment or part of business; a distinct province, in which a class of duties are allotted to a particular person.” 1 N. Webster, American Dictionary of the English Language (1828) (def. 2) (1995 facsimile ed.). It is also consistent with the early practice of Congress, which in 1792 authorized the Postmaster General to appoint “an assistant, and deputy postmasters, at all places where such shall be found necessary,” §3, 1 Stat. 234—thus treating him as the “Hea[d] of [a] Departmen[t]” without the title of Secretary or any role in the President’s Cabinet. And it is consistent with our prior cases, which have never invalidated an appointment made by the head of such an establishment. See Freytag , supra , at 917; cf. Burnap v. United States , 252 U. S. 512 , 515 (1920); United States v. Germaine , 99 U. S. 508 , 511 (1879). Because the Commission is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component, it constitutes a “Departmen[t]” for the purposes of the Appointments Clause.[ Footnote 11 ]    But petitioners are not done yet. They argue that the full Commission cannot constitutionally appoint Board members, because only the Chairman of the Commission is the Commission’s “Hea[d].”[ Footnote 12 ] The Commission’s powers, however, are generally vested in the Commissioners jointly, not the Chairman alone. See, e.g., 15 U. S. C. §§77s, 77t, 78u, 78w. The Commissioners do not report to the Chairman, who exercises administrative and executive functions subject to the full Commission’s policies. See Reorg. Plan No. 10 of 1950, §1(b)(1), 64 Stat. 1265. The Chairman is also appointed from among the Commissioners by the President alone, id., §3, at 1266, which means that he cannot be regarded as “the head of an agency” for purposes of the Reorganization Act. See 5 U. S. C. §904. (The Commission as a whole, on the other hand, does meet the requirements of the Act, including its provision that “the head of an agency [may] be an individual or a commission or board with more than one member.”)[ Footnote 13 ]    As a constitutional matter, we see no reason why a multimember body may not be the “Hea[d]” of a “Departmen[t]” that it governs. The Appointments Clause necessarily contemplates collective appointments by the “Courts of Law,” Art. II, §2, cl. 2, and each House of Congress, too, appoints its officers collectively, see Art. I, §2, cl. 5; id., §3, cl. 5. Petitioners argue that the Framers vested the nomination of principal officers in the President to avoid the perceived evils of collective appointments, but they reveal no similar concern with respect to inferior officers, whose appointments may be vested elsewhere, including in multimember bodies. Practice has also sanctioned the appointment of inferior officers by multimember agencies. See Freytag , supra, at 918 (Scalia, J., concurring in part and concurring in judgment); see also Classification Act of 1923, ch. 265, §2, 42 Stat. 1488 (defining “the head of the department” to mean “the officer or group of officers … who are not subordinate or responsible to any other officer of the department” (emphasis added)); 37 Op. Atty. Gen. 227, 231 (1933) (endorsing collective appointment by the Civil Service Commission). We conclude that the Board members have been validly appointed by the full Commission.    In light of the foregoing, petitioners are not entitled to broad injunctive relief against the Board’s continued operations. But they are entitled to declaratory relief sufficient to ensure that the reporting requirements and auditing standards to which they are subject will be enforced only by a constitutional agency accountable to the Executive. See Bowsher , 478 U. S., at 727, n. 5 (concluding that a separation of powers violation may create a “here-and-now” injury that can be remedied by a court (internal quotation marks omitted)). *  *  *    The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magistrate himself.” The Federalist No. 70, at 478.    While we have sustained in certain cases limits on the President’s removal power, the Act before us imposes a new type of restriction—two levels of protection from removal for those who nonetheless exercise significant executive power. Congress cannot limit the President’s authority in this way.    The judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The current salary for the Chairman is $673,000. Other Board members receive $547,000. Brief for Petitioners 3. Footnote 2 The Government asserts that “petitioners have not pointed to any case in which this Court has recognized an implied private right of action directly under the Constitution to challenge governmental action under the Appointments Clause or separation-of-powers principles.” Brief for United States 22. The Government does not appear to dispute such a right to relief as a general matter, without regard to the particular constitutional provisions at issue here. See, e.g., Correctional Services Corp. v. Malesko , 534 U. S. 61 , 74 (2001) (equitable relief “has long been recognized as the proper means for preventing entities from acting unconstitutionally”); Bell v. Hood , 327 U. S. 678 , 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution”); see also Ex parte Young , 209 U. S. 123 , 149, 165, 167 (1908). If the Government’s point is that an Appointments Clause or separation-of-powers claim should be treated differently than every other constitutional claim, it offers no reason and cites no authority why that might be so. Footnote 3 When Perkins was decided in 1886, the Secretary of the Navy was a principal officer and the head of a department, see Rev. Stat. §415, and the Tenure of Office Act purported to require Senate consent for his removal. Ch. 154, 14 Stat. 430, Rev. Stat. §1767. This requirement was widely regarded as unconstitutional and void (as it is universally regarded today), and it was repealed the next year. See Act of Mar. 3, 1887, ch. 353, 24 Stat. 500; Myers v. United States , 272 U. S. 52 , 167–168 (1926); see also Bowsher v. Synar , 478 U. S. 714 , 726 (1986). Perkins cannot be read to endorse any such restriction, much less in combination with further restrictions on the removal of inferiors. The Court of Claims opinion adopted verbatim by this Court addressed only the authority of the Secretary of the Navy to remove inferior officers. Footnote 4 Contrary to the dissent’s suggestion, post, at 12–14 (opinion of Breyer, J.), the second layer of tenure protection does compromise the President’s ability to remove a Board member the Commission wants to retain. Without a second layer of protection, the Commission has no excuse for retaining an officer who is not faithfully executing the law. With the second layer in place, the Commission can shield its decision from Presidential review by finding that good cause is absent—a finding that, given the Commission’s own protected tenure, the President cannot easily overturn. The dissent describes this conflict merely as one of four possible “scenarios,” see post, at 12–13, but it is the central issue in this case: The second layer matters precisely when the President finds it necessary to have a subordinate officer removed, and a statute prevents him from doing so. Footnote 5 The dissent quotes Buckley v. Valeo , 424 U. S. 1 , 138 (1976) ( per curiam ), for the proposition that Congress has “broad authority to ‘create’ governmental ‘ “offices” ’ and to structure those offices ‘as it chooses.’ ” Post, at 2. The Buckley Court put “ ‘offices’ ” in quotes because it was actually describing legislative positions that are not really offices at all (at least not under Article II). That is why the very next sentence of Buckley said, “ But Congress’ power … is inevitably bounded by the express language” of the Constitution. 424 U. S., at 138–139 (emphasis added). Footnote 6 The dissent attributes to Madison a belief that some executive officers, such as the Comptroller, could be made independent of the President. See post, at 17–18. But Madison’s actual proposal, consistent with his view of the Constitution, was that the Comptroller hold office for a term of “years, unless sooner removed by the President”; he would thus be “dependent upon the President, because he can be removed by him,” and also “dependent upon the Senate, because they must consent to his [reappointment] for every term of years.” 1 Annals of Cong. 612 (1789). Footnote 7 The Government implausibly argues that §7217(d)(3) “does not expressly make its three specified grounds of removal exclusive,” and that “the Act could be construed to permit other grounds.” Brief for United States 51, n. 19. But having provided in §7211(e)(6) that Board members are to be removed “in accordance with [§7217(d)(3)], for good cause shown,” Congress would not have specified the necessary Commission finding in §7217(d)(3)—including formal procedures and detailed conditions—if Board members could also be removed without any finding at all. Cf. PCAOB Brief 6 (“Cause exists where” the §7217(d)(3) conditions are met). Footnote 8 Contrary to the dissent’s assertions, see post, at 15–16, the Commission’s powers to conduct its own investigations (with its own resources), to remove particular provisions of law from the Board’s bailiwick, or to require the Board to perform functions “other” than inspections and investigations, §7211(c)(5), are no more useful in directing individual enforcement actions. Footnote 9 One “may be an agent or employé working for the government and paid by it, as nine-tenths of the persons rendering service to the government undoubtedly are, without thereby becoming its office[r].” United States v. Germaine , 99 U. S. 508 , 509 (1879). The applicable proportion has of course increased dramatically since 1879. Footnote 10 For similar reasons, our holding also does not address that subset of independent agency employees who serve as administrative law judges. See, e.g., 5 U. S. C. §§556(c), 3105. Whether administrative law judges are necessarily “Officers of the United States” is disputed. See, e.g., Landry v. FDIC , 204 F. 3d 1125 (CADC 2000). And unlike members of the Board, many administrative law judges of course perform adjudicative rather than enforcement or policymaking functions, see §§554(d), 3105, or possess purely recommendatory powers. The Government below refused to identify either “civil service tenure-protected employees in independent agencies” or administrative law judges as “precedent for the PCAOB.” 537 F. 3d 667, 699, n. 8 (CADC 2008) (Kavanaugh, J., dissenting); see Tr. of Oral Arg. in No. 07–5127 (CADC), pp. 32, 37–38, 42. Footnote 11 We express no view on whether the Commission is thus an “executive Departmen[t]” under the Opinions Clause, Art. II, §2, cl. 1, or under Section 4 of the Twenty-Fifth Amendment. See Freytag v. Commissioner , 501 U. S. 868 , 886–887 (1991). Footnote 12 The Board argued below that petitioners lack standing to raise this claim, because no member of the Board has been appointed over the Chairman’s objection, and so petitioners’ injuries are not fairly traceable to an invalid appointment. See Defendants’ Memorandum of Points and Authorities in Support of Motion to Dismiss the Complaint in Civil Action No. 1:06–cv–00217–JR (DC), Doc. 17, pp. 42–43; Brief for Appellees PCAOB et al. in No. 07–5127 (CADC), pp. 32–33. We cannot assume, however, that the Chairman would have made the same appointments acting alone; and petitioners’ standing does not require precise proof of what the Board’s policies might have been in that counterfactual world. See Glidden Co. v. Zdanok , 370 U. S. 530 , 533 (1962) (plurality opinion). Footnote 13 Petitioners contend that finding the Commission to be the head will invalidate numerous appointments made directly by the Chairman, such as those of the “heads of major [SEC] administrative units.” Reorg. Plan No. 10, §1(b)(2), at 1266. Assuming, however, that these individuals are officers of the United States, their appointment is still made “subject to the approval of the Commission.” Ibid. We have previously found that the department head’s approval satisfies the Appointments Clause, in precedents that petitioners do not ask us to revisit. See, e.g., United States v. Smith , 124 U. S. 525 , 532 (1888); Germaine , 99 U. S., at 511; United States v. Hartwell , 6 Wall. 385, 393–394 (1868). BREYER, J., DISSENTING FREE ENTERPRISE FUND V. PUBLIC COMPANYACCOUNTING OVERSIGHT BD. 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-861 FREE ENTERPRISE FUND and BECKSTEAD AND WATTS, LLP, PETITIONERS v. PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 28, 2010]    Justice Breyer, with whom Justice Stevens, Justice Ginsburg, and Justice Sotomayor join, dissenting.    The Court holds unconstitutional a statute providing that the Securities and Exchange Commission can remove members of the Public Company Accounting Oversight Board from office only for cause. It argues that granting the “inferior officer[s]” on the Accounting Board “more than one level of good-cause protection … contravenes the President’s ‘constitutional obligation to ensure the faithful execution of the laws.’ ” Ante , at 2. I agree that the Accounting Board members are inferior officers. See ante, at 28–29. But in my view the statute does not significantly interfere with the President’s “executive Power.” Art. II, §1. It violates no separation-of-powers principle. And the Court’s contrary holding threatens to disrupt severely the fair and efficient administration of the laws. I consequently dissent. I A    The legal question before us arises at the intersection of two general constitutional principles. On the one hand, Congress has broad power to enact statutes “necessary and proper” to the exercise of its specifically enumerated constitutional authority. Art. I, §8, cl. 18. As Chief Justice Marshall wrote for the Court nearly 200 years ago, the Necessary and Proper Clause reflects the Framers’ efforts to create a Constitution that would “endure for ages to come.” McCulloch v. Maryland , 4 Wheat. 316, 415 (1819). It embodies their recognition that it would be “unwise” to prescribe “the means by which government should, in all future time, execute its powers.” Ibid. Such “immutable rules” would deprive the Government of the needed flexibility to respond to future “exigencies which, if foreseen at all, must have been seen dimly.” Ibid. Thus the Necessary and Proper Clause affords Congress broad authority to “create” governmental “ ‘offices’ ” and to structure those offices “as it chooses.” Buckley v. Valeo , 424 U. S. 1 , 138 (1976) (per curiam); cf. Lottery Case , 188 U. S. 321 , 355 (1903). And Congress has drawn on that power over the past century to create numerous federal agencies in response to “various crises of human affairs” as they have arisen. McCulloch, supra, at 415 (emphasis deleted). Cf. Wong Yang Sung v. McGrath , 339 U. S. 33 , 36–37 (1950).    On the other hand, the opening sections of Articles I, II, and III of the Constitution separately and respectively vest “all legislative Powers” in Congress, the “executive Power” in the President, and the “judicial Power” in the Supreme Court (and such “inferior Courts as Congress may from time to time ordain and establish”). In doing so, these provisions imply a structural separation-of-powers principle. See, e.g ., Miller v. French , 530 U. S. 327 , 341–342 (2000). And that principle, along with the instruction in Article II, §3 that the President “shall take Care that the Laws be faithfully executed,” limits Congress’ power to structure the Federal Government. See, e.g., INS v. Chadha , 462 U. S. 919 , 946 (1983); Freytag v. Commissioner , 501 U. S. 868 , 878 (1991); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. , 458 U. S. 50 , 64 (1982); Commodity Futures Trading Comm’n v. Schor , 478 U. S. 833 , 859–860 (1986). Indeed, this Court has held that the separation-of-powers principle guarantees the President the authority to dismiss certain Executive Branch officials at will. Myers v. United States , 272 U. S. 52 (1926).    But neither of these two principles is absolute in its application to removal cases. The Necessary and Proper Clause does not grant Congress power to free all Executive Branch officials from dismissal at the will of the President. Ibid. Nor does the separation-of-powers principle grant the President an absolute authority to remove any and all Executive Branch officials at will. Rather, depending on, say, the nature of the office, its function, or its subject matter, Congress sometimes may, consistent with the Constitution, limit the President’s authority to remove an officer from his post. See Humphrey’s Executor v. United States , 295 U. S. 602 (1935), overruling in part Myers, supra ; Morrison v. Olson , 487 U. S. 654 (1988). And we must here decide whether the circumstances surrounding the statute at issue justify such a limitation.    In answering the question presented, we cannot look to more specific constitutional text, such as the text of the Appointments Clause or the Presentment Clause, upon which the Court has relied in other separation-of-powers cases. See, e.g., Chadha, supra, at 946; Buckley, supra, at 124–125. That is because, with the exception of the general “vesting” and “take care” language, the Constitution is completely “silent with respect to the power of removal from office.” Ex parte Hennen , 13 Pet. 230, 258 (1839); see also Morrison , supra, at 723 (Scalia, J., dissenting) (“There is, of course, no provision in the Constitution stating who may remove executive officers … ”).    Nor does history offer significant help. The President’s power to remove Executive Branch officers “was not discussed in the Constitutional Convention.” Myers, supra, at 109–110. The First Congress enacted federal statutes that limited the President’s ability to oversee Executive Branch officials, including the Comptroller of the United States, federal district attorneys (precursors to today’s United States Attorneys), and, to a lesser extent, the Secretary of the Treasury. See, e.g., Lessig, Readings By Our Unitary Executive, 15 Cardozo L. Rev. 175, 183–184 (1993); Teifer, The Constitutionality of Independent Officers as Checks on Abuses of Executive Power, 63 B. U. L. Rev. 59, 74–75 (1983); Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211, 240–241 (1989) (hereinafter Casper); H. Bruff, Balance of Forces: Separation of Powers in the Administrative State 414–417 (2006). But those statutes did not directly limit the President’s authority to remove any of those officials—“a subject” that was “much disputed” during “the early history of this government,” “and upon which a great diversity of opinion was entertained.” Hennen , supra , at 259; see also United States ex rel. Goodrich v. Guthrie , 17 How. 284, 306 (1855) (McLean, J., dissenting); Casper 233–237 (recounting the Debate of 1789). Scholars, like Members of this Court, have continued to disagree, not only about the inferences that should be drawn from the inconclusive historical record, but also about the nature of the original disagreement. Compare ante, at 11; Myers, supra, at 114 (majority opinion of Taft, C. J.); and Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006), with, e.g., Myers, supra, at 194 (McReynolds, J., dissenting); Corwin, Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L. Rev. 353, 369 (1927); Lessig & Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 25–26 (1994) (hereinafter Lessig & Sunstein); and L. Fisher, President and Congress: Power and Policy 86–89 (1972).    Nor does this Court’s precedent fully answer the question presented. At least it does not clearly invalidate the provision in dispute. See Part II–C, infra . In Myers, supra, the Court invalidated—for the first and only time—a congressional statute on the ground that it unduly limited the President’s authority to remove an Executive Branch official. But soon thereafter the Court expressly disapproved most of Myers’ broad reasoning. See Humphrey’s Executor , 295 U. S., at 626–627, overruling in part Myers, supra ; Wiener v. United States , 357 U. S. 349 , 352 (1958) (stating that Humphrey’s Executor “explicitly ‘disapproved’ ” of much of the reasoning in Myers ). Moreover, the Court has since said that “the essence of the decision in Myers was the judgment that the Constitution prevents Congress from ‘draw[ing] to itself … the power to remove or the right to participate in the exercise of that power.’ ” Morrison , supra, at 686 (emphasis added). And that feature of the statute—a feature that would aggrandize the power of Congress—is not present here. Congress has not granted itself any role in removing the members of the Accounting Board. Cf. Freytag, 501 U. S., at 878 (“separation-of-powers jurisprudence generally focuses on the danger of one branch’s aggrandizing its power at the expense of another branch” (emphasis added)); Buckley, 424 U. S., at 129 (same); Schor, 478 U. S., at 856 (same); Bowsher v. Synar , 478 U. S. 714 , 727 (1986) (same). Compare Myers, supra, (striking down statute where Congress granted itself removal authority over Executive Branch official), with Humphrey’s Executor, supra, (upholding statute where such aggrandizing was absent) ; Wiener, supra (same) ; Morrison, supra (same).    In short, the question presented lies at the intersection of two sets of conflicting, broadly framed constitutional principles. And no text, no history, perhaps no precedent provides any clear answer. Cf. Chicago v. Morales , 527 U. S. 41 , 106 (1999) (Thomas, J., joined by Rehnquist, C. J., and Scalia, J., dissenting) (expressing the view that “this Court” is “most vulnerable” when “it deals with judge-made constitutional law” that lacks “roots in the language” of the Constitution (internal quotation marks omitted)). B    When previously deciding this kind of nontextual question, the Court has emphasized the importance of examining how a particular provision, taken in context, is likely to function. Thus, in Crowell v. Benson, 285 U. S. 22 , 53 (1932), a foundational separation-of-powers case, the Court said that “regard must be had, as in other cases where constitutional limits are invoked, not to mere matters of form, but to the substance of what is required.” The Court repeated this injunction in Schor and again in Morrison. See Schor, supra, at 854 (stating that the Court must look “ ‘beyond form to the substance of what’ Congress has done”); Morrison, 487 U. S., at 689–690 (“The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President,” but rather asks whether, given the “functions of the officials in question,” a removal provision “interfere[s] with the President’s exercise of the ‘executive power’ ” (emphasis added)). The Court has thereby written into law Justice Jackson’s wise perception that “the Constitution … contemplates that practice will integrate the dispersed powers into a workable government. ” Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579 , 635 (1952) (opinion concurring in judgment) (emphasis added). See also ibid. (“The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context”).    It is not surprising that the Court in these circumstances has looked to function and context, and not to bright-line rules. For one thing, that approach embodies the intent of the Framers. As Chief Justice Marshall long ago observed, our Constitution is fashioned so as to allow the three coordinate branches, including this Court, to exercise practical judgment in response to changing conditions and “exigencies,” which at the time of the founding could be seen only “dimly,” and perhaps not at all. McCulloch, 4 Wheat., at 415.    For another, a functional approach permits Congress and the President the flexibility needed to adapt statutory law to changing circumstances. That is why the “powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government’s role” over time. New York v. United States , 505 U. S. 144 , 157 (1992). Indeed, the Federal Government at the time of the founding consisted of about 2,000 employees and served a population of about 4 million. See Kaufman, The Growth of the Federal Personnel System, in The Federal Government Service 7, 8 (W. Sayre 2d ed. 1965); Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, p. 8 (1975). Today, however, the Federal Government employs about 4.4 million workers who serve a Nation of more than 310 million people living in a society characterized by rapid technological, economic, and social change. See Office of Management and Budget, Analytical Perspectives, Budget of the U. S. Government, Fiscal Year 2010, p. 368 (2009).    Federal statutes now require or permit Government officials to provide, regulate, or otherwise administer, not only foreign affairs and defense, but also a wide variety of such subjects as taxes, welfare, social security, medicine, pharmaceutical drugs, education, highways, railroads, electricity, natural gas, nuclear power, financial instruments, banking, medical care, public health and safety, the environment, fair employment practices, consumer protection and much else besides. Those statutes create a host of different organizational structures. Sometimes they delegate administrative authority to the President directly, e.g., 10 U. S. C. §2031(a)(1); 42 U. S. C. §5192(c); sometimes they place authority in a long-established Cabinet department, e.g., 7 U. S. C. §1637b(c)(1); 12 U. S. C. §5221(b)(2) (2006 ed., Supp. II); sometimes they delegate authority to an independent commission or board, e.g., 15 U. S. C. §4404(b); 28 U. S. C. §994; sometimes they place authority directly in the hands of a single senior administrator, e.g., 15 U. S. C. §657d(c)(4); 42 U. S. C. §421; sometimes they place it in a sub-cabinet bureau, office, division or other agency, e.g., 18 U. S. C. §4048; sometimes they vest it in multimember or multiagency task groups, e.g. 5 U. S. C. §§593–594; 50 U. S. C. §402 (2006 ed. and Supp. II); sometimes they vest it in commissions or advisory committees made up of members of more than one branch, e.g., 20 U. S. C. §42(a); 28 U. S. C. §991(a) (2006 ed., Supp. II); 42 U. S. C. §1975; sometimes they divide it among groups of departments, commissions, bureaus, divisions, and administrators, e.g., 5 U. S. C. §9902(a) (2006 ed., Supp. II); 7 U. S. C. §136i–1(g); and sometimes they permit state or local governments to participate as well, e.g., 7 U. S. C. §2009aa–1(a). Statutes similarly grant administrators a wide variety of powers—for example, the power to make rules, develop informal practices, investigate, adjudicate, impose sanctions, grant licenses, and provide goods, services, advice, and so forth. See generally 5 U. S. C. §500 et seq. The upshot is that today vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different problems, provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives. And, given the nature of the Government’s work, it is not surprising that administrative units come in many different shapes and sizes.    The functional approach required by our precedents recognizes this administrative complexity and, more importantly, recognizes the various ways presidential power operates within this context—and the various ways in which a removal provision might affect that power. As human beings have known ever since Ulysses tied himself to the mast so as safely to hear the Sirens’ song, sometimes it is necessary to disable oneself in order to achieve a broader objective. Thus, legally enforceable commitments—such as contracts, statutes that cannot instantly be changed, and, as in the case before us, the establishment of independent administrative institutions—hold the potential to empower precisely because of their ability to constrain. If the President seeks to regulate through impartial adjudication, then insulation of the adjudicator from removal at will can help him achieve that goal. And to free a technical decisionmaker from the fear of removal without cause can similarly help create legitimacy with respect to that official’s regulatory actions by helping to insulate his technical decisions from nontechnical political pressure.    Neither is power always susceptible to the equations of elementary arithmetic. A rule that takes power from a President’s friends and allies may weaken him. But a rule that takes power from the President’s opponents may strengthen him. And what if the rule takes power from a functionally neutral independent authority? In that case, it is difficult to predict how the President’s power is affected in the abstract.    These practical reasons not only support our precedents’ determination that cases such as this should examine the specific functions and context at issue; they also indicate that judges should hesitate before second-guessing a “for cause” decision made by the other branches. See, e.g., Chadha , 462 U. S., at 944 (applying a “presumption that the challenged statute is valid”); Bowsher , 478 U. S., at 736 (Stevens, J., concurring in judgment). Compared to Congress and the President, the Judiciary possesses an inferior understanding of the realities of administration, and the manner in which power, including and most especially political power, operates in context.    There is no indication that the two comparatively more expert branches were divided in their support for the “for cause” provision at issue here. In this case, the Act embodying the provision was passed by a vote of 423 to 3 in the House of Representatives and a by vote of 99 to 0 in the Senate. 148 Cong. Rec. 14458, 14505 (2002). The creation of the Accounting Board was discussed at great length in both bodies without anyone finding in its structure any constitutional problem. See id., at 12035–12037, 12112–12132, 12315–12323, 12372–12377, 12488–12508, 12529–12534, 12612–12618, 12673–12680, 12734–12751, 12915–12960, 13347–13354, 14439–14458, 14487–14506. The President signed the Act. And, when he did so, he issued a signing statement that critiqued multiple provisions of the Act but did not express any separation-of-powers concerns. See President’s Statement on Signing the Sarbanes-Oxley Act of 2002, 30 Weekly Comp. of Pres. Doc. 1286 (2002). Cf. ABA, Report of Task Force on Presidential Signing Statements and the Separation of Powers Doctrine 15 (2006), online at http://www.signingstatementsaba_final_signing_ statements_recommendations-report_7-24-06.pdf (all Inter- net materials as visited June 24, 2010, and available in Clerk of Court’s case file) (noting that President Bush asserted “over 500” “constitutional objections” through signing statements “in his first term,” including 82 “related to his theory of the ‘unitary executive’ ”).    Thus, here, as in similar cases, we should decide the constitutional question in light of the provision’s practical functioning in context. And our decision should take account of the Judiciary’s comparative lack of institutional expertise. II A    To what extent then is the Act’s “for cause” provision likely, as a practical matter, to limit the President’s exercise of executive authority? In practical terms no “for cause” provision can, in isolation, define the full measure of executive power. This is because a legislative decision to place ultimate administrative authority in, say, the Secretary of Agriculture rather than the President, the way in which the statute defines the scope of the power the relevant administrator can exercise, the decision as to who controls the agency’s budget requests and funding, the relationships between one agency or department and another, as well as more purely political factors (including Congress’ ability to assert influence) are more likely to affect the President’s power to get something done. That is why President Truman complained that “ ‘the powers of the President amount to’ ” bringing “ ‘people in and try[ing] to persuade them to do what they ought to do without persuasion.’ ” C. Rossiter, The American Presidency 154 (2d rev. ed. 1960). And that is why scholars have written that the President “is neither dominant nor powerless” in his relationships with many Government entities, “whether denominated executive or independent.” Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 583 (1984) (hereinafter Strauss). Those entities “are all subject to presidential direction in significant aspects of their functioning, and [are each] able to resist presidential direction in others.” Ibid. (emphasis added).    Indeed, notwithstanding the majority’s assertion that the removal authority is “ the key” mechanism by which the President oversees inferior officers in the independent agencies, ante, at 20, it appears that no President has ever actually sought to exercise that power by testing the scope of a “for cause” provision. See Bruff, Bringing the Independent Agencies in from the Cold, 62 Vanderbilt L. Rev. En Banc 63, 68 (2009), online at http://vanderbiltlawreview. org/articles/2009/11/Bruff-62-Vand-L-Rev-En-Banc-63.pdf (noting that “Presidents do not test the limits of their power by removing commissioners … ”); Lessig & Sunstein 110–112 (noting that courts have not had occasion to define what constitutes “cause” because Presidents rarely test removal provisions).    But even if we put all these other matters to the side, we should still conclude that the “for cause” restriction before us will not restrict presidential power significantly. For one thing, the restriction directly limits, not the President’s power, but the power of an already independent agency. The Court seems to have forgotten that fact when it identifies its central constitutional problem: According to the Court, the President “is powerless to intervene” if he has determined that the Board members’ “conduct merit[s] removal” because “[t]hat decision is vested instead in other tenured officers—the Commissioners—none of whom is subject to the President’s direct control.” Ante, at 14–15. But so long as the President is legitimately foreclosed from removing the Commissioners except for cause (as the majority assumes), nullifying the Commission’s power to remove Board members only for cause will not resolve the problem the Court has identified: The President will still be “powerless to intervene” by removing the Board members if the Commission reasonably decides not to do so.    In other words, the Court fails to show why two layers of “for cause” protection—Layer One insulating the Commissioners from the President, and Layer Two insulating the Board from the Commissioners—impose any more serious limitation upon the President’s powers than one layer. Consider the four scenarios that might arise: 1.   The President and the Commission both want to keep a Board member in office. Neither layer is relevant. 2.   The President and the Commission both want to dismiss a Board member . Layer Two stops them both from doing so without cause. The President’s ability to remove the Commission (Layer One) is irrelevant, for he and the Commission are in agreement. 3.   The President wants to dismiss a Board member, but the Commission wants to keep the member. Layer One allows the Commission to make that determination notwithstanding the President’s contrary view. Layer Two is irrelevant because the Commission does not seek to remove the Board member. 4.   The President wants to keep a Board member, but the Commission wants to dismiss the Board member. Here, Layer Two helps the President, for it hinders the Commission’s ability to dismiss a Board member whom the President wants to keep in place.    Thus, the majority’s decision to eliminate only Layer Two accomplishes virtually nothing. And that is because a removal restriction’s effect upon presidential power depends not on the presence of a “double-layer” of for-cause removal, as the majority pretends, but rather on the real-world nature of the President’s relationship with the Commission. If the President confronts a Commission that seeks to resist his policy preferences—a distinct possibility when, as here, a Commission’s membership must reflect both political parties, 15 U. S. C. §78d(a)—the restriction on the Commission’s ability to remove a Board member is either irrelevant (as in scenario 3) or may actually help the President (as in scenario 4). And if the President faces a Commission that seeks to implement his policy preferences, Layer One is irrelevant, for the President and Commission see eye to eye.    In order to avoid this elementary logic, the Court creates two alternative scenarios. In the first, the Commission and the President both want to remove a Board member, but have varying judgments as to whether they have good “cause” to do so— i.e., the President and the Commission both conclude that a Board member should be removed, but disagree as to whether that conclusion (which they have both reached) is reasonable . Ante, at 14–15. In the second, the President wants to remove a Board member and the Commission disagrees; but, notwithstanding its freedom to make reasonable decisions independent of the President (afforded by Layer One), the Commission (while apparently telling the President that it agrees with him and would like to remove the Board member) uses Layer Two as an “excuse” to pursue its actual aims—an excuse which, given Layer One, it does not need. Ante, at 15, n. 4.    Both of these circumstances seem unusual. I do not know if they have ever occurred. But I do not deny their logical possibility. I simply doubt their importance. And the fact that, with respect to the President’s power, the double layer of for-cause removal sometimes might help, sometimes might hurt, leads me to conclude that its overall effect is at most indeterminate.    But once we leave the realm of hypothetical logic and view the removal provision at issue in the context of the entire Act, its lack of practical effect becomes readily apparent. That is because the statute provides the Commission with full authority and virtually comprehensive control over all of the Board’s functions. Those who created the Accounting Board modeled it, in terms of structure and authority, upon the semiprivate regulatory bodies prevalent in the area of financial regulation, such as the New York Stock Exchange and other similar self-regulating organizations. See generally Brief for Former Chairmen of the SEC as Amici Curiae (hereinafter Brief for Former SEC Chairmen) . And those organizations—which rely on private financing and on officers drawn from the private sector—exercise rulemaking and adjudicatory authority that is pervasively controlled by, and is indeed “entirely derivative” of, the SEC. See National Assn. of Securities Dealers, Inc. v. SEC, 431 F. 3d 803, 806 (CADC 2005).    Adhering to that model, the statute here gives the Accounting Board the power to adopt rules and standards “relating to the preparation of audit reports”; to adjudicate disciplinary proceedings involving accounting firms that fail to follow these rules; to impose sanctions; and to engage in other related activities, such as conducting inspections of accounting firms registered as the law requires and investigations to monitor compliance with the rules and related legal obligations. See 15 U. S. C. §§7211–7216. But, at the same time, •   No Accounting Board rule takes effect unless and until the Commission approves it, §7217(b)(2); •   The Commission may “abrogat[e], delet[e] or ad[d] to” any rule or any portion of a rule promulgated by the Accounting Board whenever, in the Commission’s view, doing so “further[s] the purposes” of the securities and accounting-oversight laws, §7217(b)(5); •   The Commission may review any sanction the Board imposes and “enhance, modify, cancel, reduce, or require the remission of” that sanction if it find’s the Board’s action not “appropriate,” §§7215(e), 7217(c)(3); • The Commission may promulgate rules restricting or directing the Accounting Board’s conduct of all inspections and investigations, §§7211(c)(3), 7214(h), 7215(b)(1)–(4); • The Commission may itself initiate any investigation or promulgate any rule within the Accounting Board’s purview, §7202, and may also remove any Accounting Board member who has unreasonably “failed to enforce compliance with” the relevant “rule[s], or any professional standard,” §7217(d)(3)(C) (emphasis added) ; •   The Commission may at any time “relieve the Board of any responsibility to enforce compliance with any provision” of the Act, the rules, or professional standards if, in the Commission’s view, doing so is in “the public interest,” §7217(d)(1) (emphasis added).    As these statutory provisions make clear, the Court is simply wrong when it says that “the Act nowhere gives the Commission effective power to start, stop, or alter” Board investigations. Ante, at 23–24. On the contrary, the Commission’s control over the Board’s investigatory and legal functions is virtually absolute. Moreover, the Commission has general supervisory powers over the Accounting Board itself: It controls the Board’s budget, §§7219(b), (d)(1); it can assign to the Board any “duties or functions” that it “determines are necessary or appropriate,” §7211(c)(5); it has full “oversight and enforcement authority over the Board,” §7217(a), including the authority to inspect the Board’s activities whenever it believes it “appropriate” to do so, §7217(d)(2) (emphasis added). And it can censure the Board or its members, as well as remove the members from office, if the members, for example, fail to enforce the Act, violate any provisions of the Act, or abuse the authority granted to them under the Act, §7217(d)(3). Cf. Shurtleff v. United States , 189 U. S. 311 , 314–319 (1903) (holding that removal authority is not always “restricted to a removal for th[e] causes” set forth by statute); Bowsher, 478 U. S., at 729 (rejecting the “arguable premis[e]” “that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes”). Contra, ante, at 22, n. 7. See generally Pildes, Putting Power Back into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional, 62 Vand. L. Rev. En Banc 85 (2009), online at http://vanderbiltlawreview.org1/articles/2009/11/Pildes-62-Vand-L-Rev-En-Banc-85.pdf (explaining further the comprehensive nature of the Commission’s powers).    What is left? The Commission’s inability to remove a Board member whose perfectly reasonable actions cause the Commission to overrule him with great frequency? What is the practical likelihood of that occurring, or, if it does, of the President’s serious concern about such a matter? Everyone concedes that the President’s control over the Commission is constitutionally sufficient. See Humphrey’s Executor, 295 U. S. 602 ; Wiener, 357 U. S. 349 ; ante, at 1–2. And if the President’s control over the Commission is sufficient, and the Commission’s control over the Board is virtually absolute, then, as a practical matter, the President’s control over the Board should prove sufficient as well. B    At the same time, Congress and the President had good reason for enacting the challenged “for cause” provision. First and foremost, the Board adjudicates cases. See 15 U. S. C. §7215. This Court has long recognized the appropriateness of using “for cause” provisions to protect the personal independence of those who even only sometimes engage in adjudicatory functions. Humphrey’s Executor, supra, at 623–628; see also Wiener , supra, at 355–356; Morrison, 487 U. S., at 690–691, and n. 30; McAllister v. United States , 141 U. S. 174 , 191–201 (1891) (Field, J., dissenting). Indeed, as early as 1789 James Madison stated that “there may be strong reasons why an” executive “officer” such as the Comptroller of the United States “should not hold his office at the pleasure of the Executive branch” if one of his “principal dut[ies]” “partakes strongly of the judicial character.” 1 Annals of Congress 611–612; cf. ante, at 19, n. 6 (noting that the statute Congress ultimately enacted limited Presidential control over the Comptroller in a different fashion); see supra, at 4. The Court, however, all but ignores the Board’s adjudicatory functions when conducting its analysis. See, e.g., ante, at 17–18. And when it finally does address that central function (in a footnote), it simply asserts that the Board does not “perform adjudicative … functions,” a nte, at 26, n. 10 (emphasis added), an assertion that is inconsistent with the terms of the statute. See §7215(c)(1) (governing “proceeding[s] by the Board to determine whether a registered public accounting firm, or an associated person thereof, should be disciplined”).    Moreover, in addition to their adjudicative functions, the Accounting Board members supervise, and are themselves, technical professional experts. See §7211(e)(1) (requiring that Board members “have a demonstrated” technical “understanding of the responsibilities” and “obligations of accountants with respect to the preparation and issuance of audit reports”). This Court has recognized that the “difficulties involved in the preparation of” sound auditing reports require the application of “scientific accounting principles.” United States v. Anderson , 269 U. S. 422 , 440 (1926). And this Court has recognized the constitutional legitimacy of a justification that rests agency independence upon the need for technical expertise. See Humphrey’s Executor , supra, at 624–626; see also Breger & Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111, 1131–1133 (2000) (explaining how the need for administrators with “technical competence,” “apolitical expertise,” and skill in “scientific management” led to original creation of independent agencies) (hereinafter Breger & Edles); J. Landis, The Administrative Process 23 (1938) (similar); Woodrow Wilson, Democracy and Efficiency, 87 Atlantic Monthly 289, 299 (1901) (describing need for insulation of experts from political influences).    Here, the justification for insulating the “technical experts” on the Board from fear of losing their jobs due to political influence is particularly strong. Congress deliberately sought to provide that kind of protection. See, e.g., 148 Cong. Rec. 12036, 12115, 13352–13355. It did so for good reason. See ante, at 3 (noting that the Accounting Board was created in response to “a series of celebrated accounting debacles”); H. R. Rep. No. 107–414, pp. 18–19 (2002) (same); Brief for Former SEC Chairmen 8–9. And historically, this regulatory subject matter—financial regulation—has been thought to exhibit a particular need for independence. See e.g., 51 Cong. Rec. 8857 (1914) (remarks of Sen. Morgan upon creation of the Federal Trade Commission) (“[I]t is unsafe for an … administrative officer representing a great political party … to hold the power of life and death over the great business interests of this country… . That is … why I believe in … taking these business matters out of politics”). And Congress, by, for example, providing the Board with a revenue stream independent of the congressional appropriations process, §7219, helped insulate the Board from congressional, as well as other, political influences. See, e.g., 148 Cong. Rec. 12036 (statement of Sen. Stabenow).    In sum, Congress and the President could reasonably have thought it prudent to insulate the adjudicative Board members from fear of purely politically based removal. Cf. Civil Service Comm’n v. Letter Carriers , 413 U. S. 548 , 565 (1973) (“[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent”). And in a world in which we count on the Federal Government to regulate matters as complex as, say, nuclear-power production, the Court’s assertion that we should simply learn to get by “without being” regulated “by experts” is, at best, unrealistic—at worst, dangerously so. Ante, at 18. C    Where a “for cause” provision is so unlikely to restrict presidential power and so likely to further a legitimate institutional need, precedent strongly supports its constitutionality. First, in considering a related issue in Nixon v. Administrator of General Services , 433 U. S. 425 (1977), the Court made clear that when “determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.” Id., at 443. The Court said the same in Morrison, where it upheld a restriction on the President’s removal power. 487 U. S., at 691 (“[T]he real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light”). Here, the removal restriction may somewhat diminish the Commission’s ability to control the Board, but it will have little, if any, negative effect in respect to the President’s ability to control the Board, let alone to coordinate the Executive Branch. See Part II–A, supra . Indeed, given Morrison, where the Court upheld a restriction that significantly interfered with the President’s important historic power to control criminal prosecutions, a “ ‘purely executive’ ” function, 487 U. S., at 687–689, the constitutionality of the present restriction would seem to follow a fortiori. Second, as previously pointed out, this Court has repeatedly upheld “for cause” provisions where they restrict the President’s power to remove an officer with adjudicatory responsibilities. Compare Humphrey’s Executor, 295 U. S., at 623–628; Wiener , 357 U. S., at 355; Schor, 478 U. S., at 854; Morrison, supra, at 691, n. 30, with ante, at 17–18 (ignoring these precedents). And we have also upheld such restrictions when they relate to officials with technical responsibilities that warrant a degree of special independence. E.g., Humphrey’s Executor, supra, at 624. The Accounting Board’s functions involve both kinds of responsibility. And, accordingly, the Accounting Board’s adjudicatory responsibilities, the technical nature of its job, the need to attract experts to that job, and the importance of demonstrating the nonpolitical nature of the job to the public strongly justify a statute that assures that Board members need not fear for their jobs when competently carrying out their tasks, while still maintaining the Commission as the ultimate authority over Board policies and actions. See Part II–B, supra. Third, consider how several cases fit together in a way that logically compels a holding of constitutionality here. In Perkins, 116 U. S., at 483, 484—which was reaffirmed in Myers , 272 U. S., at 127 and in Morrison , supra, at 689, n. 27—the Court upheld a removal restriction limiting the authority of the Secretary of the Navy to remove a “cadet-engineer,” whom the Court explicitly defined as an “inferior officer.” The Court said,    “We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest . The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.” Perkins, supra, at 485 (emphasis added; internal quotation marks omitted). See also Morrison, supra, at 723–724 (Scalia, J., dissenting) (agreeing that the power to remove an “inferior officer” who is appointed by a department head can be restricted). Cf. ante, at 30–33 (holding that SEC Commissioners are “Heads of Departments”).    In Humphrey’s Executor , the Court held that Congress may constitutionally limit the President’s authority to remove certain principal officers, including heads of departments. 295 U. S., at 627–629. And the Court has consistently recognized the validity of that holding. See Wiener, supra ; United States v. Nixon , 418 U. S. 683 , 706 (1974); Buckley , 424 U. S., at 133–136 ; Chadha , 462 U. S., at 953, n. 16; Bowsher , 478 U. S., at 725–726; Morrison , supra, at 686–693; Mistretta v. United States , 488 U. S. 361 , 410–411 (1989).    And in Freytag , 501 U. S., at 921, Justice Scalia stated in a concurring opinion written for four Justices, including Justice Kennedy, that “adjusting the remainder of the Constitution to compensate for Humphrey’s Executor is a fruitless endeavor.” In these Justices’ view, the Court should not create a separate constitutional jurisprudence for the “independent agencies.” That being so, the law should treat their heads as it treats other Executive Branch heads of departments. Consequently, as the Court held in Perkins, Congress may constitutionally “limit and restrict” the Commission’s power to remove those whom they appoint ( e.g, the Accounting Board members).    Fourth, the Court has said that “[o]ur separation-of-powers jurisprudence generally focuses on the danger of one branch’s aggrandizing its power at the expense of another branch.” Freytag, supra , at 878 (emphasis added); accord, Buckley, supra , at 129; Schor, supra, at 856; Morrison , supra , at 686; cf. Bowsher , supra . Indeed, it has added that “the essence of the decision in Myers,” which is the only one of our cases to have struck down a “for cause” removal restriction, “was the judgment that the Constitution prevents Congress from ‘draw[ing] to itself … the power to remove.’ ” Morrison , supra, at 686 (quoting Myers , supra , at 161; emphasis added). Congress here has “drawn” no power to itself to remove the Board members. It has instead sought to limit its own power, by, for example, providing the Accounting Board with a revenue stream independent of the congressional appropriations process. See supra, at 19; see also Brief for Former SEC Chairmen 16. And this case thereby falls outside the ambit of the Court’s most serious constitutional concern.    In sum, the Court’s prior cases impose functional criteria that are readily met here. Once one goes beyond the Court’s elementary arithmetical logic ( i.e., “one plus one is greater than one”) our precedent virtually dictates a holding that the challenged “for cause” provision is constitutional. D    We should ask one further question. Even if the “for cause” provision before us does not itself significantly interfere with the President’s authority or aggrandize Congress’ power, is it nonetheless necessary to adopt a bright-line rule forbidding the provision lest, through a series of such provisions, each itself upheld as reasonable, Congress might undercut the President’s central constitutional role? Cf. Strauss 625–626. The answer to this question is that no such need has been shown. Moreover, insofar as the Court seeks to create such a rule, it fails. And in failing it threatens a harm that is far more serious than any imaginable harm this “for cause” provision might bring about.    The Court fails to create a bright-line rule because of considerable uncertainty about the scope of its holding—an uncertainty that the Court’s opinion both reflects and generates. The Court suggests, for example, that its rule may not apply where an inferior officer “perform[s] adjudicative … functions.” Cf. ante, at 26, n. 10. But the Accounting Board performs adjudicative functions. See supra, at 17–18. What, then, are we to make of the Court’s potential exception? And would such an exception apply to an administrative law judge who also has important administrative duties beyond pure adjudication? See, e.g., 8 CFR §1003.9, 34 CFR §81.4 (2009). The Court elsewhere suggests that its rule may be limited to removal statutes that provide for “judicial review of a[n] effort to remove” an official for cause. Ante, at 22; ante, at 25. But we have previously stated that all officers protected by a for-cause removal provision and later subject to termination are entitled to “notice and [a] hearing” in the “courts,” as without such review “the appointing power” otherwise “could remove at pleasure or for such cause as [only] it deemed sufficient.” Reagan v. United States , 182 U. S. 419 , 425 (1901); Shurtleff , 189 U. S., at 314; cf. Humphrey’s Executor, supra (entertaining civil suit challenging removal). But cf. Bowsher, supra , at 729. What weight, then, should be given to this hint of an exception?    The Court further seems to suggest that its holding may not apply to inferior officers who have a different relationship to their appointing agents than the relationship between the Commission and the Board. See ante, at 22, 24–26. But the only characteristic of the “relationship” between the Commission and the Board that the Court apparently deems relevant is that the relationship includes two layers of for-cause removal. See, e.g., ante, at 23 (“Broad power over Board functions is not equivalent to the power to remove Board members”). Why then would any different relationship that also includes two layers of for-cause removal survive where this one has not? Cf. Part II–A, supra (describing the Commission’s near absolute control over the Board). In a word, what differences are relevant? If the Court means to state that its holding in fact applies only where Congress has “enacted an unusually high standard ” of for-cause removal—and does not otherwise render two layers of “ ‘ordinary’ ” for-cause removal unconstitutional—I should welcome the statement. Ante, at 22 (emphasis added); see also ante, at 24–25, 15, 22, (underscoring this statute’s “sharply circumscribed definition of what constitutes ‘good cause’ ” and its “rigorous,” “significant and unusual [removal] protections”). But much of the majority’s opinion appears to avoid so narrow a holding in favor of a broad, basically mechanical rule—a rule that, as I have said, is divorced from the context of the case at hand. Compare Parts III–A, III–B, III–C, ante , with Parts II–A, II–B, II–C, supra. And such a mechanical rule cannot be cabined simply by saying that, perhaps, the rule does not apply to instances that, at least at first blush, seem highly similar. A judicial holding by its very nature is not “a restricted railroad ticket, good for” one “day and train only.” Smith v. Allwright , 321 U. S. 649 , 669 (1944) (Roberts, J., dissenting).    The Court begins to reveal the practical problems inherent in its double for-cause rule when it suggests that its rule may not apply to “the civil service.” Ante, at 26. The “civil service” is defined by statute to include “all appointive positions in … the Government of the United States,” excluding the military, but including all civil “officer[s]” up to and including those who are subject to Senate confirmation. 5 U. S. C. §§2101, 2102(a)(1)(B), 2104. The civil service thus includes many officers indistinguishable from the members of both the Commission and the Accounting Board. Indeed, as this Court recognized in Myers, the “competitive service”—the class within the broader civil service that enjoys the most robust career protection—“includes a vast majority of all the civil officers” in the United States. 272 U. S., at 173 (emphasis added); 5 U. S. C. §2102(c).    But even if I assume that the majority categorically excludes the competitive service from the scope of its new rule, cf. ante, at 26 (leaving this question open), the exclusion would be insufficient. This is because the Court’s “double for-cause” rule applies to appointees who are “inferior officer[s].” Ante, at 2. And who are they? Courts and scholars have struggled for more than a century to define the constitutional term “inferior officers,” without much success. See 2 J. Story, Commentaries on the Constitution §1536, pp. 397–398 (3d ed. 1858) (“[T]here does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution”); Edmond v. United States , 520 U. S. 651 , 661 (1997) (“Our cases have not set forth an exclusive criterion for [defining] inferior officers”); Memorandum from Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, to the General Counsels of the Executive Branch: Officers of the United States Within the Meaning of the Appointments Clause, p. 3 (Apr. 16, 2007) (hereinafter OLC Memo), online at http://www.justice.gov/olc/2007/appointmentsclausev10.pdf (“[T]he Supreme Court has not articulated the precise scope and application of the [Inferior Officer] Clause’s requirements”); Konecke, The Appointments Clause and Military Judges: Inferior Appointment to a Principal Office, 5 Seton Hall Const. L. J. 489, 492 (1995) (same); Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L. Rev. 1335, 1347, 1364 (1976) (describing our early precedent as “circular” and our later law as “not particularly useful”). The Court does not clarify the concept. But without defining who is an inferior officer, to whom the majority’s new rule applies, we cannot know the scope or the coherence of the legal rule that the Court creates. I understand the virtues of a common-law case-by-case approach. But here that kind of approach (when applied without more specificity than I can find in the Court’s opinion) threatens serious harm.    The problem is not simply that the term “inferior officer” is indefinite but also that efforts to define it inevitably conclude that the term’s sweep is unusually broad. Consider the Court’s definitions: Inferior officers are, inter alia, (1) those charged with “the administration and enforcement of the public law,” Buckley, 424 U. S., at 139; ante, at 2; (2) those granted “significant authority,” 424 U. S., at 126; ante, at 25; (3) those with “responsibility for conducting civil litigation in the courts of the United States,” 424 U. S. , at 140; and (4) those “who can be said to hold an office,” United States v. Germaine , 99 U. S. 508 , 510 (1879), that has been created either by “regulations” or by “statute,” United States v. Mouat , 124 U. S. 303 , 307–308 (1888).    Consider the definitional conclusion that the Department of Justice more recently reached: An “inferior officer” is anyone who holds a “continuing” position and who is “invested by legal authority with a portion of the sovereign powers of the federal Government,” including, inter alia, the power to “arrest criminals,” “seize persons or property,” “issue regulations,” “issue … authoritative legal opinions,” “conduc[t] civil litigation,” “collec[t] revenue,” represent “the United States to foreign nations,” “command” military force, or enter into “contracts” on behalf “of the nation.” OLC Memo 1, 4, 12–13, 15–16 (internal quotation marks omitted; emphasis added).    And consider the fact that those whom this Court has held to be “officers” include: (1) a district court clerk, Hennen , 13 Pet., at 258; (2) “thousands of clerks in the Departments of the Treasury, Interior and the othe[r]” departments, Germaine , supra, at 511, who are responsible for “the records, books, and papers appertaining to the office,” Hennen, supra, at 259; (3) a clerk to “the assistant treasurer” stationed “at Boston,” United States v. Hartwell , 6 Wall. 385, 392 (1868); (4 & 5) an “assistant-surgeon” and a “cadet-engineer” appointed by the Secretary of the Navy, United States v. Moore , 95 U. S. 760 , 762 (1878); Perkins , 116 U. S., at 484; (6) election monitors, Ex parte Siebold , 100 U. S. 371 , 397–399 (1880); (7) United States attorneys, Myers , supra , at 159; (8) federal marshals, Sieblod, supra, at 397; Morrison, 487 U. S., at 676; (9) military judges, Weiss v. United States , 510 U. S., 163, 170 (1994); (10) judges in Article I courts, Freytag, 501 U. S., at 880–881; and (11) the general counsel of the Department of Transportation, Edmond v. United States , 520 U. S. 651 (1997). Individual Members of the Court would add to the list the Federal Communication Commission’s managing director, the Federal Trade Commission’s “secretary,” the general counsel of the Commodity Futures Trading Commission, and more generally, bureau chiefs, general counsels, and administrative law judges, see Freytag , supra , at 918–920 (Scalia, J., concurring in part and concurring in judgment), as well as “ordinary commissioned military officers,” Weiss, supra, at 182 (Souter, J., concurring).    Reading the criteria above as stringently as possible, I still see no way to avoid sweeping hundreds, perhaps thousands of high level government officials within the scope of the Court’s holding, putting their job security and their administrative actions and decisions constitutionally at risk. To make even a conservative estimate, one would have to begin by listing federal departments, offices, bureaus and other agencies whose heads are by statute removable only “for cause.” I have found 48 such agencies, which I have listed in Appendix A, infra . Then it would be necessary to identify the senior officials in those agencies (just below the top) who themselves are removable only “for cause.” I have identified 573 such high-ranking officials, whom I have listed in Appendix B, infra . They include most of the leadership of the Nuclear Regulatory Commission (including that agency’s executive director as well as the directors of its Office of Nuclear Reactor Regulation and Office of Enforcement), virtually all of the leadership of the Social Security Administration, the executive directors of the Federal Energy Regulatory Commission and the Federal Trade Commission, as well as the general counsels of the Chemical Safety Board, the Federal Mine Safety and Health Review Commission, and the National Mediation Board.    This list is a conservative estimate because it consists only of career appointees in the Senior Executive Service (SES), see 5 U. S. C. §§2101a, 3132(a)(2), a group of high-ranking officials distinct from the “competitive service,” see §2101(a)(1)(C), who “serve in the key positions just below the top Presidential appointees,” Office of Personnel Management, About the Senior Executive Service, online at http://www.opm.gov/ses/about_ses/index.asp; §2102(a)(1)(C), and who are, without exception, subject to “removal” only for cause. §§7542–7543; see also §2302(a)(2) (substantially limiting conditions under which “a career appointee in the Senior Executive Service” may be “transfer[red], or reassign[ed]”). SES officials include, for example, the Director of the Bureau of Prisons, the Director of the National Drug Intelligence Center, and the Director of the Office of International Monetary Policy in the Treasury Department. See Senate Committee on Homeland Security and Government Affairs, United States Government Policy and Supporting Positions (2008), pp. 99, 103, 129 (hereinafter Plum Book). And by virtually any definition, essentially all SES officials qualify as “inferior officers,” for their duties, as defined by statute, require them to “direc[t] the work of an organizational unit,” carry out high-level managerial functions, or “ otherwise exercis[e] important policy-making, policy-determining, or other executive functions .” §3132(a)(2) (emphasis added). Cf. ante, at 2 (describing an “inferior officer” as someone who “determines the policy and enforces the laws of the United States”); ante, at 26 (acknowledging that career SES appointees in independent agencies may be rendered unconstitutional in future cases). Is the SES exempt from today’s rule or is it not? The Court, after listing reasons why the SES may be different, simply says that it will not “addres[s]” the matter. Ante, at 27. Perhaps it does not do so because it cannot do so without revealing the difficulty of distinguishing the SES from the Accounting Board and thereby also revealing the inherent instability of the legal rule it creates.    The potential list of those whom today’s decision affects is yet larger. As Justice Scalia has observed, administrative law judges (ALJs) “are all executive officers.” Freytag, 501 U. S., at 910 (opinion concurring in part and concurring in judgment) (emphasis deleted); see also, e.g., id., at 881 (majority opinion) (“[A] [tax-court] special trial judge is an ‘inferior Officer’ ”); Edmond, supra, at 654 (“[M]ilitary trial and appellate judges are [inferior] officers”). But cf. ante, at 26, n. 10. And ALJs are each removable “only for good cause established and determined by the Merit Systems Protection Board,” 5 U. S. C. §§7521(a)–(b). But the members of the Merit Systems Protection Board are themselves protected from removal by the President absent good cause. §1202(d).    My research reflects that the Federal Government relies on 1,584 ALJs to adjudicate administrative matters in over 25 agencies. See Appendix C, infra; see also Memorandum of Juanita Love, Office of Personnel Management, to Supreme Court Library (May 28, 2010) (available in Clerk of Court’s case file). These ALJs adjudicate Social Security benefits, employment disputes, and other matters highly important to individuals. Does every losing party before an ALJ now have grounds to appeal on the basis that the decision entered against him is unconstitutional? Cf. ante, at 26, n. 10 (“[O]ur holding also does not address” this question).    And what about the military? Commissioned military officers “are ‘inferior officers.’ ” Weiss, 510 U. S., at 182 (Souter, J., concurring); id., at 169–170 (majority opinion). There are over 210,000 active-duty commissioned officers currently serving in the armed forces. See Dept. of Defense, Active Duty Military Personnel by Rank (Apr. 30, 2010), online at http://siadapp.dmdc.osd.mil/personnel/MILITARY/ rg1004.pdf. Numerous statutory provisions provide that such officers may not be removed from office except for cause (at least in peacetime). See, e.g., 10 U. S. C. §§629–632, 804, 1161, 1181–1185. And such officers can generally be so removed only by other commissioned officers, see §§612, 825, 1187, who themselves enjoy the same career protections.    The majority might simply say that the military is different. But it will have to explain how it is different. It is difficult to see why the Constitution would provide a President who is the military’s “commander-in-chief,” Art. II, §2, cl. 1, with less authority to remove “inferior” military “officers” than to remove comparable civil officials. See Barron & Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941, 1102–1106 (2008) (describing President’s “superintendence prerogative” over the military). Cf. ante, at 26–27 (not “expressing any view whatever” as to whether military officers’ authority is now unconstitutional).    The majority sees “no reason … to address whether” any of “these positions,” “or any others,” might be deemed unconstitutional under its new rule, preferring instead to leave these matters for a future case. Ante, at 27. But what is to happen in the meantime? Is the work of all these various officials to be put on hold while the courts of appeals determine whether today’s ruling applies to them? Will Congress have to act to remove the “for cause” provisions? Cf. Buckley , 424 U. S., at 142–143. Can the President then restore them via executive order? And, still, what about the military? A clearer line would help avoid these practical difficulties.    The majority asserts that its opinion will not affect the Government’s ability to function while these many questions are litigated in the lower courts because the Court’s holding concerns only “the conditions under which th[e]se officers might some day be removed.” Ante, at 27. But this case was not brought by federal officials challenging their potential removal. It was brought by private individuals who were subject to regulation “ ‘ here-and-now ’ ” and who “object to the” very “existence” of the regulators themselves. Ante, at 33, 8 (emphasis added). And those private individuals have prevailed. Thus, any person similarly regulated by a federal official who is potentially subject to the Court’s amorphous new rule will be able to bring an “implied private right of action directly under the Constitution” “seeking … a declaratory judgment that” the official’s actions are “unconstitutional and an injunction preventing the” official “from exercising [his] powers.” Ante, at 10, n. 2, 6; cf., e.g., Legal Services Corporation v. Velazquez , 531 U. S. 533 , 546 (2001) (affirming grant of preliminary injunction to cure, inter alia, a separation-of-powers violation); Youngstown Sheet & Tube Co. , 343 U. S. 579 (same). Such a plaintiff need not even first exhaust his administrative remedies. Ante, at 7–10.    Nor is it clear that courts will always be able to cure such a constitutional defect merely by severing an offending removal provision. For a court’s “ability to devise [such] a judicial remedy … often depends on how clearly” the “background constitutional rules at issue” have been “articulated”; severance will be unavailable “in a murky constitutional context,” which is precisely the context that the Court’s new rule creates. Ayotte v. Planned Parenthood of Northern New Eng. , 546 U. S. 320 , 329, 330 (2006). Moreover, “the touchstone” of the severability analysis “is legislative intent,” id., at 330, and Congress has repeatedly expressed its judgment “over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service,” Civil Service Comm’n , 413 U. S., at 557; see also Bush v. Lucas , 462 U. S. 367 , 380–388 (1983) (describing the history of “Congressional attention to the problem of politically-motivated removals”). And so it may well be that courts called upon to resolve the many questions the majority’s opinion raises will not only apply the Court’s new rule to its logical conclusion, but will also determine that the only available remedy to certain double for-cause problems is to invalidate entire agencies.    Thus, notwithstanding the majority’s assertions to the contrary, the potential consequences of today’s holding are worrying. The upshot, I believe, is a legal dilemma. To interpret the Court’s decision as applicable only in a few circumstances will make the rule less harmful but arbitrary. To interpret the rule more broadly will make the rule more rational, but destructive. III    One last question: How can the Court simply assume without deciding that the SEC Commissioners themselves are removable only “for cause?” See ante, at 5 (“[W]e decide the case with th[e] understanding” “that the Commissioners cannot themselves be removed by the President except” for cause (emphasis added)). Unless the Commissioners themselves are in fact protected by a “for cause” requirement, the Accounting Board statute, on the Court’s own reasoning, is not constitutionally defective. I am not aware of any other instance in which the Court has similarly (on its own or through stipulation) created a constitutional defect in a statute and then relied on that defect to strike a statute down as unconstitutional. Cf. Alabama v. North Carolina , 560 U. S. ___, ___ (2010) (opinion for the Court by Scalia, J.) (slip op., at 20) (“We do not—we cannot—add provisions to a federal statute … especially [if] … separation-of-powers concerns … would [thereby] arise”); The Anaconda v. American Sugar Refining Co. , 322 U. S. 42 , 46 (1944) (describing parties’ inability to “stipulate away” what “the legislation declares”).    It is certainly not obvious that the SEC Commissioners enjoy “for cause” protection. Unlike the statutes establishing the 48 federal agencies listed in Appendix A, infra , the statue that established the Commission says nothing about removal. It is silent on the question. As far as its text is concerned, the President’s authority to remove the Commissioners is no different from his authority to remove the Secretary of State or the Attorney General. See Shurtleff, 189 U. S., at 315 (“To take away th[e] power of removal … would require very clear and explicit language. It should not be held to be taken away by mere inference or implication”); see also Memorandum from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, to the Principal Deputy Counsel to the President: Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects, p. 2 (Oct. 23, 2009), online at http://justice.gov/olc/2009/gas-transport- project.pdf (“[Where] Congress did not explicitly provide tenure protection … the President, consistent with … settled principles, may remove … without cause”); The Constitutional Separation of Powers Between the President and Congress, 20 Op. Legal Counsel 124, 170 (1996) (same).    Nor is the absence of a “for cause” provision in the statute that created the Commission likely to have been inadvertent. Congress created the Commission during the 9-year period after this Court decided Myers, and thereby cast serious doubt on the constitutionality of all “for cause” removal provisions, but before it decided Humphrey’s Executor, which removed any doubt in respect to the constitutionality of making commissioners of independent agencies removable only for cause. In other words, Congress created the SEC at a time when, under this Court’s precedents, it would have been unconstitutional to make the Commissioners removable only for cause. And, during that 9-year period, Congress created at least three major federal agencies without making any of their officers removable for cause. See 48 Stat. 885, 15 U. S. C. §78d (Securities and Exchange Commission), 48 Stat. 1066, 47 U. S. C. §154 (Federal Communications Commission); 46 Stat. 797 (Federal Power Commission) (reformed post- Humphrey’s Executor as the Federal Energy Regulatory Commission with “for cause” protection, 91 Stat. 582, 42 U. S. C. §7171). By way of contrast, only one month after Humphrey’s Executor was decided, Congress returned to its pre- Myers practice of including such provisions in statutes creating independent commissions. See §3, 49 Stat. 451, 29 U. S. C. §153 (establishing National Labor Relations Board with an explicit removal limitation).    The fact that Congress did not make the SEC Commissioners removable “for cause” does not mean it intended to create a dependent, rather than an independent agency. Agency independence is a function of several different factors, of which “for cause” protection is only one. Those factors include, inter alia, an agency’s separate (rather than presidentially dependent) budgeting authority, its separate litigating authority, its composition as a multimember bipartisan board, the use of the word “independent” in its authorizing statute, and, above all, a political environment, reflecting tradition and function, that would impose a heavy political cost upon any President who tried to remove a commissioner of the agency without cause. See generally Breger & Edles 1135–1155.    The absence of a “for cause” provision is thus not fatal to agency independence. Indeed, a “Congressional Research Service official suggests that there are at least 13 ‘independent’ agencies without a removal provision in their statutes.” Id., at 1143, n. 161 (emphasis added) (citing congressional testimony). But it does draw the majority’s rule into further confusion. For not only are we left without a definition of an “inferior officer,” but we are also left to guess which department heads will be deemed by the majority to be subject to for-cause removal notwithstanding statutes containing no such provision. If any agency deemed “independent” will be similarly treated, the scope of the majority’s holding is even broader still. See Appendix D, infra (listing agencies potentially affected).    The Court then, by assumption, reads into the statute books a “for cause removal” phrase that does not appear in the relevant statute and which Congress probably did not intend to write. And it does so in order to strike down, not to uphold, another statute. This is not a statutory construction that seeks to avoid a constitutional question, but its opposite. See Ashwander v. TVA , 297 U. S. 288 , 347 (1936) (Brandeis, J., concurring) (“It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case” (internal quotation marks omitted)); NLRB v. Catholic Bishop of Chicago , 440 U. S. 490 , 500 (1979) (“[A]n Act of Congress ought not to be construed to violate the Constitution if any other possible construction remains available”).    I do not need to decide whether the Commissioners are in fact removable only “for cause” because I would uphold the Accounting Board’s removal provision as constitutional regardless. But were that not so, a determination that the silent SEC statute means no more than it says would properly avoid the determination of unconstitutionality that the Court now makes. *  *  *    In my view the Court’s decision is wrong—very wrong. As Parts II–A, II–B, and II–C of this opinion make clear, if the Court were to look to the proper functional and contextual considerations, it would find the Accounting Board provision constitutional. As Part II–D shows, insofar as the Court instead tries to create a bright-line rule, it fails to do so. Its rule of decision is both imprecise and overly broad. In light of the present imprecision, it must either narrow its rule arbitrarily, leaving it to apply virtually alone to the Accounting Board, or it will have to leave in place a broader rule of decision applicable to many other “inferior officers” as well. In doing the latter, it will undermine the President’s authority. And it will create an obstacle, indeed pose a serious threat, to the proper functioning of that workable Government that the Constitution seeks to create—in provisions this Court is sworn to uphold.    With respect I dissent. APPENDIXES A    There are 24 stand-alone federal agencies ( i.e., “ departments”) whose heads are, by statute, removable by the President only “for cause.” Moreover, there are at least 24 additional offices, boards, or bureaus situated within departments that are similarly subject, by statute, to for-cause removal provisions. The chart below first lists the 24 departments and then lists the 24 additional offices, boards, and bureaus. I have highlighted those instances in which a “for-cause” office is situated within a “for-cause” department— i.e., instances of “double for-cause” removal that are essentially indistinguishable from this case (with the notable exception that the Accounting Board may not be statutorily subject to two layers of for-cause removal, cf. Part III, supra ). This list does not include instances of “double for-cause” removal that arise in Article I courts, although such instances might also be affected by the majority’s holding, cf. ante, at 26, n. 10. Compare 48 U. S. C. §§1424(a), 1614(a), with 28 U. S. C. §§631(a), (i), and 18 U. S. C. §§23, 3602(a). Department Statutory Removal Provision 1 Chemical Safety Board “Any member of the Board, including the Chairperson, may be removed for inefficiency, neglect of duty, or malfeasance in office.” 42 U. S. C. §7412(r)(6)(B) 2 Commission on Civil Rights “The President may remove a member of the Commission only for neglect of duty or malfeasance in office.” 42 U. S. C. §1975(e) 3 Consumer Product Safety Commission “Any member of the Commission may be removed by the President for neglect of duty or malfeasance in office but for no other cause.” 15 U. S. C. §2053(a) 4 Federal Energy Regulatory Commission “Members shall hold office for a term of 5 years and may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 42 U. S. C. §7171(b)(1) 5 Federal Labor Relations Authority “Members of the Authority shall be appointed by the President by and with the advice and consent of the Senate, and may be removed by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office.” 5 U. S. C. §7104(b) 6 Federal Maritime Commission “The President may remove a Commissioner for inefficiency, neglect of duty, or malfeasance in office.” 46 U. S. C. §301(b)(3) 7 Federal Mine Safety and Health Review Commission “Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” 30 U. S. C. §823(b)(1) 8 Federal Reserve Board “[E]ach member shall hold office for a term of fourteen years from the expiration of the term of his predecessor, unless sooner removed for cause by the President.” 12 U. S. C. §242 9 Federal Trade Commission “Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” 15 U. S. C. §41 10 Independent Medicare Advisory Board “Any appointed member may be removed by the President for neglect of duty or malfeasance in office, but for no other cause.” Pub. L. 111–148, §3403. 11 Merit Systems Protection Board “Any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U. S. C. §1202(d) 12 National Labor Relations Board “Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” 29 U. S. C. §153(a) 13 National Mediation Board “A member of the Board may be removed by the President for inefficiency, neglect of duty, malfeasance in office, or ineligibility, but for no other cause.” 45 U. S. C. §154 14 National Transportation Safety Board “The President may remove a member for inefficiency, neglect of duty, or malfeasance in office.” 49 U. S. C. §1111(c) 15 Nuclear Regulatory Commission “Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” 42 U. S. C. §5841(e) 16 Occupational Safety and Health Review Commission “A member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” 29 U. S. C. §661(b) 17 Office of Special Counsel “The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U. S. C. §1211(b) 18 Postal Regulatory Commission “The Commissioners shall be chosen solely on the basis of their technical qualifications, professional standing, and demonstrated expertise in economics, accounting, law, or public administration, and may be removed by the President only for cause.” 39 U. S. C. §502(a) 19 Postal Service * “The exercise of the power of the Postal Service shall be directed by a Board of Governors composed of 11 members … . The Governors shall not be representatives of specific interests using the Postal Service, and may be removed only for cause.” 39 U. S. C. §202 20 Social Security Administration “[The] Commissioner may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office.” 42 U. S. C. §902(a)(3) 21 United States Institute of Peace * “A member of the Board appointed under subsection (b)(5) … may be removed by the President . . . in consultation with the Board, for conviction of a felony, malfeasance in office, persistent neglect of duties, or inability to discharge duties.” 22 U. S. C. §4605(f) 22 United States Sentencing Commission “The Chair, Vice Chairs, and members of the Commission shall be subject to removal from the Commission by the President only for neglect of duty or malfeasance in office or for other good cause shown.” 28 U. S. C. §991(a) 23 Legal Services Corporation * “A member of the Board may be removed by a vote of seven members for malfeasance in office or for persistent neglect of or inability to discharge duties, or for offenses involving moral turpitude, and for no other cause.” 42 U. S. C. §2996c(e) 24 State Justice Institute * “A member of the Board may be removed by a vote of seven members for malfeasance in office, persistent neglect of, or inability to discharge duties, or for any offense involving moral turpitude, but for no other cause.” 42 U. S. C. §10703(h) Office Within Department Statutory Removal Provision 25 Department of Agriculture: National Appeals Division “The Division shall be headed by a Director, appointed by the Secretary from among persons who have substantial experience in practicing administrative law. . . . The Director shall not be subject to removal during the term of office, except for cause established in accordance with law.” 7 U. S. C. §§6992(b)(1)–(2) 26 Department of Agriculture: Regional Fishery Management Councils “The Secretary may remove for cause any member of a Council required to be appointed by the Secretary . . . .” 16 U. S. C. §1852(b)(6) 27 Department of Commerce: Corporation for Travel Promotion † “The Secretary of Commerce may remove any member of the board [of the Corporation] for good cause.” 124 Stat. 57 28 Department of Defense: Office of Navy Reserve “The Chief of Navy Reserve is appointed for a term determined by the Chief of Naval Operations, normally four years, but may be removed for cause at any time.” 10 U. S. C. §5143(c)(1) 29 Department of Defense: Office of Marine Forces Reserve “The Commander, Marine Forces Reserve, is appointed for a term determined by the Commandant of the Marine Corps, normally four years, but may be removed for cause at any time.” 10 U. S. C. §5144(c)(1) 30 Department of Defense: Office of Air Force Reserve “The Chief of Air Force Reserve is appointed for a period of four years, but may be removed for cause at any time.” 10 U. S. C. §8038(c)(1) 31 Department of Defense: Joint Staff of the National Guard Bureau “[A]n officer appointed as Director of the Joint Staff of the National Guard Bureau serves for a term of four years, but may be removed from office at any time for cause.” 10 U. S. C. §10505(a)(3)(A) Office Within Department Statutory Removal Provision 32 Department of Defense: Board of Actuaries “A member of the Board may be removed by the Secretary of Defense only for misconduct or failure to perform functions vested in the Board.” 10 U. S. C. A. §183(b)(3) (2010) 33 Department of Defense: Medicare-Eligible Retiree Health Care Board of Actuaries “A member of the Board may be removed by the Secretary of Defense for misconduct or failure to perform functions vested in the Board, and for no other reason.” 10 U. S. C. §1114(a)(2)(A) 34 Department of Education: Performance-Based Organization for the Delivery of Federal Student Financial Assistance “The Chief Operating Officer may be removed by … the President; or … the Secretary, for misconduct or failure to meet performance goals set forth in the performance agreement in paragraph (4).” 20 U. S. C. §1018(d)(3) 35 Federal Labor Relations Authority: Foreign Service Labor Relations Board (see supra, row 5) “The Chairperson [of the FLRA, who also chairs the Board] may remove any other Board member … for corruption, neglect of duty, malfeasance, or demonstrated incapacity to perform his or her functions … .” 22 U. S. C. §4106(e) 36 General Services Administration: Civilian Board of Contract Appeals (see supra, row 11) “Members of the Civilian Board shall be subject to removal in the same manner as administrative law judges, [i.e., ‘only for good cause established and determined by the Merit Systems Protection Board.’] ” 41 U. S. C. §438(b)(2) (emphasis added) 37 Department of Health and Human Services: National Advisory Council on National Health Service Corps “No member shall be removed, except for cause.” 42 U. S. C. §254j(b) 38 Department of Health and Human Services: Medicare & Medicaid Office of the Chief Actuary “The Chief Actuary may be removed only for cause.” 42 U. S. C. §1317(b)(1) 39 Department of Homeland Security: Office of the Coast Guard Reserve “An officer may be removed from the position of Director for cause at any time.” 14 U. S. C. §53(c)(1) 40 Department of the Interior: National Indian Gaming Commission “A Commissioner may only be removed from office before the expiration of the term of office of the member by the President (or, in the case of associate member, by the Secretary) for neglect of duty, or malfeasance in office, or for other good cause shown.” 25 U. S. C. §2704(b)(6) 41 Library of Congress: Copyright Royalty Judgeships “The Librarian of Congress may sanction or remove a Copyright Royalty Judge for violation of the standards of conduct adopted under subsection (h), misconduct, neglect of duty, or any disqualifying physical or mental disability.” 17 U. S. C. §802(i) 42 Postal Service: Inspector General (see supra, row 19) “The Inspector General may at any time be removed upon the written concurrence of at least 7 Governors, but only for cause.” 39 U. S. C. §202(e)(3) 43 Securities and Exchange Commission: Public Company Accounting Oversight Board “A member of the Board may be removed by the Commission from office … for good cause shown . . . .” 15 U. S. C. §7211(e)(6) 44 Social Security Administration: Office of the Chief Actuary (see supra, row 20) “The Chief Actuary may be removed only for cause.” 42 U. S. C. §902(c)(1) 45 Department of State: Foreign Service Grievance Board “The Secretary of State may, upon written notice, remove a Board member for corruption, neglect of duty, malfeasance, or demonstrated incapacity to perform his or her functions, established at a hearing (unless the right to a hearing is waived in writing by the Board member).” 22 U. S. C. §4135(d) 46 Department of Transportation: Air Traffic Services Committee “Any member of the Committee may be removed for cause by the Secretary.” 49 U. S. C. §106(p)(6)(G) 47 Department of Transportation: Surface Transportation Board “The President may remove a member for inefficiency, neglect of duty, or malfeasance in office.” 49 U. S. C. §701(b)(3) 48 Department of Veterans Affairs: Board of Veterans Appeals “The Chairman may be removed by the President for misconduct, inefficiency, neglect of duty, or engaging in the practice of law or for physical or mental disability which, in the opinion of the President, prevents the proper execution of the Chairman’s duties. The Chairman may not be removed from office by the President on any other grounds.” 38 U. S. C. §7101(b)(2) B The table that follows lists the 573 career appointees in the Senior Executive Service (SES) who constitute the upper level management of the independent agencies listed in Appendix A, supra. Each of these officials is, under any definition—including the Court’s—an inferior officer, and is, by statute, subject to two layers of for-cause removal. See supra, at 25–30. The data are organized into three columns: The first column lists the “office” to which the corresponding official is assigned within the respective agency and, where available, the provision of law establishing that office. Cf. supra, at 27 (citing Mouat , 124 U. S., at 307–308; Germaine , 99 U. S., at 510). The second and third columns respectively list the career appointees in each agency who occupy “general” and “reserved” SES positions. A “general” position is one that could be filled by either a career appointee or by a noncareer appointee were the current (career) occupant to be replaced. See 5 U. S. C. §3132(b)(1). Because 90% of all SES positions must be filled by career appointees, §3134(b), “most General positions are filled by career appointees,” Plum Book 200. A “reserved” position, by contrast, must always be filled by a career appointee. §3132(b)(1). The data for the “general position” column come from the 2008 Plum Book, a quadrennial manual prepared by the congressional committees responsible for government oversight. See supra, at 29. Positions listed as vacant in that source are not included. The data for the “reserved position” column come from a list periodically published by the Office of Personnel Management and last published in 2006. See 72 Fed. Reg. 16154–16251 (2007); §3132(b)(4). Given the Federal Government’s size and the temporal lag between the underlying sources, the list that follows is intended to be illustrative, not exact. Nuclear Regulatory Commission (192) Office General Position Reserved Position Office of the Executive Director for Operations 10 CFR §1.32 (2009) Executive Director Director of Nuclear Security Projects Deputy Executive Director for Reactor and Preparedness Programs Deputy Executive Director for Materials, Waste, Research, State, Tribal, and Compliance, Programs Deputy Executive Director for Corporate Management Assistant for Operations Director for Strategic Organizational Planning and Optimization Office of the Secretary 10 CFR §1.25 Secretary Office of the Chief Financial Officer 10 CFR §1.31 Chief Financial Officer Director, Division of Planning, Budget and Analysis Director, Division of Financial Services Deputy Chief Financial Officer Director, Division of Financial Management Office of the Inspector General 10 CFR §1.12 Deputy Inspector General Assistant Inspector General for Audits Assistant Inspector General for Investigations Office of the General Counsel 10 CFR §1.23 General Counsel Director, Commission Adjudicatory Technical Support Deputy General Counsel Deputy Assistant General Counsel for Rulemaking and Fuel Cycle Solicitor Deputy Assistant General Counsel for Administration Associate General Counsel for Licensing and Regulation Assistant General Counsel for Operating Reactors Assistant General Counsel for Rulemaking and Fuel Cycle Office General Position Reserved Position Office of the General Counsel (Continued) Assistant General Counsel for Legal Counsel, Legislation, and Special Projects Associate General Counsel for Hearings, Enforcement, and Administration Assistant General Counsel for New Reactor Programs Assistant General Counsel for Operating Reactors Assistant General Counsel for the High-Level Waste Repository Programs Office of Commission Appellate Adjudication 10 CFR §1.24 Director Office of Congressional Affairs 10 CFR §1.27 Director Office of Public Affairs 10 CFR §1.28 Director Office of International Programs 10 CFR §1.29 Director Deputy Director Office of Investigations 10 CFR §1.36 Director Deputy Director Office of Enforcement 10 CFR §1.33 Director Office of Administration 10 CFR §1.34 Director Deputy Director Director, Division of Contracts Director, Division of Administrative Services Director, Division of Facilities and Security Office of Human Resources 10 CFR §1.39 Director Deputy Director Associate Director for Training and Development Office General Position Reserved Position Office of Information Services 10 CFR §1.35 Director Deputy Director Director, Information and Records Services Division Director, High-Level Waste Business and Program Integration Staff Director, Business Process Improvement and Applications Director, Program Management, Policy Development and Analysis Staff Director, Infrastructure and Computer Operations Office of Nuclear Security and Incident Response 10 CFR §1.46 Director Deputy Director (2) Director, Program Management, Policy Development (Division of Security Policy) Director Deputy Director Project Director, Nuclear Security Policy Project Director, Nuclear Security Operations Deputy Director for Material Security Deputy Director for Reactor Security and Rulemaking (Division of Preparedness and Response) Director Deputy Director (2) Deputy Director for Emergency Preparedness (Division of Security Operations) Director Deputy Director for Security Oversight Deputy Director for Security Programs Office of Nuclear Reactor Regulation 10 CFR §1.43 Director Director, Program Management, etc. Deputy Director Deputy Director, Program Management, etc. Office General Position Reserved Position Office of Nuclear Reactor Regulation (Continued) Associate Director, Operating Reactor Oversight and Licensing Associate Director, Risk Assessment and New Projects Associate Director, Engineering and Safety Systems (Division of Safety Systems) Director Deputy Director (2) (Division of License Renewal) Director Deputy Director (Division of Operating Reactor Licensing) Director Deputy Director (2) (Division of Inspection and Regional Support) Director Deputy Director (2) (Division of New Reactor Licensing) Director Deputy Director (2) (Division of Engineering) Director Deputy Director (3) (Division of Risk Assessment) Director Deputy Director (2) (Division of Policy and Rulemaking) Director Deputy Director (2) (Division of Component Integrity) Director Deputy Director Office of New Reactors 10 CFR §1.44 Director Assistant to the Director for Transition Management Office of Nuclear Material Safety and Safeguards 10 CFR §1.42 Director Director, Program Planning, etc. Deputy Director (Division of Fuel Cycle Safety and Safeguards) Chief, Special Projects Branch Chief, Safety and Safeguards Support Branch Chief, Fuel Cycle Facilities Branch Office General Position Reserved Position (Division of Industrial and Medical Nuclear Safety) Chief, Rulemaking and Guidance Branch Chief, Materials Safety and Inspection Branch (Division of High Level Waste Repository Safety) Deputy Director, Licensing and Inspection Deputy Director, Technical Review Directorate (2) (Spent Fuel Project Office) Deputy Director, Technical Review Directorate Deputy Director, Licensing and Inspection Office of Federal and State Materials and Environmental Management Programs 10 CFR §1.41 Director Deputy Director Director, Program Planning, etc. (Division of Waste Management and Environmental Protection) Director Deputy Director, Decommissioning (2) Deputy Director, Environmental Protection (2) Chief, Environmental and Performance Assessment (Division of Materials Safety and State Agreements) Director Deputy Director (Division of Intergovernmental Liaison and Rulemaking) Director Deputy Director Office of Nuclear Regulatory Research 10 CFR §1.45 Director Director, Program Management, etc. Deputy Director Deputy Director for Materials Engineering Regional Administrator (4) Deputy Director for Engineering Research Applications Deputy Director for New Reactors and Computational Analysis Deputy Director for Probabilistic Risk and Applications Office General Position Reserved Position Office of Nuclear Regulatory Research ( Continued) Deputy Director for Operating Experience and Risk Analysis Deputy Director for Radiation Protection, Environmental Risk and Waste Management (Division of Engineering Technology) Chief, Generic Safety Issues Branch Chief, Electrical, Mechanical, and Materials Branch Chief, Structural and Geological Engineering Branch Chief, Materials Engineering Branch Chief, Engineering Research Applications Branch (Division of Systems Analysis and Regulatory Effectiveness) Deputy Director Chief, Advanced Reactors and Regulatory Effectiveness Chief, Safety Margins and Systems Analysis Branch Chief, Radiation Protection, etc. (Division of Risk Analysis and Application) Deputy Director Chief, Operating Experience Risk Analysis Branch Chief, Probabilistic Risk Analysis Branch (Division of Risk Assessment and Special Projects) Director Assistant Director(2) (Division of Fuel, Engineering and Radiological Research) Director Assistant Director Office of Small Business and Civil Rights 10 CFR §1.37 Director Advisory Committee on Reactor Safeguards 10 CFR §1.13 Executive Director Deputy Executive Director Office General Position Reserved Position Regional Offices 10 CFR §1.47 Deputy Regional Administrator (5) Director, Division of Fuel Facility Inspection (1) Director, Division of Reactor Projects (4) Deputy Director, Division of Reactor Projects (5) Director, Division of Reactor Safety (4) Deputy Director, Division of Reactor Safety (4) Director, Division of Nuclear Materials Safety (3) Deputy Director, Division of Nuclear Materials Safety Deputy Director, Division of Radiation Safety, etc. Social Security Administration (143) Office General Position Reserved Position Office of the Commissioner 33 Fed. Reg. 5828 (1968) Executive Counselor to the Commissioner Deputy Chief of Staff Director for Regulations Senior Advisor to the Deputy Commissioner Senior Advisor to the Commissioner Office of International Programs 63 Fed. Reg. 41888 (1998) Associate Commissioner for International Programs Office of Executive Operations 56 Fed. Reg. 15888 (1991) Assistant Inspector General Office of the Chief Actuary 42 U. S. C. §902(c)(1) 33 Fed. Reg. 5828 Chief Actuary Deputy Chief Actuary, Long-Range Deputy Chief Actuary, Short-Range Office General Position Reserved Position Office of the Chief Information Officer 33 Fed. Reg. 5829 Deputy Chief Information Officer Director, Office of Information Technology Systems Review Office of Information Technology Investment Management Associate Chief Information Officer Office of Budget, Finance and Management 60 Fed. Reg. 22099 (1995) Deputy Commissioner Assistant Deputy Commissioner Office of Acquisition and Grants 60 Fed. Reg. 22099 Associate Commissioner Office of Budget 60 Fed. Reg. 22099 Associate Commissioner Deputy Associate Commissioner Office of Facilities Management 60 Fed. Reg. 22099 Associate Commissioner Deputy Associate Commissioner Office of Financial Policy and Operations 56 Fed. Reg. 15888 Associate Commissioner Deputy Associate Commissioner Office of Publications and Logistics Management 60 Fed. Reg. 22099 Associate Commissioner Deputy Associate Commissioner Office of Communications 62 Fed. Reg. 9476 (1997) Assistant Deputy Commissioner Press Officer Office of Communications Planning and Technology 63 Fed. Reg. 15476 Associate Commissioner Office of Public Inquiries 62 Fed. Reg. 9477 Associate Commissioner Office General Position Reserved Position Office of Disability Adjudication and Review Deputy Commissioner Assistant Deputy Commissioner Office of Appellate Operations 53 Fed. Reg. 29778 (1988) Executive Director Office of the General Counsel 65 Fed. Reg. 39218 (2000) Deputy General Counsel Office of General Law 65 Fed. Reg. 39218 Associate General Counsel Office of Public Disclosure 67 Fed. Reg. 63186 (2002) Executive Director Office of Regional Chief Counsels 65 Fed. Reg. 39219 Regional Chief Counsel (7) Office of Human Resources 60 Fed. Reg. 22128 Deputy Commissioner Assistant Deputy Commissioner Office of Civil Rights and Equal Opportunity 60 Fed. Reg. 22128 Associate Commissioner Office of Labor Management and Employee Relations Associate Commissioner Deputy Associate Commissioner Office of Personnel 60 Fed. Reg. 22128 Associate Commissioner Deputy Associate Commissioner Office of Training 60 Fed. Reg. 22128 Associate Commissioner Office of the Inspector General 42 U. S. C. §902(e) 60 Fed. Reg. 22133 Deputy Inspector General Counsel to the Inspector General Office General Position Reserved Position Office of Audits 60 Fed. Reg. 22133 Assistant Inspector General for Audit Deputy Assistant Inspector General for Audit Office of Investigations 60 Fed. Reg. 22133 Assistant Inspector General Deputy Assistant Inspector General for Field Investigations Deputy Assistant Inspector General for National Investigative Operations Office of Legislation and Congressional Affairs 60 Fed. Reg. 22152 Senior Advisor to the Deputy Commissioner Office of Legislative Development 65 Fed. Reg. 10846 Associate Commissioner Office of Operations 60 Fed. Reg. 22107 Deputy Commissioner Assistant Deputy Commissioner Office of Automation Support 60 Fed. Reg. 22108 Associate Commissioner Office of Central Operations 63 Fed. Reg. 32275 Associate Commissioner Deputy Associate Commissioner Assistant Associate Commissioner Assistant Associate Commissioner for Management and Operations Support Office of Disability Determinations 67 Fed. Reg. 69288 Associate Commissioner Deputy Associate Commissioner Office of Electronic Services 66 Fed. Reg. 29618 (2001) Associate Commissioner Office of Public Service and Operations Support 59 Fed. Reg. 56511 (1994) Associate Commissioner Deputy Associate Commissioner Office General Position Reserved Position Office of Telephone Services 60 Fed. Reg. 22108 Associate Commissioner Deputy Associate Commissioner Office of Regional Commissioners 60 Fed. Reg. 22108 Regional Commissioners (10) Deputy Regional Commissioner (10) Assistant Regional Commissioner (15) Office of Retirement and Disability Policy Deputy Commissioner Assistant Deputy Commissioner (2) Senior Advisor for Program Outreach Office of Disability Programs 67 Fed. Reg. 69289 Associate Commissioner Office of Employment Support Programs 64 Fed. Reg. 19397 (1999) Associate Commissioner Office of Income Security Programs 67 Fed. Reg. 69288 Associate Commissioner Deputy Associate Commissioner Office of Medical and Vocational Expertise Associate Commissioner Office of Research, Evaluation and Statistics 61 Fed. Reg. 35847 (1996) Associate Commissioner Office of Systems 60 Fed. Reg. 22116 Deputy Commissioner Assistant Deputy Commissioner Office of Disability Systems 61 Fed. Reg. 35849 Associate Commissioner Deputy Associate Commissioner Office of Supplemental Security Income Systems 67 Fed. Reg. 37892 Associate Commissioner Deputy Associate Commissioner Office General Position Reserved Position Office of Earnings, Enumeration and Administrative Systems 67 Fed. Reg. 37892 Associate Commissioner Deputy Associate Commissioner Office of Enterprise Support, Architecture and Engineering 67 Fed. Reg. 37892 Associate Commissioner Deputy Associate Commissioner (2) Office of Retirement and Survivors Insurance Systems 67 Fed. Reg. 37892 Associate Commissioner Deputy Associate Commissioner Office of Systems Electronic Services 66 Fed. Reg. 10766 (2001) Associate Commissioner Deputy Associate Commissioner Office of Quality Performance 63 Fed. Reg. 32035 Deputy Commissioner Chief Quality Officer Assistant Deputy Commissioner Deputy Chief Quality Officer Deputy Associate Commissioner Office of Quality Data Management Associate Commissioner Office of Quality Improvement Associate Commissioner Deputy Associate Commissioner Office of Quality Review Associate Commissioner Deputy Associate Commissioner Office of the Chief Strategic Officer 67 Fed. Reg. 79950 Chief Strategic Officer National Labor Relations Board (60) Office General Position Reserved Position Office of the Board 29 U. S. C. §153(a) Director, Office of Representation Appeals and Advice Executive Secretary Solicitor Deputy Executive Secretary Deputy Chief Counsel to Board Member (4) Inspector General Chief Information Officer Office General Position Reserved Position Office of the General Counsel 29 U. S. C. §153(d) Deputy General Counsel (Division of Enforcement Litigation) Associate General Counsel Deputy Associate General Counsel Deputy Associate General Counsel, Appellate Court Branch Director, Office of Appeals (Division of Advice) Associate General Counsel Deputy Associate General Counsel (Division of Administration) Director Deputy Director (Division of Operations Management) Associate General Counsel Deputy Associate General Assistant General Counsel (6) Regional Offices 29 U. S. C. §153(b) Regional Director (33) Federal Energy Regulatory Commission (44) Office General Position Reserved Position Office of the Executive Director 18 CFR §1.101(e) (2009) Executive Director Deputy Executive Director Deputy Chief Information Officer Office of General Counsel 18 CFR §1.101(f) General Counsel Deputy General Counsel Associate General Counsel (3) Deputy Associate General Counsel (4) Solicitor Office of Energy Market Regulation 18 CFR §376.204(b)(2)(ii) Director Deputy Director Director, Tariffs and Market Development (3) Director, Policy Analysis and Rulemaking Director, Administration, Case Management, and Strategic Planning Office General Position Reserved Position Office of Energy Projects 18 CFR §376.204(b)(2)(iii) Director Director, Dam Safety and Inspections Principal Deputy Director Deputy Director Director, Hydropower Licensing Director, Pipeline Certificates Director, Gas Environment and Engineering Director, Hydropower Administration and Compliance Office of Enforcement 18 CFR §376.204(b)(2)(vi) Director Chief Accountant and Director, Division of Financial Regulations Deputy Director Chief, Regulatory Accounting Branch Director, Investigations Deputy Director, Investigations Director, Audits Director, Energy Market Oversight Office of Electric Reliability 18 CFR §376.204(b)(2)(iv) Director Deputy Director Director, Compliance Director, Logistics and Security Office of Administrative Litigation 64 Fed. Reg. 51226 (1999) 68 Fed. Reg. 27056 (2003) Director Director, Technical Division Director, Legal Division Senior Counsel for Litigation Federal Trade Commission (31) Office General Position Reserved Position Office of the Chairman 16 CFR §0.8 (2010) Secretary Office of the Executive Director 16 CFR §0.10 Executive Director Deputy Executive Director Chief Financial Officer Chief Information Officer Office General Position Reserved Position Office of the General Counsel 16 CFR §0.11 Principal Deputy General Counsel Deputy General Counsel for Policy Studies Deputy General Counsel for Litigation Deputy General Counsel for Legal Counsel Office of International Affairs 16 CFR §0.20 Director Deputy Director Bureau of Competition 16 CFR §0.16 Associate Director Associate Director, Policy Assistant Director, Mergers (2) Assistant Director, Compliance Bureau of Consumer Protection 16 CFR §0.17 Director Associate Director for International Division Deputy Director (2) Associate Director for Privacy and Identity Protection Associate Director for Advertising Practices Associate Director for Marketing Practices Associate Director for Financial Practices Associate Director for Consumer and Business Education Associate Director for Planning and Information Associate Director for Enforcement Bureau of Economics 16 CFR §0.18 Deputy Director for Research and Development and Operations Deputy Director for Antitrust Associate Director for Consumer Protection and Research Office of the Inspector General 16 CFR §0.13 Inspector General Consumer Product Safety Commission (16) Office General Position Reserved Position Office of the Executive Director 16 CFR §1000.18 (2010) Deputy Executive Director Assistant Executive Director for Compliance and Administrative Litigation Chief Financial Officer Associate Executive Director for Field Operations Executive Assistant Office of Compliance and Field Operations 16 CFR §1000.21 Deputy Director Office of Hazard Identification and Reduction 16 CFR §1000.25 Assistant Executive Director Deputy Assistant Executive Director Associate Executive Director for Economic Analysis Associate Executive Director for Engineering Sciences Associate Executive Director for Epidemiology Directorate for Health Sciences 16 CFR §1000.27 Associate Executive Director Directorate for Laboratory Sciences 16 CFR §1000.30 Associate Executive Director Office of International Programs and Intergovernmental Affairs 16 CFR §1000.24 Director Office of Information and Technology Services 16 CFR §1000.23 Assistant Executive Director Office of the General Counsel 16 CFR §1000.14 General Counsel Federal Labor Relations Authority (14) Office General Position Reserved Position Office of the Chairman 5 CFR §2411.10(a) (2010) Director, Human Resources, Policy and Performance Management Chief Counsel Senior Advisor Office General Position Reserved Position Office of the Solicitor 5 CFR §2417.203(a) Solicitor Offices of Members 5 U. S. C. §7104(b) Chief Counsel (2) Office of the Executive Director 5 U. S. C. §7105(d) 5 CFR §2421.7 Executive Director Federal Services Impasses Panel 5 U. S. C. §7119(c) Executive Director Office of the General Counsel 5 U. S. C. §7104(f) Deputy General Counsel Regional Offices 5 U. S. C. §7105(d) 5 CFR §2421.6 Regional Director (5) National Transportation Safety Board (14) Office General Position Reserved Position Office of the Managing Director 49 CFR §800.2(c) (2009) Managing Director Associate Managing Director for Quality Assurance Office of the General Counsel 49 CFR §800.2(c) General Counsel Office of Administration 60 Fed. Reg. 61488 Director Director, Bureau of Accident Investigation Office of Aviation Safety 49 CFR §800.2(e) Deputy Director, Technology and Investment Operations Deputy Director, Regional Operations Office of Research and Engineering 49 CFR §800.2(j) Director Deputy Director Office of Chief Financial Officer 49 U. S. C. §1111(h) 49 CFR §800.28 Chief Financial Officer Office of Safety Recommendations and Accomplishments 49 CFR §800.2(k) Director Office General Position Reserved Position Office of Railroad, Pipeline and Hazardous Materials Investigations 49 CFR §§800.2(f), (i) Director National Transportation Safety Board Academy 49 U. S. C. §1117 Director President and Academic Dean Performance-Based Organization for the Delivery of Federal Student Financial Assistance (13) Office General Position Reserved Position Office of the Chief Operating Officer 20 U. S. C. §§1018(d)–(e) Deputy Chief Operating Officer Director, Student Aid Awareness Chief Financial Officer Chief Compliance Officer Director, Policy Liaison and Implementation Staff Audit Officer Director, Financial Management Group Director, Budget Group Deputy Chief Information Officer Director, Application Development Group Internal Review Officer Director, Strategic Planning and Reporting Group Senior Adviser Merit Systems Protection Board (11) Office General Position Reserved Position Office of the Clerk of the Board 5 CFR §1200.10(a)(4) (2010) Clerk of the Board Office of Financial and Administrative Management 5 CFR §1200.10(a)(8) Director Office of Policy and Evaluation 5 CFR §1200.10(a)(6) Director Office General Position Reserved Position Office of Information Resources Management 5 CFR §1200.10(a)(9) Director Office of Regional Operations 5 CFR §1200.10(a)(1) Director Regional Director (6) Office of Special Counsel (8) Office General Position Reserved Position Office of Special Counsel 5 U. S. C. §1211 Deputy Special Counsel Associate Special Counsel for Investigation and Prosecution (3) Senior Associate Special Counsel for Investigation and Prosecution Associate Special Counsel, Planning and Oversight Associate Special Counsel for Legal Counsel and Policy. Director of Management and Budget Postal Regulatory Commission (10)* Office General Position Reserved Position Office of the General Counsel 39 CFR §3002.13 (2009) General Counsel Assistant General Counsel Office of Accountability and Compliance Director Assistant Director, Analysis and Pricing Division Assistant Director, Auditing and Costing Division Office of Public Affairs and Governmental Relations 39 CFR §3002.15 Director Office General Position Reserved Position Office of the Secretary and Administration 48 Fed. Reg. 13167 (1983) Secretary and Director Assistant Director, Human Resources and Infrastructure Assistant Director, Strategic Planning, etc. Office of the Inspector General 39 CFR §3002.16 Inspector General Federal Maritime Commission (8) Office General Position Reserved Position Office of the Managing Director 46 CFR §501.3(h) (2010) 75 Fed. Reg. 29452 Director Office of the Secretary 46 CFR §501.3(c) Secretary Office of the General Counsel 46 CFR §501.3(d) Deputy General Counsel for Reports, Opinions and Decisions Bureau of Certification and Licensing 46 CFR §501.3(h)(5) Director Bureau of Trade Analysis 46 CFR §501.3(h)(6) Director Bureau of Enforcement 46 CFR §501.3(h)(7) Director Deputy Director Office of Administration 70 Fed. Reg. 7660 (2005) Director Surface Transportation Board (4) Office General Position Reserved Position Office of the Chairman 49 CFR §1011.3 (2009) Director of Public Assistance, Governmental Affairs and Compliance Office of the General Counsel 49 CFR §1011.6(c)(3) General Counsel Deputy General Counsel Office of Proceedings 49 CFR §1011.6(h) Director Federal Mine Safety and Health Review Commission (1) Office General Position Reserved Position Office of the General Counsel 29 CFR §2706.170(c) (2009) General Counsel Chemical Safety and Hazard Investigation Board (1) Office General Position Reserved Position Office of the General Counsel 40 CFR §1600.2 (b)(3) (2009) General Counsel National Mediation Board (1) Office General Position Reserved Position Office of the General Counsel 29 CFR §1209.06(e) (2009) General Counsel Commission on Civil Rights (1) Office General Position Reserved Position Office of the Staff Director 42 U. S. C. §1975b(a)(2)(A) Associate Deputy Staff Director Board of Veterans Appeals (1) Office General Position Reserved Position Office of the Vice Chairman 38 U. S. C. §7101(a) Vice Chairman C According to data provided by the Office of Personnel Management, reprinted below, there are 1,584 administrative law judges (ALJs) in the Federal Government. Each of these ALJs is an inferior officer and each is subject, by statute, to two layers of for-cause removal. See supra, at 30. The table below lists the 28 federal agencies that rely on ALJs to adjudicate individual administrative cases. The source is available in the Clerk of Court’s case file. See ibid . AGENCY TOTAL NUMBER OF ALJs Commodity Futures Trading Commission 2 Department of Agriculture 4 Department of Education 1 Department of Health and Human Services (Departmental Appeals Board) 7 Department of Health and Human Services (Food and Drug Administration) 1 Department of Health and Human Services (Office of Medicare Hearings and Appeals) 65 Department of Homeland Security (United States Coast Guard) 6 Department of Housing and Urban Development 2 Department of the Interior 9 Department of Justice (Drug Enforcement Administration) 3 Department of Justice (Executive Office for Immigration Review) 1 Department of Labor (Office of the Secretary) 44 Department of Transportation 3 Environmental Protection Agency 4 Federal Communications Commission 1 Federal Energy Regulatory Commission 14 Federal Labor Relations Authority 3 Federal Maritime Commission 1 Federal Mine Safety and Health Review Commission 11 Federal Trade Commission 1 International Trade Commission 6 National Labor Relations Board 39 National Transportation Safety Board 4 Occupational Safety and Health Review Commission 12 Office of Financial Institution Adjudication 1 Securities and Exchange Commission 4 Social Security Administration 1,334 United States Postal Service 1 TOTAL 1,584 D The table below lists 29 departments and other agencies the heads of which are not subject to any statutory for-cause removal provision, but that do bear certain other indicia of independence. The table identifies six criteria that may suggest independence: (1) whether the agency consists of a multi-member commission; (2) whether its members are required, by statute, to be bipartisan (or nonpartisan); (3) whether eligibility to serve as the agency’s head depends on statutorily defined qualifications; (4) whether the agency has independence in submitting budgetary and other proposals to Congress (thereby bypassing the Office of Management and Budget); (5) whether the agency has authority to appear in court independent of the Department of Justice, cf. 28 U. S. C. §§516–519; and (6) whether the agency is explicitly classified as “independent” by statute. See generally Breger & Edles 1135–1155; supra, at 35–36. Unless otherwise noted, all information refers to the relevant agency’s organic statute, which is cited in the first column. The list of agencies is nonexhaustive. Department or Agency Multi-Member Bi-partisan Statutory Eligibility Criteria OMB Bypass Litigation Authority Explicit Statement Securities and Exchange Commission 15 U. S. C. §78d Yes Yes Yes 12 U. S. C. §250 Yes 15 U. S. C. §78u Architectural and Transportation Barriers Compliance Board 29 U. S. C. §792 Yes Yes (related experience) Yes Arctic Research Commission 15 U. S. C. §4102 Yes Yes (related knowledge, experience) Department or Agency Multi-Member Bi-partisan Statutory Eligibility Criteria OMB Bypass Litigation Authority Explicit Statement Broadcasting Board of Governors 22 U. S. C. §6203 Yes Yes Yes (citizenship; related knowledge) Yes Central Intelligence Agency 50 U. S. C. §403–4 Cf. Freytag, 501 U. S., at 887,n. 4 Commission of Fine Arts 40 U. S. C. §9101 Yes Yes (related knowledge) Commodity Futures Trading Commission 7 U. S. C. §2(a)(2) Yes Yes Yes (related knowledge) Yes §2(a)(4) Yes Defense Nuclear Facilities Safety Board 42 U. S. C. §2286 Yes Yes Yes (citizenship; expert knowledge) Yes Equal Employment Opportunity Commission 42 U. S. C. §2000e–4 Yes Yes Yes §2000e–5(f) Export-Import Bank of the United States*12 U. S. C. §635a Yes Yes Yes §635(a)(1) Yes Farm Credit Administration 12 U. S. C. §§2241, 2242 Yes Yes Yes (citizenship) Yes §2244(c) Yes Federal Communications Commission 47 U. S. C. §§151, 154 Yes Yes Yes (citizenship) Yes §401(b) Federal Deposit Insurance Corporation 12 U. S. C. §§1811, 1812 Yes Yes Yes (citizenship; related experience) Yes §250 Yes §1819(a) Department or Agency Multi-Member Bi-partisan Statutory Eligibility Criteria OMB Bypass Litigation Authority Explicit Statement Federal Election Commission 2 U. S. C. §437c Yes Yes Yes (general) Yes §437d(d) Yes §437d (a)(6) Federal Housing Finance Agency 12 U. S. C. A. §4511 (Supp. 2010) Yes §250 Yes Federal Retirement Thrift Investment Board 5 U. S. C. §8472 Yes Cf. §8472(b)(2) Yes (related knowledge) International Trade Commission 19 U. S. C. §1330 Yes Yes Yes (citizenship; expert knowledge) Yes §2232 Yes §1333(g) Yes Marine Mammal Commission 16 U. S. C. §1401 Yes Yes (related knowledge) Millennium Challenge Corporation†22 U. S. C. §7703 Yes Cf. §7703(c) (3)(B) Yes (related experience) National Credit Union Administration 12 U. S. C. §1752a Yes Yes Yes (related experience) Yes §250 Yes National Archives and Records Administration 44 U. S. C. §§2102, 2103 Yes Yes (related knowledge) Yes National Council on Disability 29 U. S. C. §780 Yes Yes (related experience) National Labor-Management Panel 29 U. S. C. §175 Yes Yes (related knowledge) Department or Agency Multi-Member Bi-partisan Statutory Eligibility Criteria OMB Bypass Litigation Authority Explicit Statement National Science Foundation 42 U. S. C. §§1861, 1863, 1864 Yes Yes (related expertise) Yes Peace Corps 22 U. S. C. §2501–1 Yes Pension Benefit Guaranty Corporation ‡29 U. S. C. §1302 Yes Yes Railroad Retirement Board 45 U. S. C. §231f Yes Yes Yes * See Lebron v. National Railroad Passenger Corporation , 513 U. S. 374 (1995). †See Lebron, supra . * The officers in this agency are part of the “excepted service,” but enjoy tenure protection similar to that enjoyed by career SES appointees. See 5 U. S. C. §2302(a)(2)(B); Plum Book, p. v (distinguishing “excepted service” from “Schedule C”); id ., at 202 (describing schedule C positions). * See Lebron, 513 U. S. 374 . † See Lebron, supra . ‡  See Lebron, supra .

In Free Enterprise Fund v. Public Company Accounting Oversight Bd., the Supreme Court held that the President's power to remove executive officers is essential to the execution of the laws and cannot be excessively restricted by Congress. The Court found that multi-level protection from removal, where a principal officer is restricted from removing an inferior officer, violates the Constitution's vesting of executive power in the President. This case affirmed the President's authority to oversee and hold accountable the officers who execute the laws.

Separation of Powers

Seila Law, LLC v. Consumer Financial Protection Bureau

https://supreme.justia.com/cases/federal/us/591/19-7/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 19–7 _________________ SEILA LAW LLC, PETITIONER v. CONSUMER FINANCIAL PROTECTION BUREAU on writ of certiorari to the united states court of appeals for the ninth circuit [June 29, 2020] Chief Justice Roberts delivered the opinion of the Court with respect to Parts I, II, and III. In the wake of the 2008 financial crisis, Congress established the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. In organizing the CFPB, Congress deviated from the structure of nearly every other independent administrative agency in our history. Instead of placing the agency under the leadership of a board with multiple members, Congress provided that the CFPB would be led by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. The CFPB Director has no boss, peers, or voters to report to. Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S. economy. The question before us is whether this arrangement violates the Constitution’s separation of powers. Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id. , §3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 (2010), we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties,” id. , at 513–514. “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Id. , at 514. The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States , 272 U.S. 52 (1926). Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States , 295 U.S. 602 (1935), we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in United States v. Perkins , 116 U.S. 483 (1886), and Morrison v. Olson , 487 U.S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties. We are now asked to extend these precedents to a new configuration: an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met. We decline to take that step. While we need not and do not revisit our prior decisions allowing certain limitations on the President’s removal power, there are compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director. Such an agency lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control. We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will. I A In the summer of 2007, then-Professor Elizabeth Warren called for the creation of a new, independent federal agency focused on regulating consumer financial products. Warren, Unsafe at Any Rate, Democracy (Summer 2007). Professor Warren believed the financial products marketed to ordinary American households—credit cards, student loans, mortgages, and the like—had grown increasingly unsafe due to a “regulatory jumble” that paid too much attention to banks and too little to consumers. Ibid. To remedy the lack of “coherent, consumer-oriented” financial regulation, she proposed “concentrat[ing] the review of financial products in a single location”—an independent agency modeled after the multimember Consumer Product Safety Commission. Ibid. That proposal soon met its moment. Within months of Professor Warren’s writing, the subprime mortgage market collapsed, precipitating a financial crisis that wiped out over $10 trillion in American household wealth and cost millions of Americans their jobs, their retirements, and their homes. In the aftermath, the Obama administration embraced Professor Warren’s recommendation. Through the Treasury Department, the administration encouraged Congress to establish an agency with a mandate to ensure that “consumer protection regulations” in the financial sector “are written fairly and enforced vigorously.” Dept. of Treasury, Financial Regulatory Reform: A New Foundation 55 (2009). Like Professor Warren, the administration envisioned a traditional independent agency, run by a multimember board with a “diverse set of viewpoints and experiences.” Id. , at 58. In 2010, Congress acted on these proposals and created the Consumer Financial Protection Bureau (CFPB) as an independent financial regulator within the Federal Reserve System. Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), 124Stat. 1376. Congress tasked the CFPB with “implement[ing]” and “enforc[ing]” a large body of financial consumer protection laws to “ensur[e] that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.” 12 U. S. C. §5511(a). Congress transferred the administration of 18 existing federal statutes to the CFPB, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act. See §§5512(a), 5481(12), (14). In addition, Congress enacted a new prohibition on “any unfair, deceptive, or abusive act or practice” by certain participants in the consumer-finance sector. §5536(a)(1)(B). Congress authorized the CFPB to implement that broad standard (and the 18 pre-existing statutes placed under the agency’s purview) through binding regulations. §§5531(a)–(b), 5581(a)(1)(A), (b). Congress also vested the CFPB with potent enforcement powers. The agency has the authority to conduct investigations, issue subpoenas and civil investigative demands, initiate administrative adjudications, and prosecute civil actions in federal court. §§5562, 5564(a), (f ). To remedy violations of federal consumer financial law, the CFPB may seek restitution, disgorgement, and injunctive relief, as well as civil penalties of up to $1,000,000 (inflation adjusted) for each day that a violation occurs. §§5565(a), (c)(2); 12 CFR §1083.1(a), Table (2019). Since its inception, the CFPB has obtained over $11 billion in relief for over 25 million consumers, including a $1 billion penalty against a single bank in 2018. See CFPB, Financial Report of the Consumer Financial Protection Bureau, Fiscal Year 2015, p. 3; CFPB, Bureau of Consumer Financial Protection Announces Settlement With Wells Fargo for Auto-Loan Administration and Mortgage Practices (Apr. 20, 2018). The CFPB’s rulemaking and enforcement powers are coupled with extensive adjudicatory authority. The agency may conduct administrative proceedings to “ensure or enforce compliance with” the statutes and regulations it administers. 12 U. S. C. §5563(a). When the CFPB acts as an adjudicator, it has “jurisdiction to grant any appropriate legal or equitable relief.” §5565(a)(1). The “hearing officer” who presides over the proceedings may issue subpoenas, order depositions, and resolve any motions filed by the parties. 12 CFR §1081.104(b). At the close of the proceedings, the hearing officer issues a “recommended decision,” and the CFPB Director considers that recommendation and “issue[s] a final decision and order.” §§1081.400(d), 1081.402(b); see also §1081.405. Congress’s design for the CFPB differed from the proposals of Professor Warren and the Obama administration in one critical respect. Rather than create a traditional independent agency headed by a multimember board or commission, Congress elected to place the CFPB under the leadership of a single Director. 12 U. S. C. §5491(b)(1). The CFPB Director is appointed by the President with the advice and consent of the Senate. §5491(b)(2). The Director serves for a term of five years, during which the President may remove the Director from office only for “inefficiency, neglect of duty, or malfeasance in office.” §§5491(c)(1), (3). Unlike most other agencies, the CFPB does not rely on the annual appropriations process for funding. Instead, the CFPB receives funding directly from the Federal Reserve, which is itself funded outside the appropriations process through bank assessments. Each year, the CFPB requests an amount that the Director deems “reasonably necessary to carry out” the agency’s duties, and the Federal Reserve grants that request so long as it does not exceed 12% of the total operating expenses of the Federal Reserve (inflation adjusted). §§5497(a)(1), (2)(A)(iii), 2(B). In recent years, the CFPB’s annual budget has exceeded half a billion dollars. See CFPB, Fiscal Year 2019: Ann. Performance Plan and Rep., p. 7. B Seila Law LLC is a California-based law firm that provides debt-related legal services to clients. In 2017, the CFPB issued a civil investigative demand to Seila Law to determine whether the firm had “engag[ed] in unlawful acts or practices in the advertising, marketing, or sale of debt relief services.” 2017 WL 6536586, *1 (CD Cal., Aug. 25, 2017). See also 12 U. S. C. §5562(c)(1) (authorizing the agency to issue such demands to persons who “may have any information[ ] relevant to a violation” of one of the laws enforced by the CFPB). The demand (essentially a subpoena) directed Seila Law to produce information and documents related to its business practices. Seila Law asked the CFPB to set aside the demand, objecting that the agency’s leadership by a single Director removable only for cause violated the separation of powers. The CFPB declined to address that claim and directed Seila Law to comply with the demand. When Seila Law refused, the CFPB filed a petition to enforce the demand in the District Court. See §5562(e)(1) (creating cause of action for that purpose). In response, Seila Law renewed its defense that the demand was invalid and must be set aside because the CFPB’s structure violated the Constitution. The District Court disagreed and ordered Seila Law to comply with the demand (with one modification not relevant here). The Court of Appeals affirmed. 923 F.3d 680 (CA9 2019). The Court observed that the “arguments for and against” the constitutionality of the CFPB’s structure had already been “thoroughly canvassed” in majority, concurring, and dissenting opinions by the en banc Court of Appeals for the District of Columbia Circuit in PHH Corp. v. CFPB , 881 F.3d 75 (2018), which had rejected a challenge similar to the one presented here. 923 F. 3d, at 682. The Court saw “no need to re-plow the same ground.” Ibid. Instead, it provided a brief explanation for why it agreed with the PHH Court’s core holding. The Court took as its starting point Humphrey’s Executor , which had approved for-cause removal protection for the Commissioners of the Federal Trade Commission (FTC). In applying that precedent, the Court recognized that the CFPB wields “substantially more executive power than the FTC did back in 1935” and that the CFPB’s leadership by a single Director (as opposed to a multimember commission) presented a “structural difference” that some jurists had found “dispositive.” 923 F. 3d, at 683–684. But the Court felt bound to disregard those differences in light of our decision in Morrison , which permitted a single individual (an independent counsel) to exercise a core executive power (prosecuting criminal offenses) despite being insulated from removal except for cause. Because the Court found Humphrey’s Executor and Morrison “controlling,” it affirmed the District Court’s order requiring compliance with the demand. 923 F. 3d, at 684. We granted certiorari to address the constitutionality of the CFPB’s structure. 589 U. S. ___ (2019). We also requested argument on an additional question: whether, if the CFPB’s structure violates the separation of powers, the CFPB Director’s removal protection can be severed from the rest of the Dodd-Frank Act. Because the Government agrees with petitioner on the merits of the constitutional question, we appointed Paul Clement to defend the judgment below as amicus curiae . He has ably discharged his responsibilities. II We first consider three threshold arguments raised by the appointed amicus for why we may not or should not reach the merits. Each is unavailing. First, amicus argues that the demand issued to petitioner is not “traceable” to the alleged constitutional defect because two of the three Directors who have in turn played a role in enforcing the demand were (or now consider themselves to be) removable by the President at will. Brief for Court-Appointed Amicus Curiae 21–24. Amicus highlights the Government’s argument below that the demand, originally issued by former Director Richard Cordray, had been ratified by an acting CFPB Director who, according to the Office of Legal Counsel (OLC), was removable by the President at will. See Brief for Appellee in No. 17–56324 (CA9), pp. 1, 10, 13–19 (citing Designating an Acting Director of the Bureau of Consumer Financial Protection, 41 Op. OLC ___, ___ (Nov. 25, 2017)). Amicus further observes that current CFPB Director Kathleen Kraninger, now responsible for enforcing the demand, agrees with the Solicitor General’s position in this case that her for-cause removal protection is unconstitutional. See Brief for Respondent on Pet. for Cert. 20; Letter from K. Kraninger, CFPB Director, to M. McConnell, Majority Leader, U. S. Senate, p. 2 (Sept. 17, 2019); Letter from K. Kraninger, CFPB Director, to N. Pelosi, Speaker, U. S. House of Representatives, p. 2 (Sept. 17, 2019).[ 1 ] In amicus ’ view, these developments reveal that the demand would have been issued—and would continue to be enforced—even in the absence of the CFPB Director’s removal protection, making the asserted separation of powers dispute “artificial.” Brief for Court-Appointed Amicus Curiae 22. Even if that were true, it would not deprive us of jurisdiction. Amicus ’ traceability argument appears to challenge petitioner’s Article III standing. See Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560 (1992) (explaining that the plaintiff ’s injury must be “fairly traceable to the challenged action of the defendant” (internal quotation marks and alterations omitted)). But amicus ’ argument does not cast any doubt on the jurisdiction of the District Court because petitioner is the defendant and did not invoke the Court’s jurisdiction. See Bond v. United States , 564 U.S. 211 , 217 (2011) (When the plaintiff has standing, “Article III does not restrict the opposing party’s ability to object to relief being sought at its expense.”). It is true that “standing must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Hollingsworth v. Perry , 570 U.S. 693 , 705 (2013) (internal quotation marks omitted). But petitioner’s appellate standing is beyond dispute. Petitioner is compelled to comply with the civil investigative demand and to provide documents it would prefer to withhold, a concrete injury. That injury is traceable to the decision below and would be fully redressed if we were to reverse the judgment of the Court of Appeals and remand with instructions to deny the Government’s petition to enforce the demand. Without engaging with these principles, amicus contends that a litigant wishing to challenge an executive act on the basis of the President’s removal power must show that the challenged act would not have been taken if the responsible official had been subject to the President’s control. See Brief for Court-Appointed Amicus Curiae 21–24. Our precedents say otherwise. We have held that a litigant challenging governmental action as void on the basis of the separation of powers is not required to prove that the Government’s course of conduct would have been different in a “counterfactual world” in which the Government had acted with constitutional authority. Free Enterprise Fund , 561 U. S., at 512, n. 12. In the specific context of the President’s removal power, we have found it sufficient that the challenger “sustain[s] injury” from an executive act that allegedly exceeds the official’s authority. Bowsher v. Synar , 478 U.S. 714 , 721 (1986). Second, amicus contends that the proper context for assessing the constitutionality of an officer’s removal restriction is a contested removal. See Brief for Court-Appointed Amicus Curiae 24–27. While that is certainly one way to review a removal restriction, it is not the only way. Our precedents have long permitted private parties aggrieved by an official’s exercise of executive power to challenge the official’s authority to wield that power while insulated from removal by the President. See Bowsher , 478 U. S., at 721 (lawsuit filed by aggrieved third party in the absence of contested removal); Free Enterprise Fund , 561 U. S., at 487 (same); Morrison , 487 U. S., at 668–669 (defense to subpoena asserted by third party in the absence of contested removal). Indeed, we have expressly “reject[ed]” the “argument that consideration of the effect of a removal provision is not ‘ripe’ until that provision is actually used,” because when such a provision violates the separation of powers it inflicts a “here-and-now” injury on affected third parties that can be remedied by a court. Bowsher , 478 U. S., at 727, n. 5 (internal quotation marks omitted). The Court of Appeals therefore correctly entertained petitioner’s constitutional defense on the merits. Lastly, amicus contends that we should dismiss the case because the parties agree on the merits of the constitutional question and the case therefore lacks “adverseness.” Tr. of Oral Arg. 42–43, 45–46. That contention, however, is foreclosed by United States v. Windsor , 570 U.S. 744 (2013). There, we explained that a lower court order that presents real-world consequences for the Government and its adversary suffices to support Article III jurisdiction—even if “the Executive may welcome” an adverse order that “is accompanied by the constitutional ruling it wants.” Id. , at 758. Here, petitioner and the Government disagree about whether petitioner must comply with the civil investigative demand. The lower courts sided with the Government, and the Government has not volunteered to relinquish that victory and withdraw the demand. To the contrary, while the Government agrees that the agency is unconstitutionally structured, it believes it may nevertheless enforce the demand on remand. See infra , at 30. Accordingly, our “decision will have real meaning” for the parties. INS v. Chadha , 462 U.S. 919 , 939 (1983). And, as in Windsor , any prudential concerns with deciding an important legal question in this posture can be addressed by “the practice of entertaining arguments made by an amicus when the Solicitor General confesses error with respect to a judgment below,” which we have done. 570 U. S., at 760. We therefore turn to the merits of petitioner’s constitutional challenge. III We hold that the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. A Article II provides that “[t]he executive Power shall be vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id. , §3. The entire “executive Power” belongs to the President alone. But because it would be “impossib[le]” for “one man” to “perform all the great business of the State,” the Constitution assumes that lesser executive officers will “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939). These lesser officers must remain accountable to the President, whose authority they wield. As Madison explained, “[I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong. 463 (1789). That power, in turn, generally includes the ability to remove executive officials, for it is “only the authority that can remove” such officials that they “must fear and, in the performance of [their] functions, obey.” Bowsher , 478 U. S., at 726 (internal quotation marks omitted). The President’s removal power has long been confirmed by history and precedent. It “was discussed extensively in Congress when the first executive departments were created” in 1789. Free Enterprise Fund , 561 U. S., at 492. “The view that ‘prevailed, as most consonant to the text of the Constitution’ and ‘to the requisite responsibility and harmony in the Executive Department,’ was that the executive power included a power to oversee executive officers through removal.” Ibid. (quoting Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004)). The First Congress’s recognition of the President’s removal power in 1789 “provides contemporaneous and weighty evidence of the Constitution’s meaning,” Bowsher , 478 U. S., at 723 (internal quotation marks omitted), and has long been the “settled and well understood construction of the Constitution,” Ex parte Hennen , 13 Pet. 230, 259 (1839). The Court recognized the President’s prerogative to remove executive officials in Myers v. United States , 272 U.S. 52 . Chief Justice Taft, writing for the Court, conducted an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and our precedents up until that point. He concluded that Article II “grants to the President” the “general administrative control of those executing the laws, including the power of appointment and removal of executive officers.” Id. , at 163–164 (emphasis added). Just as the President’s “selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible.” Id. , at 117. “[T]o hold otherwise,” the Court reasoned, “would make it impossible for the President . . . to take care that the laws be faithfully executed.” Id. , at 164. We recently reiterated the President’s general removal power in Free Enterprise Fund . “Since 1789,” we recapped, “the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary.” 561 U. S., at 483. Although we had previously sustained congressional limits on that power in certain circumstances, we declined to extend those limits to “a new situation not yet encountered by the Court”—an official insulated by two layers of for-cause removal protection. Id., at 483, 514. In the face of that novel impediment to the President’s oversight of the Executive Branch, we adhered to the general rule that the President possesses “the authority to remove those who assist him in carrying out his duties.” Id., at 513–514. Free Enterprise Fund left in place two exceptions to the President’s unrestricted removal power. First, in Humphrey’s Executor , decided less than a decade after Myers , the Court upheld a statute that protected the Commissioners of the FTC from removal except for “inefficiency, neglect of duty, or malfeasance in office.” 295 U. S., at 620 (quoting 15 U. S. C. §41). In reaching that conclusion, the Court stressed that Congress’s ability to impose such removal restrictions “will depend upon the character of the office.” 295 U. S., at 631. Because the Court limited its holding “to officers of the kind here under consideration,” id., at 632, the contours of the Humphrey’s Executor exception depend upon the characteristics of the agency before the Court. Rightly or wrongly, the Court viewed the FTC (as it existed in 1935) as exercising “no part of the executive power.” Id., at 628. Instead, it was “an administrative body” that performed “specified duties as a legislative or as a judicial aid.” Ibid. It acted “as a legislative agency” in “making investigations and reports” to Congress and “as an agency of the judiciary” in making recommendations to courts as a master in chancery. Ibid. “To the extent that [the FTC] exercise[d] any executive function [,] as distinguished from executive power in the constitutional sense,” it did so only in the discharge of its “quasi-legislative or quasi-judicial powers.” Ibid. (emphasis added).[ 2 ] The Court identified several organizational features that helped explain its characterization of the FTC as non-executive. Composed of five members—no more than three from the same political party—the Board was designed to be “non-partisan” and to “act with entire impartiality.” Id. , at 624; see id. , at 619–620. The FTC’s duties were “neither political nor executive,” but instead called for “the trained judgment of a body of experts” “informed by experience.” Id. , at 624 (internal quotation marks omitted). And the Commissioners’ staggered, seven-year terms enabled the agency to accumulate technical expertise and avoid a “complete change” in leadership “at any one time.” Ibid . In short, Humphrey’s Executor permitted Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power. Consistent with that understanding, the Court later applied “[t]he philosophy of Humphrey’s Executor ” to uphold for-cause removal protections for the members of the War Claims Commission—a three-member “adjudicatory body” tasked with resolving claims for compensation arising from World War II. Wiener v. United States , 357 U.S. 349 , 356 (1958). While recognizing an exception for multimember bodies with “quasi-judicial” or “quasi-legislative” functions, Humphrey’s Executor reaffirmed the core holding of Myers that the President has “unrestrictable power . . . to remove purely executive officers.” 295 U. S., at 632. The Court acknowledged that between purely executive officers on the one hand, and officers that closely resembled the FTC Commissioners on the other, there existed “a field of doubt” that the Court left “for future consideration.” Ibid. We have recognized a second exception for inferior officers in two cases, United States v. Perkins and Morrison v. Olson .[ 3 ] In Perkins , we upheld tenure protections for a naval cadet-engineer. 116 U. S., at 485. And, in Morrison , we upheld a provision granting good-cause tenure protection to an independent counsel appointed to investigate and prosecute particular alleged crimes by high-ranking Government officials. 487 U. S., at 662–663, 696–697. Backing away from the reliance in Humphrey’s Executor on the concepts of “quasi-legislative” and “quasi-judicial” power, we viewed the ultimate question as whether a removal restriction is of “such a nature that [it] impede[s] the President’s ability to perform his constitutional duty.” 487 U. S., at 691. Although the independent counsel was a single person and performed “law enforcement functions that typically have been undertaken by officials within the Executive Branch,” we concluded that the removal protections did not unduly interfere with the functioning of the Executive Branch because “the independent counsel [was] an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority.” Ibid. These two exceptions—one for multimember expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority—“represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President’s removal power.” PHH , 881 F. 3d, at 196 (Kavanaugh, J., dissenting) (internal quotation marks omitted). B Neither Humphrey’s Executor nor Morrison resolves whether the CFPB Director’s insulation from removal is constitutional. Start with Humphrey’s Executor. Unlike the New Deal-era FTC upheld there, the CFPB is led by a single Director who cannot be described as a “body of experts” and cannot be considered “non-partisan” in the same sense as a group of officials drawn from both sides of the aisle. 295 U. S., at 624. Moreover, while the staggered terms of the FTC Commissioners prevented complete turnovers in agency leadership and guaranteed that there would always be some Commissioners who had accrued significant expertise, the CFPB’s single-Director structure and five-year term guarantee abrupt shifts in agency leadership and with it the loss of accumulated expertise. In addition, the CFPB Director is hardly a mere legislative or judicial aid. Instead of making reports and recommendations to Congress, as the 1935 FTC did, the Director possesses the authority to promulgate binding rules fleshing out 19 federal statutes, including a broad prohibition on unfair and deceptive practices in a major segment of the U. S. economy. And instead of submitting recommended dispositions to an Article III court, the Director may unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications. Finally, the Director’s enforcement authority includes the power to seek daunting monetary penalties against private parties on behalf of the United States in federal court—a quintessentially executive power not considered in Humphrey’s Executor .[ 4 ] The logic of Morrison also does not apply. Everyone agrees the CFPB Director is not an inferior officer, and her duties are far from limited. Unlike the independent counsel, who lacked policymaking or administrative authority, the Director has the sole responsibility to administer 19 separate consumer-protection statutes that cover everything from credit cards and car payments to mortgages and student loans. It is true that the independent counsel in Morrison was empowered to initiate criminal investigations and prosecutions, and in that respect wielded core executive power. But that power, while significant, was trained inward to high-ranking Governmental actors identified by others, and was confined to a specified matter in which the Department of Justice had a potential conflict of interest. By contrast, the CFPB Director has the authority to bring the coercive power of the state to bear on millions of private citizens and businesses, imposing even billion-dollar penalties through administrative adjudications and civil actions. In light of these differences, the constitutionality of the CFPB Director’s insulation from removal cannot be settled by Humphrey’s Executor or Morrison alone. C The question instead is whether to extend those precedents to the “new situation” before us, namely an independent agency led by a single Director and vested with significant executive power. Free Enterprise Fund , 561 U. S., at 483. We decline to do so. Such an agency has no basis in history and no place in our constitutional structure. 1 “Perhaps the most telling indication of [a] severe constitutional problem” with an executive entity “is [a] lack of historical precedent” to support it. Id., at 505 (internal quotation marks omitted). An agency with a structure like that of the CFPB is almost wholly unprecedented. After years of litigating the agency’s constitutionality, the Courts of Appeals, parties, and amici have identified “only a handful of isolated” incidents in which Congress has provided good-cause tenure to principal officers who wield power alone rather than as members of a board or commission. Ibid. “[T]hese few scattered examples”—four to be exact—shed little light. NLRB v. Noel Canning , 573 U.S. 513 , 538 (2014). First, the CFPB’s defenders point to the Comptroller of the Currency, who enjoyed removal protection for one year during the Civil War. That example has rightly been dismissed as an aberration. It was “adopted without discussion” during the heat of the Civil War and abandoned before it could be “tested by executive or judicial inquiry.” Myers , 272 U. S., at 165. (At the time, the Comptroller may also have been an inferior officer, given that he labored “under the general direction of the Secretary of the Treasury.” Ch. 58, 12Stat. 665.)[ 5 ] Second, the supporters of the CFPB point to the Office of the Special Counsel (OSC), which has been headed by a single officer since 1978.[ 6 ] But this first enduring single-leader office, created nearly 200 years after the Constitution was ratified, drew a contemporaneous constitutional objection from the Office of Legal Counsel under President Carter and a subsequent veto on constitutional grounds by President Reagan. See Memorandum Opinion for the General Counsel, Civil Service Commission, 2 Op. OLC 120, 122 (1978); Public Papers of the Presidents, Ronald Reagan, Vol. II, Oct. 26, 1988, pp. 1391–1392 (1991).[ 7 ] In any event, the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees. See 5 U. S. C. §1212. It does not bind private parties at all or wield regulatory authority comparable to the CFPB. Third, the CFPB’s defenders note that the Social Security Administration (SSA) has been run by a single Administrator since 1994. That example, too, is comparatively recent and controversial. President Clinton questioned the constitutionality of the SSA’s new single-Director structure upon signing it into law. See Public Papers of the Presidents, William J. Clinton, Vol. II, Aug. 15, 1994, pp. 1471–1472 (1995) (inviting a “corrective amendment” from Congress). In addition, unlike the CFPB, the SSA lacks the authority to bring enforcement actions against private parties. Its role is largely limited to adjudicating claims for Social Security benefits. The only remaining example is the Federal Housing Finance Agency (FHFA), created in 2008 to assume responsibility for Fannie Mae and Freddie Mac. That agency is essentially a companion of the CFPB, established in response to the same financial crisis. See Housing and Economic Recovery Act of 2008, 122Stat. 2654. It regulates primarily Government-sponsored enterprises, not purely private actors. And its single-Director structure is a source of ongoing controversy. Indeed, it was recently held unconstitutional by the Fifth Circuit, sitting en banc. See Collins v. Mnuchin , 938 F.3d 553, 587–588 (2019). With the exception of the one-year blip for the Comptroller of the Currency, these isolated examples are modern and contested. And they do not involve regulatory or enforcement authority remotely comparable to that exercised by the CFPB. The CFPB’s single-Director structure is an innovation with no foothold in history or tradition.[ 8 ] 2 In addition to being a historical anomaly, the CFPB’s single-Director configuration is incompatible with our constitutional structure. Aside from the sole exception of the Presidency, that structure scrupulously avoids concentrating power in the hands of any single individual. “The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Bowsher , 478 U. S., at 730. Their solution to governmental power and its perils was simple: divide it. To prevent the “gradual concentration” of power in the same hands, they enabled “[a]mbition . . . to counteract ambition” at every turn. The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison). At the highest level, they “split the atom of sovereignty” itself into one Federal Government and the States. Gamble v. United States , 587 U. S. ___, ___ (2019) (slip op., at 9) (internal quotation marks omitted). They then divided the “powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.” Chadha , 462 U. S., at 951. They did not stop there. Most prominently, the Framers bifurcated the federal legislative power into two Chambers: the House of Representatives and the Senate, each composed of multiple Members and Senators. Art. I, §§2, 3. The Executive Branch is a stark departure from all this division. The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that “differences of opinion” and the “jarrings of parties” would “promote deliberation and circumspection” and “check excesses in the majority.” See The Federalist No. 70, at 475 (A. Hamilton); see also id ., No. 51, at 350. By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities. See id ., No. 70, at 475–478. As Madison put it, while “the weight of the legislative authority requires that it should be . . . divided, the weakness of the executive may require, on the other hand, that it should be fortified.” Id ., No. 51, at 350. The Framers deemed an energetic executive essential to “the protection of the community against foreign attacks,” “the steady administration of the laws,” “the protection of property,” and “the security of liberty.” Id ., No. 70, at 471. Accordingly, they chose not to bog the Executive down with the “habitual feebleness and dilatoriness” that comes with a “diversity of views and opinions.” Id. , at 476. Instead, they gave the Executive the “[d]ecision, activity, secrecy, and dispatch” that “characterise the proceedings of one man.” Id. , at 472. To justify and check that authority—unique in our constitutional structure—the Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation. And the President’s political accountability is enhanced by the solitary nature of the Executive Branch, which provides “a single object for the jealousy and watchfulness of the people.” Id., at 479. The President “cannot delegate ultimate responsibility or the active obligation to supervise that goes with it,” because Article II “makes a single President responsible for the actions of the Executive Branch.” Free Enterprise Fund , 561 U. S., at 496–497 (quoting Clinton v. Jones , 520 U.S. 681 , 712–713 (1997) (Breyer, J., concurring in judgment)). The resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. Through the President’s oversight, “the chain of dependence [is] preserved,” so that “the lowest officers, the middle grade, and the highest” all “depend, as they ought, on the President, and the President on the community.” 1 Annals of Cong. 499 (J. Madison). The CFPB’s single-Director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one. The Director is neither elected by the people nor meaningfully controlled (through the threat of removal) by someone who is. The Director does not even depend on Congress for annual appropriations. See The Federalist No. 58, at 394 (J. Madison) (describing the “power over the purse” as the “most compleat and effectual weapon” in representing the interests of the people). Yet the Director may unilaterally , without meaningful supervision, issue final regulations, oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties. With no colleagues to persuade, and no boss or electorate looking over her shoulder, the Director may dictate and enforce policy for a vital segment of the economy affecting millions of Americans. The CFPB Director’s insulation from removal by an accountable President is enough to render the agency’s structure unconstitutional. But several other features of the CFPB combine to make the Director’s removal protection even more problematic. In addition to lacking the most direct method of presidential control—removal at will—the agency’s unique structure also forecloses certain indirect methods of Presidential control. Because the CFPB is headed by a single Director with a five-year term, some Presidents may not have any opportunity to shape its leadership and thereby influence its activities. A President elected in 2020 would likely not appoint a CFPB Director until 2023, and a President elected in 2028 may never appoint one. That means an unlucky President might get elected on a consumer-protection platform and enter office only to find herself saddled with a holdover Director from a competing political party who is dead set against that agenda. To make matters worse, the agency’s single-Director structure means the President will not have the opportunity to appoint any other leaders—such as a chair or fellow members of a Commission or Board—who can serve as a check on the Director’s authority and help bring the agency in line with the President’s preferred policies. The CFPB’s receipt of funds outside the appropriations process further aggravates the agency’s threat to Presidential control. The President normally has the opportunity to recommend or veto spending bills that affect the operation of administrative agencies. See Art. I, §7, cl. 2; Art. II, §3. And, for the past century, the President has annually submitted a proposed budget to Congress for approval. See Budget and Accounting Act, 1921, ch. 18, §201, 42Stat. 20. Presidents frequently use these budgetary tools “to influence the policies of independent agencies.” PHH , 881 F. 3d, at 147 (Henderson, J., dissenting) (citing Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale L. J. 2182, 2191, 2203–2204 (2016)). But no similar opportunity exists for the President to influence the CFPB Director. Instead, the Director receives over $500 million per year to fund the agency’s chosen priorities. And the Director receives that money from the Federal Reserve, which is itself funded outside of the annual appropriations process. This financial freedom makes it even more likely that the agency will “slip from the Executive’s control, and thus from that of the people.” Free Enterprise Fund , 561 U. S., at 499.[ 9 ] 3 Amicus raises three principal arguments in the agency’s defense. At the outset, amicus questions the textual basis for the removal power and highlights statements from Madison, Hamilton, and Chief Justice Marshall expressing “heterodox” views on the subject. Brief for Court-Appointed Amicus Curiae 4–5, 28–29. But those concerns are misplaced. It is true that “there is no ‘removal clause’ in the Constitution,” id. , at 1, but neither is there a “separation of powers clause” or a “federalism clause.” These foundational doctrines are instead evident from the Constitution’s vesting of certain powers in certain bodies. As we have explained many times before, the President’s removal power stems from Article II’s vesting of the “executive Power” in the President. Free Enterprise Fund , 561 U. S., at 483 (quoting Art. II, §1, cl. 1). As for the opinions of Madison, Hamilton, and Chief Justice Marshall, we have already considered the statements cited by amicus and discounted them in light of their context (Madison), the fact they reflect initial impressions later abandoned by the speaker (Hamilton), or their subsequent rejection as ill-considered dicta (Chief Justice Marshall). See Free Enterprise Fund , 561 U. S., at 500, n. 6 (Madison); Myers , 272 U. S., at 136–139, 142–144 (Hamilton and Chief Justice Marshall).[ 10 ] Next, amicus offers a grand theory of our removal precedents that, if accepted, could leave room for an agency like the CFPB—and many other innovative intrusions on Article II. According to amicus , Humphrey’s Executor and Morrison establish a general rule that Congress may impose “modest” restrictions on the President’s removal power, with only two limited exceptions. Brief for Court-Appointed Amicus Curiae 33–37. Congress may not reserve a role for itself in individual removal decisions (as it attempted to do in Myers and Bowsher ) . And it may not eliminate the President’s removal power altogether (as it effectively did in Free Enterprise Fund ) . Outside those two situations, amicus argues, Congress is generally free to constrain the President’s removal power. See also post , at 16–22 (Kagan, J., concurring in judgment with respect to severability and dissenting in part) (hereinafter dissent) (expressing similar view). But text, first principles, the First Congress’s decision in 1789, Myers , and Free Enterprise Fund all establish that the President’s removal power is the rule, not the exception. While we do not revisit Humphrey’s Executor or any other precedent today, we decline to elevate it into a freestanding invitation for Congress to impose additional restrictions on the President’s removal authority.[ 11 ] Finally, amicus contends that if we identify a constitutional problem with the CFPB’s structure, we should avoid it by broadly construing the statutory grounds for removing the CFPB Director from office. See Brief for Court-Appointed Amicus Curiae 50–53; Tr. of Oral Arg. 57–62. The Dodd-Frank Act provides that the Director may be removed for “inefficiency, neglect of duty, or malfeasance in office.” 12 U. S. C. §5491(c)(3). In amicus ’ view, that language could be interpreted to reserve substantial discretion to the President. Brief for Court-Appointed Amicus Curiae 51. We are not persuaded. For one, Humphrey’s Executor implicitly rejected an interpretation that would leave the President free to remove an officer based on disagreements about agency policy. See 295 U. S., at 619, 625–626. In addition, while both amicus and the House of Representatives invite us to adopt whatever construction would cure the constitutional problem, they have not advanced any workable standard derived from the statutory language. Amicus suggests that the proper standard might permit removals based on general policy disagreements, but not specific ones; the House suggests that the permissible bases for removal might vary depending on the context and the Presidential power involved. See Tr. of Oral Arg. 58–60, 76–77. They do not attempt to root either of those standards in the statutory text. Further, although nearly identical language governs the removal of some two-dozen multimember independent agencies, amicus suggests that the standard should vary from agency to agency, morphing as necessary to avoid constitutional doubt. Tr. of Oral Arg. 55–56. We decline to embrace such an uncertain and elastic approach to the text. Amicus and the House also fail to engage with the Dodd-Frank Act as a whole, which makes plain that the CFPB is an “independent bureau.” 12 U. S. C. §5491(a); see also 44 U. S. C. §3502(5) (listing the CFPB as an “independent regulatory agency”). Neither amicus nor the House explains how the CFPB would be “independent” if its head were required to implement the President’s policies upon pain of removal. See Black’s Law Dictionary 838 (9th ed. 2009) (defining “independent” as “[n]ot subject to the control or influence of another”). The Constitution might of course compel the agency to be dependent on the President notwithstanding Congress’s contrary intent, but that result cannot fairly be inferred from the statute Congress enacted. Constitutional avoidance is not a license to rewrite Congress’s work to say whatever the Constitution needs it to say in a given situation. Without a proffered interpretation that is rooted in the statutory text and structure, and would avoid the constitutional violation we have identified, we take Congress at its word that it meant to impose a meaningful restriction on the President’s removal authority. The dissent, for its part, largely reprises points that the Court has already considered and rejected: It notes the lack of an express removal provision, invokes Congress’s general power to create and define executive offices, highlights isolated statements from individual Framers, downplays the decision of 1789, minimizes Myers , brainstorms methods of Presidential control short of removal, touts the need for creative congressional responses to technological and economic change, and celebrates a pragmatic, flexible approach to American governance. See post , at 1–25, 32–33, 38. If these arguments sound familiar, it’s because they are. They were raised by the dissent in Free Enterprise Fund . Compare post , at 1–25, 32–33, 38, with Free Enterprise Fund , 561 U. S., at 515–524, 530 (Breyer, J., dissenting). The answers to these repeated concerns (beyond those we have already covered) are the same today as they were ten years ago. Today, as then, Congress’s “plenary control over the salary, duties, and even existence of executive offices” makes “Presidential oversight” more critical—not less—as the “[o]nly” tool to “counter [Congress’s] influence.” Id. , at 500 (opinion of the Court). Today, as then, the various “bureaucratic minutiae” a President might use to corral agency personnel is no substitute for at will removal. Ibid. And today, as always, the urge to meet new technological and societal problems with novel governmental structures must be tempered by constitutional restraints that are not known—and were not chosen—for their efficiency or flexibility. Id., at 499. As we explained in Free Enterprise Fund , “One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts.” Ibid. While “[n]o one doubts Congress’s power to create a vast and varied federal bureaucracy,” the expansion of that bureaucracy into new territories the Framers could scarcely have imagined only sharpens our duty to ensure that the Executive Branch is overseen by a President accountable to the people. Ibid. IV Having concluded that the CFPB’s leadership by a single independent Director violates the separation of powers, we now turn to the appropriate remedy. We directed the parties to brief and argue whether the Director’s removal protection was severable from the other provisions of the Dodd-Frank Act that establish the CFPB. If so, then the CFPB may continue to exist and operate notwithstanding Congress’s unconstitutional attempt to insulate the agency’s Director from removal by the President. There is a live controversy between the parties on that question, and resolving it is a necessary step in determining petitioner’s entitlement to its requested relief. As the defendant in this action, petitioner seeks a straightforward remedy. It asks us to deny the Government’s petition to enforce the civil investigative demand and dismiss the case. The Government counters that the demand, though initially issued by a Director unconstitutionally insulated from removal, can still be enforced on remand because it has since been ratified by an Acting Director accountable to the President. The parties dispute whether this alleged ratification in fact occurred and whether, if so, it is legally sufficient to cure the constitutional defect in the original demand. That debate turns on case-specific factual and legal questions not addressed below and not briefed here. A remand for the lower Courts to consider those questions in the first instance is therefore the appropriate course—unless such a remand would be futile. In petitioner’s view, it would be. Before the Court of Appeals, petitioner contended that, regardless of any ratification, the demand is unenforceable because the statutory provision insulating the CFPB Director from removal cannot be severed from the other statutory provisions that define the CFPB’s authority. See Brief for Appellant in No. 17–56324 (CA9), pp. 27–28, 30–32. If petitioner is correct, and the offending removal provision means the entire agency is unconstitutional and powerless to act, then a remand would be pointless. With no agency left with statutory authority to maintain this suit or otherwise enforce the demand, the appropriate disposition would be to reverse with instructions to deny the Government’s petition to enforce the agency’s demand for documents and dismiss the case, as petitioner requests. Accordingly, there is a live controversy over the question of severability. And that controversy is essential to our ability to provide petitioner the relief it seeks: If the removal restriction is not severable, then we must grant the relief requested, promptly rejecting the demand outright. If, on the other hand, the removal restriction is severable, we must instead remand for the Government to press its ratification arguments in further proceedings. Unlike the lingering ratification issue, severability presents a pure question of law that has been fully briefed and argued by the parties. We therefore proceed to address it.[ 12 ] It has long been settled that “one section of a statute may be repugnant to the Constitution without rendering the whole act void.” Loeb v. Columbia Township Trustees , 179 U.S. 472 , 490 (1900) (quoting Treasurer of Fayette Cty. v. People’s & Drovers’ Bank , 47 Ohio St. 503, 523, 25 N.E. 697, 702 (1890)). Because a “statute bad in part is not necessarily void in its entirety,” “[p]rovisions within the legislative power may stand if separable from the bad.” Dorchy v. Kansas , 264 U.S. 286 , 289–290 (1924). “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” Free Enterprise Fund , 561 U. S., at 508 (internal quotation marks omitted). Even in the absence of a severability clause, the “traditional” rule is that “the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.” Alaska Airlines, Inc. v. Brock , 480 U.S. 678 , 685 (1987). When Congress has expressly provided a severability clause, our task is simplified. We will presume “that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision . . . unless there is strong evidence that Congress intended otherwise.” Id., at 686. The only constitutional defect we have identified in the CFPB’s structure is the Director’s insulation from removal. If the Director were removable at will by the President, the constitutional violation would disappear. We must therefore decide whether the removal provision can be severed from the other statutory provisions relating to the CFPB’s powers and responsibilities. In Free Enterprise Fund , we found a set of unconstitutional removal provisions severable even in the absence of an express severability clause because the surviving provisions were capable of “functioning independently” and “nothing in the statute’s text or historical context [made] it evident that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will.” 561 U. S., at 509 (internal quotation marks omitted). So too here. The provisions of the Dodd-Frank Act bearing on the CFPB’s structure and duties remain fully operative without the offending tenure restriction. Those provisions are capable of functioning independently, and there is nothing in the text or history of the Dodd-Frank Act that demonstrates Congress would have preferred no CFPB to a CFPB supervised by the President. Quite the opposite. Unlike the Sarbanes-Oxley Act at issue in Free Enterprise Fund , the Dodd-Frank Act contains an express severability clause. There is no need to wonder what Congress would have wanted if “any provision of this Act” is “held to be unconstitutional” because it has told us: “the remainder of this Act” should “not be affected.” 12 U. S. C. §5302. Petitioner urges us to disregard this plain language for three reasons. None is persuasive. First, petitioner dismisses the clause as non-probative “boilerplate” because it applies “to the entire, 848-page Dodd-Frank Act” and “appears almost 600 pages before the removal provision at issue.” Brief for Petitioner 45. In petitioner’s view, that means we cannot be certain that Congress really meant to apply the clause to each of the Act’s provisions. But boilerplate is boilerplate for a reason—because it offers tried-and-true language to ensure a precise and predictable result. That is the case here. The language unmistakably references “ any provision of this Act.” 12 U. S. C. §5302 (emphasis added). And it appears in a logical and prominent place, immediately following the Act’s title and definitions sections, reinforcing the conclusion that it applies to the entirety of the Act. Congress was not required to laboriously insert duplicative severability clauses, provision by provision, to accomplish its stated objective. Second, petitioner points to an additional severability clause in the Act that applies only to one of the Act’s subtitles. See 15 U. S. C. §8232. In petitioner’s view, that clause would be superfluous if Congress meant the general severability clause to apply across the Act. But “our preference for avoiding surplusage constructions is not absolute.” Lamie v. United States Trustee , 540 U.S. 526 , 536 (2004). In this instance, the redundant language appears to reflect the fact that the subtitle to which it refers originated as a standalone bill that was later incorporated into Dodd-Frank. Compare 15 U. S. C. §8232 with H. R. 2571, 111th Cong., 1st Sess., §302 (2009). And petitioner does not offer any construction that would give effect to both provisions, making the redundancy both inescapable and unilluminating. See Microsoft Corp. v. i4i L. P. , 564 U.S. 91 , 106 (2011) (“The canon against superfluity assists only where a competing interpretation gives effect to every clause and word of a statute.” (internal quotation marks omitted)). Finally, petitioner argues more broadly that Congress would not have wanted to give the President unbridled control over the CFPB’s vast authority. Petitioner highlights the references to the CFPB’s independence in the statutory text and legislative history, as well as in Professor Warren’s and the Obama administration’s original proposals. See Brief for Petitioner 43–44 (collecting examples). And petitioner submits that Congress might not have exempted the CFPB from congressional oversight via the appropriations process if it had known that the CFPB would come under executive control. These observations certainly confirm that Congress preferred an independent CFPB to a dependent one; but they shed little light on the critical question whether Congress would have preferred a dependent CFPB to no agency at all. That is the only question we have the authority to decide, and the answer seems clear. Petitioner assumes that, if we eliminate the CFPB, regulatory and enforcement authority over the statutes it administers would simply revert back to the handful of independent agencies previously responsible for them. See id. , at 46. But, as the Solicitor General and House of Representatives explain, that shift would trigger a major regulatory disruption and would leave appreciable damage to Congress’s work in the consumer-finance arena. See Reply Brief for Respondent 21–22; Tr. of Oral Arg. 67–68. One of the agencies whose regulatory authority was transferred to the CFPB no longer exists. See 12 U. S. C. §§5412–5413 (Office of Thrift Supervision). The others do not have the staff or appropriations to absorb the CFPB’s 1,500-employee, 500-million-dollar operations. And none has the authority to administer the Dodd-Frank Act’s new prohibition on unfair and deceptive practices in the consumer-finance sector. Given these consequences, it is far from evident that Congress would have preferred no CFPB to a CFPB led by a Director removable at will by the President. Justice Thomas would have us junk our settled severability doctrine and start afresh, even though no party has asked us to do so. See post , at 15–16, 21–24 (opinion concurring in part and dissenting in part). Among other things, he objects that it is sheer “speculation” that Congress would prefer that its consumer protection laws be enforced by a Director accountable to the President rather than not at all. Post , at 23–24. We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today. And such an approach by this Court can come as no surprise to Congress, which was on notice of constitutional objections to single-Director agencies by multiple past Presidents from both political parties, supra , at 19–20, and enacted Dodd-Frank against the background of our established severability doctrine. As in every severability case, there may be means of remedying the defect in the CFPB’s structure that the Court lacks the authority to provide. Our severability analysis does not foreclose Congress from pursuing alternative responses to the problem—for example, converting the CFPB into a multimember agency. The Court’s only instrument, however, is a blunt one. We have “the negative power to disregard an unconstitutional enactment,” Massachusetts v. Mellon , 262 U.S. 447 , 488 (1923); see Marbury v. Madison , 1 Cranch 137, 178 (1803), but we cannot re-write Congress’s work by creating offices, terms, and the like. “[S]uch editorial freedom . . . belongs to the Legislature, not the Judiciary.” Free Enterprise Fund , 561 U. S., at 510. Because we find the Director’s removal protection severable from the other provisions of Dodd-Frank that establish the CFPB, we remand for the Court of Appeals to consider whether the civil investigative demand was validly ratified. *  *  * A decade ago, we declined to extend Congress’s authority to limit the President’s removal power to a new situation, never before confronted by the Court. We do the same today. In our constitutional system, the executive power belongs to the President, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead. While we have previously upheld limits on the President’s removal authority in certain contexts, we decline to do so when it comes to principal officers who, acting alone, wield significant executive power. The Constitution requires that such officials remain dependent on the President, who in turn is accountable to the people. The judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Director Kraninger did not indicate whether she would disregard her statutory removal protection if the President attempted to remove her without cause. 2 The Court’s conclusion that the FTC did not exercise executive power has not withstood the test of time. As we observed in Morrison v. Olson , 487 U.S. 654 (1988), “[I]t is hard to dispute that the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered ‘executive,’ at least to some degree.” Id., at 690, n. 28. See also Arlington v. FCC , 569 U.S. 290 , 305, n. 4 (2013) (even though the activities of administrative agencies “take ‘legislative’ and ‘judicial’ forms,” “they are exercises of—indeed, under our constitutional structure they must be exercises of—the ‘executive Power’ ” (quoting Art. II, §1, cl. 1)). 3 Article II distinguishes between two kinds of officers—principal officers (who must be appointed by the President with the advice and consent of the Senate) and inferior officers (whose appointment Congress may vest in the President, courts, or heads of Departments). §2, cl. 2. While “[o]ur cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers,” we have in the past examined factors such as the nature, scope, and duration of an officer’s duties. Edmond v. United States , 520 U.S. 651 , 661 (1997). More recently, we have focused on whether the officer’s work is “directed and supervised” by a principal officer. Id., at 663. 4 The dissent would have us ignore the reasoning of Humphrey’s Executor and instead apply the decision only as part of a reimagined Humphrey’s -through- Morrison framework. See post , at 18, n. 7, 19–22 (Kagan, J., concurring in judgment with respect to severability and dissenting in part) (hereinafter dissent). But we take the decision on its own terms, not through gloss added by a later Court in dicta. The dissent also criticizes us for suggesting that the 1935 FTC may have had lesser responsibilities than the present FTC. See post , at 27, n. 10. Perhaps the FTC possessed broader rulemaking, enforcement, and adjudicatory powers than the Humphrey’s Court appreciated. Perhaps not. Either way, what matters is the set of powers the Court considered as the basis for its decision, not any latent powers that the agency may have had not alluded to by the Court. 5 The dissent suggests that the Comptroller still enjoyed some degree of insulation after his removal protection was repealed because the President faced a new requirement to “communicate[ ]” his “reasons” for terminating the Comptroller to the Senate. Post, at 15 (quoting Act of June 3, 1864, ch. 106, §1, 13Stat. 100). But the President could still remove the Comptroller for any reason so long as the President was, in the dissent’s phrase, “in a firing mood.” Post , at 15. 6 The OSC should not be confused with the independent counsel in Morrison or the special counsel recently appointed to investigate allegations related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC. 7 An Act similar to the one vetoed by President Reagan was eventually signed by President George H. W. Bush after extensive negotiations and compromises with Congress. See Public Papers of the Presidents, George H. W. Bush, Vol. I, Apr. 10, 1989, p. 391 (1990). 8 The dissent categorizes the CFPB as one of many “financial regulators” that have historically enjoyed some insulation from the President. See post , at 11–16. But even assuming financial institutions like the Second Bank and the Federal Reserve can claim a special historical status, the CFPB is in an entirely different league. It acts as a mini legislature, prosecutor, and court, responsible for creating substantive rules for a wide swath of industries, prosecuting violations, and levying knee-buckling penalties against private citizens. See supra, at 4–5. And, of course, it is the only agency of its kind run by a single Director. 9 Amicus and the dissent try to diminish the CFPB’s insulation from Presidential control by observing that the CFPB’s final rules can be set aside by a super majority of the Financial Stability and Oversight Council (FSOC). See Brief for Court-Appointed Amicus Curiae 40; post , at 33, n. 13, 36. But the FSOC’s veto power is statutorily reserved for extreme situations, when two-thirds of the Council concludes that a CFPB regulation would “put the safety and soundness of the United States banking system or the stability of the financial system of the United States at risk.” 12 U. S. C. §§5513(a), (c)(3). That narrow escape hatch has no impact on the CFPB’s enforcement or adjudicatory authority and has never been used in the ten years since the agency’s creation. It certainlydoes not render the CFPB’s independent, single-Director structureconstitutional. 10 The dissent likewise points to Madison’s statement in The Federalist No. 39 that the “tenure” of “ministerial offices generally will be a subject of legal regulation.” Post , at 10 (quoting The Federalist No. 39, p. 253 (J. Cooke ed. 1961)). But whatever Madison may have meant by that statement, he later led the charge in contending, on the floor of the First Congress, that “inasmuch as the power of removal is of an Executive nature . . . it is beyond the reach of the Legislative body.” 1 Annals of Cong. 464 (1789); see also id. , at 462–464, 495–496. Like the dissent in Free Enterprise Fund , the dissent goes on to “attribute[ ] to Madison a belief that . . . the Comptroller[ ] could be made independent of the President. But Madison’s actual proposal, consistent with his view of the Constitution, was that the Comptroller hold office for a term of ‘years, unless sooner removed by the President’; he would thus be ‘dependent upon the President, because he can be removed by him,’ and also ‘dependent upon the Senate, because they must consent to his [reappointment] for every term of years.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 499, 500 n. 6 (2010) (citation omitted) (quoting 1 Annals of Cong. 612). See post , at 10, n. 4. The dissent further notes that, at the time of the founding, some States placed limitations on their Governors’ removal power. See post , at 7. But the Framers hardly viewed State Governors as a reliable guide in fashioning the Federal Executive. Indeed, they expressly rejected the “executive council” structure favored by most States, fearing that subjecting the President to oversight, as the States had, would “distract and . . . enervate the whole system of administration” and inject it with “habitual feebleness and dilatoriness.” The Federalist No. 70, at 473, 476 (A. Hamilton). 11 Building on amicus ’ proposal, the dissent would endorse whatever “the times demand, so long as the President retains the ability to carry out his constitutional functions.” Post , at 4. But that amorphous test provides no real limiting principle. The “clearest” (and only) “example” the dissent can muster for what may be prohibited is a for-cause removal restriction placed on the President’s “close military or diplomatic advisers.” Post , at 17. But that carveout makes no logical or constitutional sense. In the dissent’s view, for-cause removal restrictions are permissible because they guarantee the President “meaningful control” over his subordinates. Post , at 28 (internal quotation marks and alterations omitted); see also post , at 8, 20, 26, 36 . If that is the theory, then what is the harm in giving the President the same “meaningful control” over his close advisers? The dissent claims to see a constitutional distinction between the President’s “own constitutional duties in foreign relations and war” and his duty to execute laws passed by Congress. Post , at 13. But the same Article that establishes the President’s foreign relations and war duties expressly entrusts him to take care that the laws be faithfully executed. And, from the perspective of the governed, it is far from clear that the President’s core and traditional powers present greater cause for concern than peripheral and modern ones. If anything, “[t]he growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.” Free Enterprise Fund , 561 U. S., at 499 (emphasis added). 12 Justice Thomas believes that any ratification is irrelevant. In his view, even if the issuance of the demand and initiation of this suit have been validly ratified, Director Kraninger’s activities in litigating the case—after inheriting it from an Acting Director, but before becoming removable at will herself in light of our decision—present a distinct constitutional injury requiring immediate dismissal. See post , at 17–19 (opinion concurring in part and dissenting in part). But whether and when the temporary involvement of an unconstitutionally insulated officer in an otherwise valid prosecution requires dismissal falls outside the questions presented, has not been fully briefed, and is best resolved by the lower courts in the first instance. SUPREME COURT OF THE UNITED STATES _________________ No. 19–7 _________________ SEILA LAW LLC, PETITIONER v. CONSUMER FINANCIAL PROTECTION BUREAU on writ of certiorari to the united states court of appeals for the ninth circuit [June 29, 2020] Justice Thomas, with whom Justice Gorsuch joins, concurring in part and dissenting in part. The Court’s decision today takes a restrained approach on the merits by limiting Humphrey’s Executor v. United States , 295 U.S. 602 (1935), rather than overruling it. At the same time, the Court takes an aggressive approach on severability by severing a provision when it is not necessary to do so. I would do the opposite. Because the Court takes a step in the right direction by limiting Humphrey’s Executor to “multimember expert agencies that do not wield substantial executive power ,” ante , at 16 (emphasis added), I join Parts I, II, and III of its opinion. I respectfully dissent from the Court’s severability analysis, however, because I do not believe that we should address severability in this case. I The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people. The Court concludes that it is not strictly necessary for us to overrule that decision. See ante , at 2, 13–17. But with today’s decision, the Court has repudiated almost every aspect of Humphrey’s Executor . In a future case, I would repudiate what is left of this erroneous precedent. A “The Constitution does not vest the Federal Government with an undifferentiated ‘governmental power.’ ” Department of Transportation v. Association of American Railroads , 575 U.S. 43, 67 (2015) (Thomas, J., concurring in judgment). It sets out three branches and vests a different form of power in each—legislative, executive, and judicial. See Art. I, §1; Art. II, §1, cl. 1; Art. III, §1. Article II of the Constitution vests “[t]he executive Power” in the “President of the United States of America,” §1, cl. 1, and directs that he shall “take Care that the Laws be faithfully executed,” §3. Of course, the President cannot fulfill his role of executing the laws without assistance. See Myers v. United States , 272 U.S. 52 , 117 (1926). He therefore must “select those who [are] to act for him under his direction in the execution of the laws.” Ibid. While these officers assist the President in carrying out his constitutionally assigned duties, “[t]he buck stops with the President.” Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 493 (2010). “Since 1789, the Constitution has been understood to empower the President to keep [his] officers accountable—by removing them from office, if necessary.” Id. , at 483. The Framers “insist[ed]” upon “unity in the Federal Executive” to “ensure both vigor and accountability” to the people. Printz v. United States , 521 U.S. 898 , 922 (1997); see also ante , at 22. Despite the defined structural limitations of the Constitution and the clear vesting of executive power in the President, Congress has increasingly shifted executive power to a de facto fourth branch of Government—independent agencies. These agencies wield considerable executive power without Presidential oversight. They are led by officers who are insulated from the President by removal restrictions, “reduc[ing] the Chief Magistrate to [the role of] cajoler-in-chief.” Free Enterprise Fund , 561 U. S., at 502. But “[t]he people do not vote for the Officers of the United States. They instead look to the President to guide the assistants or deputies subject to his superintendence.” Id. , at 497–498 (alterations, internal quotation marks and citation omitted). Because independent agencies wield substantial power with no accountability to either the President or the people, they “pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” PHH Corp. v. CFPB , 881 F.3d 75, 165 (CADC 2018) (Kavanaugh, J., dissenting). Unfortunately, this Court “ha[s] not always been vigilant about protecting the structure of our Constitution,” at times endorsing a “more pragmatic, flexible approach” to our Government’s design. Perez v. Mortgage Bankers Assn. , 575 U.S. 92, 115–116 (2015) (Thomas, J., concurring in judgment) (internal quotation marks omitted). Our tolerance of independent agencies in Humphrey’s Executor is an unfortunate example of the Court’s failure to apply the Constitution as written. That decision has paved the way for an ever-expanding encroachment on the power of the Executive, contrary to our constitutional design. B 1 The lead up to Humphrey’s Executor begins with this Court’s decision in Myers , 272 U.S. 52 . Myers involved a federal statute that prohibited the President from removing certain postmasters except “by and with the advice and consent of the Senate.” Id. , at 107 (internal quotation marks omitted). The question presented was “whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.” Id. , at 106. In a 70-page opinion by Chief Justice Taft, the Court held that the Constitution did vest such power in the President. The Court anchored its analysis in evidence from the founding era. It acknowledged that the “subject [of removal] was not discussed in the Constitutional Convention,” id. , at 109–110, but it reviewed in detail the First Congress’ vigorous debate about the removal of executive officers in what is known as the Decision of 1789, id. , at 111–135.[ 1 ] In the course of analyzing the Decision of 1789, the Court explained that Article II vests “the executive power of the Government . . . in one person”—the President—and that the executive power includes the authority to “select those who [are] to act for him under his direction in the execution of the laws.” Id. , at 116–117. Reiterating the position of James Madison and other Members of the First Congress, the Court noted that allowing limits on the President’s removal authority would grant Congress “the means of thwarting the Executive in the exercise of his great powers and in the bearing of his great responsibility, by fastening upon him, as subordinate executive officers, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy might make his taking care that the laws be faithfully executed most difficult or impossible.” Id. , at 131. After “devot[ing] much space to [the] discussion and decision of the question of the Presidential power of removal in the First Congress” as well as its understanding of the executive power, id. , at 136, the Court concluded that “the power to remove officers appointed by the President and the Senate vested in the President alone,” id. , at 114. It repeatedly described this removal power as “unrestricted.” Id. , at 115, 134, 150, 172, 176. The Court noted that the First Congress’ understanding of the removal question was quickly “accepted as a final decision of the question by all branches of the Government.” Id. , at 136. The decision was “affirmed by this Court in unmistakable terms.” Id. , at 148, 152–153 (discussing Ex parte Hennen , 13 Pet. 230, 259 (1839); Parsons v. United States , 167 U.S. 324 , 330 (1897)). Presidents had “uniform[ly]” adopted the First Congress’ view “whenever an issue ha[d] clearly been raised.” Myers , 272 U. S., at 169. And “Congress, in a number of acts, followed and enforced the legislative decision of 1789 for seventy-four years.” Id. , at 145. While disputes with President Andrew Johnson over Reconstruction led Congress to “enact legislation to curtail the then acknowledged powers of the President,” id. , at 165, the Myers Court declined to give these politically charged acts any weight, id., at 175–176. After exhaustively analyzing the historical evidence, the Court had “no hesitation in holding that [the First Congress’] conclusion [was] correct.” Id. , at 176 . Accordingly, the Court held that “the provision of the law [at issue], by which the unrestricted power of removal of first class postmasters is denied to the President, [was] in violation of the Constitution, and invalid.” Ibid. 2 Nine years after Myers , the Court decided Humphrey’s Executor . That case arose from the attempted removal of Commissioner William Humphrey from the Federal Trade Commission (FTC). In 1931, President Herbert Hoover appointed Humphrey to serve a 7-year term as one of the FTC’s five Commissioners. By all accounts, Humphrey proved to be a controversial figure. See Crane, Debunking Humphrey’s Executor , 83 Geo. Wash. L. Rev. 1836, 1841 (2015); Winerman, The FTC at Ninety: History Through Headlines, 72 Antitrust L. J. 871, 878–879 (2005); Yoo, Calabresi, & Nee, The Unitary Executive During the Third Half-Century, 1889–1945, 80 Notre Dame L. Rev. 1, 64 (2004). He reportedly “vowed not to approve any Commission action that did not have as its goal to help business help itself,” “threaten[ed] criminal prosecution against other commissioners who publicly dissented,” and “called his fellow commissioners men drunk with their own greatness” when they voted to initiate an investigation. Crane, supra , at 1841 (internal quotation marks omitted). Less than two years into Humphrey’s term, newly inaugurated President Franklin D. Roosevelt wrote Humphrey a letter, asking for his resignation. The President explained that, in his view, “the aims and purposes of the Administration with respect to the work of the Commission [could] be carried out most effectively with personnel of [his] own selection.” Humphrey’s Executor , 295 U. S., at 618 (internal quotation marks omitted). A little over a month after his first letter, President Roosevelt wrote Humphrey again to ask for his resignation. The letter stated: “You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the [FTC], and, frankly, I think it is best for the people of this country that I should have a full confidence.” Id. , at 619 (internal quotation marks omitted). Humphrey declined to resign. In October 1933, President Roosevelt informed Humphrey that he was removed from his position. Humphrey did not comply, continuing “to insist that he was still a member of the commission, entitled to perform its duties and receive the compensation provided by law.” Ibid. Four months later, Humphrey died. The executor of his estate brought suit in the Court of Claims, seeking to recover Humphrey’s salary from the date of his removal until the date of his death. The Court of Claims certified two questions to this Court: (1) whether §1 of the Federal Trade Commission Act of 1914, ch. 311, 38Stat. 717, prohibited the President from removing FTC Commissioners except for “inefficiency, neglect of duty, or malfeasance in office,” and (2) if so, whether that restriction was constitutional. 295 U. S., at 619 (internal quotation marks omitted). The Court answered both of these questions in favor of Humphrey’s estate. It first held that the FTC Act “limit[ed] the executive power of removal to the causes enumerated” therein—inefficiency, neglect of duty, or malfeasance in office. Id. , at 626. In the Court’s view, this construction of the Act was clear from “the face of the statute” and “the character of the commission,” id. , at 624, which the Court described as a “body of experts” that operates “independent of executive authority . . . and free to exercise its judgment without the leave or hindrance of any other official,” id. , at 625–626. Then, notwithstanding the text of Article II of the Constitution and the decision in Myers , the Court held that the Act’s restriction on the President’s authority to remove Commissioners was constitutional. The Court acknowledged that the “recently decided” Myers decision had “fully review[ed] the general subject of the power of executive removal” and “examine[d] at length the historical, legislative and judicial data bearing upon the question.” Humphrey’s Executor , 295 U. S., at 626. And it conceded that executive officers are “subject to the exclusive and illimitable power of removal by the Chief Executive.” Id. , at 627; see also id. , at 631 (recognizing “the President’s illimitable power of removal” over executive officers).[ 2 ] The Court, however, claimed that “[t]he office of a postmaster is so essentially unlike the office [of an FTC Commissioner] that the decision in the Myers case [could not] be accepted as controlling.” Id. , at 627. In the Court’s view, unlike the postmaster in Myers , FTC commissioners did not qualify as “purely executive officers.” 295 U. S., at 632. The Court grounded its analysis in its assertion that the FTC “occupies no place in the executive department and . . . exercises no part of the executive power vested by the Constitution in the President.” Id. , at 628. Rather, in the Court’s view, by “filling in and administering the details embodied by [the FTC Act’s] general standard[,] the commission act[ed] in part quasi-legislatively and in part quasi-judicially.” Ibid. The Court stated that the FTC acted “as a legislative agency” by “making investigations and reports thereon for the information of Congress” and acted “as an agency of the judiciary” when performing its role “as a master in chancery under rules prescribed by the court.” Ibid. “Such a body,” the Court explained, “cannot in any proper sense be characterized as an arm or an eye of the executive.” Ibid. After distinguishing “purely executive officers” from officers exercising “quasi-legislative or quasi-judicial powers,” ibid. , the Court held that “[w]hether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by . . . precluding a removal except for cause, will depend upon the character of the office,” id. , at 631. “[P]urely executive officers” are subject to the President’s “unrestrictable power . . . to remove.” Id. , at 632 . But with regard to “quasi-legislative” and “quasi-judicial” officers, the Court concluded that “no removal [could] be made . . . except for one or more of the causes named.” Ibid. 3 Humphrey’s Executor laid the foundation for a fundamental departure from our constitutional structure with nothing more than handwaving and obfuscating phrases such as “quasi-legislative” and “quasi-judicial.” Unlike the thorough analysis in Myers , the Court’s thinly reasoned decision is completely “devoid of textual or historical precedent for the novel principle it set forth.” Morrison v. Olson , 487 U.S. 654 , 726 (1988) (Scalia, J., dissenting). The exceptional weakness of the reasoning could be a product of the circumstances under which the case was decided—in the midst of a bitter standoff between the Court and President Roosevelt[ 3 ]—or it could be just another example of this Court departing from the strictures of the Constitution for a “more pragmatic, flexible approach” to our government’s design. Perez , 575 U. S., at 116 (opinion of Thomas, J.) (internal quotation marks omitted). But whatever the motivation, Humphrey’s Executor does not comport with the Constitution. Humphrey’s Executor relies on one key premise: the notion that there is a category of “quasi-legislative” and “quasi-judicial” power that is not exercised by Congress or the Judiciary, but that is also not part of “the executive power vested by the Constitution in the President.” Humphrey’s Executor , supra , at 628. Working from that premise, the Court distinguished the “illimitable” power of removal recognized in Myers , Humphrey’s Executor , 295 U. S., at 627–628, and upheld the FTC Act’s removal restriction, while simultaneously acknowledging that the Constitution vests the President with the entirety of the executive power, id. , at 628. The problem is that the Court’s premise was entirely wrong. The Constitution does not permit the creation of officers exercising “quasi-legislative” and “quasi-judicial powers” in “quasi-legislative” and “quasi-judicial agencies.” Id., at 628–629 . No such powers or agencies exist. Congress lacks the authority to delegate its legislative power, Whitman v. American Trucking Assns. , Inc. , 531 U.S. 457 , 472 (2001), and it cannot authorize the use of judicial power by officers acting outside of the bounds of Article III, Stern v. Marshall , 564 U.S. 462 , 484 (2011). Nor can Congress create agencies that straddle multiple branches of Government. The Constitution sets out three branches of Government and provides each with a different form of power—legislative, executive, and judicial. See Art. I, §1; Art. II, §1, cl. 1; Art. III, §1. Free-floating agencies simply do not comport with this constitutional structure. “[A]gencies have been called quasi-legislative, quasi-executive or quasi-judicial, as the occasion required, in order to validate their functions within the separation-of-powers scheme of the Constitution.” FTC v. Ruberoid Co. , 343 U.S. 470 , 487 (1952) (Jackson, J., dissenting). But “[t]he mere retreat to the qualifying ‘quasi’ is implicit with confession that all recognized classifications have broken down, and ‘quasi’ is a smooth cover which we draw over our confusion as we might use a counterpane to conceal a disordered bed.” Id. , at 487–488. That is exactly what happened in Humphrey’s Executor . The Court upheld the FTC Act’s removal restriction by using the “quasi” label to support its claim that the FTC “exercise[d] no part of the executive power vested by the Constitution in the President.” Humphrey’s Executor , supra , at 628. But “it is hard to dispute that the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered ‘executive,’ at least to some degree.” Morrison , supra , at 690, n. 28; see ante , at 14, n. 2; see post , at 18, n. 7 (Kagan, J., concurring in judgment with respect to severability and dissenting in part) . C Today’s decision constitutes the latest in a series of cases that have significantly undermined Humphrey’s Executor . First, in Morrison , the Court repudiated the reasoning of the decision. 487 U. S., at 689. Then, in Free Enterprise Fund , we returned to the principles set out in the “landmark case of Myers .” 561 U. S., at 492. And today, the Court rightfully limits Humphrey’s Executor to “multimember expert agencies that do not wield substantial executive power.” Ante , at 16. After these decisions, the foundation for Humphrey’s Executor is not just shaky. It is nonexistent. This Court’s repudiation of Humphrey’s Executor began with its decision in Morrison . There, the Court upheld a statute insulating an independent counsel from removal by the Attorney General absent a showing of “good cause.” Morrison , supra , at 659–660. In doing so, the Court set aside the reasoning of Humphrey’s Executor . It recognized that Humphrey’s Executor “rel[ied] on the terms ‘quasi- legislative’ and ‘quasi-judicial’ to distinguish the officials involved in Humphrey’s Executor . . . from those in Myers .” 487 U. S., at 689. But it then immediately stated that its “present considered view is that the determination of whether the Constitution allows Congress to impose a ‘good cause’-type restriction on the President’s power to remove an official cannot be made to turn on whether or not that official is classified as ‘purely executive.’ ” Ibid. The Court also rejected Humphrey’s Executor ’s conclusion that the FTC did not exercise executive power, stating that “the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered ‘executive.’ ” Morrison , supra , at 690, n. 28. The lone dissenter, Justice Scalia, disagreed with much of the Court’s analysis but noted that the Court had rightfully “swept” Humphrey’s Executor “into the dustbin of repudiated constitutional principles.” 487 U. S., at 725. Thus, all nine Members of the Court in Morrison rejected the core rationale of Humphrey’s Executor . The reasoning of the Court’s decision in Free Enterprise Fund created further tension (if not outright conflict) with Humphrey’s Executor . In Free Enterprise Fund , the Court concluded that a dual layer of for-cause removal restrictions for members of the Public Company Accounting Oversight Board violated the Constitution. In its analysis, the Court recognized that allowing officers to “execute the laws” beyond the President’s control “is contrary to Article II’s vesting of the executive power in the President .” 561 U. S., at 496 (emphasis added). The Court acknowledged that “the executive power include[s] a power to oversee executive officers through removal.” Id. , at 492. And it explained that, without the power of removal, the President cannot “be held fully accountable” for the exercise of the executive power, “ ‘greatly diminish[ing] the intended and necessary responsibility of the chief magistrate himself.’ ” Id. , at 514 (quoting The Federalist No. 70, p. 478 (J. Cooke ed. 1961) (A. Hamilton)). Accountability, the Court repeatedly emphasized, plays a central role in our constitutional structure. See, e.g. , Free Enterprise Fund , 561 U. S. , at 498 (“[E]xecutive power without the Executive’s oversight . . . subverts the President’s ability to ensure that the laws are faithfully executed—as well as the public’s ability to pass judgment on his efforts”); id. , at 513 (“The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so”). Humphrey’s Executor is at odds with every single one of these principles: It ignores Article II’s Vesting Clause, sidesteps the President’s removal power, and encourages the exercise of executive power by unaccountable officers. The reasoning of the two decisions simply cannot be reconciled. Finally, today’s decision builds upon Morrison and Free Enterprise Fund , further eroding the foundation of Humphrey’s Executor . The Court correctly notes that “[t]he entire ‘executive Power’ belongs to the President alone.” Ante , at 11. The President therefore must have “power to remove—and thus supervise—those who wield executive power on his behalf.” Ante , at 2. As a result, the Court concludes that Humphrey’s Executor must be limited to “multimember expert agencies that do not wield substantial executive power .” Ante, at 16 (emphasis added). And, at the same time, it recognizes (as the Court did in Morrison ) that “[t]he Court’s conclusion that the FTC did not exercise executive power has not withstood the test of time.” Ante , at 14, n. 2. In other words, Humphrey’s Executor does not even satisfy its own exception. In light of these decisions, it is not clear what is left of Humphrey’s Executor ’s rationale.[ 4 ] But if any remnant of that decision is still standing, it certainly is not enough to justify the numerous, unaccountable independent agencies that currently exercise vast executive power outside the bounds of our constitutional structure. *  *  * Continued reliance on Humphrey’s Executor to justify the existence of independent agencies creates a serious, ongoing threat to our Government’s design. Leaving these unconstitutional agencies in place does not enhance this Court’s legitimacy; it subverts political accountability and threatens individual liberty. We have a “responsibility to ‘examin[e] without fear, and revis[e] without reluctance,’ any ‘hasty and crude decisions’ rather than leaving ‘the character of [the] law impaired, and the beauty and harmony of the [American constitutional] system destroyed by the perpetuity of error.’ ” Gamble v. United States , 587 U. S. ___, ___ (2019) (Thomas, J., concurring) (slip op., at 7) (quoting 1 J. Kent, Commentaries on American Law 444 (1826); some alterations in original). We simply cannot compromise when it comes to our Government’s structure. Today, the Court does enough to resolve this case, but in the future, we should reconsider Humphrey’s Executor in toto . And I hope that we will have the will to do so. II While I think that the Court correctly resolves the merits of the constitutional question, I do not agree with its decision to sever the removal restriction in 12 U. S. C. §5491(c)(3). See ante , at 30–36; post , at 37. To resolve this case, I would simply deny the Consumer Financial Protection Bureau (CFPB) petition to enforce the civil investigative demand. A Article III of the Constitution vests “[t]he judicial Power of the United States” in the “supreme Court” and the lower federal courts established by Congress. §1. “[T]he judicial power is, fundamentally, the power to render judgments in individual cases” or controversies that are properly before the court. Murphy v. National Collegiate Athletic Assn. , 584 U. S. ___, ___–___ (2018) (Thomas, J., concurring) (slip op., at 2–3); see also Plaut v. Spendthrift Farm , Inc. , 514 U.S. 211 , 219 (1995) (“ ‘[A] “judicial Power” is one to render dispositive judgments’ ”); Baude, The Judgment Power, 96 Geo. L. J. 1807, 1815–1816 (2008). “[T]he power exercised is that of ascertaining and declaring the law applicable to the controversy.” Massachusetts v. Mellon , 262 U.S. 447 , 488 (1923). In the context of a constitutional challenge, “[i]t amounts to little more than the negative power to disregard an unconstitutional enactment.” Ibid. ; see also Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018). Thus, if a party argues that a statute and the Constitution conflict, “then courts must resolve that dispute and, . . . follow the higher law of the Constitution.” Murphy , 584 U. S., at ___ (Thomas, J., concurring) (slip op., at 3). Consistent with this understanding, “[e]arly American courts did not have a severability doctrine.” Id. , at ___ (slip op., at 2) (citing Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 769 (2010)). If a statute was unconstitutional, the court would just decline to enforce the statute in the case before it. 584 U. S., at ___ (Thomas, J., concurring) (slip op., at 3) . That was the end of the matter. “[T]here was no ‘next step’ in which [a] cour[t]” severed portions of a statute. Walsh, supra , at 777. Our modern severability precedents create tension with this historic practice. Instead of declining to enforce an unconstitutional statute in an individual case, this Court has stated that courts must “seve[r] and excis[e]” portions of a statute to “remedy” the constitutional problem. United States v. Booker , 543 U.S. 220 , 245 (2005); Alaska Airlines , Inc. v. Brock , 480 U.S. 678 , 686 (1987). The Court’s rhetoric when discussing severance implies that a court’s decision to sever a provision “formally suspend[s] or erase[s it], when [the provision] actually remains on the books as a law.” Mitchell, supra , at 1017. The Federal Judiciary does not have the power to excise, erase, alter, or otherwise strike down a statute. Murphy , supra , at ___ (Thomas, J., concurring) (slip op., at 4); Mitchell, supra , at 936. And the Court’s reference to severability as a “remedy” is inaccurate. Traditional remedies—like injunctions, declarations, or damages—“ ‘operate with respect to specific parties,’ not ‘on legal rules in the abstract.’ ” Murphy , supra , at ___ (Thomas, J., concurring) (slip op., at 3) (quoting Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56, 85 (2014)). Because the power of judicial review does not allow courts to revise statutes, Mitchell, supra , at 983, the Court’s severability doctrine must be rooted in statutory interpretation. But, even viewing severability as an interpretive question, I remain skeptical of our doctrine. As I have previously explained, “the severability doctrine often requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions.” Murphy , 584 U. S., at ___ (concurring opinion) (slip op., at 5). And the application of the doctrine “does not follow basic principles of statutory interpretation.” Id. , at ___ (slip op., at 4) . Instead of determining the meaning of a statute’s text, severability involves “nebulous inquir[ies] into hypothetical congressional intent.” Booker , supra, at 320, n. 7 (Thomas, J., dissenting in part). B Consistent with the traditional understanding of the judicial power, I would deny CFPB’s petition to enforce the civil investigative demand that it issued to Seila. See §5562(e)(1). Seila “challenge[d] the validity of both the civil investigative demand and the ensuing enforcement action.” Reply Brief for Petitioner 5. Seila has not countersued or sought affirmative relief preventing the CFPB from acting in the future; it simply asks us to “reverse the court of appeals’ judgment.” Brief for Petitioner 35. I would do just that. As the Court recognizes, the enforcement of a civil investigative demand by an official with unconstitutional removal protection injures Seila. See ante , at 9–10. Presented with an enforcement request from an unconstitutionally insulated Director, I would simply deny the CFPB’s petition for an order of enforcement. This approach would resolve the dispute before us without addressing the issue of severability. The Court, however, does more. In the plurality’s view,[ 5 ] because the CFPB raised a ratification argument before the Court of Appeals, we can (and should) reach the question of severability. See ante , at 30–31. But as explained more fully below, resolving this question is wholly unnecessary. Regardless of whether the CFPB’s ratification theory is valid, the Court of Appeals on remand must reach the same outcome: The CFPB’s civil investigative demand cannot be enforced against Seila. The ratification argument presented by the CFPB is quite simple. Since its creation in 2010, the CFPB has had three Directors—first Director Richard Cordray, then Acting Director Mick Mulvaney, and now Director Kathleen Kraninger. The CFPB’s first Director, Director Cordray, issued a civil investigative demand to Seila and initiated the enforcement action. The CFPB has conceded that these actions were unconstitutional. But, in the Ninth Circuit, the CFPB argued that the investigative demand was ratified by Acting Director Mulvaney, who it claimed was not insulated by the removal provision. Brief for Appellee in No. 17–56324, pp. 13–19. In the CFPB’s view, the President could remove Acting Director Mulvaney at will because the “removal provision by its terms applies only to ‘the Director,’ not to an Acting Director,” and the Federal Vacancy Reform Act “does not limit the President’s ability to designate a different person as Acting Director.” Id. , at 14. Based on this ratification theory, the CFPB asked the Ninth Circuit to affirm the District Court’s order granting the CFPB’s petition to enforce its investigative demand. The CFPB does not ask this Court to address ratification on the merits, but it does rely on its unresolved ratification theory to assert that the Court should reach severability. In doing so, the CFPB relies on the same theory that it presented to the Ninth Circuit. Thus, the only live ratification claim is the theory that Acting Director Mulvaney ratified the civil investigative demand. See ante , at 30–31.[ 6 ] The resolution of the CFPB’s Acting-Director ratification theory, however, has no bearing on the outcome of the dispute before us and therefore provides no basis for addressing severability. If the Acting Director did not ratify the investigative demand, then there is obviously no need to address severability. And even if he did, the Court still does not need to address severability because the alleged ratification does not cure the constitutional injury—enforcement of an investigative demand by an unconstitutionally insulated Director. Seila “challenge[d] the validity of both the civil investigative demand and the ensuing enforcement action .” Reply Brief for Petitioner 5 (emphasis added). Acting Director Mulvaney may (or may not) have properly ratified the issuance of the investigative demand and the initiation of the enforcement proceedings. But he certainly could not ratify the continuance of the enforcement action by his successor, Director Kraninger. Id. , at 7. Thus, even if the CFPB’s ratification theory is valid, Seila still has an injury: It has been (and continues to be) subjected to enforcement of an investigative demand by Director Kraninger, who “remains statutorily insulated from removal.” Reply Brief for Respondent 7; see also Free Enterprise Fund , 561 U. S., at 513; ante , at 10. Thus, we should decline to enforce the civil investigative demand against Seila. See supra, at 14–15. Ultimately, I cannot see how the resolution of the severability question affects the dispute before us. And even if severability could affect this case in some hypothetical scenario, I would not reach out to resolve the issue given my growing discomfort with our current severability precedents. C Confident that it can address the question of severability, the plurality moves on to conduct its analysis. It starts by pointing to the severability clause in the Dodd-Frank Act. See ante , at 33. That clause states: “If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any person or circumstance shall not be affected thereby.” §5302. The plurality states that “[i]f the Director were removable at will by the President, the constitutional violation would disappear.” Ante , at 32–33. Then, relying on language in the severability clause, it concludes that the removal provision, §5491(c)(3), should be severed. The plurality suggests that its analysis is a matter of simply enforcing the “plain language” of the severability clause. See ante , at 33. But I am not sure it is that simple. For one, the plurality does not actually analyze the statutory language.[ 7 ] Second, the analysis the plurality does provide looks nothing like traditional statutory interpretation. Generally, when we interpret a statute, we do not hold that the text sets out a “presum[ption]” that can be rebutted by looking to atextual evidence of legislative intent. Ante , at 32. A text-based interpretation does not allow a free-ranging inquiry into what “ ‘Congress, faced with the limitations imposed by the Constitution, would have preferred’ ” had it known of a constitutional issue. Ante , at 33 (quoting Free Enterprise Fund , supra , at 509). Nor does it consider whether Congress would have wanted to avoid “a major regulatory disruption.” Ante , at 35. Statutory interpretation focuses on the text. Even treating the question as a matter of pure statutory interpretation and assuming that the plurality points to the correct language, the text of the severability clause cannot, in isolation, justify severance of the removal provision. In some instances, a constitutional injury arises as a result of two or more statutory provisions operating together. See, e.g. , Free Enterprise Fund , supra , at 509 (stating that the convergence of “a number of statutory provisions” produce a constitutional violation); Booker , 543 U. S., at 316–317 (opinion of Thomas, J.) (explaining that “the concerted action of [18 U. S. C.] §3553(b)(1) and the operative Guidelines and the relevant Rule of Criminal Procedure resulted in unconstitutional judicial factfinding”); Lea, Situation Severability, 103 Va. L. Rev. 735, 778–780 (2017) (discussing statutory convergences). That is precisely the situation we have in this case. As in Free Enterprise Fund , the provision requiring “good-cause removal is only one of [the] statutory provisions that, working together, produce a constitutional violation.” 561 U. S., at 509. The constitutional violation results from, at a minimum, the combination of the removal provision, 12 U. S. C. §5491(c)(3), and the provision allowing the CFPB to seek enforcement of a civil investigative demand, §5562(e)(1). When confronted with two provisions that operate together to violate the Constitution, the text of the severability clause provides no guidance as to which provision should be severed. Thus, we must choose, based on something other than the severability clause, which provision to sever. Without text to guide us, the severability inquiry moves away from statutory interpretation and falls back on this Court’s questionable precedents. See Murphy , 584 U. S., at ___–___ (Thomas, J., concurring) (slip op., at 4–6). An analysis of the Court’s decisions in Booker and Free Enterprise Fund illustrates the Court’s approach to determining which provision to sever when confronting an injury caused by an unconstitutional convergence of multiple statutory provisions. In Booker , a Rule of Criminal Procedure, a subset of provisions in the Sentencing Guidelines, and a statutory provision operated together to require unconstitutional judicial factfinding. To determine which aspect of the sentencing scheme to sever, the Court sought to divine “what Congress would have intended in light of the Court’s constitutional holding.” Booker , 543 U. S., at 246 (internal quotation marks omitted). The Court “recognize[d] that sometimes severability questions . . . can arise [in the context of] a legislatively unforeseen constitutional problem.” Id. , at 247. But it nonetheless felt qualified to craft a remedy that would “move sentencing in Congress’ preferred direction.” Id. , at 264. Surprisingly, that “move” did not involve enforcing the constitutional aspects of Congress’ sentencing scheme. The Court stated that “we cannot assume that Congress, if faced with the statute’s invalidity in key applications, would have preferred to apply the statute in as many other instances as possible.” Id. , at 248.[ 8 ] Despite the fact that there were a plethora of cases in which mandatory Sentencing Guidelines would have posed no constitutional problem, the Court decided to “sever and excise . . . the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range,” along with another provision which was not even at issue in the case. Id. , at 259. In essence, the Court crafted a new sentencing scheme, transforming the Sentencing Guidelines into an entirely discretionary system based on its estimation that Congress would have wanted that result. The Court in Free Enterprise Fund declined to explicitly engage in Booker ’s free-wheeling inquiry into Congress’ hypothetical preferences, but it did not replace that inquiry with a clear standard. In that case, the Court held that a “number of statutory provisions . . . , working together, produce[d] a constitutional violation” similar to the violation at issue here. Free Enterprise Fund , 561 U. S., at 509. The Court decided to sever the Board’s removal restriction. It explicitly recognized that there were multiple ways to address the constitutional injury, stating that the Court could, for example, “blue-pencil a sufficient number of the Board’s responsibilities,” or “restrict the Board’s enforcement powers.” Ibid. But it described these alternative options as involving “editorial freedom—far more extensive than [the] holding today—[that] belongs to the Legislature, not the Judiciary.” Id. , at 510. The Court did not explain, however, why the option that it chose was not also “editorial freedom” that belongs to the Legislature or why the alternatives involved “more extensive” “editorial freedom” than its preferred option. Ibid. The most that the Court provided was a suggestion that fewer provisions would have to be severed under its approach. Id. , at 509–510. Today’s plurality opinion provides no further guidance. In fact, the plurality does not even recognize that it has made a choice between the provisions that cause the constitutional injury. It merely states that “[i]f the Director were removable at will by the President, the constitutional violation would disappear.” Ante , at 32–33. Fair enough. But if the Director lacked executive authority under the statute to seek enforcement of a civil investigative demand, §5562(e)(1), the constitutional violation in this case would also disappear. The plurality thus chooses which of the provisions to sever. In short, when multiple provisions of law combine to cause a constitutional injury, the Court’s current approach allows the Court to decide which provision to sever. The text of a severability clause does not guide that choice. Nor does the practice of early American courts. See supra , at 14–15. The Court is thus left to choose based on nothing more than speculation as to what the Legislature would have preferred. And the result of its choice can have a dramatic effect on the governing statutory scheme. See Booker , supra , at 259 (converting the entirety of the Sentencing Guidelines from a mandatory to a discretionary system). This is not a simple matter of following the “plain language” of a statute. Ante , at 33. It is incumbent on us to take a close look at our precedents to make sure that we are not exceeding the scope of the judicial power. *  *  * Given my concerns about our modern severability doctrine and the fact that severability makes no difference to the dispute before us, I would resolve this case by simply denying the CFPB’s petition to enforce the civil investigative demand. Notes 1 For a comprehensive review of the Decision of 1789, see Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006). 2 The explicit and repeated recognition of the President’s “illimitable power” in Humphrey’s Executor highlights the dissent’s error in claiming that Humphrey’s Executor “abandoned [the] view” set out in Myers v. United States , 272 U.S. 52 (1926). Post , at 17 (Kagan, J., concurring in judgment with respect to severability and dissenting in part) (hereinafter dissent). Humphrey’s Executor did not abandon Myers ; it distinguished Myers based on the flawed premise that the FTC exercised “quasi-legislative” and “quasi-judicial” power that is not part of “the executive power vested by the Constitution in the President.” Humphrey’s Executor , 295 U. S., at 628; see also infra , at 9–11. 3 A number of historical sources indicate that President Roosevelt saw Humphrey’s Executor v. United States , 295 U.S. 602 (1935), as an attack on his administration. Given the Court’s recent decision in Myers , the Roosevelt administration was reportedly “stunned” by the Court’s decision in Humphrey’s Executor , and the President was particularly annoyed that the decision “ma[de] it appear that he had been willfully violating the Constitution.” See W. Leuchtenberg, The Supreme Court Reborn 78 (1995). Justice Jackson, who was serving in the Roosevelt administration at the time, stated in an interview that “ ‘the decision that made Roosevelt madder at the Court than any other decision was that . . . little case of Humphrey’s Executor v. United States . The President thought they went out of their way to spite him personally.’ ” E. Gerhart, America’s Advocate: Robert H. Jackson 99 (1958) (quoting 1949 interview with Justice Jackson). 4 The dissent, while vigorously defending the holding of Humphrey's Executor , can muster no defense for the reasoning of the decision. The dissent does not defend the notion of “quasi” powers or “quasi” agencies, recognizing that the power exercised by the FTC was executive power. See post , at 18, n. 7. And, in 39 pages, it cannot explain how any aspect of Humphrey’s Executor (other than its holding) survived Morrison v. Olson , 487 U.S. 654 (1988), and Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 (2010). Instead, the dissent simply claims that Humphrey’s Executor was “extended” and “clarified” in Morrison , post , at 19, attempting to breathe validity into Humphrey’s Executor through the Court’s Morrison decision. But the dissent’s reading of Morrison as “extend[ing] Humphrey’s domain” is baffling. Post , at 19. Morrison expressly repudiated the substantive reasoning of Humphrey’s Executor . See supra , at 11–12. 5 The dissent provides no analysis of severability, simply stating “ if the agency’s removal provision is unconstitutional, it should be severed.” Post, at 37. 6 The Court-appointed amicus suggests that the CFPB’s current Director, Director Kraninger, ratified the enforcement proceeding by maintaining the suit after she stated her belief that the removal provision is unconstitutional. But the CFPB expressly disclaimed the notion that Director Kraninger had the power to ratify the civil investigative demand, stating that she “remains statutorily insulated from removal, regardless whether she believes the law is invalid.” Reply Brief for Respondent 7. 7 The severability clause refers to three alternative scenarios: (1) a “provision of [the] Act . . . is held to be unconstitutional”; (2) “an amendment made by [the] Act . . . is held unconstitutional”; and (3) “the application of [a] provision or amendment [of the Act] to any person or circumstance is held to be unconstitutional.” 12 U. S. C. §5302. The plurality assumes, with no analysis, that this case falls in the first scenario, calling for a provision to be severed from the Dodd-Frank Act. See ante , at 33. But, as discussed below, there is no single “provision” of the Act that has led to the constitutional injury in this case. See infra , at 20–21. It is the attempted enforcement of a civil investigative demand under §5562(e)(1) by an unconstitutionally insulated Director that causes the constitutional injury in this case. There is at least a nonfrivolous argument that this case implicates the third scenario contemplated by the severability clause— i.e., “the application of [a] provision” in a certain “circumstance.” §5302. If that were so, the text of the severability clause would not require any “provision” to be severed; the unconstitutional application of §5562(e)(1) simply would not affect other provisions of the Dodd-Frank Act. Such a reading would be consistent with the traditional limits on the judicial power. See supra , at 14–15. 8 This statement in Booker is irreconcilable with the plurality’s assertion here that “Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect.” Ante, at 35. Thus, it appears that the plurality either sub silentio “junk[s] our settled severability doctrine,” ibid. , or invokes, without explanation, different assumptions for different cases. SUPREME COURT OF THE UNITED STATES _________________ No. 19–7 _________________ SEILA LAW LLC, PETITIONER v. CONSUMER FINANCIAL PROTECTION BUREAU on writ of certiorari to the united states court of appeals for the ninth circuit [June 29, 2020] Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, concurring in the judgment with respect to severability and dissenting in part. Throughout the Nation’s history, this Court has left most decisions about how to structure the Executive Branch to Congress and the President, acting through legislation they both agree to. In particular, the Court has commonly allowed those two branches to create zones of administrative independence by limiting the President’s power to remove agency heads. The Federal Reserve Board. The Federal Trade Commission (FTC). The National Labor Relations Board. Statute after statute establishing such entities instructs the President that he may not discharge their directors except for cause—most often phrased as inefficiency, neglect of duty, or malfeasance in office. Those statutes, whose language the Court has repeatedly approved, provide the model for the removal restriction before us today. If precedent were any guide, that provision would have survived its encounter with this Court—and so would the intended independence of the Consumer Financial Protection Bureau (CFPB). Our Constitution and history demand that result. The text of the Constitution allows these common for-cause removal limits. Nothing in it speaks of removal. And it grants Congress authority to organize all the institutions of American governance, provided only that those arrangements allow the President to perform his own constitutionally assigned duties. Still more, the Framers’ choice to give the political branches wide discretion over administrative offices has played out through American history in ways that have settled the constitutional meaning. From the first, Congress debated and enacted measures to create spheres of administration—especially of financial affairs—detached from direct presidential control. As the years passed, and governance became ever more complicated, Congress continued to adopt and adapt such measures—confident it had latitude to do so under a Constitution meant to “endure for ages to come.” McCulloch v. Maryland , 4 Wheat. 316, 415 (1819) (approving the Second Bank of the United States). Not every innovation in governance—not every experiment in administrative independence—has proved successful. And debates about the prudence of limiting the President’s control over regulatory agencies, including through his removal power, have never abated.[ 1 ] But the Constitution—both as originally drafted and as practiced—mostly leaves disagreements about administrative structure to Congress and the President, who have the knowledge and experience needed to address them. Within broad bounds, it keeps the courts—who do not—out of the picture. The Court today fails to respect its proper role. It recognizes that this Court has approved limits on the President’s removal power over heads of agencies much like the CFPB. Agencies possessing similar powers, agencies charged with similar missions, agencies created for similar reasons. The majority’s explanation is that the heads of those agencies fall within an “exception”—one for multimember bodies and another for inferior officers—to a “general rule” of unrestricted presidential removal power. Ante, at 13. And the majority says the CFPB Director does not. That account, though, is wrong in every respect. The majority’s general rule does not exist. Its exceptions, likewise, are made up for the occasion—gerrymandered so the CFPB falls outside them. And the distinction doing most of the majority’s work—between multimember bodies and single directors—does not respond to the constitutional values at stake. If a removal provision violates the separation of powers, it is because the measure so deprives the President of control over an official as to impede his own constitutional functions. But with or without a for-cause removal provision, the President has at least as much control over an individual as over a commission—and possibly more. That means the constitutional concern is, if anything, ameliorated when the agency has a single head. Unwittingly, the majority shows why courts should stay their hand in these matters. “Compared to Congress and the President, the Judiciary possesses an inferior understanding of the realities of administration” and the way “political power[ ] operates.” Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 523 (2010) (Breyer, J., dissenting). In second-guessing the political branches, the majority second-guesses as well the wisdom of the Framers and the judgment of history. It writes in rules to the Constitution that the drafters knew well enough not to put there. It repudiates the lessons of American experience, from the 18th century to the present day. And it commits the Nation to a static version of governance, incapable of responding to new conditions and challenges. Congress and the President established the CFPB to address financial practices that had brought on a devastating recession, and could do so again. Today’s decision wipes out a feature of that agency its creators thought fundamental to its mission—a measure of independence from political pressure. I respectfully dissent. I The text of the Constitution, the history of the country, the precedents of this Court, and the need for sound and adaptable governance—all stand against the majority’s opinion. They point not to the majority’s “general rule” of “unrestricted removal power” with two grudgingly applied “exceptions.” Ante, at 13, 16. Rather, they bestow discretion on the legislature to structure administrative institutions as the times demand, so long as the President retains the ability to carry out his constitutional duties. And most relevant here, they give Congress wide leeway to limit the President’s removal power in the interest of enhancing independence from politics in regulatory bodies like the CFPB. A What does the Constitution say about the separation of powers—and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.) The majority offers the civics class version of separation of powers—call it the Schoolhouse Rock definition of the phrase. See Schoolhouse Rock! Three Ring Government (Mar. 13, 1979), http://www.youtube.com/watch?v= pKSGyiT-o3o (“Ring one, Executive. Two is Legislative, that’s Congress. Ring three, Judiciary”). The Constitution’s first three articles, the majority recounts, “split the atom of sovereignty” among Congress, the President, and the courts. Ante, at 21 (internal quotation marks omitted). And by that mechanism, the Framers provided a “simple” fix “to governmental power and its perils.” Ibid. There is nothing wrong with that as a beginning (except the adjective “simple”). It is of course true that the Framers lodged three different kinds of power in three different entities. And that they did so for a crucial purpose—because, as James Madison wrote, “there can be no liberty where the legislative and executive powers are united in the same person[ ] or body” or where “the power of judging [is] not separated from the legislative and executive powers.” The Federalist No. 47, p. 325 (J. Cooke ed. 1961) (quoting Baron de Montesquieu). The problem lies in treating the beginning as an ending too—in failing to recognize that the separation of powers is, by design, neither rigid nor complete. Blackstone, whose work influenced the Framers on this subject as on others, observed that “every branch” of government “supports and is supported, regulates and is regulated, by the rest.” 1 W. Blackstone, Commentaries on the Laws of England 151 (1765). So as James Madison stated, the creation of distinct branches “did not mean that these departments ought to have no partial agency in, or no controul over the acts of each other.” The Federalist No. 47 , at 325 (emphasis deleted).[ 2 ] To the contrary, Madison explained, the drafters of the Constitution—like those of then-existing state constitutions—opted against keeping the branches of government “absolutely separate and distinct.” Id., at 327. Or as Justice Story reiterated a half-century later: “[W]hen we speak of a separation of the three great departments of government,” it is “not meant to affirm, that they must be kept wholly and entirely separate.” 2 J. Story, Commentaries on the Constitution of the United States §524, p. 8 (1833). Instead, the branches have—as they must for the whole arrangement to work—“common link[s] of connexion [and] dependence.” Ibid. One way the Constitution reflects that vision is by giving Congress broad authority to establish and organize the Executive Branch. Article II presumes the existence of “Officer[s]” in “executive Departments.” §2, cl. 1. But it does not, as you might think from reading the majority opinion, give the President authority to decide what kinds of officers—in what departments, with what responsibilities—the Executive Branch requires. See ante, at 11 (“The entire ‘executive Power’ belongs to the President alone”). Instead, Article I’s Necessary and Proper Clause puts those decisions in the legislature’s hands. Congress has the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” not just its own enumerated powers but also “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” §8, cl. 18. Similarly, the Appointments Clause reflects Congress’s central role in structuring the Executive Branch. Yes, the President can appoint principal officers, but only as the legislature “shall . . . establish[ ] by Law” (and of course subject to the Senate’s advice and consent). Art. II, §2, cl. 2. And Congress has plenary power to decide not only what inferior officers will exist but also who (the President or a head of department) will appoint them. So as Madison told the first Congress, the legislature gets to “create[ ] the office, define[ ] the powers, [and] limit[ ] its duration.” 1 Annals of Cong. 582 (1789). The President, as to the construction of his own branch of government, can only try to work his will through the legislative process.[ 3 ] The majority relies for its contrary vision on Article II’s Vesting Clause, see ante, at 11–12, 25, but the provision can’t carry all that weight. Or as Chief Justice Rehnquist wrote of a similar claim in Morrison v. Olson , 487 U.S. 654 (1988), “extrapolat[ing]” an unrestricted removal power from such “general constitutional language”—which says only that “[t]he executive Power shall be vested in a President”—is “more than the text will bear.” Id., at 690, n. 29. Dean John Manning has well explained why, even were it not obvious from the Clause’s “open-ended language.” Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1971 (2011). The Necessary and Proper Clause, he writes, makes it impossible to “establish a constitutional violation simply by showing that Congress has constrained the way ‘[t]he executive Power’ is implemented”; that is exactly what the Clause gives Congress the power to do. Id., at 1967. Only “a specific historical understanding” can bar Congress from enacting a given constraint. Id., at 2024. And nothing of that sort broadly prevents Congress from limiting the President’s removal power. I’ll turn soon to the Decision of 1789 and other evidence of Post-Convention thought. See infra , at 9–13. For now, note two points about practice before the Constitution’s drafting. First, in that era, Parliament often restricted the King’s power to remove royal officers—and the President, needless to say, wasn’t supposed to be a king. See Birk, Interrogating the Historical Basis for a Unitary Executive, 73 Stan. L. Rev. (forthcoming 2021). Second, many States at the time allowed limits on gubernatorial removal power even though their constitutions had similar vesting clauses. See Shane, The Originalist Myth of the Unitary Executive, 19 U. Pa. J. Const. L. 323, 334–344 (2016). Historical understandings thus belie the majority’s “general rule.” Nor can the Take Care Clause come to the majority’s rescue. That Clause cannot properly serve as a “placeholder for broad judicial judgments” about presidential control. Goldsmith & Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1867 (2016); but see ante, at 11–12, 27–28, n. 11 (using it that way). To begin with, the provision—“he shall take Care that the Laws be faithfully executed”—speaks of duty, not power. Art. II, §3. New scholarship suggests the language came from English and colonial oaths taken by, and placing fiduciary obligations on, all manner and rank of executive officers. See Kent, Leib, & Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2121–2178 (2019). To be sure, the imposition of a duty may imply a grant of power sufficient to carry it out. But again, the majority’s view of that power ill comports with founding-era practice, in which removal limits were common. See, e.g., Corwin, Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L. Rev. 353, 385 (1927) (noting that New York’s Constitution of 1777 had nearly the same clause, though the State’s executive had “very little voice” in removals). And yet more important, the text of the Take Care Clause requires only enough authority to make sure “the laws [are] faithfully executed”—meaning with fidelity to the law itself, not to every presidential policy preference. As this Court has held, a President can ensure “ ‘faithful execution’ of the laws”—thereby satisfying his “take care” obligation—with a removal provision like the one here. Morrison , 487 U. S., at 692. A for-cause standard gives him “ample authority to assure that [an official] is competently performing [his] statutory responsibilities in a manner that comports with the [relevant legislation’s] provisions.” Ibid. Finally, recall the Constitution’s telltale silence: Nowhere does the text say anything about the President’s power to remove subordinate officials at will. The majority professes unconcern. After all, it says, “neither is there a ‘separation of powers clause’ or a ‘federalism clause.’ ” Ante, at 25. But those concepts are carved into the Constitution’s text—the former in its first three articles separating powers, the latter in its enumeration of federal powers and its reservation of all else to the States. And anyway, at-will removal is hardly such a “foundational doctrine[ ],” ibid. : You won’t find it on a civics class syllabus. That’s because removal is a tool —one means among many, even if sometimes an important one, for a President to control executive officials. See generally Free Enterprise Fund, 561 U. S., at 524 (Breyer, J., dissenting). To find that authority hidden in the Constitution as a “general rule” is to discover what is nowhere there. B History no better serves the majority’s cause. As Madison wrote, “a regular course of practice” can “liquidate & settle the meaning of ” disputed or indeterminate constitutional provisions. Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see NLRB v. Noel Canning , 573 U.S. 513 , 525 (2014). The majority lays claim to that kind of record, asserting that its muscular view of “[t]he President’s removal power has long been confirmed by history.” Ante , at 12. But that is not so. The early history—including the fabled Decision of 1789—shows mostly debate and division about removal authority. And when a “settle[ment of] meaning” at last occurred, it was not on the majority’s terms. Instead, it supports wide latitude for Congress to create spheres of administrative independence. 1 Begin with evidence from the Constitution’s ratification. And note that this moment is indeed the beginning: Delegates to the Constitutional Convention never discussed whether or to what extent the President would have power to remove executive officials. As a result, the Framers advocating ratification had no single view of the matter. In Federalist No. 77, Hamilton presumed that under the new Constitution “[t]he consent of [the Senate] would be necessary to displace as well as to appoint” officers of the United States. Id., at 515. He thought that scheme would promote “steady administration”: “Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained” from substituting “a person more agreeable to him.” Ibid. By contrast, Madison thought the Constitution allowed Congress to decide how any executive official could be removed. He explained in Federalist No. 39: “The tenure of the ministerial offices generally will be a subject of legal regulation, conformably to the reason of the case, and the example of the State Constitutions.” Id., at 253. Neither view, of course, at all supports the majority’s story.[ 4 ] The second chapter is the Decision of 1789, when Congress addressed the removal power while considering the bill creating the Department of Foreign Affairs. Speaking through Chief Justice Taft—a judicial presidentialist if ever there was one—this Court in Myers v. United States , 272 U.S. 52 (1926), read that debate as expressing Congress’s judgment that the Constitution gave the President illimitable power to remove executive officials. The majority rests its own historical claim on that analysis (though somehow also finding room for its two exceptions). See ante, at 12–13. But Taft’s historical research has held up even worse than Myers ’ holding (which was mostly reversed, see infra , at 17–18). As Dean Manning has concluded after reviewing decades’ worth of scholarship on the issue, “the implications of the debate, properly understood, [are] highly ambiguous and prone to overreading.” Manning, 124 Harv. L. Rev., at 1965, n. 135; see id., at 2030–2031. The best view is that the First Congress was “deeply divided” on the President’s removal power, and “never squarely addressed” the central issue here. Id., at 1965, n. 135; Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1072 (2006). The congressional debates revealed three main positions. See Corwin, 27 Colum. L. Rev., at 361. Some shared Hamilton’s Federalist No. 77 view: The Constitution required Senate consent for removal. At the opposite extreme, others claimed that the Constitution gave absolute removal power to the President. And a third faction maintained that the Constitution placed Congress in the driver’s seat: The legislature could regulate, if it so chose, the President’s authority to remove. In the end, Congress passed a bill saying nothing about removal, leaving the President free to fire the Secretary of Foreign Affairs at will. But the only one of the three views definitively rejected was Hamilton’s theory of necessary Senate consent. As even strong proponents of executive power have shown, Congress never “endorse[d] the view that [it] lacked authority to modify” the President’s removal authority when it wished to. Prakash, supra, at 1073; see Manning, supra, at 1965, n. 135, 2030–2031. The summer of 1789 thus ended without resolution of the critical question: Was the removal power “beyond the reach of congressional regulation?” Prakash, supra, at 1072. At the same time, the First Congress gave officials han- dling financial affairs—as compared to diplomatic and military ones—some independence from the President. The title and first section of the statutes creating the Departments of Foreign Affairs and War designated them “executive departments.” Act of July 27, 1789, ch. 4, 1Stat. 28; Act of Aug. 7, 1789, ch. 7, 1Stat. 49. The law creating the Treasury Department conspicuously avoided doing so. See Act of Sept. 2, 1789, ch. 12, 1Stat. 65. That difference in nomenclature signaled others of substance. Congress left the organization of the Departments of Foreign Affairs and War skeletal, enabling the President to decide how he wanted to staff them. See Casper, An Essay in Separation of Powers, 30 Wm. & Mary L. Rev. 211, 239–241 (1989). By contrast, Congress listed each of the offices within the Treasury Department, along with their functions. See ibid. Of the three initial Secretaries, only the Treasury’s had an obligation to report to Congress when requested. See §2, 1Stat. 65–66. And perhaps most notable, Congress soon deemed the Comptroller of the Treasury’s settlements of public accounts “final and conclusive.” Act of Mar. 3, 1795, ch. 48, §4, 1Stat. 441–442. That decision, preventing presidential overrides, marked the Comptroller as exercising independent judgment.[ 5 ] True enough, no statute shielded the Comptroller from discharge. But even James Madison, who at this point opposed most removal limits, told Congress that “there may be strong reasons why an officer of this kind should not hold his office at the pleasure” of the Secretary or President. 1 Annals of Cong. 612. At the least, as Professor Prakash writes, “Madison maintained that Congress had the [constitutional] authority to modify [the Comptroller’s] tenure.” Prakash, supra , at 1071. Contrary to the majority’s view, then, the founding era closed without any agreement that Congress lacked the power to curb the President’s removal authority. And as it kept that question open, Congress took the first steps—which would launch a tradition—of distinguishing financial regulators from diplomatic and military officers. The latter mainly helped the President carry out his own constitutional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions Congress had assigned to their offices. In addressing the new Nation’s finances, Congress had begun to use its powers under the Necessary and Proper Clause to design effective administrative institutions. And that included taking steps to insulate certain officers from political influence. 2 As the decades and centuries passed, those efforts picked up steam. Confronting new economic, technological, and social conditions, Congress—and often the President—saw new needs for pockets of independence within the federal bureaucracy. And that was especially so, again, when it came to financial regulation. I mention just a few highlights here—times when Congress decided that effective governance depended on shielding technical or expertise-based functions relating to the financial system from political pressure (or the moneyed interests that might lie behind it). Enacted under the Necessary and Proper Clause, those measures—creating some of the Nation’s most enduring institutions—themselves helped settle the extent of Congress’s power. “[A] regular course of practice,” to use Madison’s phrase, has “liquidate[d]” constitutional meaning about the permissibility of independent agencies. See supra, at 9. Take first Congress’s decision in 1816 to create the Second Bank of the United States—“the first truly independent agency in the republic’s history.” Lessig & Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 30 (1994). Of the twenty-five directors who led the Bank, the President could appoint and remove only five. See Act of Apr. 10, 1816, §8, 3Stat. 269. Yet the Bank had a greater impact on the Nation than any but a few institutions, regulating the Nation’s money supply in ways anticipating what the Federal Reserve does today. Of course, the Bank was controversial—in large part because of its freedom from presidential control. Andrew Jackson chafed at the Bank’s independence and eventually fired his Treasury Secretary for keeping public moneys there (a dismissal that itself provoked a political storm). No matter. Innovations in governance always have opponents; administrative independence predictably (though by no means invariably) provokes presidential ire. The point is that by the early 19th century, Congress established a body wielding enormous financial power mostly outside the President’s dominion. The Civil War brought yet further encroachments on presidential control over financial regulators. In response to wartime economic pressures, President Lincoln (not known for his modest view of executive power) asked Congress to establish an office called the Comptroller of the Currency. The statute he signed made the Comptroller removable only with the Senate’s consent—a version of the old Hamiltonian idea, though this time required not by the Constitution itself but by Congress. See Act of Feb. 25, 1863, ch. 58, 12Stat. 665. A year later, Congress amended the statute to permit removal by the President alone, but only upon “reasons to be communicated by him to the Senate.” Act of June 3, 1864, §1, 13Stat. 100. The majority dismisses the original version of the statute as an “aberration.” Ante, at 19. But in the wake of the independence given first to the Comptroller of the Treasury and then to the national Bank, it’s hard to conceive of this newest Comptroller position as so great a departure. And even the second iteration of the statute preserved a constraint on the removal power, requiring a President in a firing mood to explain himself to Congress—a demand likely to make him sleep on the subject. In both versions of the law, Congress responded to new financial challenges with new regulatory institutions, alert to the perils in this area of political interference.[ 6 ] And then, nearly a century and a half ago, the floodgates opened. In 1887, the growing power of the railroads over the American economy led Congress to create the Interstate Commerce Commission. Under that legislation, the Presi- dent could remove the five Commissioners only “for inefficiency, neglect of duty, or malfeasance in office”—the same standard Congress applied to the CFPB Director. Act of Feb. 4, 1887, §11, 24Stat. 383. More—many more—for-cause removal provisions followed. In 1913, Congress gave the Governors of the Federal Reserve Board for-cause protection to ensure the agency would resist political pressure and promote economic stability. See Act of Dec. 23, 1913, ch. 6, 38Stat. 251. The next year, Congress provided similar protection to the FTC in the interest of ensuring “a continuous policy” “free from the effect” of “changing [White House] incumbency.” 51 Cong. Rec. 10376 (1914). The Federal Deposit Insurance Corporation (FDIC), the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission. In the financial realm, “independent agencies have remained the bedrock of the institutional framework governing U. S. markets.” Gadinis, From Independence to Politics in Financial Regulation, 101 Cal. L. Rev. 327, 331 (2013). By one count, across all subject matter areas, 48 agencies have heads (and below them hundreds more inferior officials) removable only for cause. See Free Enterprise Fund , 561 U. S., at 541 (Breyer, J., dissenting). So year by year by year, the broad sweep of history has spoken to the constitutional question before us: Independent agencies are everywhere. C What is more, the Court’s precedents before today have accepted the role of independent agencies in our governmental system. To be sure, the line of our decisions has not run altogether straight. But we have repeatedly upheld provisions that prevent the President from firing regulatory officials except for such matters as neglect or malfeasance. In those decisions, we sounded a caution, insisting that Congress could not impede through removal restrictions the President’s performance of his own constitutional duties. (So, to take the clearest example, Congress could not curb the President’s power to remove his close military or diplomatic advisers.) But within that broad limit, this Court held, Congress could protect from at-will removal the officials it deemed to need some independence from political pressures. Nowhere do those precedents suggest what the majority announces today: that the President has an “unrestricted removal power” subject to two bounded exceptions. Ante , at 2. The majority grounds its new approach in Myers , ignoring the way this Court has cabined that decision. Myers , the majority tells us, found an unrestrained removal power “essential to the [President’s] execution of the laws.” Ante, at 13 (quoting Myers, 272 U. S., at 117). What the majority does not say is that within a decade the Court abandoned that view (much as later scholars rejected Taft’s one-sided history, see supra, at 10–11). In Humphrey’s Executor v. United States , 295 U.S. 602 (1935), the Court unceremoniously—and unanimously—confined Myers to its facts. “[T]he narrow point actually decided” there, Humphrey’s stated, was that the President could “remove a postmaster of the first class, without the advice and consent of the Senate.” 295 U. S. , at 626. Nothing else in Chief Justice Taft’s prolix opinion “c[a]me within the rule of stare decisis .” Ibid. (Indeed, the Court went on, everything in Myers “out of harmony” with Humphrey’s was expressly “disapproved.” 295 U. S., at 626 . ) Half a century later, the Court was more generous. Two decisions read Myers as standing for the principle that Congress’s own “participation in the removal of executive officers is unconstitutional.” Bowsher v. Synar , 478 U.S. 714 , 725 (1986); see Morrison , 487 U. S., at 686 (“As we observed in Bowsher , the essence” of “ Myers was the judgment that the Constitution prevents Congress from draw[ing] to itself ” the power to remove (internal quotation marks omitted)). Bowsher made clear that Myers had nothing to say about Congress’s power to enact a provision merely “limit[ing] the President’s powers of removal” through a for-cause provision. 478 U. S., at 724. That issue, the Court stated, was “not presented” in “the Myers case.” Ibid. Instead, the relevant cite was Humphrey’s . And Humphrey’s found constitutional a statute identical to the one here, providing that the President could remove FTC Commissioners for “inefficiency, neglect of duty, or malfeasance in office.” 295 U. S., at 619. The Humphrey’s Court, as the majority notes, relied in substantial part on what kind of work the Commissioners performed. See id., at 628, 631; ante, at 14. (By contrast, nothing in the decision turned—as the majority suggests, see ante, at 14–15—on any of the agency’s organizational features. See infra , at 30.) According to Humphrey’s , the Commissioners’ primary work was to “carry into effect legislative policies”—“filling in and administering the details embodied by [a statute’s] general standard.” 295 U. S., at 627–628. In addition, the Court noted, the Commissioners recommended dispositions in court cases, much as a special master does. Given those “quasi-legislative” and “quasi-judicial”—as opposed to “purely executive”—functions, Congress could limit the President’s removal authority. Id., at 628.[ 7 ] Or said another way, Congress could give the FTC some “independen[ce from] executive control.” Id., at 629. About two decades later, an again-unanimous Court in Wiener v. United States , 357 U.S. 349 (1958), reaffirmed Humphrey’s . The question in Wiener was whether the President could dismiss without cause members of the War Claims Commission, an entity charged with compensating injuries arising from World War II. Disdaining Myers and relying on Humphrey’s , the Court said he could not. The Court described as “short-lived” Myers ’ view that the President had “inherent constitutional power to remove officials, no matter what the relation of the executive to the discharge of their duties.” 357 U. S. , at 352.[ 8 ] Here, the Commissioners were not close agents of the President, who needed to be responsive to his preferences. Rather, they exercised adjudicatory responsibilities over legal claims. Congress, the Court found, had wanted the Commissioners to do so “free from [political] control or coercive influence.” Id., at 355 (quoting Humphrey’s , 295 U. S., at 629). And that choice, as Humphrey’s had held, was within Congress’s power. The Constitution enabled Congress to take down “the Damocles’ sword of removal” hanging over the Commissioners’ heads. 357 U. S., at 356. Another three decades on, Morrison both extended Humphrey’s domain and clarified the standard for addressing removal issues. The Morrison Court, over a one-Justice dissent, upheld for-cause protections afforded to an independent counsel with power to investigate and prosecute crimes committed by high-ranking officials. The Court well understood that those law enforcement functions differed from the rulemaking and adjudicatory duties highlighted in Humphrey’s and Wiener . But that difference did not resolve the issue. An official’s functions, Morrison held, were relevant to but not dispositive of a removal limit’s constitutionality. The key question in all the cases, Morrison saw, was whether such a restriction would “impede the President’s ability to perform his constitutional duty.” 487 U. S., at 691. Only if it did so would it fall outside Congress’s power. And the protection for the independent counsel, the Court found, did not. Even though the counsel’s functions were “purely executive,” the President’s “need to control the exercise of [her] discretion” was not “so central to the functioning of the Executive Branch as to require” unrestricted removal authority. Id., at 690–691. True enough, the Court acknowledged, that the for-cause standard prevented the President from firing the counsel for discretionary decisions or judgment calls. But it preserved “ample authority” in the President “to assure that the counsel is competently performing” her “responsibilities in a manner that comports with” all legal requirements. Id., at 692. That meant the President could meet his own constitutional obligation “to ensure ‘the faithful execution’ of the laws.” Ibid. ; see supra, at 8.[ 9 ] The majority’s description of Morrison , see ante, at 15–16, is not true to the decision. (Mostly, it seems, the majority just wishes the case would go away. See ante, at 17, n. 4.) First, Morrison is no “exception” to a broader rule from Myers . Morrison echoed all of Humphrey’s criticism of the by-then infamous Myers “dicta.” 487 U. S ., at 687. It again rejected the notion of an “all-inclusive” removal power. Ibid. It yet further confined Myers ’ reach, making clear that Congress could restrict the President’s removal of officials carrying out even the most traditional executive functions. And the decision, with care, set out the governing rule—again, that removal restrictions are permissible so long as they do not impede the President’s performance of his own constitutionally assigned duties. Second, as all that suggests, Morrison is not limited to inferior officers. In the eight pages addressing the removal issue, the Court constantly spoke of “officers” and “officials” in general. 487 U. S., at 685–693. By contrast, the Court there used the word “inferior” in just one sentence (which of course the majority quotes), when applying its general standard to the case’s facts. Id., at 691. Indeed, Justice Scalia’s dissent emphasized that the counsel’s inferior-office status played no role in the Court’s decision. See id., at 724 (“The Court could have resolved the removal power issue in this case by simply relying” on that status, but did not). As Justice Scalia noted, the Court in United States v. Perkins , 116 U.S. 483 , 484–485 (1886), had a century earlier allowed Congress to restrict the President’s removal power over inferior officers. See Morrison , 487 U. S., at 723–724. Were that Morrison ’s basis, a simple citation would have sufficed. Even Free Enterprise Fund , in which the Court recently held a removal provision invalid, operated within the framework of this precedent—and in so doing, left in place a removal provision just like the one here. In that case, the Court considered a “highly unusual” scheme of double for-cause protection. 561 U. S., at 505. Members of an accounting board were protected from removal by SEC Commissioners, who in turn were protected from removal by the President. The Court found that the two-layer structure deprived the President of “adequate control” over the Board members. Id., at 508. The scheme “impaired” the President’s “ability to execute the laws,” the Court explained, because neither he nor any fully dependent agent could decide “whether[ ] good cause exists” for a discharge. Id., at 495–496. That holding cast no doubt on ordinary for-cause protections, of the kind in the Court’s prior cases (and here as well). Quite the opposite. The Court observed that it did not “take issue with for-cause limitations in general”—which do enable the President to determine whether good cause for discharge exists (because, say, an official has violated the law). Id., at 501. And the Court’s solution to the constitutional problem it saw was merely to strike one level of insulation, making the Board removable by the SEC at will. That remedy left the SEC’s own for-cause protection in place. The President could thus remove Commissioners for malfeasance or neglect, but not for policy disagreements. See ante, at 28. So caselaw joins text and history in establishing the general permissibility of for-cause provisions giving some independence to agencies. Contrary to the majority’s view, those laws do not represent a suspicious departure from illimitable presidential control over administration. For almost a century, this Court has made clear that Congress has broad discretion to enact for-cause protections in pursuit of good governance. D The deferential approach this Court has taken gives Con- gress the flexibility it needs to craft administrative agencies. Diverse problems of government demand diverse solutions. They call for varied measures and mixtures of democratic accountability and technical expertise, energy and efficiency. Sometimes, the arguments push toward tight presidential control of agencies. The President’s engagement, some people say, can disrupt bureaucratic stagnation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001). At other times, the arguments favor greater independence from presidential involvement. Insulation from political pressure helps ensure impartial adjudications. It places technical issues in the hands of those most capable of addressing them. It promotes continuity, and prevents short-term electoral interests from distorting policy. (Consider, for example, how the Federal Reserve’s independence stops a President trying to win a second term from manipulating interest rates.) Of course, the right balance between presidential control and independence is often uncertain, contested, and value-laden. No mathematical formula governs institutional design; trade-offs are endemic to the enterprise. But that is precisely why the issue is one for the political branches to debate—and then debate again as times change. And it’s why courts should stay (mostly) out of the way. Rather than impose rigid rules like the majority’s, they should let Congress and the President figure out what blend of independence and political control will best enable an agency to perform its intended functions. Judicial intrusion into this field usually reveals only how little courts know about governance. Even everything I just said is an over-simplification. It suggests that agencies can easily be arranged on a spectrum, from the most to the least presidentially controlled. But that is not so. A given agency’s independence (or lack of it) depends on a wealth of features, relating not just to removal standards, but also to appointments practices, procedural rules, internal organization, oversight regimes, historical traditions, cultural norms, and (inevitably) personal relationships. It is hard to pinpoint how those factors work individually, much less in concert, to influence the distance between an agency and a President. In that light, even the judicial opinions’ perennial focus on removal standards is a bit of a puzzle. Removal is only the most obvious, not necessarily the most potent, means of control. See generally Free Enterprise Fund , 561 U. S., at 524 (Breyer, J., dissenting). That is because informal restraints can prevent Presidents from firing at-will officers—and because other devices can keep officers with for-cause protection under control. Of course no court, as Free Enterprise Fund noted, can accurately assess the “bureaucratic minutiae” affecting a President’s influence over an agency. Id. , at 500 (majority opinion); ante, at 30 (reprising the point). But that is yet more reason for courts to defer to the branches charged with fashioning administrative structures, and to hesitate before ruling out agency design specs like for-cause removal standards. Our Constitution, as shown earlier, entrusts such decisions to more accountable and knowledgeable actors. See supra, at 4–9. The document—with great good sense—sets out almost no rules about the administrative sphere. As Chief Justice Marshall wrote when he upheld the first independent financial agency: “To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument.” McCulloch , 4 Wheat., at 415. That would have been, he continued, “an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly.” Ibid. And if the Constitution, for those reasons, does not lay out immutable rules, then neither should judges. This Court has usually respected that injunction. It has declined to second-guess the work of the political branches in creating independent agencies like the CFPB. In reversing course today—in spurning a “pragmatic, flexible approach to American governance” in favor of a dogmatic, inflexible one, ante, at 29—the majority makes a serious error. II As the majority explains, the CFPB emerged out of disaster. The collapse of the subprime mortgage market “precipitat[ed] a financial crisis that wiped out over $10 trillion in American household wealth and cost millions of Americans their jobs, their retirements, and their homes.” Ante, at 3. In that moment of economic ruin, the President proposed and Congress enacted legislation to address the causes of the collapse and prevent a recurrence. An important part of that statute created an agency to protect consumers from exploitative financial practices. The agency would take over enforcement of almost 20 existing federal laws. See 12 U. S. C. §5581. And it would administer a new prohibition on “unfair, deceptive, or abusive act[s] or practice[s]” in the consumer-finance sector. §5536(a)(1)(B). No one had a doubt that the new agency should be independent. As explained already, Congress has historically given—with this Court’s permission—a measure of independence to financial regulators like the Federal Reserve Board and the FTC. See supra, at 11–16. And agencies of that kind had administered most of the legislation whose enforcement the new statute transferred to the CFPB. The law thus included an ordinary for-cause provision—once again, that the President could fire the CFPB’s Director only for “inefficiency, neglect of duty, or malfeasance in office.” §5491(c)(3). That standard would allow the President to discharge the Director for a failure to “faithfully execute[ ]” the law, as well as for basic incompetence. U. S. Const., Art. II, §3; see supra, at 8, 20. But it would not permit removal for policy differences. The question here, which by now you’re well equipped to answer, is whether including that for-cause standard in the statute creating the CFPB violates the Constitution. A Applying our longstanding precedent, the answer is clear: It does not. This Court, as the majority acknowledges, has sustained the constitutionality of the FTC and similar independent agencies. See ante, at 2, 13–16. The for-cause protections for the heads of those agencies, the Court has found, do not impede the President’s ability to perform his own constitutional duties, and so do not breach the separation of powers. See supra, at 18–22. There is nothing different here. The CFPB wields the same kind of power as the FTC and similar agencies. And all of their heads receive the same kind of removal protection. No less than those other entities—by now part of the fabric of government—the CFPB is thus a permissible exercise of Congress’s power under the Necessary and Proper Clause to structure administration. First, the CFPB’s powers are nothing unusual in the universe of independent agencies. The CFPB, as the majority notes, can issue regulations, conduct its own adjudications, and bring civil enforcement actions in court—all backed by the threat of penalties. See ante, at 1; 12 U. S. C. §§5512, 5562–5565. But then again, so too can (among others) the FTC and SEC, two agencies whose regulatory missions parallel the CFPB’s. See 15 U. S. C. §§45, 53, 57a, 57b–3, 78u, 78v, 78w. Just for a comparison, the CFPB now has 19 enforcement actions pending, while the SEC brought 862 such actions last year alone. See Brief for Petitioner 7; SEC, Div. of Enforcement 2019 Ann. Rep. 14. And although the majority bemoans that the CFPB can “bring the coercive power of the state to bear on millions of private citizens,” ante, at 18, that scary-sounding description applies to most independent agencies. Forget that the more relevant factoid for those many citizens might be that the CFPB has recovered over $11 billion for banking consumers. See ante, at 5. The key point here is that the CFPB got the mass of its regulatory authority from other independent agencies that had brought the same “coercive power to bear.” See 12 U. S. C. §5581 (transferring power from, among others, the Federal Reserve, FTC, and FDIC). Congress, to be sure, gave the CFPB new authority over “unfair, deceptive, or abusive act[s] or practice[s]” in transactions involving a “consumer financial product or service.” §§5517(a)(1), 5536(a)(1). But again, the FTC has power to go after “unfair or deceptive acts or practices in or affecting commerce”—a portfolio spanning a far wider swath of the economy. 15 U. S. C. §45(a)(1).[ 10 ] And if influence on economic life is the measure, consider the Federal Reserve, whose every act has global consequence. The CFPB, gauged by that comparison, is a piker. Second, the removal protection given the CFPB’s Director is standard fare. The removal power rests with the President alone; Congress has no role to play, as it did in the laws struck down in Myers and Bowsher . See supra, at 17–18. The statute provides only one layer of protection, unlike the law in Free Enterprise Fund . See supra, at 21–22. And the clincher, which you have heard before: The for-cause standard used for the CFPB is identical to the one the Court upheld in Humphrey’s . Both enable the President to fire an agency head for “inefficiency, neglect of duty, or malfeasance in office.” See 12 U. S. C. §5491(c)(3); 15 U. S. C. §41; supra, at 18. A removal provision of that kind applied to a financial agency head, this Court has held, does not “unduly trammel[ ] on executive authority,” even though it prevents the President from dismissing the official for a discretionary policy judgment. Morrison , 487 U. S., at 691. Once again: The removal power has not been “completely stripped from the President,” providing him with no means to “ensure the ‘faithful execution’ of the laws.” Id., at 692; see supra, at 20. Rather, this Court has explained, the for-cause standard gives the President “ample authority to assure that [the official] is competently performing his or her statutory responsibilities in a manner that comports with” all legal obligations. 487 U. S., at 692; see supra, at 20. In other words—and contra today’s majority—the President’s removal power, though not absolute, gives him the “meaningful[ ] control[ ]” of the Director that the Constitution requires. Ante, at 23. The analysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same removal protections, as the heads of other, constitutionally permissible independent agencies. How could it be that this opinion is a dissent? B The majority focuses on one (it says sufficient) reason: The CFPB Director is singular, not plural. “Instead of placing the agency under the leadership of a board with multiple members,” the majority protests, “Congress provided that the CFPB would be led by a single Director.” Ante, at 1.[ 11 ] And a solo CFPB Director does not fit within either of the majority’s supposed exceptions. He is not an inferior officer, so (the majority says) Morrison does not apply; and he is not a multimember board, so (the majority says) neither does Humphrey’s . Further, the majority argues, “[a]n agency with a [unitary] structure like that of the CFPB” is “novel”—or, if not quite that, “almost wholly unprecedented.” Ante, at 2, 18. Finally, the CFPB’s organizational form violates the “constitutional structure” because it vests power in a “single individual” who is “insulated from Presidential control.” Ante, at 2–3, 23. I’m tempted at this point just to say: No. All I’ve explained about constitutional text, history, and precedent invalidates the majority’s thesis. But I’ll set out here some more targeted points, taking step by step the majority’s reasoning. First, as I’m afraid you’ve heard before, the majority’s “exceptions” (like its general rule) are made up. See supra, at 16–22. To begin with, our precedents reject the very idea of such exceptions. “The analysis contained in our removal cases,” Morrison stated, shuns any attempt “to define rigid categories” of officials who may (or may not) have job protection. 487 U. S., at 689. Still more, the contours of the majority’s exceptions don’t connect to our decisions’ reasoning. The analysis in Morrison , as I’ve shown, extended far beyond inferior officers. See supra, at 20–21. And of course that analysis had to apply to individual officers: The independent counsel was very much a person, not a committee. So the idea that Morrison is in a separate box from this case doesn’t hold up.[ 12 ] Similarly, Humphrey’s and later precedents give no support to the majority’s view that the number of people at the apex of an agency matters to the constitutional issue. Those opinions mention the “groupness” of the agency head only in their background sections. The majority picks out that until-now-irrelevant fact to distinguish the CFPB, and constructs around it an until-now-unheard-of exception. So if the majority really wants to see something “novel,” ante, at 2, it need only look to its opinion. By contrast, the CFPB’s single-director structure has a fair bit of precedent behind it. The Comptroller of the Currency. The Office of the Special Counsel (OSC). The Social Security Administration (SSA). The Federal Housing Finance Agency (FHFA). Maybe four prior agencies is in the eye of the beholder, but it’s hardly nothing. I’ve already explained why the earliest of those agencies—the Civil-War-era Comptroller—is not the blip the majority describes. See supra, at 14–15. The office is one in a long line, starting with the founding-era Comptroller of the Treasury (also one person), of financial regulators designed to do their jobs with some independence. As for the other three, the majority objects: too powerless and too contested. See ante, at 18–21. I think not. On power, the SSA runs the Nation’s largest government program—among other things, deciding all claims brought by its 64 million beneficiaries; the FHFA plays a crucial role in overseeing the mortgage market, on which millions of Americans annually rely; and the OSC prosecutes misconduct in the two-million-person federal workforce. All different from the CFPB, no doubt; but the majority can’t think those matters beneath a President’s notice. (Consider: Would the President lose more votes from a malfunctioning SSA or CFPB?) And controversial? Well, yes, they are. Almost all independent agencies are controversial, no matter how many directors they have. Or at least controversial among Presidents and their lawyers. That’s because whatever might be said in their favor, those agencies divest the President of some removal power. If signing statements and veto threats made independent agencies unconstitutional, quite a few wouldn’t pass muster. Maybe that’s what the majority really wants (I wouldn’t know)—but it can’t pretend the disputes surrounding these agencies had anything to do with whether their heads are singular or plural. Still more important, novelty is not the test of constitutionality when it comes to structuring agencies. See Mistretta v. United States , 488 U.S. 361 , 385 (1989) (“[M]ere anomaly or innovation” does not violate the separation of powers). Congress regulates in that sphere under the Necessary and Proper Clause, not (as the majority seems to think) a Rinse and Repeat Clause. See supra, at 6. The Framers understood that new times would often require new measures, and exigencies often demand innovation. See McCulloch , 4 Wheat., at 415; supra, at 24. In line with that belief, the history of the administrative sphere—its rules, its practices, its institutions—is replete with experiment and change. See supra, at 9–16. Indeed, each of the agencies the majority says now fits within its “exceptions” was once new; there is, as the saying goes, “a first time for everything.” National Federation of Independent Business v. Sebelius , 567 U.S. 519 , 549 (2012). So even if the CFPB differs from its forebears in having a single director, that departure is not itself “telling” of a “constitutional problem.” Ante, at 18. In deciding what this moment demanded, Congress had no obligation to make a carbon copy of a design from a bygone era. And Congress’s choice to put a single director, rather than a multimember commission, at the CFPB’s head violates no principle of separation of powers. The purported constitutional problem here is that an official has “slip[ped] from the Executive’s control” and “supervision”—that he has become unaccountable to the President. Ante, at 23, 25 (internal quotation marks omitted). So to make sense on the majority’s own terms, the distinction between singular and plural agency heads must rest on a theory about why the former more easily “slip” from the President’s grasp. But the majority has nothing to offer. In fact, the opposite is more likely to be true: To the extent that such matters are measurable, individuals are easier than groups to supervise. To begin with, trying to generalize about these matters is something of a fool’s errand. Presidential control, as noted earlier, can operate through many means—removal to be sure, but also appointments, oversight devices ( e.g., centralized review of rulemaking or litigating positions), budgetary processes, personal outreach, and more. See Free Enterprise Fund , 561 U. S., at 524 (Breyer, J., dissenting); supra, at 23–24.[ 13 ] The effectiveness of each of those control mechanisms, when present, can then depend on a multitude of agency-specific practices, norms, rules, and organizational features. In that complex stew, the difference between a singular and plural agency head will often make not a whit of difference. Or to make the point more concrete, a multimember commission may be harder to control than an individual director for a host of reasons unrelated to its plural character. That may be so when the two are subject to the same removal standard, or even when the individual director has greater formal job protection. Indeed, the very category of multimember commissions breaks apart under inspection, spoiling the majority’s essential dichotomy. See generally Brief for Rachel E. Barkow et al. as Amici Curiae . Some of those commissions have chairs appointed by the President; others do not. Some of those chairs are quite powerful; others are not. Partisan balance requirements, term length, voting rules, and more—all vary widely, in ways that make a significant difference to the ease of presidential control. Why, then, would anyone distinguish along a simple commission/single-director axis when deciding whether the Constitution requires at-will removal? But if the demand is for generalization, then the majority’s distinction cuts the opposite way: More powerful control mechanisms are needed (if anything) for commissions. Holding everything else equal, those are the agencies more likely to “slip from the Executive’s control.” Ante, at 25. Just consider your everyday experience: It’s easier to get one person to do what you want than a gaggle. So too, you know exactly whom to blame when an individual—but not when a group—does a job badly. The same is true in bureaucracies. A multimember structure reduces accountability to the President because it’s harder for him to oversee, to influence—or to remove, if necessary—a group of five or more commissioners than a single director. Indeed, that is why Congress so often resorts to hydra-headed agencies. “[M]ultiple membership,” an influential Senate Report concluded, is “a buffer against Presidential control” (especially when combined, as it often is, with partisan-balance requirements). Senate Committee on Governmental Affairs, Study on Federal Regulation, S. Doc. No. 95–91, vol. 5, p. 75 (1977). So, for example, Congress constructed the Federal Reserve as it did because it is “easier to protect a board from political control than to protect a single appointed official.” R. Cushman, The Independent Regulatory Commissions 153 (1941).[ 14 ] It is hard to know why Congress did not take the same tack when creating the CFPB. But its choice brought the agency only closer to the President—more exposed to his view, more subject to his sway. In short, the majority gets the matter backward: Where presidential control is the object, better to have one than many. Because it has no answer on that score, the majority slides to a different question: Assuming presidential control of any independent agency is vanishingly slim, is a single-head or a multi-head agency more capable of exercising power, and so of endangering liberty? See ante, at 21–23. The majority says a single head is the greater threat because he may wield power “ unilaterally ” and “[w]ith no colleagues to persuade.” Ante, at 23 (emphasis in original). So the CFPB falls victim to what the majority sees as a constitutional anti-power-concentration principle (with an exception for the President). If you’ve never heard of a statute being struck down on that ground, you’re not alone. It is bad enough to “extrapolat[e]” from the “general constitutional language” of Article II’s Vesting Clause an unrestricted removal power constraining Congress’s ability to legislate under the Necessary and Proper Clause. Morrison , 487 U. S., at 690, n. 29; see supra, at 7. It is still worse to extrapolate from the Constitution’s general structure (division of powers) and implicit values (liberty) a limit on Congress’s express power to create administrative bodies. And more: to extrapolate from such sources a distinction as prosaic as that between the SEC and the CFPB— i.e., between a multi-headed and single-headed agency. That is, to adapt a phrase (or two) from our precedent, “more than” the emanations of “the text will bear.” Morrison , 487 U. S., at 690, n. 29. By using abstract separation-of-powers arguments for such purposes, the Court “appropriate[s]” the “power delegated to Congress by the Necessary and Proper Clause” to compose the government. Manning, Foreword: The Means of Constitutional Power, 128 Harv. L. Rev. 1, 78 (2014). In deciding for itself what is “proper,” the Court goes beyond its own proper bounds. And in doing so, the majority again reveals its lack of interest in how agencies work. First, the premise of the majority’s argument—that the CFPB head is a mini-dictator, not subject to meaningful presidential control, see ante , at 23—is wrong. As this Court has seen in the past, independent agencies are not fully independent. A for-cause removal provision, as noted earlier, leaves “ample” control over agency heads in the hands of the President. Morrison , 487 U. S., at 692; see supra , at 20. He can discharge them for failing to perform their duties competently or in accordance with law, and so ensure that the laws are “faithfully executed.” U. S. Const., Art. II, §3; see supra, at 8, 20. And he can use the many other tools attached to the Office of the Presidency—including in the CFPB’s case, rulemaking review—to exert influence over discretionary policy calls. See supra , at 33, and n. 13. Second, the majority has nothing but intuition to back up its essentially functionalist claim that the CFPB would be less capable of exercising power if it had more than one Director (even supposing that were a suitable issue for a court to address). Ante , at 21, 23. Maybe the CFPB would be. Or maybe not. Although a multimember format tends to frustrate the President’s control over an agency, see supra , at 34–35, it may not lessen the agency’s own ability to act with decision and dispatch. (Consider, for a recent example, the Federal Reserve Board.) That effect presumably would depend on the agency’s internal organization, voting rules, and similar matters. At the least: If the Court is going to invalidate statutes based on empirical assertions like this one, it should offer some empirical support. It should not pretend that its assessment that the CFPB wields more power more dangerously than the SEC comes from someplace in the Constitution. But today the majority fails to accord even that minimal respect to Congress. III Recall again how this dispute got started. In the midst of the Great Recession, Congress and the President came together to create an agency with an important mission. It would protect consumers from the reckless financial practices that had caused the then-ongoing economic collapse. Not only Congress but also the President thought that the new agency, to fulfill its mandate, needed a measure of independence. So the two political branches, acting together, gave the CFPB Director the same job protection that innumerable other agency heads possess. All in all, those branches must have thought, they had done a good day’s work. Relying on their experience and knowledge of administration, they had built an agency in the way best suited to carry out its functions. They had protected the public from financial chicanery and crisis. They had governed. And now consider how the dispute ends—with five unelected judges rejecting the result of that democratic process. The outcome today will not shut down the CFPB: A different majority of this Court, including all those who join this opinion, believes that if the agency’s removal provision is unconstitutional, it should be severed. But the majority on constitutionality jettisons a measure Congress and the President viewed as integral to the way the agency should operate. The majority does so even though the Constitution grants to Congress, acting with the President’s approval, the authority to create and shape administrative bodies. And even though those branches, as compared to courts, have far greater understanding of political control mechanisms and agency design. Nothing in the Constitution requires that outcome; to the contrary. “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 635 (1952) (Jackson, J., concurring). The Framers took pains to craft a document that would allow the structures of governance to change, as times and needs change. The Constitution says only a few words about administration. As Chief Justice Marshall wrote: Rather than prescribing “immutable rules,” it enables Congress to choose “the means by which government should, in all future time, execute its powers.” McCulloch , 4 Wheat., at 415. It authorizes Congress to meet new exigencies with new devices. So Article II does not generally prohibit independent agencies. Nor do any supposed structural principles. Nor do any odors wafting from the document. Save for when those agencies impede the President’s performance of his own constitutional duties, the matter is left up to Congress. Our history has stayed true to the Framers’ vision. Congress has accepted their invitation to experiment with administrative forms—nowhere more so than in the field of financial regulation. And this Court has mostly allowed it to do so. The result is a broad array of independent agencies, no two exactly alike but all with a measure of insulation from the President’s removal power. The Federal Reserve Board; the FTC; the SEC; maybe some you’ve never heard of. As to each, Congress thought that formal job protection for policymaking would produce regulatory outcomes in greater accord with the long-term public interest. Congress may have been right; or it may have been wrong; or maybe it was some of both. No matter—the branches accountable to the people have decided how the people should be governed. The CFPB should have joined the ranks. Maybe it will still do so, even under today’s opinion: The majority tells Congress that it may “pursu[e] alternative responses” to the identified constitutional defect—“for example, converting the CFPB into a multimember agency.” Ante , at 36. But there was no need to send Congress back to the drawing board. The Constitution does not distinguish between single-director and multimember independent agencies. It instructs Congress, not this Court, to decide on agency design. Because this Court ignores that sensible—indeed, that obvious—division of tasks, I respectfully dissent. Notes 1 In the academic literature, compare, e.g., Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control over agencies), with, e.g., Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704, 713–715 (2007) (generally favoring administrative independence). 2 The principle of separation of powers, Madison continued, main-tained only that “where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution[ ] are subverted.” The Federalist No. 47, at 325–326. 3 Article II’s Opinions Clause also demonstrates the possibility of limits on the President’s control over the Executive Branch. Under that Clause, the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” §2, cl. 1. For those in the majority’s camp, that Clause presents a puzzle: If the President must always have the direct supervisory control they posit, including by threat of removal, why would he ever need a constitutional warrant to demand agency heads’ opinions? The Clause becomes at least redundant—though really, inexplicable—under the majority’s idea of executive power. 4 The majority dismisses Federalist Nos. 77 and 39 as “reflect[ing] initial impressions later abandoned.” Ante, at 26, and n. 10. But even Hamilton’s and Madison’s later impressions are less helpful to the majority than it suggests. Assuming Hamilton gave up on the Senate’s direct participation in removal (the evidence is sketchy but plausible), there is no evidence to show he accepted the majority’s view. And while Madison opposed the first Congress’s enactment of removal limits (as the majority highlights), he also maintained that the legislature had constitutional power to protect the Comptroller of the Treasury from at-will firing. See infra , at 12–13. In any event, such changing minds and inconstant opinions don’t usually prove the existence of constitutional rules. 5 As President Jefferson explained: “[W]ith the settlement of the accounts at the Treasury I have no right to interfere in the least,” because the Comptroller of the Treasury “is the sole & supreme judge for all claims of money against the US. and would no more receive a direction from me” than would “one of the judges of the supreme court.” Letter from T. Jefferson to B. Latrobe (June 2, 1808), in Thomas Jefferson and the National Capital 429, 431 (S. Padover ed. 1946). A couple of decades later, Attorney General William Wirt reached the same conclusion, stating that “the President has no right to interpose in the settling of accounts” because Congress had “separated” the Comptroller from the President’s authority. 1 Op. Atty. Gen. 636, 637 (1824); 1 Op. Atty. Gen. 678, 680 (1824). And indeed, Wirt believed that Congress could restrict the President’s authority to remove such officials, at least so long as it “express[ed] that intention clearly.” 1 Op. Atty. Gen. 212, 213 (1818). 6 The Comptroller legislation of the Civil War provided a key precedent for what does appear a historical “aberration”—the Tenure of Office Act of 1867. See ch. 154, 14Stat. 430. Anxious to prevent President Andrew Johnson from interfering with reconstruction policies—including through his command of the military—Congress barred presidential removal of any Senate-confirmed officials without the Senate’s consent. The law thus severed the President’s removal authority over even officials like the Secretaries of War and State. The statute became the basis for the Nation’s first presidential impeachment, but was repealed in 1887. See Act of Mar. 3, 1887, ch. 353, 24Stat. 500. In one sense, the two-decade-long existence of the Tenure of Office Act reveals the 19th-century political system’s comfort with expansive restrictions on presidential removal. But the ultimate repudiation of the law, and the broad historical consensus that it went too far, just as strongly shows the limits that system later accepted on legislative power—that Congress may not impose removal restrictions preventing the President from carrying out his own constitutionally assigned functions in areas like war or foreign affairs. See Morrison v. Olson , 487 U.S. 654 , 689–691 (1988) (recognizing that limit as the constitutional standard). 7 The majority is quite right that today we view all the activities of administrative agencies as exercises of “the ‘executive Power.’ ” Arlington v. FCC , 569 U.S. 290 , 305, n. 4 (2013) (quoting Art. II, §1, cl.1); see ante, at 14, n. 2. But we well understand, just as the Humphrey’s Court did, that those activities may “take ‘legislative’ and ‘judicial’ forms.” Arlington , 569 U. S., at 305, n. 4 . The classic examples are agency rulemakings and adjudications, endemic in agencies like the FTC and CFPB. In any event, the Court would soon make clear that Congress can also constrain the President’s removal authority over officials performing even the most “executive” of functions. See infra , at 19–20. 8 Expressing veiled contempt as only he could, Justice Frankfurter wrote for the Court that Chief Justice Taft’s opinion had “laboriously traversed” American history and that it had failed to “restrict itself to the immediate issue before it.” 357 U. S., at 351. No wonder Humphrey’s had “narrowly confined the scope of the Myers decision.” 357 U. S. , at 352. Justice Frankfurter implied that the “Chief Justice who himself had been President” was lucky his handiwork had not been altogether reversed. Id., at 351. 9 Pretending this analysis is mine rather than Morrison ’s, the majority registers its disagreement. See ante, at 27–28, n. 11. In its view, a test asking whether a for-cause provision impedes the President’s ability to carry out his constitutional functions has “no real limiting principle.” Ibid. If the provision leaves the President with constitutionally sufficient control over some subordinates (like the independent counsel), the majority asks, why not over even his close military or diplomatic advisers? See ibid. But the Constitution itself supplies the answer. If the only presidential duty at issue is the one to ensure faithful execution of the laws, a for-cause provision does not stand in the way: As Morrison recognized, it preserves authority in the President to ensure (just as the Take Care Clause requires) that an official is abiding by law. See 487 U. S., at 692. But now suppose an additional constitutional duty is implicated—relating, say, to the conduct of foreign affairs or war. To carry out those duties, the President needs advisers who will (beyond complying with law) help him devise and implement policy. And that means he needs the capacity to fire such advisers for disagreeing with his policy calls. 10 The majority suggests that the FTC was a different animal when this Court upheld its independent status in Humphrey’s . See ante, at 17. But then, as now, the FTC’s organic statute broadly “empowered and directed” the agency “to prevent persons” or businesses “from using unfair methods of competition in commerce.” Act of Sept. 26, 1914, §5, 38Stat. 719. To fulfill that mandate, the agency could and did run investigations, bring administrative charges, and conduct adjudications. See ibid. ; §6(a), id. , at 721; FTC Ann. Rep. (1935) (describing the FTC’s extensive enforcement activities in the year before Humphrey’s ). And if any person refused to comply with an order, the agency could seek its enforcement in federal court under a highly deferential standard. See §5, 38Stat. 720; FTC v. Pacific States Paper Trade Assn. , 273 U.S. 52 , 63 (1927). Still more, the FTC has always had statutory rulemaking authority, even though (like several other agencies) it relied on adjudications until the 1960s. See §6(g), 38Stat. 722; National Petroleum Refiners Assn. v. FTC , 482 F.2d 672, 686 (CADC 1973). (The majority’s reply that a court including Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and Harlan Stone somehow misunderstood these powers, see ante, at 17, n. 4, lacks all plausibility.) And in any case, the relevant point of comparison is the present-day FTC, which remains independent even if it now has some expanded powers—and which remains constitutional under not only Humphrey’s but also Morrison . See supra, at 18–20. 11 The majority briefly mentions, but understandably does not rely on, two other features of Congress’s scheme. First, the majority notes that the CFPB receives its funding outside the normal appropriations process. See ante , at 24–25. But so too do other financial regulators, including the Federal Reserve Board and the FDIC. See 12 U. S. C. §§243, 1815(d), 1820(e). And budgetary independence comes mostly at the expense of Congress’s control over the agency, not the President’s. (Because that is so, it actually works to the President’s advantage.) Second, the majority complains that the Director’s five-year term may prevent a President from “shap[ing the agency’s] leadership” through appointments. Ante , at 24. But again that is true, to one degree or another, of quite a few longstanding independent agencies, including the Federal Reserve, the FTC, the Merit Systems Protection Board, and the Postal Service Board of Governors. See, e.g. , §§241, 242; 15 U. S. C. §41; 5 U. S. C. §§1201, 1202; 39 U. S. C. §202. (If you think the last is unimportant, just ask the current President whether he agrees.) 12 The majority, seeking some other way to distinguish Morrison , asserts that the independent counsel’s “duties” were more “limited” than the CFPB Director’s. Ante , at 17–18. That’s true in a sense: All (all?) the special counsel had to do was decide whether the President and his top advisers had broken the law. But I doubt (and I suspect Presidents would too) whether the need to control those duties was any less “central to the functioning of the Executive Branch” than the need to control the CFPB’s. Morrison , 487 U. S., at 691–692. And in any event, as I’ve shown, Morrison did much more than approve a specific removal provision; it created a standard to govern all removal cases that is at complete odds with the majority’s reasoning. See supra, at 19–21. 13 To use one important example, Congress provided for executive oversight of all the CFPB’s rulemaking. The Financial Stability Oversight Council can veto by a two-thirds vote any CFPB regulation it deems a threat to the “safety and soundness” of the financial system. 12 U. S. C. §5513(a). The FSOC is chaired by the Treasury Secretary, and most of its members are under the direct supervision of the President. See §5321. So the majority is wrong in saying that the CFPB’s Director can “ unilaterally ” issue final regulations. Ante , at 23 (emphasis in original). Indeed, the President has more control over rulemaking at the CFPB than at any similar independent agency. And the majority is similarly wrong to think that because the FSOC has not yet issued a formal veto, its review authority makes no practical difference. See ante, at 25, n. 9. Regulatory review, whether by the Office of Management and Budget or the FSOC, usually relies more on the threat of vetoes than on their execution. OMB casts a long shadow over rulemaking in the Executive Branch, but rarely uses its veto pen. See Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838, 1846–1847, n. 37 (2013). 14 I could go on. A recent study prepared for the Administrative Conference of the United States noted that “[g]overnance by multiple members limits the President’s influence.” J. Selin & D. Lewis, Sourcebook of United States Executive Agencies 89 (2d ed. 2018). And the General Accounting Office has recognized that the desire for “greater independence” is what “most likely explains why the Congress in the past has opted to head independent regulatory bodies with multimember commissions rather than single administrators.” Hearing before the Senate Subcommittee on the Consumer of the Committee on Commerce, Science, and Transportation, 100th Cong., 1st Sess., 135 (1987) (Statement of F. Frazier).

The Supreme Court ruled that the Consumer Financial Protection Bureau's leadership by a single director, serving a longer term than the President and removable only for cause, violates the Constitution's separation of powers. The Court found that the President's power to remove executive officers follows from Article II of the Constitution and was confirmed in Myers v. United States. The Court recognized only two exceptions to the President's unrestricted removal power, neither applicable in this case. The Court concluded that the CFPB's structure was unconstitutional and that the appropriate remedy was to sever the provision restricting the President's removal power, leaving the rest of the CFPB's authorities intact.

Antitrust

Swift & Co. v. U.S.

https://supreme.justia.com/cases/federal/us/196/375/

U.S. Supreme Court Swift & Co. v. United States, 196 U.S. 375 (1905) Swift and Company v. United States No. 103 Argued January 6, 7, 1905 Decided January 30, 1905 196 U.S. 375 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS Syllabus A combination of a dominant proportion of the dealers in fresh meat through out the United States not to bid against, or only in conjunction with, each other in order to regulate prices in and induce shipments to the livestock markets in other States, to restrict shipments, establish uniform rules of credit, make uniform and improper rules of cartage, and to get less than lawful rates from railroads to the exclusion of competitors with intent to monopolize commerce among the States is an illegal combination within the meaning and prohibition of the act of July 2, 1890, 26 Stat. 209, and can be restrained and enjoined in an action by the United States. It does not matter that a combination of this nature embraces restraint and monopoly of trade within a single State if it also embraces and is directed against commerce among the States. Moreover, the effect of such a combination upon interstate commerce is direct, and not accidental, secondary, or remote, as in United Slates v. E. C. Knight Co., 156 U. S. 1 . Even if the separate elements of such a scheme are lawful, when they are bound together by a common intent as parts of an unlawful scheme to monopolize interstate commerce, the plan may make the parts unlawful. When cattle are sent for sale from a place in one State, with the expectation Page 196 U. S. 376 they will end their transit, after purchase, in another State, and when, in effect, they do so with only the interruption necessary to find a purchaser at the stockyards, and when this is a constantly recurring course, it constitutes interstate commerce, and the purchase of the cattle is an incident of such commerce. A bill in equity, and the demurrer thereto, are neither of them to be read and construed strictly as an indictment, but are to be taken to mean what they fairly convey to a dispassionate reader by a fairly exact use of English speech. The facts are stated in the opinion. Page 196 U. S. 390 MR. JUSTICE HOLMES delivered the opinion of the court. This is an appeal from a decree of the Circuit Court, on demurrer, granting an injunction against the appellants' commission of alleged violations of the act of July 2, 1890, c. 647, 26 Stat. 209, "to protect trade and commerce against unlawful restraints and monopolies." It will be necessary to consider both the bill and the decree. The bill is brought against a number of corporations, firms and individuals of different States, and makes the following allegations: 1. The defendants Page 196 U. S. 391 (appellants) are engaged in the business of buying livestock at the stockyards in Chicago, Omaha, St. Joseph, Kansas City, East St. Louis, and St. Paul, and slaughtering such livestock at their respective plants in places named, in different States, and converting the livestock into fresh meat for human consumption. 2. The defendants "are also engaged in the business of selling such fresh meats, at the several places where they are so prepared, to dealers and consumers in divers States and Territories of the said United States other than those wherein the said meats are so prepared and sold as aforesaid, and in the District of Columbia, and in foreign countries, and shipping the same meats, when so sold from the said places of their preparation, over the several lines of transportation of the several railroad companies serving the same as common carriers, to such dealers and consumers, pursuant to such sales." 3. The defendants also are engaged in the business of shipping such fresh meats to their respective agents at the principal markets in other States, etc., for sale by those agents in those markets to dealers and consumers. 4. The defendants together control about six-tenths of the whole trade and commerce in fresh meats among the States, Territories and District of Columbia, and, 5, but for the acts charged, would be in free competition with one another. 6. In order to restrain competition among themselves as to the purchase of livestock, defendants have engaged in, and intend to continue, a combination for requiring and do and will require their respective purchasing agents at the stockyards mentioned, where defendants buy their livestock (the same being stock produced and owned principally in other States and shipped to the yards for sale) to refrain from bidding against each other, "except perfunctorily and without good faith," and by this means compelling the owners of such stock to sell at less prices than they would receive if the bidding really was competitive. 7. For the same purposes, the defendants combine to bid up, through their agents, the prices of livestock for a few days at Page 196 U. S. 392 a time, "so that the market reports will show prices much higher than the state of the trade will warrant," thereby inducing stock owners in other States to make large shipments to the stockyards, to their disadvantage. 8. For the same purposes, and to monopolize the commerce protected by the statute, the defendants combine "to arbitrarily, from time to time raise, lower, and fix prices, and to maintain uniform prices at which they will sell" to dealers throughout the States. This is effected by secret periodical meetings, where are fixed prices to be enforced until changed at a subsequent meeting. The prices are maintained directly, and by collusively restricting the meat shipped by the defendants, whenever conducive to the result, by imposing penalties for deviations, by establishing a uniform rule for the giving of credit to dealers, etc., and by notifying one another of the delinquencies of such dealers and keeping a black list of delinquents, and refusing to sell meats to them. 9. The defendants also combine to make uniform charges for cartage for the delivery of meats sold to dealers and consumers in the markets throughout the States, etc., shipped to them by the defendants through the defendants' agents at the markets, when no charges would have been made but for the combination. 10. Intending to monopolize the said commerce and to prevent competition therein, the defendants "have all and each engaged in and will continue" arrangements with the railroads whereby the defendants received, by means of rebates and other devices, rates less than the lawful rates for transportation, and were exclusively to enjoy and share this unlawful advantage to the exclusion of competition and the public. By force of the consequent inability of competitors to engage or continue in such commerce, the defendants are attempting to monopolize, have monopolized, and will monopolize the commerce in livestock and fresh meats among the States and Territories, and with foreign countries, and, 11, the defendants are and have been in conspiracy with each other, with Page 196 U. S. 393 the railroad companies and others unknown, to obtain a monopoly of the supply and distribution of fresh meats throughout the United States, etc. And, to that end, defendants artificially restrain the commerce and put arbitrary regulations in force affecting the same from the shipment of the livestock from the plains to the final distribution of the meats to the consumers. There is a prayer for an injunction of the most comprehensive sort against all the foregoing proceedings and others, for discovery of books and papers relating directly or indirectly to the purchase or shipment of livestock, and the sale or shipment of fresh meat, and for an answer under oath. The injunction issued is appended in a note. * Page 196 U. S. 394 To sum up the bill more shortly, it charges a combination of a dominant proportion of the dealers in fresh meat throughout the United States not to bid against each other in the livestock markets of the different States, to bid up prices for a few days in order to induce the cattle men to send their stock to the stockyards, to fix prices at which they will sell, and to that end to restrict shipments of meat when necessary, to establish a uniform rule of credit to dealers and to keep a blacklist, to make uniform and improper charges for cartage, and finally, to get less than lawful rates from the railroads to the exclusion of competitors. It is true that the last charge is not clearly stated to be a part of the combination. But, as it is alleged that the defendants have each and all made arrangements with the railroads, that they were exclusively to enjoy the unlawful advantage, and that their intent in what they did was to monopolize the commerce and to prevent competition, and in view of the general allegation to which we Page 196 U. S. 395 shall refer, we think that we have stated correctly the purport of the bill. It will be noticed further that the intent to monopolize is alleged for the first time in the eighth section of the bill as to raising, lowering and fixing prices. In the earlier sections, the intent alleged is to restrain competition among themselves. But after all the specific charges, there is a general allegation that the defendants are conspiring with one another, the railroads and others, to monopolize the supply and distribution of fresh meats throughout the United States, etc., as has been stated above, and it seems to us that this general allegation of intent colors and applies to all the specific charges of the bill. Whatever may be thought concerning the proper construction of the statute, a bill in equity is not to be read and construed as an indictment would have been read and construed a hundred years ago, but it is to be taken to mean what it fairly conveys to a dispassionate reader by a fairly exact use of English speech. Thus, read, this bill seems to us intended to allege successive elements of a single connected scheme. We read the demurrer with the same liberality. Therefore, we take it as applying to the bill generally for multifariousness and want of equity, and also to each section of it which makes a charge and to the discovery. The demurrer to the discovery will not need discussion in the view which we take concerning the relief, and therefore we turn at once to that. The general objection is urged that the bill does not set forth sufficient definite or specific facts. This objection is serious, but it seems to us inherent in the nature of the case. The scheme alleged is so vast that it presents a new problem in pleading. If, as we must assume, the scheme is entertained, it is, of course, contrary to the very words of the statute. Its size makes the violation of the law more conspicuous, and yet the same thing makes it impossible to fasten the principal fact to a certain time and place. The elements, too, are so numerous and shifting, even the constituent parts alleged are, and from their nature must be, so extensive in time Page 196 U. S. 396 and space, that something of the same impossibility applies to them. The law has been upheld, and therefore we are bound to enforce it notwithstanding these difficulties. On the other hand, we equally are bound by the first principles of justice not to sanction a decree so vague as to put the whole conduct of the defendants' business at the peril of a summons for contempt. We cannot issue a general injunction against all possible breaches of the law. We must steer between these opposite difficulties as best we can. The scheme as a whole seems to us to be within reach of the law. The constituent elements, as we have stated them, are enough to give to the scheme a body and, for all that we can say, to accomplish it. Moreover, whatever we may think of them separately when we take them up as distinct charges, they are alleged sufficiently as elements of the scheme. It is suggested that the several acts charged are lawful, and that intent can make no difference. But they are bound together as the parts of a single plan. The plan may make the parts unlawful. Aikens v. Wisconsin, 195 U. S. 194 , 195 U. S. 206 . The statute gives this proceeding against combinations in restraint of commerce among the States and against attempts to monopolize the same. Intent is almost essential to such a combination, and is essential to such an attempt. Where acts are not sufficient in themselves to produce a result which the law seeks to prevent -- for instance, the monopoly -- but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. Commonwealth v. Peaslee, 177 Massachusetts 267, 272. But when that intent and the consequent dangerous probability exist, this statute, like many others and like the common law in some cases, directs itself against that dangerous probability as well as against the completed result. What we have said disposes incidentally of the objection to the bill as multifarious. The unity of the plan embraces all the parts. One further observation should be made. Although the Page 196 U. S. 397 combination alleged embraces restraint and monopoly of trade within a single State, its effect upon commerce among the States is not accidental, secondary, remote or merely probable. On the allegations of the bill, the latter commerce no less, perhaps even more, than commerce within a single State is an object of attack. See Leloup v. Port of Mobile, 127 U. S. 640 , 127 U. S. 647 ; Crutcher v. Kentucky, 141 U. S. 47 , 141 U. S. 59 ; Allen v. Pullman Co., 191 U. S. 171 , 191 U. S. 179 , 191 U. S. 180 . Moreover, it is a direct object, it is that for the sake of which the several specific acts and courses of conduct are done and adopted. Therefore the case is not like United States v. E. C. Knight Co., 156 U. S. 1 , where the subject matter of the combination was manufacture and the direct object monopoly of manufacture within a State. However likely monopoly of commerce among the States in the article manufactured was to follow from the agreement, it was not a necessary consequence nor a primary end. Here, the subject matter is sales, and the very point of the combination is to restrain and monopolize commerce among the States in respect of such sales. The two cases are near to each other, as sooner or later always must happen where lines are to be drawn, but the line between them is distinct. Montague & Co. v. Lowry, 193 U. S. 38 . So, again, the line is distinct between this case and Hopkins v. United States, 171 U. S. 578 . All that was decided there was that the local business of commission merchants was not commerce among the States, even if what the brokers were employed to sell was an object of such commerce. The brokers were not like the defendants before us, themselves the buyers and sellers. They only furnished certain facilities for the sales. Therefore, there again the effects of the combination of brokers upon the commerce was only indirect, and not within the act. Whether the case would have been different if the combination had resulted in exorbitant charges was left open. In Anderson v. United States, 171 U. S. 604 , the defendants were buyers and sellers at the stockyards, but their agreement was merely not to employ brokers, or to Page 196 U. S. 398 recognize yard-traders, who were not members of their association. Any yard-trader could become a member of the association on complying with the conditions, and there was said to be no feature of monopoly in the case. It was held that the combination did not directly regulate commerce between the States, and, being formed with a different intent, was not within the act. The present case is more like Montague & Co. v. Lowry, 193 U. S. 38 . For the foregoing reasons we are of opinion that the carrying out of the scheme alleged, by the means set forth, properly may be enjoined, and that the bill cannot be dismissed. So far, it has not been necessary to consider whether the facts charged in any single paragraph constitute commerce among the States or show an interference with it. There can be no doubt, we apprehend, as to the collective effect of all the facts, if true, and if the defendants entertain the intent alleged. We pass now to the particulars, and will consider the corresponding parts of the injunction at the same time. The first question arises on the sixth section. That charges a combination of independent dealers to restrict the competition of their agents when purchasing stock for them in the stockyards. The purchasers and their slaughtering establishments are largely in different States from those of the stockyards, and the sellers of the cattle, perhaps it is not too much to assume, largely in different States from either. The intent of the combination is not merely to restrict competition among the parties, but, as we have said, by force of the general allegation at the end of the bill, to aid in an attempt to monopolize commerce among the States. It is said that this charge is too vague, and that it does not set forth a case of commerce among the States. Taking up the latter objection first, commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business. When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase, in another, and when, in effect, Page 196 U. S. 399 they do so, with only the interruption necessary to find a purchaser at the stockyards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce. What we say is true at least of such a purchase by residents in another State from that of the seller and of the cattle. And we need not trouble ourselves at this time as to whether the statute could be escaped by any arrangement as to the place where the sale, in point of law, is consummated. See Norfolk & Western Ry. v. Sims, 191 U. S. 441 . But the sixth section of the bill charges an interference with such sales, a restraint of the parties by mutual contract and a combination not to compete in order to monopolize. It is immaterial if the section also embraces domestic transactions. It should be added that the cattle in the stockyard are not at rest even to the extent that was held sufficient to warrant taxation in American Steel & Wire Co. v. Speed, 192 U. S. 500 . But it may be that the question of taxation does not depend upon whether the article taxed may or may not be said to be in the course of commerce between the States, but depends upon whether the tax so far affects that commerce as to amount to a regulation of it. The injunction against taking part in a combination, the effect of which will be a restraint of trade among the States by directing the defendants' agents to refrain from bidding against one another at the sales of livestock, is justified so far as the subject matter is concerned. The injunction, however, refers not to trade among the States in cattle, concerning which there can be no question of original packages, but to trade in fresh meats, as the trade forbidden to be restrained, and it is objected that the trade in fresh meats described in the second and third sections of the bill is not commerce among the States, because the meat is sold at the slaughtering places, or, when sold elsewhere, may be sold in less than the original packages. But the allegations of the second section, even if they import a technical passing Page 196 U. S. 400 of title at the slaughtering places, also import that the sales are to persons in other States, and that the shipments to other States are part of the transaction -- "pursuant to such sales" -- and the third section imports that the same things which are sent to agents are sold by them, and sufficiently indicates that some, at least, of the sales are of the original packages. Moreover, the sales are by persons in one State to persons in another. But we do not mean to imply that the rule which marks the point at which state taxation or regulation becomes permissible necessarily is beyond the scope of interference by Congress in cases where such interference is deemed necessary for the protection of commerce among the States. Nor do we mean to intimate that the statute under consideration is limited to that point. Beyond what we have said above, we leave those questions as we find them. They were touched upon in the Northern Securities Company's case, 193 U. S. 197 . We are of opinion, further, that the charge in the sixth section is not too vague. The charge is not of a single agreement, but of a course of conduct intended to be continued. Under the act, it is the duty of the court, when applied to, to stop the conduct. The thing done and intended to be done is perfectly definite: with the purpose mentioned, directing the defendants' agents and inducing each other to refrain from competition in bids. The defendants cannot be ordered to compete, but they properly can be forbidden to give directions or to make agreements not to compete. See Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 . The injunction follows the charge. No objection was made on the ground that it is not confined to the places specified in the bill. It seems to us, however, that it ought to set forth more exactly the transactions in which such directions and agreements are forbidden. The trade in fresh meat referred to should be defined somewhat as it is in the bill, and the sales of stock should be confined to sales of stock at the stockyards named, which stock is sent from other States to the stockyards for sale or is bought at those yards for transport to another State. Page 196 U. S. 401 After what we have said, the seventh, eighth and ninth sections need no special remark except that the cartage referred to in section nine is not an independent matter, such as was dealt with in Pennsylvania R.R. Co. v. Knight, 192 U. S. 21 , but a part of the contemplated transit -- cartage for delivery of the goods. The general words of the injunction "or by any other method or device, the purpose and effect of which is to restrain commerce as aforesaid," should be stricken out. The defendants ought to be informed as accurately as the case permits what they are forbidden to do. Specific devices are mentioned in the bill, and they stand prohibited. The words quoted are a sweeping injunction to obey the law, and are open to the objection which we stated at the beginning that it was our duty to avoid. To the same end of definiteness, so far as attainable, the words "as charged in the bill," should be inserted between "dealers in such meats," and "the effect of which rules," and two lines lower, as to charges for cartage, the same words should be inserted between "dealers and consumers" and "the effect of which." The acts charged in the tenth section, apart from the combination and the intent, may, perhaps, not necessarily be unlawful, except for the adjective which proclaims them so. At least we may assume, for purposes of decision, that they are not unlawful. The defendants, severally, lawfully may obtain less than the regular rates for transportation if the circumstances are not substantially similar to those for which the regular rates are fixed. Act of Feb. 4, 1887, c. 104, § 2, 24 Stat. 379. It may be that the regular rates are fixed for carriage in cars furnished by the railroad companies, and that the defendants furnish their own cars and other necessities of transportation. We see nothing to hinder them from combining to that end. We agree, as we already have said, that such a combination may be unlawful as part of the general scheme set forth in the bill, and that this scheme, as a whole, might be enjoined. Whether this particular combination can be enjoined, as it is, apart from its connection with the other Page 196 U. S. 402 elements, if entered into with the intent to monopolize, as alleged, is a more delicate question. The question is how it would stand if the tenth section were the whole bill. Not every act that may be done with intent to produce an unlawful result is unlawful, or constitutes an attempt. It is a question of proximity and degree. The distinction between mere preparation and attempt is well known in the criminal law. Commonwealth v. Peaslee, 177 Massachusetts 267, 272. The same distinction is recognized in cases like the present. United States v. E. C. Knight Co., 156 U. S. 1 , 156 U. S. 13 ; Kidd v. Pearson, 128 U. S. 1 , 128 U. S. 23 , 128 U. S. 24 . We are of opinion, however, that such a combination is within the meaning of the statute. It is obvious that no more powerful instrument of monopoly could be used than an advantage in the cost of transportation. And even if the advantage is one which the act of 1887 permits, which is denied, perhaps inadequately, by the adjective "unlawful," still a combination to use it for the purpose prohibited by the act of 1890 justifies the adjective and takes the permission away. It only remains to add that the foregoing question does not apply to the earlier sections, which charge direct restraints of trade within the decisions of the court, and that the criticism of the decree, as if it ran generally against combinations in restraint of trade or to monopolize trade, ceases to have any force when the clause against "any other method or device" is stricken out. So modified, it restrains such combinations only to the extent of certain specified devices, which the defendants are alleged to have used and intend to continue to use Decree modified and affirmed. * "And now, upon motion of the said attorney, the court doth order that the preliminary injunction heretofore awarded in this cause, to restrain the said defendants and each of them, their respective agents and attorneys, and all other persons acting in their behalf, or in behalf of either of them, or claiming so to act, from entering into, taking part in, or performing any contract, combination or conspiracy, the purpose or effect of which will be, as to trade and commerce in fresh meats between the several States and Territories and the District of Columbia, a restraint of trade, in violation of the provisions of the act of Congress approved July 2, 1890, entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' either by directing or requiring their respective agents to refrain from bidding against each other in the purchase of livestock; or collusively and by agreement to refrain from bidding against each other at the sales of livestock; or by combination, conspiracy or contract raising or lowering prices or fixing uniform prices at which the said meats will be sold, either directly or through their respective agents; or by curtailing the quantity of such meats shipped to such markets and agents; or by establishing and maintaining rules for the giving of credit to dealers in such meats, the effect of which rules will be to restrict competition; or by imposing uniform charges for cartage and delivery of such meats to dealers and consumers, the effect of which will be to restrict competition; or by any other method or device, the purpose and effect of which is to restrain commerce as aforesaid, and also from violating the provisions of the act of Congress approved July 2, 1890, entitled 'An act to protect trade and commerce against unlawful restraints and monopolies' by combining or conspiring together, or with each other and others, to monopolize or attempt to monopolize any part of the trade and commerce in fresh meats among the several States and Territories and the District of Columbia, by demanding, obtaining, or, with or without the connivance of the officers or agents thereof, or of any of them, receiving from railroad companies or other common carriers transporting such fresh meats in such trade and commerce, either directly or by means of rebates, or by any other device, transportation of or for such means, from the points of the preparation and production of the same from livestock or elsewhere, to the markets for the sale of the same to dealers and consumers in other States and Territories than those wherein the same are so prepared, or the District of Columbia, at less than the regular rates which may be established or in force on their several lines of transportation, under the provisions in that behalf of the laws of the said United States for the regulation of commerce, be and the same is hereby made perpetual." "But nothing herein shall be construed to prohibit the said defendants from agreeing upon charges for cartage and delivery, and other incidents connected with local sales, where such charges are not calculated to have any effect upon competition in the sales and delivery of meats; nor from establishing and maintaining rules for the giving of credit to dealers where such rules in good faith are calculated solely to protect the defendants against dishonest or irresponsible dealers, nor from curtailing the quantity of meats shipped to a given market where the purpose of such arrangement in good faith is to prevent the over-accumulation of meats as perishable articles in such markets." "Nor shall anything herein contained be construed to restrain or interfere with the action of any single company or firm, by its or their officers or agents (whether such officers or agents are themselves personally made parties defendant hereto or not) acting with respect to its or their own corporate or firm business, property or affairs."

In *Swift & Co. v. United States* (1905), the Supreme Court ruled that a combination of meat dealers restraining trade and attempting to monopolize interstate commerce was illegal under the Sherman Antitrust Act of 1890. The Court held that the combination's effect on interstate commerce was direct and substantial, and thus fell under federal jurisdiction. Even if individual elements of the scheme were legal, when combined with an intent to monopolize, they became part of an unlawful plan. The Court also clarified that the purchase and sale of cattle across state lines constituted interstate commerce, and that the bill of equity and demurrer should be interpreted fairly, rather than strictly as an indictment. The decree enjoined the defendants from engaging in various practices that restrained trade, such as agreeing on prices, curtailing shipments, and obtaining preferential transportation rates. However, it allowed for certain exceptions, such as cartage charges and credit rules, when they were not designed to restrict competition.

Antitrust

Standard Oil Co. of New Jersey v. U.S.

https://supreme.justia.com/cases/federal/us/221/1/

U.S. Supreme Court Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1910) Standard Oil Co. of New Jersey v. United States Argued March 14, 15, 16, 1910 Restored to docket for reargument April 11, 1910 Reargued January 12, 13, 16, 17, 1911 Decided May 15, 1911 221 U.S. 1 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI Syllabus The Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209, should be construed in the light of reason; and, as so construed, it prohibits all contracts and combination which amount to an unreasonable or undue restraint of trade in interstate commerce. The combination of the defendants in this case is an unreasonable and undue restraint of trade in petroleum and its products moving in interstate commerce, and falls within the prohibitions of the act as so construed. Where one of the defendants in a suit, brought by the Government in a Circuit Court of the United States under the authority of § 4 of the Anti-Trust Act of July 2, 1890, is within the district, the court, under the authority of § 5 of that act, can take jurisdiction and order notice to be served upon the nonresident defendants. Allegations as to facts occurring prior to the passage of the Anti-Trust Act may be considered solely to throw light on acts done after the passage of the act. Page 221 U. S. 2 The debates in Congress on the Anti-Trust Act of 1890 show that one of the influences leading to the enactment of the statute was doubt as to whether there is a common law of the United States governing the making of contracts in restraint of trade and the creation and maintenance of monopolies in the absence of legislation. While debates of the body enacting it may not be used as means for interpreting a statute, they may be resorted to as a means of ascertaining the conditions under which it was enacted. The terms "restraint of trade," and "attempts to monopolize," as used in the Anti-Trust Act, took their origin in the common law, and were familiar in the law of this country prior to and at the time of the adoption of the act, and their meaning should be sought from the conceptions of both English and American law prior to the passage of the act. The original doctrine that all contracts in restraint of trade were illegal was long since so modified in the interest of freedom of individuals to contract that the contract was valid if the resulting restraint was only partial in its operation, and was otherwise reasonable. The early struggle in England against the power to create monopolies resulted in establishing that those institutions were incompatible with the English Constitution. At common law, monopolies were unlawful because of their restriction upon individual freedom of contract and their injury to the public and at common law, and contracts creating the same evils were brought within the prohibition as impeding the due course of, or being in restraint of, trade. At the time of the passage of the Anti-Trust Act, the English rule was that the individual was free to contract and to abstain from contracting and to exercise every reasonable right in regard thereto, except only as he was restricted from voluntarily and unreasonably or for wrongful purposes restraining his right to carry on his trade. Mogul Steamship Co. v. McGregor, 1892, A.C. 25. A decision of the House of Lords, although announced after an event, may serve reflexly to show the state of the law in England at the time of such event. This country has followed the line of development of the law of England, and the public policy has been to prohibit, or treat as illegal, contracts, or acts entered into with intent to wrong the public and which unreasonably restrict competitive conditions, limit the right of individuals, restrain the free flow of commerce, or bring about public evils such as the enhancement of prices. Page 221 U. S. 3 The Anti-Trust Act of 1890 was enacted in the light of the then existing practical conception of the law against restraint of trade, and the intent of Congress was not to restrain the right to make and enforce contracts, whether resulting from combinations or otherwise, which do not unduly restrain interstate or foreign commerce, but to protect that commerce from contracts or combinations by methods, whether old or new, which would constitute an interference with, or an undue restraint upon, it. The Anti-Trust Act contemplated and required a standard of interpretation, and it was intended that the standard of reason which had been applied at the common law should be applied in determining whether particular acts were within its prohibitions. The word "person" in § 2 of the Anti-Trust Act, as construed by reference to § 8 thereof, implies a corporation as well as an individual. The commerce referred to by the words "any part" in § 2 of the Antitrust Act, as construed in the light of the manifest purpose of that act, includes geographically any part of the United States and also any of the classes of things forming a part of interstate or foreign commerce. The words "to monopolize" and "monopolize" as used in § 2 of the Anti-Trust Act reach every act bringing about the prohibited result. Freedom to contract is the essence of freedom from undue restraint on the right to contract. In prior cases where general language has been used, to the effect that reason could not be resorted to in determining whether a particular case was within the prohibitions of the Anti-Trust Act, the unreasonableness of the acts under consideration was pointed out, and those cases are only authoritative by the certitude that the rule of reason was applied; United States v. Trans-Missouri Freight Association, 166 U. S. 290 , and United States v. Joint Traffic Association, 171 U. S. 505 , limited and qualified so far as they conflict with the construction now given to the Anti-Trust Act of 1890. The application of the Anti-Trust Act to combinations involving the production of commodities within the States does not so extend the power of Congress to subjects dehors its authority as to render the statute unconstitutional. United States v. E. C. Knight Co., 156 U. S. 1 , distinguished. The Anti-Trust Act generically enumerates the character of the acts prohibited and the wrongs which it intends to prevent, and is susceptible of being enforced without any judicial exertion of legislative power. The unification of power and control over a commodity such as petroleum Page 221 U. S. 4 and its products by combining in one corporation the stocks of many other corporations aggregating a vast capital gives rise, of itself, to the prima facie presumption of an intent and purpose to dominate the industry connected with, and gain perpetual control of the movement of, that commodity and its products in the channels of interstate commerce in violation of the Anti-Trust Act of 1890, and that presumption is made conclusive by proof of specific acts such as those in the record of this case. The fact that a combination over the products of a commodity such as petroleum does not include the crude article itself does not take the combination outside of the Anti-Trust Act when it appears that the monopolization of the manufactured products necessarily controls the crude article. Penalties which are not authorized by the law cannot be inflicted by judicial authority. The remedy to be administered in case of a combination violating the Anti-Trust Act is two-fold: first, to forbid the continuance of the prohibited act, and second, to so dissolve the combination as to neutralize the force of the unlawful power. The constituents of an unlawful combination under the Anti-Trust Act should not be deprived of power to make normal and lawful contracts, but should be restrained from continuing or recreating the unlawful combination by any means whatever, and a dissolution of the offending combination should not deprive the constituents of the right to live under the law, but should compel them to obey it. In determining the remedy against an unlawful combination, the court must consider the result, and not inflict serious injury on the public by causing a cessation of interstate commerce in a necessary commodity. 173 Fed. Rep. 177, modified and affirmed. The facts, which involve the construction of the Sherman Anti-Trust Act of July 2, 1890, and whether defendants had violated its provisions, are stated in the opinion. Page 221 U. S. 30 MR. CHIEF JUSTICE WHITE delivered the opinion of the court. The Standard Oil Company of New Jersey and 33 other corporations, John D. Rockefeller, William Rockefeller, and five other individual defendants prosecute this appeal to reverse a decree of the court below. Such decree was entered upon a bill filed by the United States under authority of § 4 of the act of July 2, 1890, c. 647, p. 209, known as the Anti-Trust Act, and had for its object the enforcement of the provisions of that act. The record is inordinately voluminous, consisting of twenty-three volumes of printed matter, aggregating about twelve thousand pages, containing a vast amount of confusing and conflicting testimony Page 221 U. S. 31 relating to innumerable, complex and varied business transactions, extending over a period of nearly forty years. In an effort to pave the way to reach the subjects which we are called upon to consider, we propose at the outset, following the order of the bill, to give the merest possible outline of its contents, to summarize the answer, to indicate the course of the trial, and point out briefly the decision below rendered. The bill and exhibits, covering one hundred and seventy pages of the printed record, was filed on November 15, 1906. Corporations known as Standard Oil Company of New Jersey, Standard Oil Company of California, Standard Oil Company of Indiana, Standard Oil Company of Iowa, Standard Oil Company of Kansas, Standard Oil Company of Kentucky, Standard Oil Company of Nebraska, Standard Oil Company of New York, Standard Oil Company of Ohio, and sixty-two other corporations and partnerships, as also seven individuals were named as defendants. The bill was divided into thirty numbered sections, and sought relief upon the theory that the various defendants were engaged in conspiring "to restrain the trade and commerce in petroleum, commonly called 'crude oil,' in refined oil, and in the other products of petroleum, among the several States and Territories of the United States and the District of Columbia and with foreign nations, and to monopolize the said commerce." The conspiracy was alleged to have been formed in or about the year 1870 by three of the individual defendants, viz: John D. Rockefeller, William Rockefeller, and Henry M. Flagler. The detailed averments concerning the alleged conspiracy were arranged with reference to three periods, the first from 1870 to 1882, the second from 1882 to 1899, and the third from 1899 to the time of the filing of the bill. The general charge concerning the period from 1870 to 1882 was as follows: Page 221 U. S. 32 "That during said first period, the said individual defendants, in connection with the Standard Oil Company of Ohio, purchased and obtained interests through stock ownership and otherwise in, and entered into agreements with, various persons, firms, corporations, and limited partnerships engaged in purchasing, shipping, refining, and selling petroleum and its products among the various States for the purpose of fixing the price of crude and refined oil and the products thereof, limiting the production thereof, and controlling the transportation therein, and thereby restraining trade and commerce among the several States, and monopolizing the said commerce." To establish this charge, it was averred that John D. and William Rockefeller and several other named individuals, who, prior to 1870, composed three separate partnerships engaged in the business of refining crude oil and shipping its products in interstate commerce, organized in the year 1870 a corporation known as the Standard Oil Company of Ohio and transferred to that company the business of the said partnerships, the members thereof becoming, in proportion to their prior ownership, stockholders in the corporation. It was averred that the other individual defendants soon afterwards became participants in the illegal combination and either transferred property to the corporation or to individuals to be held for the benefit of all parties in interest in proportion to their respective interests in the combination; that is, in proportion to their stock ownership in the Standard Oil Company of Ohio. By the means thus stated, it was charged that, by the year 1872, the combination had acquired substantially all but three or four of the thirty-five or forty oil refineries located in Cleveland, Ohio. By reason of the power thus obtained and in further execution of the intent and purpose to restrain trade and to monopolize the commerce, interstate as well as intrastate, in petroleum and its products, the bill alleged that the combination and its members Page 221 U. S. 33 obtained large preferential rates and rebates in many and devious ways over their competitors from various railroad companies, and that, by means of the advantage thus obtained, many, if not virtually all, competitors were forced either to become members of the combination or were driven out of business, and thus, it was alleged, during the period in question, the following results were brought about: a. that the combination, in addition to the refineries in Cleveland which it had acquired as previously stated, and which it had either dismantled to limit production or continued to operate, also from time to time acquired a large number of refineries of crude petroleum, situated in New York, Pennsylvania, Ohio and elsewhere. The properties thus acquired, like those previously obtained, although belonging to and being held for the benefit of the combination, were ostensibly divergently controlled, some of them being put in the name of the Standard Oil Company of Ohio, some in the name of corporations or limited partnerships affiliated therewith, or some being left in the name of the original owners, who had become stockholders in the Standard Oil Company of Ohio, and thus members of the alleged illegal combination. b. That the combination had obtained control of the pipelines available for transporting oil from the oil fields to the refineries in Cleveland, Pittsburgh, Titusville, Philadelphia, New York and New Jersey. c. That the combination during the period named had obtained a complete mastery over the oil industry, controlling 90 percent of the business of producing, shipping, refining and selling petroleum and its products, and thus was able to fix the price of crude and refined petroleum and to restrain and monopolize all interstate commerce in those products. The averments bearing upon the second period (1882 to 1899) had relation to the claim: "That, during the said second period of conspiracy, the defendants entered into a contract and trust agreement Page 221 U. S. 34 by which various independent firms, corporations, limited partnerships and individuals engaged in purchasing, transporting, refining, shipping and selling oil and the products thereof among the various States turned over the management of their said business, corporations and limited partnerships to nine trustees, composed chiefly of certain individuals defendant herein, which said trust agreement was in restraint of trade and commerce and in violation of law, as hereinafter more particularly alleged." The trust agreement thus referred to was set out in the bill. It was made in January, 1882. By its terms, the stock of forty corporations, including the Standard Oil Company of Ohio, and a large quantity of various properties which had been previously acquired by the alleged combination and which was held in diverse forms, as we have previously indicated, for the benefit of the members of the combination, was vested in the trustees and their successors, "to be held for all parties in interest jointly." In the body of the trust agreement was contained a list of the various individuals and corporations and limited partnerships whose stockholders and members, or a portion thereof, became parties to the agreement. This list is in the margin. [ Footnote 1 ] Page 221 U. S. 35 The agreement made provision for the method of controlling and managing the property by the trustees, for the formation of additional manufacturing, etc., corporations Page 221 U. S. 36 in various States, and the trust, unless terminated by a mode specified, was to continue "during the lives of the survivors and survivor of the trustees named in the agreement and for twenty-one years thereafter." The agreement provided for the issue of Standard Oil Trust certificates to represent the interest arising under the trust in the properties affected by the trust, which, of course, in view of the provisions of the agreement and the subject to which it related, caused the interest in the certificates to be coincident with and the exact representative of the interest in the combination, that is, in the Standard Oil Company of Ohio. Soon afterwards, it was alleged, the trustees organized the Standard Oil Company of New Jersey and the Standard Oil Company of New York, the former having a capital stock of $3,000,000 and the latter a capital stock of $5,000,000, subsequently increased to $10,000,000 and $15,000,000, respectively. The bill alleged "that, pursuant to said trust agreement, the said trustees caused to be transferred to themselves the stocks of all corporations and limited partnerships named in said trust agreement, and caused various of the individuals and copartnerships, who owned apparently independent refineries and other properties employed in the business of refining and transporting and selling oil in and among said various States and Territories Page 221 U. S. 37 of the United States as aforesaid, to transfer their property situated in said several States to the respective Standard Oil Companies of said States of New York, New Jersey, Pennsylvania and Ohio, and other corporations organized or acquired by said trustees from time to time. . . ." For the stocks and property so acquired, the trustees issued trust certificates. It was alleged that, in 1888, the trustees "unlawfully controlled the stock and ownership of various corporations and limited partnerships engaged in such purchase and transportation, refining, selling, and shipping of oil," as per a list which is excerpted in the margin. [ Footnote 2 ] Page 221 U. S. 38 The bill charged that, during the second period, quo warranto proceedings were commenced against the Standard Oil Company of Ohio, which resulted in the entry by the Supreme Court of Ohio, on March 2, 1892, of a decree Page 221 U. S. 39 adjudging the trust agreement to be void, not only because the Standard Oil Company of Ohio was a party to the same, but also because the agreement, in and of itself, Page 221 U. S. 40 was in restraint of trade and amounted to the creation of an unlawful monopoly. It was alleged that shortly after this decision, seemingly for the purpose of complying therewith, voluntary proceedings were had apparently to dissolve the trust, but that these proceedings were a subterfuge and a sham, because they simply amounted to a transfer of the stock held by the trust in 64 of the companies which it controlled to some of the remaining 20 companies, it having controlled before the decree 84 in all, thereby, while seemingly in part giving up its dominion, yet in reality preserving the same by means of the control of the companies as to which it had retained complete authority. It was charged that especially was this the case as the stock in the companies selected for transfer was virtually owned by the nine trustees or the members of their immediate families or associates. The bill further alleged that, in 1897, the Attorney-General of Ohio instituted contempt proceedings in the quo warranto case based upon the claim that the trust had not been dissolved as required by the decree in that case. About the same time also, proceedings in quo warranto were commenced to forfeit the charter of a pipeline known as the Buckeye Pipe Line Company, an Page 221 U. S. 41 Ohio corporation, whose stock, it was alleged, was owned by the members of the combination, on the ground of its connection with the trust which had been held to be illegal. The result of these proceedings, the bill charged, caused a resort to the alleged wrongful acts asserted to have been committed during the third period, as follows: "That during the third period of said conspiracy and in pursuance thereof, the said individual defendants operated through the Standard Oil Company of New Jersey, as a holding corporation, which corporation obtained and acquired the majority of the stocks of the various corporations engaged in purchasing, transporting, refining, shipping, and selling oil into and among the various States and Territories of the United States and the District of Columbia and with foreign nations, and thereby managed and controlled the same, in violation of the laws of the United States, as hereinafter more particularly alleged." It was alleged that, in or about the month of January, 1899, the individual defendants caused the charter of the Standard Oil Company of New Jersey to be amended "so that the business and objects of said company were stated as follows, to-wit: 'To do all kinds of mining, manufacturing, and trading business; transporting goods and merchandise by land or water in any manner; to buy, sell, lease, and improve land; build houses, structures, vessels, cars, wharves, docks, and piers; to lay and operate pipelines; to erect lines for conducting electricity; to enter into and carry out contracts of every kind pertaining to its business; to acquire, use, sell, and grant licenses under patent rights; to purchase or otherwise acquire, hold, sell, assign, and transfer shares of capital stock and bonds or other evidences of indebtedness of corporations, and to exercise all the privileges of ownership, including voting upon the stock so held; to carry on its business and have offices and agencies therefor in all parts of the world, and Page 221 U. S. 42 to hold, purchase, mortgage, and convey real estate and personal property outside the State of New Jersey.'" The capital stock of the company -- which, since March 19, 1892, had been $10,000,000 -- was increased to $110,000,000, and the individual defendants, as theretofore, continued to be a majority of the board of directors. Without going into detail, it suffices to say that it was alleged in the bill that, shortly after these proceedings, the trust came to an end, the stock of the various corporations which had been controlled by it being transferred by its holders to the Standard Oil Company of New Jersey, which corporation issued therefor certificates of its common stock to the amount of $97,250,000. The bill contained allegations referring to the development of new oil fields, for example, in California, southeastern Kansas, northern Indian Territory, and northern Oklahoma, and made reference to the building or otherwise acquiring by the combination of refineries and pipelines in the new fields for the purpose of restraining and monopolizing the interstate trade in petroleum and its products. Reiterating in substance the averments that both the Standard Oil Trust from 1882 to 1899 and the Standard Oil Company of New Jersey since 1899 had monopolized and restrained interstate commerce in petroleum and its products, the bill at great length additionally set forth various means by which, during the second and third periods, in addition to the effect occasioned by the combination of alleged previously independent concerns, the monopoly and restraint complained of was continued. Without attempting to follow the elaborate averments on these subjects spread over fifty-seven pages of the printed record, it suffices to say that such averments may properly be grouped under the following heads: rebates, preferences and other discriminatory practises in favor of the combination by railroad companies; restraint and monopolization by control of pipelines, and unfair practises against competing Page 221 U. S. 43 pipelines; contracts with competitors in restraint of trade; unfair methods of competition, such as local price-cutting at the points where necessary to suppress competition; espionage of the business of competitors, the operation of bogus independent companies, and payment of rebates on oil, with the like intent; the division of the United States into districts and the limiting of the operations of the various subsidiary corporations as to such districts so that competition in the sale of petroleum products between such corporations had been entirely eliminated and destroyed, and, finally, reference was made to what was alleged to be the "enormous and unreasonable profits" earned by the Standard Oil Trust and the Standard Oil Company as a result of the alleged monopoly, which presumably was averred as a means of reflexly inferring the scope and power acquired by the alleged combination. Coming to the prayer of the bill, it suffices to say that, in general terms, the substantial relief asked was, first, that the combination in restraint of interstate trade and commerce and which had monopolized the same, as alleged in the bill, be found to have existence, and that the parties thereto be perpetually enjoined from doing any further act to give effect to it; second, that the transfer of the stocks of the various corporations to the Standard Oil Company of New Jersey, as alleged in the bill, be held to be in violation of the first and second sections of the Antitrust Act, and that the Standard Oil Company of New Jersey be enjoined and restrained from in any manner continuing to exert control over the subsidiary corporations by means of ownership of said stock or otherwise; third, that specific relief by injunction be awarded against further violation of the statute by any of the acts specifically complained of in the bill. There was also a prayer for general relief. Of the numerous defendants named in the bill, the Waters-Pierce Oil Company was the only resident of the Page 221 U. S. 44 district in which the suit was commenced and the only defendant served with process therein. Contemporaneous with the filing of the bill, the court made an order, under § 5 of the Anti-Trust Act, for the service of process upon all the other defendants, wherever they could be found. Thereafter, the various defendants unsuccessfully moved to vacate the order for service on nonresident defendants or filed pleas to the jurisdiction. Joint exceptions were likewise unsuccessfully filed, upon the ground of impertinence, to many of the averments of the bill of complaint, particularly those which related to acts alleged to have been done by the combination prior to the passage of the Anti-Trust Act and prior to the year 1899. Certain of the defendants filed separate answers, and a joint answer was filed on behalf of the Standard Oil Company of New Jersey and numerous of the other defendants. The scope of the answers will be adequately indicated by quoting a summary on the subject made in the brief for the appellants. "It is sufficient to say that, whilst admitting many of the alleged acquisitions of property, the formation of the so-called trust of 1882, its dissolution in 1892, and the acquisition by the Standard Oil Company of New Jersey of the stocks of the various corporations in 1899, they deny all the allegations respecting combinations or conspiracies to restrain or monopolize the oil trade, and particularly that the so-called trust of 1882, or the acquisition of the shares of the defendant companies by the Standard Oil Company of New Jersey in 1899, was a combination of independent or competing concerns or corporations. The averments of the petition respecting the means adopted to monopolize the oil trade are traversed either by a denial of the acts alleged or of their purpose, intent or effect." On June 24, 1907, the cause being at issue, a special examiner was appointed to take the evidence, and his report was filed March 22, 1909. It was heard on April 5 Page 221 U. S. 45 to 10, 1909, under the expediting act of February 11, 1903, before a Circuit Court consisting of four judges. The court decided in favor of the United States. In the opinion delivered, all the multitude of acts of wrongdoing charged in the bill were put aside, insofar as they were alleged to have been committed prior to the passage of the Anti-Trust Act, "except as evidence of their (the defendants') purpose, of their continuing conduct and of its effect." (173 Fed.Rep. 177.) By the decree which was entered, it was adjudged that the combining of the stocks of various companies in the hands of the Standard Oil Company of New Jersey in 1899 constituted a combination in restraint of trade and also an attempt to monopolize and a monopolization under § 2 of the Anti-Trust Act. The decree was against seven individual defendants, the Standard Oil Company of New Jersey, thirty-six domestic companies, and one foreign company which the Standard Oil Company of New Jersey controls by stock ownership; these 38 corporate defendants being held to be parties to the combination found to exist. [ Footnote 3 ] The bill was dismissed as to all other corporate defendants, 33 in number, it being adjudged by § 3 of the decree that they "have not been proved to be engaged in the operation or carrying out of the combination." [ Footnote 4 ] Page 221 U. S. 46 The Standard Oil Company of New Jersey was enjoined from voting the stocks or exerting any control over the said 37 subsidiary companies, and the subsidiary companies were enjoined from paying any dividends as to the Standard Oil Company or permitting it to exercise any control over them by virtue of the stock ownership or power acquired by means of the combination. The individuals and corporations were also enjoined from entering into or carrying into effect any like combination which would evade the decree. Further, the individual defendants, the Standard Oil Company, and the 37 subsidiary corporations were enjoined from engaging or continuing in interstate commerce in petroleum or its products during the continuance of the illegal combination. At the outset a question of jurisdiction requires consideration, and we shall, also, as a preliminary, dispose of another question, to the end that our attention may be completely concentrated upon the merits of the controversy when we come to consider them. First. We are of opinion that, in consequence of the presence within the district of the Waters-Pierce Oil Company, the court, under the authority of § 5 of the Anti-Trust Act, rightly took jurisdiction over the cause and properly ordered notice to be served upon the nonresident defendants. Second. The overruling of the exceptions taken to so much of the bill as counted upon facts occurring prior to the passage of the Anti-Trust Act -- whatever may be the view as an original question of the duty to restrict the controversy to a much narrower area than that propounded by the bill -- we think by no possibility in the present stage of the case can the action of the court be treated as prejudicial error justifying reversal. We say this because the court, as we shall do, gave no weight to the testimony adduced under the averments complained of except insofar as it tended to throw light upon the acts done after the Page 221 U. S. 47 passage of the Anti-Trust Act and the results of which it was charged were being participated in and enjoyed by the alleged combination at the time of the filing of the bill. We are thus brought face to face with the merits of the controversy. Both as to the law and as to the facts, the opposing contentions pressed in the argument are numerous, and, in all their aspects, are so irreconcilable that it is difficult to reduce them to some fundamental generalization which, by being disposed of, would decide them all. For instance, as to the law. While both sides agree that the determination of the controversy rests upon the correct construction and application of the first and second sections of the Anti-Trust Act, yet the views as to the meaning of the act are as wide apart as the poles, since there is no real point of agreement on any view of the act. And this also is the case as to the scope and effect of authorities relied upon, even although, in some instances, one and the same authority is asserted to be controlling. So also is it as to the facts. Thus, on the one hand, with relentless pertinacity and minuteness of analysis, it is insisted that the facts establish that the assailed combination took its birth in a purpose to unlawfully acquire wealth by oppressing the public and destroying the just rights of others, and that its entire career exemplifies an inexorable carrying out of such wrongful intents, since, it is asserted, the pathway of the combination, from the beginning to the time of the filing of the bill, is marked with constant proofs of wrong inflicted upon the public, and is strewn with the wrecks resulting from crushing out, without regard to law, the individual rights of others. Indeed, so conclusive, it is urged, is the proof on these subjects that it is asserted that the existence of the principal corporate defendant -- the Standard Oil Company of New Jersey -- with the vast accumulation of property which it owns or controls, because of its infinite potency Page 221 U. S. 48 for harm and the dangerous example which its continued existence affords, is an open and enduring menace to all freedom of trade, and is a byword and reproach to modern economic methods. On the other hand, in a powerful analysis of the facts, it is insisted that they demonstrate that the origin and development of the vast business which the defendants control was but the result of lawful competitive methods, guided by economic genius of the highest order, sustained by courage, by a keen insight into commercial situations, resulting in the acquisition of great wealth, but at the same time serving to stimulate and increase production, to widely extend the distribution of the products of petroleum at a cost largely below that which would have otherwise prevailed, thus proving to be, at one and the same time, a benefaction to the general public as well as of enormous advantage to individuals. It is not denied that, in the enormous volume of proof contained in the record in the period of almost a lifetime to which that proof is addressed, there may be found acts of wrongdoing, but the insistence is that they were rather the exception than the rule, and, in most cases, were either the result of too great individual zeal in the keen rivalries of business or of the methods and habits of dealing which, even if wrong, were commonly practised at the time. And, to discover and state the truth concerning these contentions, both arguments call for the analysis and weighing, as we have said at the outset, of a jungle of conflicting testimony covering a period of forty years, a duty difficult to rightly perform and, even if satisfactorily accomplished, almost impossible to state with any reasonable regard to brevity. Duly appreciating the situation just stated, it is certain that only one point of concord between the parties is discernable, which is that the controversy in every aspect is controlled by a correct conception of the meaning of the first and second sections of the Anti-Trust Act. We shall Page 221 U. S. 49 therefore -- departing from what otherwise would be the natural order of analysis -- make this one point of harmony the initial basis of our examination of the contentions, relying upon the conception that, by doing so, some harmonious resonance may result adequate to dominate and control the discord with which the case abounds. That is to say, we shall first come to consider the meaning of the first and second sections of the Anti-Trust Act by the text, and, after discerning what by that process appears to be its true meaning, we shall proceed to consider the respective contentions of the parties concerning the act, the strength or weakness of those contentions, as well as the accuracy of the meaning of the act as deduced from the text in the light of the prior decisions of this court concerning it. When we have done this, we shall then approach the facts. Following this course, we shall make our investigation under four separate headings: First. The text of the first and second sections of the act originally considered, and its meaning in the light of the common law and the law of this country at the time of its adoption. Second. The contentions of the parties concerning the act, and the scope and effect of the decisions of this court upon which they rely. Third. The application of the statute to facts, and, Fourth. The remedy, if any, to be afforded as the result of such application. First. The text of the act and its meaning. We quote the text of the first and second sections of the act, as follows: "SECTION 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce, among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract, or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by Page 221 U. S. 50 imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." "SEC. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." The debates show that doubt as to whether there was a common law of the United States which governed the subject in the absence of legislation was among the influences leading to the passage of the act. They conclusively show, however, that the main cause which led to the legislation was the thought that it was required by the economic condition of the times, that is, the vast accumulation of wealth in the hands of corporations and individuals, the enormous development of corporate organization, the facility for combination which such organizations afforded, the fact that the facility was being used, and that combinations known as trusts were being multiplied, and the widespread impression that their power had been and would be exerted to oppress individuals and injure the public generally. Although debates may not be used as a means for interpreting a statute ( United States v. Trans-Missouri Freight Association, 166 U. S. 318 , and cases cited) that rule, in the nature of things, is not violated by resorting to debates as a means of ascertaining the environment at the time of the enactment of a particular law, that is, the history of the period when it was adopted. There can be no doubt that the sole subject with which the first section deals is restraint of trade as therein contemplated, and that the attempt to monopolize and monopolization is the subject with which the second section Page 221 U. S. 51 is concerned. It is certain that those terms, at least in their rudimentary meaning, took their origin in the common law, and were also familiar in the law of this country prior to and at the time of the adoption of the act in question. We shall endeavor then, first to seek their meaning not by indulging in an elaborate and learned analysis of the English law and of the law of this country, but by making a very brief reference to the elementary and indisputable conceptions of both the English and American law on the subject prior to the passage of the Anti-Trust Act. a. It is certain that, at a very remote period, the words "contract in restraint of trade" in England came to refer to some voluntary restraint put by contract by an individual on his right to carry on his trade or calling. Originally all such contracts were considered to be illegal, because it was deemed they were injurious to the public, as well as to the individuals who made them. In the interest of the freedom of individuals to contract, this doctrine was modified so that it was only when a restraint by contract was so general as to be coterminous with the kingdom that it was treated as void. That is to say, if the restraint was partial in its operation and was otherwise reasonable, the contract was held to be valid. b. Monopolies were defined by Lord Coke as follows: "A monopoly is an institution, or allowance by the king by his grant, commission, or otherwise to any person or persons, bodies politic or corporate, of or for the sole buying, selling, making, working, or using of anything, whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty that they had before, or hindered in their lawful trade." (3 Inst. 181, c. 85.) Hawkins thus defined them: "A monopoly is an allowance by the king to a particular person or persons of the sole buying, selling, making, Page 221 U. S. 52 working, or using of anything whereby the subject in general is restrained from the freedom of manufacturing or trading which he had before." (Hawk. P. C. bk. 1, c. 29.) The frequent granting of monopolies and the struggle which led to a denial of the power to create them, that is to say, to the establishment that they were incompatible with the English constitution, is known to all, and need not be reviewed. The evils which led to the public outcry against monopolies and to the final denial of the power to make them may be thus summarily stated: 1. The power which the monopoly gave to the one who enjoyed it to fix the price and thereby injure the public; 2. The power which it engendered of enabling a limitation on production; and, 3. The danger of deterioration in quality of the monopolized article which it was deemed was the inevitable resultant of the monopolistic control over its production and sale. As monopoly as thus conceived embraced only a consequence arising from an exertion of sovereign power, no express restrictions or prohibitions obtained against the creation by an individual of a monopoly as such. But as it was considered, at least so far as the necessaries of life were concerned, that individuals, by the abuse of their right to contract, might be able to usurp the power arbitrarily to enhance prices, one of the wrongs arising from monopoly, it came to be that laws were passed relating to offenses such as forestalling, regrating and engrossing by which prohibitions were placed upon the power of individuals to deal under such circumstances and conditions as, according to the conception of the times, created a presumption that the dealings were not simply the honest exertion of one's right to contract for his own benefit unaccompanied by a wrongful motive to injure others, but were the consequence of a contract or course of dealing of such a character as to give rise to the presumption of an intent to injure others through the means, for instance, of a monopolistic increase of prices. Page 221 U. S. 53 This is illustrated by the definition of engrossing found in the statute, 5 and 6 Edw. VI, ch. 14, as follows: "Whatsoever person or persons . . . shall engross or get into his or their hands by buying, contracting, or promise-taking, other than by demise, grant, or lease of land, or tithe, any corn growing in the fields, or any other corn or grain, butter, cheese, fish, or other dead victual, whatsoever, within the realm of England, to the intent to sell the same again, shall be accepted, repute, and taken an unlawful engrosser or engrossers." As, by the statutes providing against engrossing, the quantity engrossed was not required to be the whole or a proximate part of the whole of an article, it is clear that there was a wide difference between monopoly and engrossing, etc. But, as the principal wrong which it was deemed would result from monopoly, that is, an enhancement of the price, was the same wrong to which it was thought the prohibited engrossment would give rise, it came to pass that monopoly and engrossing were regarded as virtually one and the same thing. In other words, the prohibited act of engrossing, because of its inevitable accomplishment of one of the evils deemed to be engendered by monopoly, came to be referred to as being a monopoly or constituting an attempt to monopolize. Thus, Pollexfen, in his argument in East India Company v. Sandys, Skin. 165, 169, said: "By common law, he said that trade is free, and for that cited 3 Inst. 81; F.B. 65; 1 Roll. 4; that the common law is as much against 'monopoly' as 'engrossing;' and that they differ only, that a 'monopoly' is by patent from the king, the other is by the act of the subject between party and party; but that the mischiefs are the same from both, and there is the same law against both. Moore, 673; 11 Rep. 84. The sole trade of anything is 'engrossing' ex rei natura, for whosoever hath the sole trade of buying and selling hath 'engrossed' that trade, and whosoever Page 221 U. S. 54 hath the sole trade to any country hath the sole trade of buying and selling the produce of that country, at his own price, which is an 'engrossing.'" And, by operation of the mental process which led to considering as a monopoly acts which, although they did not constitute a monopoly, were thought to produce some of its baneful effects, so also because of the impediment or burden to the due course of trade which they produced, such acts came to be referred to as in restraint of trade. This is shown by my Lord Coke's definition of monopoly as being "an institution or allowance . . . whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty that they had before or hindered in their lawful trade." It is illustrated also by the definition which Hawkins gives of monopoly wherein it is said that the effect of monopoly is to restrain the citizen "from the freedom of manufacturing or trading which he had before." And see especially the opinion of Parker, C.J., in Mitchel v. Reynolds (1711), 1 P. Williams, 181, where a classification is made of monopoly which brings it generically within the description of restraint of trade. Generalizing these considerations, the situation is this: 1. That, by the common law, monopolies were unlawful because of their restriction upon individual freedom of contract and their injury to the public. 2. That as to necessaries of life, the freedom of the individual to deal was restricted where the nature and character of the dealing was such as to engender the presumption of intent to bring about at least one of the injuries which it was deemed would result from monopoly, that is, an undue enhancement of price. 3. That, to protect the freedom of contract of the individual not only in his own interest, but principally in the interest of the common weal, a contract of an individual by which he put an unreasonable restraint upon himself as to carrying on his trade or business Page 221 U. S. 55 was void. And that, at common law, the evils consequent upon engrossing, etc., caused those things to be treated as coming within monopoly, and sometimes to be called monopoly, and the same considerations caused monopoly, because of its operation and effect, to be brought within and spoken of generally as impeding the due course of, or being in restraint of, trade. From the development of more accurate economic conceptions and the changes in conditions of society, it came to be recognized that the acts prohibited by the engrossing, forestalling, etc., statutes did not have the harmful tendency which they were presumed to have when the legislation concerning them was enacted, and therefore did not justify the presumption which had previously been deduced from them, but, on the contrary, such acts tended to fructify and develop trade. See the statutes of 12th George III, ch. 71, enacted in 1772, and statute of 7 and 8 Victoria, ch. 24, enacted in 1844, repealing the prohibitions against engrossing, forestalling, etc., upon the express ground that the prohibited acts had come to be considered as favorable to the development of, and not in restraint of, trade. It is remarkable that nowhere at common law can there be found a prohibition against the creation of monopoly by an individual. This would seem to manifest, either consciously or intuitively, a profound conception as to the inevitable operation of economic forces and the equipoise or balance in favor of the protection of the rights of individuals which resulted. That is to say, as it was deemed that monopoly in the concrete could only arise from an act of sovereign power, and, such sovereign power being restrained, prohibitions as to individuals were directed not against the creation of monopoly, but were only applied to such acts in relation to particular subjects as to which it was deemed, if not restrained, some of the consequences of monopoly might result. After all, this was but an instinctive recognition Page 221 U. S. 56 of the truisms that the course of trade could not be made free by obstructing it, and that an individual's right to trade could not be protected by destroying such right. From the review just made, it clearly results that, outside of the restrictions resulting from the want of power in an individual to voluntarily and unreasonably restrain his right to carry on his trade or business, and outside of the want of right to restrain the free course of trade by contracts or acts which implied a wrongful purpose, freedom to contract and to abstain from contracting, and to exercise every reasonable right incident thereto, became the rule in the English law. The scope and effect of this freedom to trade and contract is clearly shown by the decision in Mogul Steamship Co. v. McGregor (1892), A.C. 25. While it is true that the decision of the House of Lords in the case in question was announced shortly after the passage of the Anti-Trust Act, it serves reflexly to show the exact state of the law in England at the time the Antitrust statute was enacted. In this country also, the acts from which it was deemed there resulted a part, if not all, of the injurious consequences ascribed to monopoly came to be referred to as a monopoly itself. In other words, here, as had been the case in England, practical common sense caused attention to be concentrated not upon the theoretically correct name to be given to the condition or acts which gave rise to a harmful result, but to the result itself, and to the remedying of the evils which it produced. The statement just made is illustrated by an early statute of the Province of Massachusetts, that is, chap. 31 of the laws of 1778-1779, by which monopoly and forestalling were expressly treated as one and the same thing. It is also true that, while the principles concerning contracts in restraint of trade, that is, voluntary restraint put by a person on his right to pursue his calling, hence only operating subjectively, came generally to be recognized Page 221 U. S. 57 in accordance with the English rule, it came moreover to pass that contracts or acts which it was considered had a monopolistic tendency, especially those which were thought to unduly diminish competition, and hence to enhance prices -- in other words, to monopolize -- came also in a generic sense to be spoken of and treated, as they had been in England, as restricting the due course of trade, and therefore as being in restraint of trade. The dread of monopoly as an emanation of governmental power, while it passed at an early date out of mind in this country as a result of the structure of our Government, did not serve to assuage the fear as to the evil consequences which might arise from the acts of individuals producing or tending to produce the consequences of monopoly. It resulted that treating such acts as we have said as amounting to monopoly, sometimes constitutional restrictions, again legislative enactments or judicial decisions, served to enforce and illustrate the purpose to prevent the occurrence of the evils recognized in the mother country as consequent upon monopoly, by providing against contracts or acts of individuals or combinations of individuals or corporations deemed to be conducive to such results. To refer to the constitutional or legislative provisions on the subject or many judicial decisions which illustrate it would unnecessarily prolong this opinion. We append in the margin a note to treatises, &c., wherein are contained references to constitutional and statutory provisions and to numerous decisions, etc., relating to the subject. [ Footnote 5 ] It will be found that, as modern conditions arose, the trend of legislation and judicial decision came more and more to adapt the recognized restrictions to new manifestations of conduct or of dealing which it was thought Page 221 U. S. 58 justified the inference of intent to do the wrongs which it had been the purpose to prevent from the beginning. The evolution is clearly pointed out in National Cotton Oil Co. v. Texas, 197 U. S. 115 , and Shawnee Compress Co. v. Anderson, 209 U. S. 423 ; and, indeed, will be found to be illustrated in various aspects by the decisions of this court which have been concerned with the enforcement of the act we are now considering. Without going into detail, and but very briefly surveying the whole field, it may be with accuracy said that the dread of enhancement of prices and of other wrongs which it was thought would flow from the undue limitation on competitive conditions caused by contracts or other acts of individuals or corporations led, as a matter of public policy, to the prohibition or treating as illegal all contracts or acts which were unreasonably restrictive of competitive conditions, either from the nature or character of the contract or act or where the surrounding circumstances were such as to justify the conclusion that they had not been entered into or performed with the legitimate purpose of reasonably forwarding personal interest and developing trade, but, on the contrary, were of such a character as to give rise to the inference or presumption that they had been entered into or done with the intent to do wrong to the general public and to limit the right of individuals, thus restraining the free flow of commerce and tending to bring about the evils, such as enhancement of prices, which were considered to be against public policy. It is equally true to say that the survey of the legislation in this country on this subject from the beginning will show, depending as it did upon the economic conceptions which obtained at the time when the legislation was adopted or judicial decision was rendered, that contracts or acts were at one time deemed to be of such a character as to justify the inference of wrongful intent which were, at another period, thought not to be Page 221 U. S. 59 of that character. But this again, as we have seen, simply followed the line of development of the law of England. Let us consider the language of the first and second sections, guided by the principle that, where words are employed in a statute which had at the time a well known meaning at common law or in the law of this country, they are presumed to have been used in that sense unless the context compels to the contrary. [ Footnote 6 ] As to the first section, the words to be interpreted are: "Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce . . . is hereby declared to be illegal." As there is no room for dispute that the statute was intended to formulate a rule for the regulation of interstate and foreign commerce, the question is what was the rule which it adopted? In view of the common law and the law in this country as to restraint of trade, which we have reviewed, and the illuminating effect which that history must have under the rule to which we have referred, we think it results: a. That the context manifests that the statute was drawn in the light of the existing practical conception of the law of restraint of trade, because it groups as within that class not only contracts which were in restraint of trade in the subjective sense, but all contracts or acts which theoretically were attempts to monopolize, yet which, in practice, had come to be considered as in restraint of trade in a broad sense. b. That, in view of the many new forms of contracts and combinations which were being evolved from existing economic conditions, it was deemed essential by an all-embracing enumeration to make sure that no form of contract or combination by which an undue restraint of Page 221 U. S. 60 interstate or foreign commerce was brought about could save such restraint from condemnation. The statute, under this view, evidenced the intent not to restrain the right to make and enforce contracts, whether resulting from combination or otherwise, which did not unduly restrain interstate or foreign commerce, but to protect that commerce from being restrained by methods, whether old or new, which would constitute an interference that is an undue restraint. c. And as the contracts or acts embraced in the provision were not expressly defined, since the enumeration addressed itself simply to classes of acts, those classes being broad enough to embrace every conceivable contract or combination which could be made concerning trade or commerce or the subjects of such commerce, and thus caused any act done by any of the enumerated methods anywhere in the whole field of human activity to be illegal if in restraint of trade, it inevitably follows that the provision necessarily called for the exercise of judgment which required that some standard should be resorted to for the purpose of determining whether the prohibitions contained in the statute had or had not in any given ease been violated. Thus, not specifying but indubitably contemplating and requiring a standard, it follows that it was intended that the standard of reason which had been applied at the common law, and in this country, in dealing with subjects of the character embraced by the statute, was intended to be the measure used for the purpose of determining whether, in a given case, a particular act had or had not brought about the wrong against which the statute provided. And a consideration of the text of the second section serves to establish that it was intended to supplement the first, and to make sure that, by no possible guise could the public policy embodied in the first section be frustrated or evaded. The prohibitions of the second embrace Page 221 U. S. 61 "Every person who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, . . ." "By reference to the terms of § 8, it is certain that the word person clearly implies a corporation, as well as an individual." The commerce referred to by the words "any part," construed in the light of the manifest purpose of the statute, has both a geographical and a distributive significance, that is, it includes any portion of the United States and anyone of the classes of things forming a part of interstate or foreign commerce. Undoubtedly, the words "to monopolize" and "monopolize," as used in the section, reach every act bringing about the prohibited results. The ambiguity, if any, is involved in determining what is intended by monopolize. But this ambiguity is readily dispelled in the light of the previous history of the law of restraint of trade to which we have referred, and the indication which it gives of the practical evolution by which monopoly and the acts which produce the same result as monopoly, that is, an undue restraint of the course of trade, all came to be spoken of as, and to be indeed synonymous with, restraint of trade. In other words, having, by the first section, forbidden all means of monopolizing trade, that is, unduly restraining it by means of every contract, combination, etc., the second section seeks, if possible, to make the prohibitions of the act all the more complete and perfect by embracing all attempts to reach the end prohibited by the first section, that is, restraints of trade, by any attempt to monopolize, or monopolization thereof, even although the acts by which such results are attempted to be brought about or are brought about be not embraced within the general enumeration of the first section. And, of course, when the second section is thus harmonized with and made as it Page 221 U. S. 62 was intended to be the complement of the first, it becomes obvious that the criteria to be resorted to in any given case for the purpose of ascertaining whether violations of the section have been committed is the rule of reason, guided by the established law and by the plain duty to enforce the prohibitions of the act, and thus the public policy which its restrictions were obviously enacted to subserve. And it is worthy of observation, as we have previously remarked concerning the common law, that, although the statute, by the comprehensiveness of the enumerations embodied in both the first and second sections, makes it certain that its purpose was to prevent undue restraints of every kind or nature, nevertheless, by the omission of any direct prohibition against monopoly in the concrete, it indicates a consciousness that the freedom of the individual right to contract, when not unduly or improperly exercised, was the most efficient means for the prevention of monopoly, since the operation of the centrifugal and centripetal forces resulting from the right to freely contract was the means by which monopoly would be inevitably prevented if no extraneous or sovereign power imposed it and no right to make unlawful contracts having a monopolistic tendency were permitted. In other words, that freedom to contract was the essence of freedom from undue restraint on the right to contract. Clear as it seems to us is the meaning of the provisions of the statute in the light of the review which we have made, nevertheless, before definitively applying that meaning, it behooves us to consider the contentions urged on one side or the other concerning the meaning of the statute, which, if maintained, would give to it, in some aspects a much wider, and, in every view, at least a somewhat different, significance. And to do this brings us to the second question, which, at the outset, we have stated it was our purpose to consider and dispose of. Page 221 U. S. 63 Second. The contentions of the parties as to the meaning of the statute and the decisions of this court relied upon concerning those contentions. In substance, the propositions urged by the Government are reducible to this: that the language of the statute embraces every contract, combination, etc., in restraint of trade, and hence its text leaves no room for the exercise of judgment, but simply imposes the plain duty of applying its prohibitions to every case within its literal language. The error involved lies in assuming the matter to be decided. This is true because, as the acts which may come under the classes stated in the first section and the restraint of trade to which that section applies are not specifically enumerated or defined, it is obvious that judgment must, in every case, be called into play in order to determine whether a particular act is embraced within the statutory classes, and whether, if the act is within such classes, its nature or effect causes it to be a restraint of trade within the intendment of the act. To hold to the contrary would require the conclusion either that every contract, act or combination, of any kind or nature, whether it operated a restraint on trade or not, was within the statute, and thus the statute would be destructive of all right to contract or agree or combine in any respect whatever as to subjects embraced in interstate trade or commerce, or if this conclusion were not reached, then the contention would require it to be held that, as the statute did not define the things to which it related, and excluded resort to the only means by which the acts to which it relates could be ascertained -- the light of reason -- the enforcement of the statute was impossible because of its uncertainty. The merely generic enumeration which the statute makes of the acts to which it refers and the absence of any definition of restraint of trade as used in the statute leaves room for but one conclusion, which is that it was expressly designed not to unduly limit the application Page 221 U. S. 64 of the act by precise definition, but, while clearly fixing a standard, that is, by defining the ulterior boundaries which could not be transgressed with impunity, to leave it to be determined by the light of reason, guided by the principles of law and the duty to apply and enforce the public policy embodied in the statute, in every given case whether any particular act or contract was within the contemplation of the statute. But, it is said, persuasive as these views may be, they may not be here applied, because the previous decisions of this court have given to the statute a meaning which expressly excludes the construction which must result from the reasoning stated. The cases are United States v. Freight Association, 166 U. S. 290 , and United States v. Joint Traffic Association, 171 U. S. 505 . Both the cases involved the legality of combinations or associations of railroads engaged in interstate commerce for the purpose of controlling the conduct of the parties to the association or combination in many particulars. The association or combination was assailed in each case as being in violation of the statute. It was held that they were. It is undoubted that, in the opinion in each case, general language was made use of which, when separated from its context, would justify the conclusion that it was decided that reason could not be resorted to for the purpose of determining whether the acts complained of were within the statute. It is, however, also true that the nature and character of the contract or agreement in each case was fully referred to, and suggestions as to their unreasonableness pointed out, in order to indicate that they were within the prohibitions of the statute. As the cases cannot by any possible conception be treated as authoritative without the certitude that reason was resorted to for the purpose of deciding them, it follows as a matter of course that it must have been held by the light of reason, since the conclusion could not have been otherwise reached, that the assailed Page 221 U. S. 65 contracts or agreements were within the general enumeration of the statute, and that their operation and effect brought about the restraint of trade which the statute prohibited. This being inevitable, the deduction can in reason only be this: that, in the cases relied upon, it having been found that the acts complained of were within the statute and operated to produce the injuries which the statute forbade, that resort to reason was not permissible in order to allow that to be done which the statute prohibited. This being true, the rulings in the cases relied upon, when rightly appreciated, were therefore this, and nothing more: that, as considering the contracts or agreements, their necessary effect and the character of the parties by whom they were made, they were clearly restraints of trade within the purview of the statute, they could not be taken out of that category by indulging in general reasoning as to the expediency or nonexpediency of having made the contracts or the wisdom or want of wisdom of the statute which prohibited their being made. That is to say, the cases but decided that the nature and character of the contracts, creating as they did a conclusive presumption which brought them within the statute, such result was not to be disregarded by the substitution of a judicial appreciation of what the law ought to be for the plain judicial duty of enforcing the law as it was made. But, aside from reasoning, it is true to say that the cases relied upon do not, when rightly construed, sustain the doctrine contended, for is established by all of the numerous decisions of this court which have applied and enforced the Anti-Trust Act, since they all, in the very nature of things, rest upon the premise that reason was the guide by which the provisions of the act were in every case interpreted. Indeed, intermediate the decision of the two cases, that is, after the decision in the Freight Association Case and before the decision in the Joint Traffic Case, the case of Hopkins v. United States, 171 U. S. 578 , was decided, Page 221 U. S. 66 the opinion being delivered by Mr. Justice Peckham, who wrote both the opinions in the Freight Association and the Joint Traffic cases. And, referring in the Hopkins case to the broad claim made as to the rule of interpretation announced in the Freight Association case, it was said (p. 171 U. S. 592 ): "To treat as condemned by the act all agreements under which, as a result, the cost of conducting an interstate commercial business may be increased would enlarge the application of the act far beyond the fair meaning of the language used. There must be some direct and immediate effect upon interstate commerce in order to come within the act." And, in the Joint Traffic case, this statement was expressly reiterated and approved and illustrated by example; like limitation on the general language used in Freight Association and Joint Traffic cases is also the clear result of Bement v. National Harrow Co., 186 U. S. 70 , 186 U. S. 92 , and especially of Cincinnati Packet Co. v. Bay, 200 U. S. 179 . If the criterion by which it is to be determined in all cases whether every contract, combination, etc., is a restraint of trade within the intendment of the law is the direct or indirect effect of the acts involved, then, of course, the rule of reason becomes the guide, and the construction which we have given the statute, instead of being refuted by the cases relied upon, is by those cases demonstrated to be correct. This is true because, as the construction which we have deduced from the history of the act and the analysis of its text is simply that, in every case where it is claimed that an act or acts are in violation of the statute, the rule of reason, in the light of the principles of law and the public policy which the act embodies, must be applied. From this it follows, since that rule and the result of the test as to direct or indirect, in their ultimate aspect, come to one and the same thing, that the difference between the two is therefore only that which obtains between things which do not differ at all. Page 221 U. S. 67 If it be true that there is this identity of result between the rule intended to be applied in the Freight Association Case, that is, the rule of direct and indirect, and the rule of reason which, under the statute as we construe it, should be here applied, it may be asked how was it that, in the opinion in the Freight Association Case, much consideration was given to the subject of whether the agreement or combination which was involved in that case could be taken out of the prohibitions of the statute upon the theory of its reasonableness. The question is pertinent, and must be fully and frankly met, for if it be now deemed that the Freight Association Case was mistakenly decided or too broadly stated, the doctrine which it announced should be either expressly overruled or limited. The confusion which gives rise to the question results from failing to distinguish between the want of power to take a case which, by its terms, or the circumstances which surrounded it, considering among such circumstances the character of the parties, is plainly within the statute, out of the operation of the statute by resort to reason in effect to establish that the contract ought not to be treated as within the statute, and the duty in every case where it becomes necessary, from the nature and character of the parties, to decide whether it was within the statute to pass upon that question by the light of reason. This distinction, we think, serves to point out what, in its ultimate conception, was the thought underlying the reference to the rule of reason made in the Freight Association Case, especially when such reference is interpreted by the context of the opinion and in the light of the subsequent opinion in the Hopkins Case and in Cincinnati Packet Company v. Bay, 200 U. S. 179 . And in order not in the slightest degree to be wanting in frankness, we say that, insofar, however, as by separating the general language used in the opinions in the Freight Association and Joint Traffic cases from the context Page 221 U. S. 68 and the subject and parties with which the cases were concerned, it may be conceived that the language referred to conflicts with the construction which we give the statute, they are necessarily now limited and qualified. We see no possible escape from this conclusion if we are to adhere to the many cases decided in this court in which the Anti-Trust Law has been applied and enforced and if the duty to apply and enforce that law in the future is to continue to exist. The first is true because the construction which we now give the statute does not in the slightest degree conflict with a single previous case decided concerning the Anti-Trust Law aside from the contention as to the Freight Association and Joint Traffic cases, and because every one of those cases applied the rule of reason for the purpose of determining whether the subject before the court was within the statute. The second is also true, since, as we have already pointed out, unaided by the light of reason, it is impossible to understand how the statute may in the future be enforced and the public policy which it establishes be made efficacious. So far as the objections of the defendants are concerned, they are all embraced under two headings: a. That the act, even if the averments of the bill be true, cannot be constitutionally applied, because to do so would extend the power of Congress to subjects dehors the reach of its authority to regulate commerce, by enabling that body to deal with mere questions of production of commodities within the States. But all the structure upon which this argument proceeds is based upon the decision in United States v. E. C. Knight Co., 156 U. S. 1 . The view, however, which the argument takes of that case and the arguments based upon that view have been so repeatedly pressed upon this court in connection with the interpretation and enforcement of the Anti-Trust Act, and have been so necessarily and expressly decided to be unsound as to cause the contentions to be plainly foreclosed and to require no express Page 221 U. S. 69 notice. United States v. Northern Securities Co., 193 U. S. 197 , 193 U. S. 334 ; Loewe v.Lawlor, 208 U. S. 274 ; Swift & Co. v. United States, 196 U. S. 375 ; Montague v. Lowry, 193 U. S. 38 ; Shawnee Compress Co. v. Anderson, 209 U. S. 423 . b. Many arguments are pressed in various forms of statement which, in substance, amount to contending that the statute cannot be applied under the facts of this case without impairing rights of property and destroying the freedom of contract or trade, which is essentially necessary to the wellbeing of society and which it is insisted is protected by the constitutional guaranty of due process of law. But the ultimate foundation of all these arguments is the assumption that reason may not be resorted to in interpreting and applying the statute, and therefore that the statute unreasonably restricts the right to contract and unreasonably operates upon the right to acquire and hold property. As the premise is demonstrated to be unsound by the construction we have given the statute, of course, the propositions which rest upon that premise need not be further noticed. So far as the arguments proceed upon the conception that, in view of the generality of the statute, it is not susceptible of being enforced by the courts because it cannot be carried out without a judicial exertion of legislative power, they are clearly unsound. The statute certainly generically enumerates the character of acts which it prohibits and the wrong which it was intended to prevent. The propositions therefore but insist that, consistently with the fundamental principles of due process of law, it never can be left to the judiciary to decide whether, in a given case, particular acts come within a generic statutory provision. But to reduce the propositions, however, to this their final meaning makes it clear that, in substance, they deny the existence of essential legislative authority and challenge the right of the judiciary to perform duties which that department of the government has exerted from Page 221 U. S. 70 the beginning. This is so clear as to require no elaboration. Yet let us demonstrate that which needs no demonstration by a few obvious examples. Take, for instance, the familiar cases where the judiciary is called upon to determine whether a particular act or acts are within a given prohibition, depending upon wrongful intent. Take questions of fraud. Consider the power which must be exercised in every case where the courts are called upon to determine whether particular acts are invalid which are, abstractly speaking, in and of themselves valid, but which are asserted to be invalid because of their direct effect upon interstate commerce. We come then to the third proposition requiring consideration, viz: Third. The facts and the application of the statute to them. Beyond dispute, the proofs establish substantially as alleged in the bill the following facts: 1. The creation of the Standard Oil Company of Ohio; 2. The organization of the Standard Oil Trust of 1882, and also a previous one of 1879, not referred to in the bill, and the proceedings in the Supreme Court of Ohio, culminating in a decree based upon the finding that the company was unlawfully a party to that trust; the transfer by the trustees of stocks in certain of the companies; the contempt proceedings; and, finally, the increase of the capital of the Standard Oil Company of New Jersey and the acquisition by that company of the shares of the stock of the other corporations in exchange for its certificates. The vast amount of property and the possibilities of far-reaching control which resulted from the facts last stated are shown by the statement which we have previously annexed concerning the parties to the trust agreement of 1882, and the corporations whose stock was held by the trustees under the trust and which came therefore to be held by the New Jersey corporation. But these statements do not with accuracy convey an appreciation of the Page 221 U. S. 71 situation as it existed at the time of the entry of the decree below, since, during the more than ten years which elapsed between the acquiring by the New Jersey corporation of the stock and other property which was formerly held by the trustees under the trust agreement, the situation, of course, had somewhat changed, a change which, when analyzed in the light of the proof, we think establishes that the result of enlarging the capital stock of the New Jersey company and giving it the vast power to which we have referred produced its normal consequence, that is, it gave to the corporation, despite enormous dividends and despite the dropping out of certain corporations enumerated in the decree of the court below, an enlarged and more perfect sway and control over the trade and commerce in petroleum and its products. The ultimate situation referred to will be made manifest by an examination of §§ 2 and 4 of the decree below, which are excerpted in the margin. [ Footnote 7 ] Page 221 U. S. 72 Giving to the facts just stated, the weight which it was deemed they were entitled to, in the light afforded by the Page 221 U. S. 73 proof of other cognate facts and circumstances, the court below held that the acts and dealings established by the Page 221 U. S. 74 proof operated to destroy the "potentiality of competition" which otherwise would have existed to such an extent as to cause the transfers of stock which were made to the New Jersey corporation and the control which resulted over the many and various subsidiary corporations to be a combination or conspiracy in restraint of trade in violation of the first section of the act, but also to be an attempt to monopolize and a monopolization bringing about a perennial violation of the second section. We see no cause to doubt the correctness of these conclusions, considering the subject from every aspect, that is, both in view of the facts established by the record and the necessary operation and effect of the law as we have Page 221 U. S. 75 construed it upon the inferences deducible from the facts, for the following reasons: a. Because the unification of power and control over petroleum and its products which was the inevitable result of the combining in the New Jersey corporation by the increase of its stock and the transfer to it of the stocks of so many other corporations, aggregating so vast a capital, gives rise, in and of itself, in the absence of countervailing circumstances, to say the least, to the prima facie presumption of intent and purpose to maintain the dominancy over the oil industry, not as a result of normal methods of industrial development, but by new means of combination which were resorted to in order that greater power might be added than would otherwise have arisen had normal methods been followed, the whole with the purpose of excluding others from the trade, and thus centralizing in the combination a perpetual control of the movements of petroleum and its products in the channels of interstate commerce. b. Because the prima facie presumption of intent to restrain trade, to monopolize, and to bring about monopolization resulting from the act of expanding the stock of the New Jersey corporation and vesting it with such vast control of the oil industry, is made conclusive by considering, 1, the conduct of the persons or corporations who were mainly instrumental in bringing about the extension of power in the New Jersey corporation before the consummation of that result and prior to the formation of the trust agreements of 1879 and 1882 2, by considering the proof as to what was done under those agreements and the acts which immediately preceded the vesting of power in the New Jersey corporation, as well as by weighing the modes in which the power vested in that corporation has been exerted and the results which have arisen from it. Recurring to the acts done by the individuals or corporations who were mainly instrumental in bringing about the Page 221 U. S. 76 expansion of the New Jersey corporation during the period prior to the formation of the trust agreements of 1879 and 1882, including those agreements, not for the purpose of weighing the substantial merit of the numerous charges of wrongdoing made during such period, but solely as an aid for discovering intent and purpose, we think no disinterested mind can survey the period in question without being irresistibly driven to the conclusion that the very genius for commercial development and organization which it would seem was manifested from the beginning soon begot an intent and purpose to exclude others which was frequently manifested by acts and dealings wholly inconsistent with the theory that they were made with the single conception of advancing the development of business power by usual methods, but which, on the contrary, necessarily involved the intent to drive others from the field, and to exclude them from their right to trade, and thus accomplish the mastery which was the end in view. And, considering the period from the date of the trust agreements of 1879 and 1882 up to the time of the expansion of the New Jersey corporation, the gradual extension of the power over the commerce in oil which ensued, the decision of the Supreme Court of Ohio, the tardiness or reluctance in conforming to the commands of that decision, the method first adopted and that which finally culminated in the plan of the New Jersey corporation, all additionally serve to make manifest the continued existence of the intent which we have previously indicated and which, among other things, impelled the expansion of the New Jersey corporation. The exercise of the power which resulted from that organization fortifies the foregoing conclusions, since the development which came, the acquisition here and there which ensued of every efficient means by which competition could have been asserted, the slow but resistless methods which followed by which means of transportation were absorbed and brought under control, Page 221 U. S. 77 the system of marketing which was adopted by which the country was divided into districts and the trade in each district in oil was turned over to a designated corporation within the combination and all others were excluded, all lead the mind up to a conviction of a purpose and intent which we think is so certain as practically to cause the subject not to be within the domain of reasonable contention. The inference that no attempt to monopolize could have been intended, and that no monopolization resulted from the acts complained of, since it is established that a very small percentage of the crude oil produced was controlled by the combination, is unwarranted. As substantial power over the crude product was the inevitable result of the absolute control which existed over the refined product, the monopolization of the one carried with it the power to control the other, and if the inferences which this situation suggests were developed, which we deem it unnecessary to do, they might well serve to add additional cogency to the presumption of intent to monopolize which we have found arises from the unquestioned proof on other subjects. We are thus brought to the last subject which we are called upon to consider, viz: Fourth. The remedy to be administered. It may be conceded that, ordinarily, where it was found that acts had been done in violation of the statute, adequate measure of relief would result from restraining the doing of such acts in the future. Swift v. United States, 196 U. S. 375 . But in a case like this, where the condition which has been brought about in violation of the statute, in and of itself, is not only a continued attempt to monopolize, but also a monopolization, the duty to enforce the statute requires the application of broader and more controlling remedies. As penalties which are not authorized by law may not be inflicted by judicial authority, it follows that, to meet the situation with which we are confronted, Page 221 U. S. 78 the application of remedies two-fold in character becomes essential: 1st. To forbid the doing in the future of acts like those which we have found to have been done in the past which would be violative of the statute. 2d. The exertion of such measure of relief as will effectually dissolve the combination found to exist in violation of the statute, and thus neutralize the extension and continually operating force which the possession of the power unlawfully obtained has brought and will continue to bring about. In applying remedies for this purpose, however, the fact must not be overlooked that injury to the public by the prevention of an undue restraint on, or the monopolization of, trade or commerce is the foundation upon which the prohibitions of the statute rest, and, moreover, that one of the fundamental purposes of the statute is to protect, not to destroy, rights of property. Let us then, as a means of accurately determining what relief we are to afford, first come to consider what relief was afforded by the court below, in order to fix how far it is necessary to take from or add to that relief, to the end that the prohibitions of the statute may have complete and operative force. The court below, by virtue of §§ 1, 2, and 4 of its decree, which we have in part previously excerpted in the margin, adjudged that the New Jersey corporation, insofar as it held the stock of the various corporations recited in §§ 2 and 4 of the decree or controlled the same was a combination in violation of the first section of the act, and an attempt to monopolize or a monopolization contrary to the second section of the act. It commanded the dissolution of the combination, and therefore, in effect, directed the transfer by the New Jersey corporation back to the stockholders of the various subsidiary corporations entitled to the same of the stock which had been turned over to the New Jersey company in exchange for its stock. To Page 221 U. S. 79 make this command effective, § 5 of the decree forbade the New Jersey corporation from in any form or manner exercising any ownership or exerting any power directly or indirectly in virtue of its apparent title to the stocks of the subsidiary corporations, and prohibited those subsidiary corporations from paying any dividends to the New Jersey corporation or doing any act which would recognize further power in that company, except to the extent that it was necessary to enable that company to transfer the stock. So far as the owners of the stock of the subsidiary corporations and the corporations themselves were concerned, after the stock had been transferred, § 6 of the decree enjoined them from in any way conspiring or combining to violate the act or to monopolize or attempt to monopolize in virtue of their ownership of the stock transferred to them, and prohibited all agreements between the subsidiary corporations or other stockholders in the future, tending to produce or bring about further violations of the act. By § 7, pending the accomplishment of the dissolution of the combination by the transfer of stock and until it was consummated, the defendants named in § 2, constituting all the corporations to which we have referred, were enjoined from engaging in or carrying on interstate commerce. And, by § 9, among other things, a delay of thirty days was granted for the carrying into effect of the directions of the decree. So far as the decree held that the ownership of the stock of the New Jersey corporation constituted a combination in violation of the first section and an attempt to create a monopoly or to monopolize under the second section and commanded the dissolution of the combination, the decree was clearly appropriate. And this also is true of § 5 of the decree, which restrained both the New Jersey corporation and the subsidiary corporations from doing anything which would recognize or give effect to further ownership Page 221 U. S. 80 in the New Jersey corporation of the stocks which were ordered to be retransferred. But the contention is that, insofar as the relief by way of injunction which was awarded by § 6 against the stockholders of the subsidiary corporations or the subsidiary corporations themselves after the transfer of stock by the New Jersey corporation was completed in conformity to the decree, the relief awarded was too broad: a. Because it was not sufficiently specific and tended to cause those who were within the embrace of the order to cease to be under the protection of the law of the land and required them to thereafter conduct their business under the jeopardy of punishments for contempt for violating a general injunction. New Haven R.R. v. Interstate Commerce Commission, 200 U. S. 404 . Besides, it is said that the restraint imposed by § 6 -- even putting out of view the consideration just stated -- was moreover calculated to do injury to the public, and, it may be, in and of itself, to produce the very restraint on the due course of trade which it was intended to prevent. We say this since it does not necessarily follow, because an illegal restraint of trade or an attempt to monopolize or a monopolization resulted from the combination and the transfer of the stocks of the subsidiary corporations to the New Jersey corporation, that a like restraint or attempt to monopolize or monopolization would necessarily arise from agreements between one or more of the subsidiary corporations after the transfer of the stock by the New Jersey corporation. For illustration, take the pipelines. By the effect of the transfer of the stock, the pipelines would come under the control of various corporations, instead of being subjected to a uniform control. If various corporations owning the lines determined in the public interests to so combine as to make a continuous line, such agreement or combination would not be repugnant to the act, and yet it might be restrained by the decree. As another example, take the Page 221 U. S. 81 Union Tank Line Company, one of the subsidiary corporations, the owner practically of all the tank cars in use by the combination. If no possibility existed of agreements for the distribution of these cars among the subsidiary corporations, the most serious detriment to the public interest might result. Conceding the merit, abstractly considered, of these contentions, they are irrelevant. We so think, since we construe the sixth paragraph of the decree not as depriving the stockholders or the corporations, after the dissolution of the combination, of the power to make normal and lawful contracts or agreements, but as restraining them from, by any device whatever, recreating directly or indirectly the illegal combination which the decree dissolved. In other words, we construe the sixth paragraph of the decree not as depriving the stockholders or corporations of the right to live under the law of the land, but as compelling obedience to that law. As therefore the sixth paragraph, as thus construed, is not amenable to the criticism directed against it, and cannot produce the harmful results which the arguments suggest it was obviously right. We think that, in view of the magnitude of the interests involved and their complexity, that the delay of thirty days allowed for executing the decree was too short, and should be extended so as to embrace a period of at least six months. So also, in view of the possible serious injury to result to the public from an absolute cessation of interstate commerce in petroleum and its products by such vast agencies as are embraced in the combination, a result which might arise from that portion of the decree which enjoined carrying on of interstate commerce not only by the New Jersey corporation, but by all the subsidiary companies until the dissolution of the combination by the transfer of the stocks in accordance with the decree, the injunction provided for in § 7 thereof should not have been awarded. Our conclusion is that the decree below was right, and Page 221 U. S. 82 should be affirmed except as to the minor matters concerning which we have indicated the decree should be modified. Our order will therefore be one of affirmance, with directions, however, to modify the decree in accordance with this opinion. The court below to retain jurisdiction to the extent necessary to compel compliance in every respect with its decree. And it is so ordered. [ Footnote 1 ] "1st. All the stockholders and members of the following corporations and limited partnerships, to-wit:" "Acme Oil Company, New York." "Acme Oil Company, Pennsylvania." "Atlantic Refining Company of Philadelphia." "Bush & Co. (Limited)." "Camden Consolidated Oil Company." "Elizabethport Acid Works." "Imperial Refining Company (Limited)." "Charles Pratt & Co." "Paine, Ablett & Co." "Standard Oil Company, Ohio." "Standard Oil Company, Pittsburg." "Smith's Ferry Oil Transportation Company." "Solar Oil Company (Limited)." "Sone & Fleming Manufacturing Company (Limited)." "Also all the stockholders and members of such other corporations and limited partnerships as may hereafter join in this agreement at the request of the trustees herein provided for." "2d. The following individuals, to-wit:" "W. C. Andrews, John D. Archbold, Lide K. Arter, J. A. Bostwick, Benjamin Brewster, D. Bushnell, Thomas C. Bushnell, J. N. Camden, Henry L. Davis, H. M. Flagler, Mrs. H. M. Flagler, John Huntington, H. A. Hutchins, Charles F. G. Heye, A. B. Jennings, Charles Lockhart, A.M. McGregor, William H. Macy, William H. Macy, Jr., estate of Josiah Macy, William H. Macy, Jr., executor; O. H. Payne, A. J. Pouch, John D. Rockefeller, William Rockefeller, Henry H. Rogers, W. P. Thompson, J. J. Vandergrift, William T. Wardwell, W. G. Warden, Joseph L. Warden, Warden, Frew & Co., Louise C. Wheaton, H. M. Hanna, and George W. Chapin, D. M. Harkness, D. M. Harkness, trustee, S. V. Harkness, O. H. Payne, trustee; Charles Pratt, Horace A. Pratt, C. M. Pratt, Julia H. York, George H. Vilas, M. R. Keith, trustees, George F. Chester." "Also all such individuals as may hereafter join in the agreement at the request of the trustees herein provided for." "3d. A portion of the stockholders and members of the following corporations and limited partnerships, to-wit:" "American Lubricating Oil Company." "Baltimore United Oil Company." "Beacon Oil Company." "Bush & Denslow Manufacturing Company." "Central Refining Co. of Pittsburg. " "Chesebrough Manufacturing Company." "Chess Carley Company." "Consolidated Tank Line Company." "Inland Oil Company." "Keystone Refining Company." "Maverick Oil Company." "National Transit Company." "Portland Kerosene Oil Company." "Producers' Consolidated Land and Petroleum Company." "Signal Oil Works (Limited)." "Thompson & Bedford Company (Limited)." "Devoe Manufacturing Company." "Eclipse Lubricating Oil Company (Limited)." "Empire Refining Company (Limited)." "Franklin Pipe Company (Limited)." "Galena Oil Works (Limited)." "Galena Farm Oil Company (Limited)." "Germania Mining Company." "Vacuum Oil Company." "H. C. Van Tine & Company (Limited)." "Waters-Pierce Oil Company." "Also stockholders and members (not being all thereof) of other corporations and limited partnerships who may hereafter join in this agreement at the request of the trustees herein provided for." [ Footnote 2 ] List of Corporations the Stocks of Which Were Wholly or Partially Held by the Trustees of Standard Oil Trust Capital S. O. trust Stock ownership New York State: Acme Oil Company, manufacturers $300,000 Entire. of petroleum products. Atlas Refining Company, manufac- 200,000 Do. turers of petroleum products. American Wick Manufacturing 25,000 Do. Company, manufacturers of lamp wicks. Bush & Denslow Manufacturing 300,000 50 percent. Company, manufacturers of petroleum products. Chesebrough Manufacturing Com- 500,000 2,661-5,000 pany, manufacturers of petroleum. Central Refining Company (Lim- 200,000 1-67.2 per ct. ited), manufacturers of petroleum products. Devoe Manufacturing Company, 300,000 Entire. packers, manufacturers of petro- leum. Empire Refining Company (Lim- 100,000 80 percent. ited), manufacturers of petroleum products. Oswego Manufacturing Company, 100,000 Entire. manufacturers of wood cases. Pratt Manufacturing Company, 500,000 Do. manufacturers of petroleum products. Standard Oil Company of New 5,000,000 Do. York, manufacturers of petro- leum products. Sone & Fleming Manufacturing 250,000 Do. Company (Limited), manufacturers of petroleum products. Thompson & Bedford Company 250,000 80 percent. (Limited), manufacturers of petroleum products. Vacuum Oil Company, manufac- 25,000 75 percent. turers of petroleum products. New Jersey: Eagle Oil Company, manufacturers 350,000 Entire. of petroleum products. McKirgan Oil Company, jobbers of 75,000 Do. petroleum products. Standard Oil Company of New 3,000,000 Do. Jersey, manufacturers of petro- leum products. Pennsylvania: Acme Oil Company, manufacturers 300,000 Do. of petroleum products. Atlantic Refining Company, manu- 400,000 Do. facturers of petroleum products. Galena Oil Works (Limited), manu- 150,000 86 1/4 percent. facturers of petroleum products. Imperial Refining Company (Lim- 300,000 Entire. ited), manufacturers of petro- leum products. Producers' Consolidated Land and 1,000,000 l percent. Petroleum Company, producers of crude oil. National Transit Company, trans- 25,455,200 94 percent. porters of crude oil. Standard Oil Company, manufac- 400,000 Entire. turers of petroleum products. Signal Oil Works (Limited), manu- 100,000 38 3/4 percent. facturers of petroleum products. Ohio: Consolidated Tank-Line Company, 1,000,000 57 percent. jobbers of petroleum products. Inland Oil Company, jobbers of pe- 50,000 50 percent. troleum products. Standard Oil Company, manufac- 3,500,000 Entire. turers of petroleum products. Solar Refining Company, manu- 500,000 Do. facturers of petroleum products. Kentucky: Standard Oil Company, jobbers of 600,000 Do. petroleum products. Maryland: Baltimore United Oil Company, 600,000 5,059-6,000 manufacturers of petroleum prod- ucts. West Virginia: Camden Consolidated Oil Com- 200,000 51 percent. pany, manufacturers of petro- leum products. Minnesota: Standard Oil Company, jobbers of 100,000 Entire. petroleum products. Missouri: Waters-Pierce Oil Company, job- 400,000 50 percent. bers of petroleum products. Massachusetts: Beacon Oil Company, jobbers of 100,000 Entire. petroleum products. Maverick Oil Company, jobbers of 100,000 Do. petroleum products. Maine: Portland Kerosene Oil Company, 200,000 Do. jobbers of petroleum products. Iowa: Standard Oil Company, jobbers of 600,000 60 percent. petroleum product. Continental Oil Company, jobbers 300,000 62 1/2 percent. of petroleum products. [ Footnote 3 ] Counsel for appellants says: "Of the 38 (37) corporate defendants named in section 2 of the decree and as to which the judgment of the court applies, four have not appealed, to-wit: Corsicana Refining Co., Manhattan Oil Co., Security Oil Co., Waters-Pierce Oil Co., and one, the Standard Oil Co. of Iowa, has been liquidated, and no longer exists." [ Footnote 4 ] Of the dismissed defendants, 16 were natural gas companies and 10 were companies which were liquidated and ceased to exist before the filing of the petition. The other dismissed defendants, 7 in number, were: Florence Oil Refining Co., United Oil Co., Tidewater Oil Co., Tide Water Pipe Co. (Ltd), Platt & Washburn Refining Co., Franklin Pipe Co. and Pennsylvania Oil Co. [ Footnote 5 ] Purdy's Beach on Private Corporations, vol. 2, pp. 1403, et seq., chapter on Trusts and Monopolies; Cooke on Trade and Labor Combinations, App. II, pp. 194-195; Am. & Eng. Ency.Law, 2d ed., article "Monopolies and Trusts," pp. 844 et seq. [ Footnote 6 ] Swearingen v. United States, 161 U. S. 446 ; United States v. Wong Kim Ark, 169 U. S. 649 ; Keck v. United States, 172 U. S. 446 ; Kepner v. United States, 195 U. S. 100 , 195 U. S. 126 . [ Footnote 7 ] "SECTION 2. That the defendants John D. Rockefeller, William Rockefeller, Henry H. Rogers, Henry M. Flagler, John D. Archbold, Oliver H. Payne, and Charles M. Pratt, hereafter called the seven individual defendants, united with the Standard Oil Company and other defendants to form and effectuate this combination, and since its formation have been and still are engaged in carrying it into effect and continuing it; that the defendants Anglo-American Oil Company (Limited), Atlantic Refining Company, Buckeye Pipe Line Company, Borne-Scrymser Company, Chesebrough Manufacturing Company, Consolidated, Cumberland Pipe Line Company, Colonial Oil Company, Continental Oil Company, Crescent Pipe Line Company, Henry C. Folger, Jr., and Calvin N. Payne, a copartnership doing business under the firm name and style of Corsicana Refining Company, Eureka Pipe Line Company, Galena Signal Oil Company, Indiana Pipe Line Company, Manhattan Oil Company, National Transit Company, New York Transit Company, Northern Pipe Line Company, Ohio Oil Company, Prairie Oil and Gas Company, Security Oil Company, Solar Refining Company, Southern Pipe Line Company, South Penn Oil Company, Southwest Pennsylvania Pipe Lines Company, Standard Oil Company, of California, Standard Oil Company, of Indiana, Standard Oil Company, of Iowa, Standard Oil Company, of Kansas, Standard Oil Company, of Kentucky, Standard Oil Company, of Nebraska, Standard Oil Company, of New York, Standard Oil Company, of Ohio, Swan and Finch Company, Union Tank Line Company, Vacuum Oil Company, Washington Oil Company, Waters-Pierce Oil Company, have entered into and became parties to this combination and are either actively operating or aiding in the operation of it; that, by means of this combination. the defendants named in this section have combined and conspired to monopolize, have monopolized, and are continuing to monopolize a substantial part of the commerce among the states, in the territories, and with foreign nations, in violation of section 2 of the antitrust act." " * * * *" "SECTION 4. That, in the formation and execution of the combination or conspiracy, the Standard Company has issued its stock to the amount of more than $90,000,000 in exchange for the stocks of other corporations which it holds, and it now owns and controls all of the capital stock of many corporations, a majority of the stock or controlling interests in some corporations, and stock in other corporations as follows:" Total Owned by Name of company capital Standard Oil stock Company Anglo-American Oil Company, Limited � 1,000,000 � 999,740 Atlantic Refining Company. . . . . . . $ 5,000,000 $ 5,000,000 Borne-Scrymser Company . . . . . . . . 200,000 199,700 Buckeye Pipe Line Company. . . . . . . 10,000,000 9,999,700 Chesebrough Manufacturing Company, Consolidated . . . . . . . . . . . . 500,000 277,700 Colonial Oil Company . . . . . . . . . 250,000 249,300 Continental Oil Company. . . . . . . . 300,000 300,000 Crescent Pipe Line Company . . . . . . 3,000,000 3,000,000 Eureka Pipe Line Company . . . . . . . 5,000,000 4,999,400 Galena-Signal Oil Company. . . . . . . 10,000,000 7,079,500 Indiana Pipe Line Company. . . . . . . 1,000,000 999,700 Lawrence Natural Gas Company . . . . . 450,000 450,000 Mahoning Gas Fuel Company. . . . . . . 150,000 149,900 Mountain State Gas Company . . . . . . 500,000 500,000 National Transit Company . . . . . . . 25,455,200 25,451,650 New York Transit Company . . . . . . . 5,000,000 5,000,000 Northern Pipe Line Company . . . . . . 4,000,000 4,000,000 Northwestern Ohio Natural Gas Company. 2,775,250 1,649,450 Ohio Oil Company . . . . . . . . . . . 10,000,000 9,999,850 People's Natural Gas Company . . . . . 1,000,000 1,000,000 Pittsburg Natural Gas Company. . . . . 310,000 310,000 Solar Refining Company . . . . . . . . 500,000 499,400 Southern Pipe Line Company . . . . . . 10,000,000 10,000,000 South Penn Oil-Company . . . . . . . . 2,500,000 2,500,000 Southwest Pennsylvania Pipe Lines. . . 3,500,000 3,500,000 Standard Oil Company (of California) . 17,000,000 16,999,500 Standard Oil Company (of Indiana). . . 1,000,000 999,000 Standard Oil Company (of Iowa) . . . . 1,000,000 1,000,000 Standard Oil Company (of Kansas) . . . 1,000,000 999,300 Standard Oil Company (of Kentucky) . . 1,000,000 997,200 Standard Oil Company (of Nebraska) . . 600,000 599,500 Standard Oil Company (of New York) . . 15,000,000 15,000,000 Standard Oil Company (of Ohio) . . . . 3,500,000 3,499,400 Swan and Finch Company . . . . . . . . 100,000 100,000 Union Tank Line Company. . . . . . . . 3,500,000 3,499,400 Vacuum Oil Company . . . . . . . . . . 2,500,000 2,500,000 Washington Oil Company . . . . . . . . 100,000 71,480 Waters-Pierce Oil Company. . . . . . . 400,000 274,700 That the defendant National Transit Company, which is owned and controlled by the Standard Oil Company as aforesaid, owns and controls the amounts of the capital stocks of the following-named corporations and limited partnerships stated opposite each, respectively, as follows: Total Owned by Name of company capital National Trans- stock it Company Connecting Gas Company . . . . . . . . $ 825,000 $ 412,000 Cumberland Pipe Line Company . . . . . 1,000,000 998,500 East Ohio Gas Company. . . . . . . . . 6,000,000 5,999,500 Franklin Pipe Company, Limited . . . . 50,000 19,500 Prairie Oil and Gas Company. . . . . . 10,000,000 9,999,500 That the Standard Company has also acquired the control by the ownership of its stock or otherwise of the Security Oil Company, a corporation created under the laws of Texas, which owns a refinery at Beaumont in that State, and the Manhattan Oil Company, a corporation, which owns a pipeline situated in the States of Indiana and Ohio; that the Standard Company, and the corporations and partnerships named in Section 2, are engaged in the various branches of the business of producing, purchasing and transporting petroleum in the principal oil-producing districts of the United States, in New York, Pennsylvania, West Virginia, Tennessee, Kentucky, Ohio, Indiana, Illinois, Kansas, Oklahoma, Louisiana, Texas, Colorado and California, in shipping and transporting the oil through pipelines owned or controlled by these companies from the various oil-producing districts into and through other states, in refining the petroleum and manufacturing it into various products, in shipping the petroleum and the products thereof into the states and territories of the United States, the District of Columbia and to foreign nations, in shipping the petroleum and its products in tank cars owned or controlled by the subsidiary companies into various states and territories of the United States and into the District of Columbia, and in selling the petroleum and its products in various places in the states and territories of the United States, in the District of Columbia and in foreign countries; that the Standard Company controls the subsidiary companies and directs the management thereof so that none of the subsidiary companies competes with any other of those companies or with the Standard Company, but their trade is all managed as that of a single person. MR. JUSTICE HARLAN concurring in part, and dissenting in part. A sense of duty constrains me to express the objections which I have to certain declarations in the opinion just delivered on behalf of the court. I concur in holding that the Standard Oil Company of New Jersey and its subsidiary companies constitute a combination in restraint of interstate commerce, and that they have attempted to monopolize and have monopolized parts of such commerce -- all in violation of what is known as the Anti-Trust Act of 1890. 26 Stat. 209, c. 647. The evidence in this case overwhelmingly sustained that view, and led the Circuit Court, by its final decree, to order the dissolution of the New Jersey corporation and the discontinuance of the illegal combination between that corporation and its subsidiary companies. In my judgment, the decree below should have been affirmed without qualification. But the court, while affirming the decree, directs some modifications in respect of what it characterizes as "minor matters." It is to be apprehended that those modifications may prove to be mischievous. In saying this, I have particularly, in view the statement in the opinion that "it does not necessarily follow that, because an illegal restraint of trade or an attempt to monopolize or a monopolization resulted from the combination and the transfer of the stocks of the subsidiary corporations to the New Jersey corporation, Page 221 U. S. 83 that a like restraint of trade or attempt to monopolize or monopolization would necessarily arise from agreements between one or more of the subsidiary corporations after the transfer of the stock by the New Jersey corporation." Taking this language in connection with other parts of the opinion, the subsidiary companies are thus, in effect, informed -- unwisely, I think -- that, although the New Jersey corporation, being an illegal combination, must go out of existence, they may join in an agreement to restrain commerce among the States if such restraint be not "undue." In order that my objections to certain parts of the court's opinion may distinctly appear, I must state the circumstances under which Congress passed the Antitrust Act, and trace the course of judicial decisions as to its meaning and scope. This is the more necessary because the court by its decision, when interpreted by the language of its opinion, has not only upset the long-settled interpretation of the act, but has usurped the constitutional functions of the legislative branch of the Government. With all due respect for the opinions of others, I feel bound to say that what the court has said may well cause some alarm for the integrity of our institutions. Let us see how the matter stands. All who recall the condition of the country in 1890 will remember that there was everywhere, among the people generally, a deep feeling of unrest. The Nation had been rid of human slavery -- fortunately, as all now feel -- but the conviction was universal that the country was in real danger from another kind of slavery sought to be fastened on the American people, namely, the slavery that would result from aggregations of capital in the hands of a few individuals and corporations controlling, for their own profit and advantage exclusively, the entire business of the country, including the production and sale of the necessaries of life. Such a danger was thought to be then Page 221 U. S. 84 imminent, and all felt that it must be met firmly and by such statutory regulations as would adequately protect the people against oppression and wrong. Congress therefore took up the matter and gave the whole subject the fullest consideration. All agreed that the National Government could not, by legislation, regulate the domestic trade carried on wholly within the several States, for power to regulate such trade remained with, because never surrendered by, the States. But, under authority expressly granted to it by the Constitution, Congress could regulate commerce among the several States and with foreign states. Its authority to regulate such commerce was and is paramount, due force being given to other provisions of the fundamental law devised by the fathers for the safety of the Government and for the protection and security of the essential rights inhering in life, liberty and property. Guided by these considerations, and to the end that the people, so far as interstate commerce was concerned, might not be dominated by vast combinations and monopolies, having power to advance their own selfish ends, regardless of the general interests and welfare, Congress passed the Anti-Trust Act of 1890 in these words (the italics here and elsewhere in this opinion are mine): "SEC. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. § 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, Page 221 U. S. 85 to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. § 3. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or in the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories and any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." 26 Stat. 209, c. 647. The important inquiry in the present case is as to the meaning and scope of that act in its application to interstate commerce. In 1896, this court had occasion to determine the meaning and scope of the act in an important case known as the Trans-Missouri Freight Case. 166 U. S. 290 . The question there was as to the validity under the Anti-Trust Act of a certain agreement between numerous railroad companies whereby they formed an association for the purpose of establishing and maintaining rates, rules and regulations in respect of freight traffic over specified routes. Two questions were involved: first, whether the act applied to railroad carriers; second, whether the agreement the annulment of which as illegal was the basis of the suit which the United States brought. The court Page 221 U. S. 86 held that railroad carriers were embraced by the act. In determining that question, the court, among other things, said: "The language of the act includes every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations. So far as the very terms of the statute go, they apply to any contract of the nature described. A contract therefore that is in restraint of trade or commerce is, by the strict language of the act, prohibited, even though such contract is entered into between competing common carriers by railroad, and only for the purposes of thereby affecting traffic rates for the transportation of persons and property. If such an agreement restrains trade or commerce, it is prohibited by the statute unless it can be said that an agreement, no matter what its terms, relating only to transportation cannot restrain trade or commerce. We see no escape from the conclusion that if an agreement of such a nature does restrain it, the agreement is condemned by this act. . . . Nor is it for the substantial interests of the country that any one commodity should be within the sole power and subject to the sole will of one powerful combination of capital. Congress has, so far as its jurisdiction extends, prohibited all contracts or combinations in the form of trusts entered into for the purpose of restraining trade and commerce. . . . While the statute prohibits all combinations in the form of trusts or otherwise, the limitation is not confined to that form alone. All combinations which are in restraint of trade or commerce are prohibited, whether in the form of trusts or in any other form whatever. " United States v. Freight Assn., 166 U. S. 290 , 166 U. S. 312 , 166 U. S. 324 , 166 U. S. 326 . The court then proceeded to consider the second of the above questions, saying: "The next question to be discussed is as to what is the true construction of the statute, Page 221 U. S. 87 assuming that it applies to common carriers by railroad. What is the meaning of the language as used in the statute, that" "every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States or with foreign nations, is hereby declared to be illegal?" "Is it confined to a contract or combination which is only in unreasonable restraint of trade or commerce, or does it include what the language of the act plainly and in terms covers, all contracts of that nature? It is now, with much amplification of argument, urged that the statute, in declaring illegal every combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce, does not mean what the language used therein plainly imports, but that it only means to declare illegal any such contract which is in unreasonable restraint of trade, while leaving all others unaffected by the provisions of the act; that the common law meaning of the term 'contract in restraint of trade' includes only such contracts as are in unreasonable restraint of trade, and, when that term is used in the Federal statute, it is not intended to include all contracts in restraint of trade, but only those which are in unreasonable restraint thereof. . . . By the simple use of the term 'contract in restraint of trade,' all contracts of that nature, whether valid or otherwise, would be included, and not alone that kind of contract which was invalid and unenforceable as being in unreasonable restraint of trade. When, therefore, the body of an act pronounces as illegal every contract or combination in restraint of trade or commerce among the several States, etc., the plain and ordinary meaning of such language is not limited to that kind of contract alone which is is unreasonable restraint of trade, but all contracts are included in such language, and no exception or limitation can be added without placing in the act that which has been omitted by Congress. . . . If only that kind of contract Page 221 U. S. 88 which is in unreasonable restraint of trade be within the meaning of the statute, and declared therein to be illegal, it is at once apparent that the subject of what is a reasonable rate is attended with great uncertainty. . . . To say, therefore, that the act excludes agreements which are not in unreasonable restraint of trade, and which tend simply to keep up reasonable rates for transportation, is substantially to leave the question of unreasonableness to the companies themselves. . . . But assuming that agreements of this nature are not void at common law, and that the various cases cited by the learned courts below show it, the answer to the statement of their validity now is to be found in the terms of the statute under consideration. . . . The arguments which have been addressed to us against the inclusion of all contracts in restraint of trade, as provided for by the language of the act, have been based upon the alleged presumption that Congress, notwithstanding the language of the act, could not have intended to embrace all contracts, but only such contracts as were in unreasonable restraint of trade. Under these circumstances, we are, therefore, asked to hold that the act of Congress excepts contracts which are not in unreasonable restraint of trade, and which only keep rates up to a reasonable price, notwithstanding the language of the act makes no such exception. In other words, we are asked to read into the act by way of judicial legislation an exception that is not placed there by the lawmaking branch of the Government, and this is to be done upon the theory that the impolicy of such legislation is so clear that it cannot be supposed Congress intended the natural import of the language it used. This we cannot and ought not to do. " "If the act ought to read as contended for by defendants, Congress is the body to amend it, and not this court, by a process of judicial legislation wholly unjustifiable. Large numbers do not agree that the view taken by defendants Page 221 U. S. 89 is sound or true in substance, and Congress may and very probably did share in that belief in passing the act. The public policy of the Government is to be found in its statutes, and when they have not directly spoken, then in the decisions of the courts and the constant practice of the government officials; but when the lawmaking power speaks upon a particular subject, over which it has constitutional power to legislate, public policy in such a case is what the statute enacts. If the law prohibit any contract or combination in restraint of trade or commerce, a contract or combination made in violation of such law is void, whatever may have been theretofore decided by the courts to have been the public policy of the country on that subject. The conclusion which we have drawn from the examination above made into the question before us is that the Anti-Trust Act applies to railroads, and that it renders illegal all agreements which are in restraint of trade or commerce as we have above defined that expression, and the question then arises whether the agreement before us is of that nature." I have made these extended extracts from the opinion of the court in the Trans-Missouri Freight Case in order to show beyond question that the point was there urged by counsel that the Anti-Trust Act condemned only contracts, combinations, trusts and conspiracies that were in unreasonable restraint of interstate commerce, and that the court, in clear and decisive language, met that point. It adjudged that Congress had in unequivocal words declared that " every contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of commerce among the several States" shall be illegal, and that no distinction, so far as interstate commerce was concerned, was to be tolerated between restraints of such commerce as were undue or unreasonable and restraints that were due or reasonable. With full knowledge of the then condition of the country and of its business, Congress determined Page 221 U. S. 90 to meet, and did meet, the situation by an absolute, statutory prohibition of " every contract, combination in the form of trust or otherwise, in restraint of trade or commerce." Still more; in response to the suggestion by able counsel that Congress intended only to strike down such contracts, combinations and monopolies as unreasonably restrained interstate commerce, this court, in words too clear to be misunderstood, said that to so hold was "to read into the act, by way of judicial legislation, an exception not placed there by the lawmaking branch of the Government." "This," the court said, as we have seen, " we cannot and ought not to do." It thus appears that, fifteen years ago, when the purpose of Congress in passing the Anti-Trust Act was fresh in the minds of courts, lawyers, statesmen and the general public, this court expressly declined to indulge in judicial legislation by inserting in the act the word "unreasonable" or any other word of like import. It may be stated here that the country at large accepted this view of the act, and the Federal courts throughout the entire country enforced its provisions according to the interpretation given in the Freight Association Case. What, then, was to be done by those who questioned the soundness of the interpretation placed on the act by this court in that case? As the court had decided that to insert the word "unreasonable" in the act would be "judicial legislation" on its part, the only alternative left to those who opposed the decision in that case was to induce Congress to so amend the act as to recognize the right to restrain interstate commerce to a reasonable extent. The public press, magazines and law journals, the debates in Congress, speeches and addresses by public men and jurists, all contain abundant evidence of the general understanding that the meaning, extent and scope of the Anti-Trust Act had been judicially determined by this court, and that the only question remaining open for discussion was the Page 221 U. S. 91 wisdom of the policy declared by the act -- a matter that was exclusively within the cognizance of Congress. But at every session of Congress since the decision of 1896, the lawmaking branch of the Government, with full knowledge of that decision, has refused to change the policy it had declared, or to so amend the act of 1890 as to except from its operation contracts, combinations and trusts that reasonably restrain interstate commerce. But those who were in combinations that were illegal did not despair. They at once set up the baseless claim that the decision of 1896 disturbed the "business interests of the country," and let it be known that they would never be content until the rule was established that would permit interstate commerce to be subjected to reasonable restraints. Finally, an opportunity came again to raise the same question which this court had, upon full consideration, determined in 1896. I now allude to the case of United States v. Joint Traffic Association, 171 U. S. 505 , decided in 1898. What was that case? It was a suit by the United States against more than thirty railroad companies to have the court declare illegal, under the Anti-Trust Act, a certain agreement between these companies. The relief asked was denied in the subordinate Federal courts, and the Government brought the case here. It is important to state the points urged in that case by the defendant companies charged with violating the Anti-Trust Act, and to show that the court promptly met them. To that end, I make a copious extract from the opinion in the Joint Traffic Case. Among other things, the court said: "Upon comparing that agreement [the one in the Joint Traffic Case, then under consideration, 171 U. S. 505 ] with the one set forth in the case of United States v. Trans-Missouri Freight Association, 166 U. S. 290 , the great similarity between them suggests that a similar result should be reached in the two cases." (P. 171 U. S. 558 ). Page 221 U. S. 92 Learned counsel in the Joint Traffic Case urged a reconsideration of the question decided in the Trans-Missouri Case, contending that "the decision in that case [the Trans-Missouri Freight Case ] is quite plainly erroneous, and the consequences of such error are far-reaching and disastrous, and clearly at war with justice and sound policy, and the construction placed upon the Anti-Trust statute has been received by the public with surprise and alarm." They suggested that the point made in the Joint Traffic Case as to the meaning and scope of the act might have been, but was not, made in the previous case. The court said (171 U.S. 171 U. S. 559 ) that "the report of the Trans-Missouri Case clearly shows not only that the point now taken was there urged upon the attention of the court, but it was then intentionally and necessarily decided." The question whether the court should again consider the point decided in the Trans-Missouri Case, 171 U. S. 573 , was disposed of in the most decisive language, as follows: "Finally, we are asked to reconsider the question decided in the Trans-Missouri Case, and to retrace the steps taken therein, because of the plain error contained in that decision and the widespread alarm with which it was received and the serious consequences which have resulted, or may soon result, from the law as interpreted in that case. It is proper to remark that an application for a reconsideration of a question but lately decided by this court is usually based upon a statement that some of the arguments employed on the original hearing of the question have been overlooked or misunderstood, or that some controlling authority has been either misapplied by the court or passed over without discussion or notice. While this is not strictly an application for a rehearing in the same case, yet, in substance, it is the same thing. The court is asked to reconsider a question but just decided after a careful investigation of the matter involved. There have heretofore been in effect two arguments of precisely the same Page 221 U. S. 93 questions now before the court, and the same arguments were addressed to us on both those occasions. The report of the Trans-Missouri Case shows a dissenting opinion delivered in that case, and that the opinion was concurred in by three other members of the court. That opinion, it will be seen, gives with great force and ability the arguments against the decision which was finally arrived at by the court. It was after a full discussion of the questions involved, and with the knowledge of the views entertained by the minority as expressed in the dissenting opinion, that the majority of the court came to the conclusion it did. Soon after the decision, a petition for a rehearing of the case was made, supported by a printed argument in its favor, and pressed with an earnestness and vigor and at a length which were certainly commensurate with the importance of the case. This court, with care and deliberation and also with a full appreciation of their importance, again considered the questions involved in its former decision. A majority of the court once more arrived at the conclusion it had first announced, and accordingly it denied the application. And now, for the third time, the same arguments are employed and the court is again asked to recant its former opinion and to decide the same question in direct opposition to the conclusion arrived at in the Trans-Missouri Case. The learned counsel, while making the application, frankly confess that the argument in opposition to the decision in the case above named has been so fully, so clearly, and so forcibly presented in the dissenting opinion of Mr. Justice White [in the Freight Case ] that it is hardly possible to add to it, nor is it necessary to repeat it. The fact that there was so close a division of opinion in this court when the matter was first under advisement, together with the different views taken by some of the judges of the lower courts, led us to the most careful and scrutinizing examination of the arguments advanced by both sides, and it was after such an examination that the majority of Page 221 U. S. 94 the court came to the conclusion it did. It is not now alleged that the court on the former occasion overlooked any argument for the respondents or misapplied any controlling authority. It is simply insisted that the court, notwithstanding the arguments for an opposite view, arrived at an erroneous result, which, for reasons already stated, ought to be reconsidered and reversed. As we have twice already deliberately and earnestly considered the same arguments which are now for a third time pressed upon our attention, it could hardly be expected that our opinion should now change from that already expressed." These utterances, taken in connection with what was previously said in the Trans-Missouri Freight Case, show so clearly and affirmatively as to admit of no doubt that this court, many years ago, upon the fullest consideration, interpreted the Anti-Trust Act as prohibiting and making illegal not only every contract or combination, in whatever form, which was in restraint of interstate commerce, without regard to its reasonableness or unreasonableness, but all monopolies or attempts to monopolize "any part" of such trade or commerce. Let me refer to a few other cases in which the scope of the decision in the Freight Association Case was referred to: in Bement v. National Harrow Co., 186 U. S. 70 , 186 U. S. 92 , the court said: "It is true that it has been held by this court that the act (Anti-Trust Act) included any restraint of commerce, whether reasonable or unreasonable " -- citing United States v. Trans-Missouri Freight Asso., 166 U. S. 290 ; United States v. Joint Traffic Association, 171 U. S. 505 ; Addyston Pipe &c. Co. v. United States, 175 U. S. 211 . In Montague v. Lowry, 193 U. S. 38 , 193 U. S. 46 , which involved the validity, under the Anti-Trust Act, of a certain association formed for the sale of tiles, mantels, and grates, the court referring to the contention that the sale of tiles in San Francisco was so small "as to be a negligible quantity," held that the association was nevertheless a combination in restraint of interstate trade or commerce Page 221 U. S. 95 in violation of the Anti-Trust Act. In Loewe v.Lawlor, 208 U. S. 274 , 208 U. S. 297 , all the members of this court concurred in saying that the Trans-Missouri, Joint Traffic and Northern Securities cases "hold, in effect, that the Antitrust Law has a broader application than the prohibition of restraints of trade unlawful at common law." In Shawnee Compress Co. v. Anderson (1907), 209 U. S. 423 , 209 U. S. 432 , 209 U. S. 434 , all the members of the court again concurred in declaring that "it has been decided that not only unreasonable, but all direct restraints of trade are prohibited, the law being thereby distinguished from the common law." In United States v. Addyston Pipe Company, 85 Fed.Rep. 271, 278, Judge Taft, speaking for the Circuit Court of Appeals for the Sixth Circuit, said that, according to the decision of this court in the Freight Association Case, "contracts in restraint of interstate transportation were within the statute, whether the restraints could be regarded as reasonable at common law or not." In Chesapeake & Ohio Fuel Co. v. United States (1902), 115 Fed.Rep. 610, 619, the Circuit Court of Appeals for the Sixth Circuit, after referring to the right of Congress to regulate interstate commerce, thus interpreted the prior decisions of this court in the Trans-Missouri, the Joint Traffic, and the Addyston Pipe and Steel Co. cases: "In the exercise of this right, Congress has seen fit to prohibit all contracts in restraint of trade. It has not left to the courts the consideration of the question whether such restraint is reasonable or unreasonable, or whether the contract would have been illegal at the common law or not. The act leaves for consideration by judicial authority no question of this character, but all contracts and combinations are declared illegal if in restraint of trade or commerce among the States." As far back as Robbins v. Shelby Taxing District, 120 U. S. 489 , 120 U. S. 497 , it was held that certain local regulations, subjecting drummers engaged in both interstate and domestic trade, could not be sustained by reason of the fact that no discrimination Page 221 U. S. 96 was made among citizens of the different States. The court observed that this did not meet the difficulty, for the reason that "interstate commerce cannot be taxed at all. " Under this view, Congress no doubt acted when, by the Antitrust Act, it forbade any restraint whatever upon interstate commerce. It manifestly proceeded upon the theory that interstate commerce could not be restrained at all by combinations, trusts or monopolies, but must be allowed to flow in its accustomed channels, wholly unvexed and unobstructed by anything that would restrain its ordinary movement. See also Minnesota v. Barber, 136 U. S. 313 , 136 U. S. 326 ; Brimner v. Rebman, 138 U. S. 78 , 138 U. S. 82 , 138 U. S. 83 . In the opinion delivered on behalf of the minority in the Northern Securities Case, 193 U. S. 197 , our present Chief Justice referred to the contentions made by the defendants in the Freight Association Case, one of which was that the agreement there involved did not unreasonably restrain interstate commerce, and said: "Both these contentions were decided against the association, the court holding that the Anti-Trust Act did embrace interstate carriage by railroad corporations, and, as that act prohibited any contract in restraint of interstate commerce, it hence embraced all contracts of that character, whether they were reasonable or unreasonable. " One of the Justices who dissented in the Northern Securities Case in a separate opinion, concurred in by the minority, thus referred to the Freight and Joint Traffic cases: "For it cannot be too carefully remembered that that clause applies to 'every' contract of the forbidden kind -- a consideration which was the turning point of the Trans-Missouri Freight Association case. . . . Size has nothing to do with the matter. A monopoly of 'any part' of commerce among the States is unlawful." In this connection, it may be well to refer to the adverse report made in 1909, by Senator Nelson, on behalf of the Senate Judiciary Committee, in reference to a certain bill Page 221 U. S. 97 offered in the Senate and which proposed to amend the Anti-Trust Act in various particulars. That report contains a full, careful and able analysis of judicial decisions relating to combinations and monopolies in restraint of trade and commerce. Among other things said in it which bear on the questions involved in the present case are these: "The Anti-Trust Act makes it a criminal offense to violate the law, and provides a punishment both by fine and imprisonment. To inject into the act the question of whether an agreement or combination is reasonable or unreasonable would render the act as a criminal or penal statute indefinite and uncertain, and hence, to that extent, utterly nugatory and void, and would practically amount to a repeal of that part of the act. . . . And while the same technical objection does not apply to civil prosecutions, the injection of the rule of reasonableness or unreasonableness would lead to the greatest variableness and uncertainty in the enforcement of the law. The defense of reasonable restraint would be made in every case, and there would be as many different rules of reasonableness as cases, courts and juries. What one court or jury might deem unreasonable, another court or jury might deem reasonable. A court or jury in Ohio might find a given agreement or combination reasonable, while a court and jury in Wisconsin might find the same agreement and combination unreasonable. In the case of People v. Sheldon, 139 N.Y. 264, Chief Justice Andrews remarks:" "If agreements and combinations to prevent competition in prices are or may be hurtful to trade, the only sure remedy is to prohibit all agreements of that character. If the validity of such an agreement was made to depend upon actual proof of public prejudice or injury, it would be very difficult in any case to establish the invalidity, although the moral evidence might be very convincing. . . ." "To amend the Anti-Trust Act, as suggested by this bill, would be to entirely emasculate it, and for all practical purposes render it nugatory as a remedial Page 221 U. S. 98 statute. Criminal prosecutions would not lie, and civil remedies would labor under the greatest doubt and uncertainty. The act as it exists is clear, comprehensive, certain and highly remedial. It practically covers the field of Federal jurisdiction, and is in every respect a model law. To destroy or undermine it at the present juncture, when combinations are on the increase, and appear to be as oblivious as ever of the rights of the public, would be a calamity." The result was the indefinite postponement by the Senate of any further consideration of the proposed amendments of the Anti-Trust Act. After what has been adjudged, upon full consideration, as to the meaning and scope of the Anti-Trust Act, and in view of the usages of this court when attorneys for litigants have attempted to reopen questions that have been deliberately decided, I confess to no little surprise as to what has occurred in the present case. The court says that the previous cases, above cited, "cannot by any possible conception be treated as authoritative without the certitude that reason was resorted to for the purpose of deciding them." And its opinion is full of intimations that this court proceeded in those cases, so far as the present question is concerned, without being guided by the "rule of reason," or "the light of reason." It is more than once intimated, if not suggested, that, if the Anti-Trust Act is to be construed as prohibiting every contract or combination, of whatever nature, which is, in fact, in restraint of commerce, regardless of the reasonableness or unreasonableness of such restraint, that fact would show that the court had not proceeded, in its decision, according to "the light of reason," but had disregarded the "rule of reason." If the court, in those cases, was wrong in its construction of the act, it is certain that it fully apprehended the views advanced by learned counsel in previous cases and pronounced them to be untenable. The published reports place this beyond all question. The opinion of the court Page 221 U. S. 99 was delivered by a Justice of wide experience as a judicial officer, and the court had before it the Attorney General of the United States and lawyers who were recognized, on all sides, as great leaders in their profession. The same eminent jurist who delivered the opinion in the Trans-Missouri Case delivered the opinion in the Joint Traffic Association Case, and the Association in that case was represented by lawyers whose ability was universally recognized. Is it to be supposed that any point escaped notice in those cases when we think of the sagacity of the Justice who expressed the views of the court, or of the ability of the profound, astute lawyers, who sought such an interpretation of the act as would compel the court to insert words in the statute which Congress had not put there, and the insertion of which words, would amount to "judicial legislation"? Now this court is asked to do that which it has distinctly declared it could not and would not do, and has now done what it then said it could not constitutionally do. It has, by mere interpretation, modified the act of Congress, and deprived it of practical value as a defensive measure against the evils to be remedied. On reading the opinion just delivered, the first inquiry will be that, as the court is unanimous in holding that the particular things done by the standard Oil Company and its subsidiary companies in this case were illegal under the Anti-Trust Act, whether those things were in reasonable or unreasonable restraint of interstate commerce, why was it necessary to make an elaborate argument, as is done in the opinion, to show that, according to the "rule of reason," the act as passed by Congress should be interpreted as if it contained the word "unreasonable" or the word "undue"? The only answer which, in frankness, can be given to this question is that the court intends to decide that its deliberate judgment, fifteen years ago, to the effect that the act permitted no restraint whatever of interstate commerce, whether reasonable or unreasonable, was not in accordance with Page 221 U. S. 100 the "rule of reason." In effect, the court says that it will now, for the first time, bring the discussion under the "light of reason" and apply the "rule of reason" to the questions to be decided. I have the authority of this court for saying that such a course of proceeding on its part would be "judicial legislation." Still more, what is now done involves a serious departure from the settled usages of this court. Counsel have not ordinarily been allowed to discuss questions already settled by previous decisions. More than once at the present term, that rule has been applied. In St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281 , 210 U. S. 295 , the court had occasion to determine the meaning and scope of the original safety Appliance Act of Congress passed for the protection of railroad employes and passengers on interstate trains. 27 Stat. 531, § 5, c.196. A particular construction of that act was insisted upon by the interstate carrier which was sued under the Safety Appliance Act, and the contention was that a different construction than the one insisted upon by the carrier would be a harsh one. After quoting the words of the act, Mr. Justice Moody said for the court: "There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the lawmaking Page 221 U. S. 101 body. . . . It is quite conceivable that Congress, contemplating the inevitable hardship of such injuries and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are in the main helpless in that regard. Such a policy would be intelligible, and, to say the least, not so unreasonable as to require us to doubt that it was intended, and to seek some unnatural interpretation of common words. We see no error in this part of the case." And at the present term of this court, we were asked, in a case arising under the Safety Appliance Act, to reconsider the question decided in the Taylor case. We declined to do so, saying in an opinion just now handed down: "In view of these facts, we are unwilling to regard the question as to the meaning and scope of the Safety Appliance Act, so far as it relates to automatic couplers on trains moving in interstate traffic, as open to further discussion here. If the court was wrong in the Taylor case, the way is open for such an amendment of the statute as Congress may, in its discretion, deem proper. This court ought not now to disturb what has been so widely accepted and acted upon by the courts as having been decided in that case. A contrary course would cause infinite uncertainty, if not mischief, in the administration of the law in the Federal courts. To avoid misapprehension, it is appropriate to say that we are not to be understood as questioning the soundness of the interpretation heretofore placed by this court upon the Safety Appliance Act. We only mean to say that, until Congress, by an amendment of the statute, changes the rule announced in the Taylor Case, this court will adhere to and apply that rule." C., B. & Q. Ry. Co. v. United States, 220 U. S. 559 . When counsel in the present case insisted upon a reversal of the former rulings of this court, and asked such an interpretation of the Anti-Trust Act as would allow reasonable restraints of interstate commerce, this Page 221 U. S. 102 court, in deference to established practice, should, I submit, have said to them: "That question, according to our practice, is not open for further discussion here. This court long ago deliberately held (1) that the act, interpreting its words in their ordinary acceptation, prohibits all restraints of interstate commerce by combinations in whatever form, and whether reasonable or unreasonable; (2) the question relates to matters of public policy in reference to commerce among the States and with foreign nations, and Congress alone can deal with the subject; (3) this court would encroach upon the authority of Congress if, under the guise of construction, it should assume to determine a matter of public policy; (4) the parties must go to Congress and obtain an amendment of the Anti-Trust Act if they think this court was wrong in its former decisions, and (5) this court cannot and will not judicially legislate, since its function is to declare the law, while it belongs to the legislative department to make the law. Such a course, I am sure, would not have offended the 'rule of reason.'" But my brethren, in their wisdom, have deemed it best to pursue a different course. They have now said to those who condemn our former decisions and who object to all legislative prohibitions of contracts, combinations and trusts in restraint of interstate commerce, "You may now restrain such commerce, provided you are reasonable about it; only take care that the restraint in not undue." The disposition of the case under consideration according to the views of the defendants will, it is claimed, quiet and give rest to "the business of the country." On the contrary, I have a strong conviction that it will throw the business of the country into confusion and invite widely extended and harassing litigation the injurious effects of which will be felt for many years to come. When Congress prohibited every contract, combination or monopoly in restraint of commerce, it prescribed a simple, definite rule that all could understand, and which could be easily applied Page 221 U. S. 103 by everyone wishing to obey the law, and not to conduct their business in violation of law. But now, it is to be feared, we are to have, in cases without number, the constantly recurring inquiry -- difficult to solve by proof -- whether the particular contract, combination, or trust involved in each case is or is not an "unreasonable" or "undue" restraint of trade. Congress, in effect, said that there should be no restraint of trade, in any form, and this court solemnly adjudged many years ago that Congress meant what it thus said in clear and explicit words, and that it could not add to the words of the act. But those who condemn the action of Congress are now, in effect, informed that the courts will allow such restraints of interstate commerce as are shown not to be unreasonable or undue. It remains for me to refer, more fully than I have heretofore done, to another, and, in my judgment -- if we look to the future -- the most important aspect of this case. That aspect concerns the usurpation by the judicial branch of the Government of the functions of the legislative department. The illustrious men who laid the foundations of our institutions, deemed no part of the National Constitution of more consequence or more essential to the permanency of our form of government than the provisions under which were distributed the powers of Government among three separate, equal and coordinate departments -- legislative, executive, and judicial. This was at that time a new feature of governmental regulation among the nations of the earth, and it is deemed by the people of every section of our own country as most vital in the workings of a representative republic whose Constitution was ordained and established in order to accomplish the objects stated in its Preamble by the means, but only by the means, provided either expressly or by necessary implication, by the instrument itself. No department of that government can constitutionally exercise the Page 221 U. S. 104 powers committed strictly to another and separate department. I said at the outset that the action of the court in this case might well alarm thoughtful men who reversed the Constitution. I meant by this that many things are intimated and said in the court's opinion which will not be regarded otherwise than as sanctioning an invasion by the judiciary of the constitutional domain of Congress -- an attempt by interpretation to soften or modify what some regard as a harsh public policy. This court, let me repeat, solemnly adjudged many years ago that it could not, except by " judicial legislation, " read words into the Anti-Trust Act not put there by Congress, and which, being inserted, give it a meaning which the words of the Act, as passed, if properly interpreted, would not justify. The court has decided that it could not thus change a public policy formulated and declared by Congress; that Congress has paramount authority to regulate interstate commerce, and that it alone can change a policy once inaugurated by legislation. The courts have nothing to do with the wisdom or policy of an act of Congress. Their duty is to ascertain the will of Congress, and if the statute embodying the expression of that will is constitutional, the courts must respect it. They have no function to declare a public policy, nor to amend legislative enactments. "What is termed the policy of the Government with reference to any particular legislation," as this court has said, "is generally a very uncertain thing, upon which all sorts of opinions, each variant from the other, may be formed by different persons. It is a ground much too unstable upon which to rest the judgment of the court in the interpretation of statutes." Hadden v. Collector , 5 Wall. 107. Nevertheless, if I do not misapprehend its opinion, the court has now read into the act of Congress words which are not to be found there, and has thereby done that which it adjudged in 1896 and 1898 could not be done without violating Page 221 U. S. 105 the Constitution, namely, by interpretation of a statute, changed a public policy declared by the legislative department. After many years of public service at the National Capital, and after a somewhat close observation of the conduct of public affairs, I am impelled to say that there is abroad in our land a most harmful tendency to bring about the amending of constitutions and legislative enactments by means alone of judicial construction. As a public policy has been declared by the legislative department in respect of interstate commerce, over which Congress has entire control, under the Constitution, all concerned must patiently submit to what has been lawfully done until the People of the United States -- the source of all National power -- shall, in their own time, upon reflection and through the legislative department of the Government, require a change of that policy. There are some who say that it is a part of one's liberty to conduct commerce among the States without being subject to governmental authority. But that would not be liberty regulated by law, and liberty which cannot be regulated by law is not to be desired. The Supreme Law of the Land -- which is binding alike upon all -- upon Presidents, Congresses, the Courts and the People -- gives to Congress, and to Congress alone, authority to regulate interstate commerce, and when Congress forbids any restraint of such commerce, in any form, all must obey its mandate. To overreach the action of Congress merely by judicial construction, that is, by indirection, is a blow at the integrity of our governmental system, and, in the end, will prove most dangerous to all. Mr. Justice Bradley wisely said, when on this Bench, that illegitimate and unconstitutional practices get their first footing by silent approaches and slight deviations from legal modes of legal procedure. Boyd v. United States, 116 U. S. 616 , 116 U. S. 635 . We shall do well to heed the warnings of that great jurist. Page 221 U. S. 106 I do not stop to discuss the merits of the policy embodied in the Anti-Trust Act of 1890, for, as has been often adjudged, the courts, under our constitutional system, have no rightful concern with the wisdom or policy of legislation enacted by that branch of the Government which alone can make laws. For the reasons stated, while concurring in the general affirmance of the decree of the Circuit Court, I dissent from that part of the judgment of this court which directs the modification of the decree of the Circuit Court, as well as from those parts of the opinion which, in effect, assert authority in this court to insert words in the Anti-Trust Act which Congress did not put there, and which, being inserted, Congress is made to declare, as part of the public policy of the country, what it has not chosen to declare.

In Standard Oil Co. of New Jersey v. United States (1911), the U.S. Supreme Court ruled that Standard Oil's combination of companies was an unreasonable restraint on trade and fell under the prohibitions of the Sherman Antitrust Act of 1890. The Court interpreted the Act as prohibiting all contracts and combinations that unreasonably restrain interstate commerce. The majority opinion also discussed the history and purpose of the Act, noting that it aimed to prevent restraints on trade and monopolies. Justice Harlan dissented in part, disagreeing with the Court's modification of the Circuit Court's decree and its interpretation of the Act. He emphasized the importance of adhering to the law as written and leaving any changes to the legislative process.

Separation of Powers

Trump v. United States

https://supreme.justia.com/cases/federal/us/603/23-939/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 23–939 _________________ DONALD J. TRUMP, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the district of columbia circuit [July 1, 2024] Chief Justice Roberts delivered the opinion of the Court. This case concerns the federal indictment of a former President of the United States for conduct alleged to involve official acts during his tenure in office. We consider the scope of a President’s immunity from criminal prosecution. I From January 2017 until January 2021, Donald J. Trump served as President of the United States. On August 1, 2023, a federal grand jury indicted him on four counts for conduct that occurred during his Presidency following the November 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. According to the indictment, Trump advanced his goal through five primary means. First, he and his co-conspirators “used knowingly false claims of election fraud to get state legislators and election officials to . . . change electoral votes for [Trump’s] opponent, Joseph R. Biden, Jr., to electoral votes for [Trump].” App. 185, Indictment ¶10(a). Second, Trump and his co-conspirators “organized fraudulent slates of electors in seven targeted states” and “caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.” Id ., at 186, ¶10(b). Third, Trump and his co-conspirators attempted to use the Justice Department “to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” Id ., at 186–187, ¶10(c). Fourth, Trump and his co-conspirators attempted to persuade “the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Id ., at 187, ¶10(d). And when that failed, on the morning of January 6, they “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding.” Ibid. Fifth, when “a large and angry crowd . . . violently attacked the Capitol and halted the proceeding,” Trump and his co-conspirators “exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification.” Id ., at 187–188, ¶10(e). Based on this alleged conduct, the indictment charged Trump with (1) conspiracy to defraud the United States in violation of 18 U. S. C. §371, (2) conspiracy to obstruct an official proceeding in violation of §1512(k), (3) obstruction of and attempt to obstruct an official proceeding in violation of §1512(c)(2), §2, and (4) conspiracy against rights in violation of §241.[ 1 ] Trump moved to dismiss the indictment based on Presidential immunity. In his view, the conduct alleged in the indictment, properly characterized, was that while he was President he (1) “made public statements about the administration of the federal election”; (2) communicated with senior Justice Department officials “about investigating election fraud and about choosing the leadership” of the Department; (3) “communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it”; (4) “communicated with the Vice President” and with “Members of Congress about the exercise of their official duties regarding the election certification”; and (5) “authorized or directed others to organize contingent slates of electors in furtherance of his attempts to convince the Vice President to exercise his official authority in a manner advocated for by President Trump.” Motion To Dismiss Indictment Based on Presidential Immunity in No. 1:23–cr–00257 (DC), ECF Doc. 74, p. 9. Trump argued that all of the indictment’s allegations fell within the core of his official duties. Id. , at 27. And he contended that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, to ensure that he can undertake the especially sensitive duties of his office with bold and unhesitating action. Id. , at 14, 24. The District Court denied the motion to dismiss, holding that “former Presidents do not possess absolute federal criminal immunity for any acts committed while in office.” 2023 WL 8359833, *15 (DC, Dec. 1, 2023). The District Court recognized that the President is immune from damages liability in civil cases, to protect against the chilling effect such exposure might have on the carrying out of his responsibilities. See Nixon v. Fitzgerald , 457 U.S. 731 , 749–756 (1982). But it reasoned that “the possibility of vexatious post-Presidency litigation is much reduced in the criminal context” in light of “[t]he robust procedural safeguards attendant to federal criminal prosecutions.” 2023 WL 8359833, *9–*10. The District Court declined to decide whether the indicted conduct involved official acts. See id. , at *15. The D. C. Circuit affirmed. 91 F. 4th 1173 (2024) ( per curiam ). Citing Marbury v. Madison , 1 Cranch 137 (1803), the court distinguished between two kinds of official acts: discretionary and ministerial. 91 F. 4th, at 1189–1190. It observed that “although discretionary acts are ‘only politically examinable,’ the judiciary has the power to hear cases” involving ministerial acts that an officer is directed to perform by the legislature. Ibid. (quoting Marbury , 1 Cranch, at 166). From this distinction, the D. C. Circuit concluded that the “separation of powers doctrine, as expounded in Marbury and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws.” 91 F. 4th, at 1191. In the court’s view, the fact that Trump’s actions “allegedly violated generally applicable criminal laws” meant that those actions “were not properly within the scope of his lawful discretion.” Id. , at 1192. The D. C. Circuit thus concluded that Trump had “no structural immunity from the charges in the Indictment.” Ibid. Like the District Court, the D. C. Circuit declined to analyze the actions described in the indictment to determine whether they involved official acts. See id. , at 1205, n. 14. We granted certiorari to consider the following question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” 601 U. S. ___ (2024). II This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. We are called upon to consider whether and under what circumstances such a prosecution may proceed.  Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse “the issue of a power’s validity with the cause it is invoked to promote,” but must instead focus on the “enduring consequences upon the balanced power structure of our Republic.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 634 (1952) (Jackson, J., concurring). The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. See Tr. of Oral Arg. 28. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity. See id ., at 28–30, 36–37, 124. They disagree, however, about whether a former President can be prosecuted for his official actions. Trump contends that just as a President is absolutely immune from civil damages liability for acts within the outer perimeter of his official responsibilities, Fitzgerald , 457 U. S., at 756, he must be absolutely immune from criminal prosecution for such acts. Brief for Petitioner 10. And Trump argues that the bulk of the indictment’s allegations involve conduct in his official capacity as President. See Tr. of Oral Arg. 30–32. Although the Government agrees that some official actions are included in the indictment’s allegations, see id. , at 125, it maintains that a former President does not enjoy immunity from criminal prosecution for any actions, regardless of how they are characterized. See Brief for United States 9. We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient. A Article II of the Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America.” §1, cl. 1. The President’s duties are of “unrivaled gravity and breadth.” Trump v. Vance , 591 U.S. 786, 800 (2020). They include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States. See §2. He also has important foreign relations responsibilities: making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration. See §§2, 3. Domestically, he must “take Care that the Laws be faithfully executed,” §3, and he bears responsibility for the actions of the many departments and agencies within the Executive Branch. He also plays a role in lawmaking by recommending to Congress the measures he thinks wise and signing or vetoing the bills Congress passes. See Art. I, §7, cl. 2; Art. II, §3. No matter the context, the President’s authority to act necessarily “stem[s] either from an act of Congress or from the Constitution itself.” Youngstown , 343 U. S., at 585. In the latter case, the President’s authority is sometimes “conclusive and preclusive.” Id. , at 638 (Jackson, J., concurring). When the President exercises such authority, he may act even when the measures he takes are “incompatible with the expressed or implied will of Congress.” Id ., at 637. The exclusive constitutional authority of the President “disabl[es] the Congress from acting upon the subject.” Id. , at 637–638. And the courts have “no power to control [the President’s] discretion” when he acts pursuant to the powers invested exclusively in him by the Constitution. Marbury , 1 Cranch, at 166. If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. Youngstown , 343 U. S., at 655 (Jackson, J., concurring). In Youngstown , for instance, we held that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. See id. , at 582–589 (majority opinion). But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination. The Constitution, for example, vests the “Power to Grant Reprieves and Pardons for Offences against the United States” in the President. Art. II, §2, cl. 1. During and after the Civil War, President Lincoln offered a full pardon, with restoration of property rights, to anyone who had “engaged in the rebellion” but agreed to take an oath of allegiance to the Union. United States v. Klein , 13 Wall. 128, 139–141 (1872). But in 1870, Congress enacted a provision that prohibited using the President’s pardon as evidence of restoration of property rights. Id. , at 143–144. Chief Justice Chase held the provision unconstitutional because it “impair[ed] the effect of a pardon, and thus infring[ed] the constitutional power of the Executive.” Id. , at 147. “To the executive alone is intrusted the power of pardon,” and the “legislature cannot change the effect of such a pardon any more than the executive can change a law.” Id. , at 147–148. The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.” Youngstown , 343 U. S., at 637–638 (Jackson, J., concurring). Some of the President’s other constitutional powers also fit that description. “The President’s power to remove—and thus supervise—those who wield executive power on his behalf,” for instance, “follows from the text of Article II.” Seila Law LLC v. Consumer Financial Protection Bureau , 591 U.S. 197, 204 (2020). We have thus held that Congress lacks authority to control the President’s “unrestricted power of removal” with respect to “executive officers of the United States whom he has appointed.” Myers v. United States , 272 U.S. 52 , 106, 176 (1926); see Youngstown , 343 U. S., at 638, n. 4 (Jackson, J., concurring) (citing the President’s “exclusive power of removal in executive agencies” as an example of “conclusive and preclusive” constitutional authority); cf. Seila Law , 591 U. S., at 215 (noting only “two exceptions to the President’s unrestricted removal power”). The power “to control recognition determinations” of foreign countries is likewise an “exclusive power of the President.” Zivotofsky v. Kerry , 576 U.S. 1 , 32 (2015). Congressional commands contrary to the President’s recognition determinations are thus invalid. Ibid. Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. B But of course not all of the President’s official acts fall within his “conclusive and preclusive” authority. As Justice Robert Jackson recognized in Youngstown , the President sometimes “acts pursuant to an express or implied authorization of Congress,” or in a “zone of twilight” where “he and Congress may have concurrent authority.” 343 U. S., at 635, 637 (concurring opinion). The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress. We recognize that only a limited number of our prior decisions guide determination of the President’s immunity in this context. That is because proceedings directly involving a President have been uncommon in our Nation, and “decisions of the Court in this area” have accordingly been “rare” and “episodic.” Dames & Moore v. Regan , 453 U.S. 654 , 661 (1981). To resolve the matter, therefore, we look primarily to the Framers’ design of the Presidency within the separation of powers, our precedent on Presidential immunity in the civil context, and our criminal cases where a President resisted prosecutorial demands for documents. 1 The President “occupies a unique position in the constitutional scheme,” Fitzgerald , 457 U. S., at 749, as “the only person who alone composes a branch of government,” Trump v. Mazars USA, LLP , 591 U.S. 848, 868 (2020). The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones , 520 U.S. 681 , 712 (1997) (Breyer, J., concurring in judgment). They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’ ” Seila Law , 591 U. S., at 223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” Id ., at 471–472. The Framers accordingly vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” Fitzgerald , 457 U. S., at 750. He must make “the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.” Id. , at 752. There accordingly “exists the greatest public interest” in providing the President with “ ‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.” Ibid. (quoting Ferri v. Ackerman , 444 U.S. 193 , 203 (1979)). Appreciating the “unique risks to the effective functioning of government” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of his official duties,” we have recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.” Fitzgerald , 457 U. S., at 749, 751, 752, n. 32. In Nixon v. Fitzgerald , for instance, we recognized that as “a functionally mandated incident of [his] unique office,” a former President “is entitled to absolute immunity from damages liability predicated on his official acts.” Id ., at 749. That case involved a terminated Air Force employee who sued former President Richard Nixon for damages, alleging that Nixon approved an Air Force reorganization that wrongfully led to his firing. In holding that Nixon was immune from that suit, “our dominant concern” was to avoid “diversion of the President’s attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.” Clinton , 520 U. S., at 694, n. 19. “[T]he singular importance of the President’s duties” implicating “matters likely to ‘arouse the most intense feelings,’ ” coupled with “the sheer prominence of [his] office,” heightens the prospect of private damages suits that would threaten such diversion. Fitzgerald , 457 U. S., at 751–753 (quoting Pierson v. Ray , 386 U.S. 547 , 554 (1967)). We therefore concluded that the President must be absolutely immune from “damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Fitzgerald , 457 U. S., at 756. By contrast, when prosecutors have sought evidence from the President, we have consistently rejected Presidential claims of absolute immunity. For instance, during the treason trial of former Vice President Aaron Burr, Chief Justice Marshall rejected President Thomas Jefferson’s claim that the President could not be subjected to a subpoena. Marshall reasoned that “the law does not discriminate between the president and a private citizen.” United States v. Burr , 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807) ( Burr I ). Because a President does not “stand exempt from the general provisions of the constitution,” including the Sixth Amendment’s guarantee that those accused shall have compulsory process for obtaining witnesses for their defense, a subpoena could issue. Id. , at 33–34. Marshall acknowledged, however, the existence of a “privilege” to withhold certain “official paper[s]” that “ought not on light ground to be forced into public view.” United States v. Burr , 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807) ( Burr II ); see also Burr I , 25 F. Cas., at 37 (stating that nothing before the court showed that the document in question “contain[ed] any matter the disclosure of which would endanger the public safety”). And he noted that a court may not “be required to proceed against the president as against an ordinary individual.” Burr II , 25 F. Cas., at 192. Similarly, when a subpoena issued to President Nixon to produce certain tape recordings and documents relating to his conversations with aides and advisers, this Court rejected his claim of “absolute privilege,” given the “constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” United States v. Nixon , 418 U.S. 683 , 703, 707 (1974). But we simultaneously recognized “the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking,” as well as the need to protect “communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” Id ., at 705, 708. Because the President’s “need for complete candor and objectivity from advisers calls for great deference from the courts,” we held that a “presumptive privilege” protects Presidential communications. Id ., at 706, 708. That privilege, we explained, “relates to the effective discharge of a President’s powers.” Id. , at 711. We thus deemed it “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” Id ., at 708. 2 Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession, as in Burr and Nixon . The danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the “bold and unhesitating action” required of an independent Executive. Fitzgerald , 457 U. S., at 745. Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages. The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States , 579 U.S. 550, 575 (2016), raises “unique risks to the effective functioning of government,” Fitzgerald , 457 U. S., at 751. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined. Vance , 591 U. S., at 800. The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor[ ]” and “energy” of the Executive. The Federalist No. 70, at 471–472. We must, however, “recognize[ ] the countervailing interests at stake.” Vance , 591 U. S., at 799. Federal criminal laws seek to redress “a wrong to the public” as a whole, not just “a wrong to the individual.” Huntington v. Attrill , 146 U.S. 657 , 668 (1892). There is therefore a compelling “public interest in fair and effective law enforcement.” Vance , 591 U. S., at 808. The President, charged with enforcing federal criminal laws, is not above them. Chief Justice Marshall’s decisions in Burr and our decision in Nixon recognized the distinct interests present in criminal prosecutions. Although Burr acknowledged that the President’s official papers may be privileged and publicly unavailable, it did not grant him an absolute exemption from responding to subpoenas. See Burr II , 25 F. Cas., at 192; Burr I , 25 F. Cas., at 33–34. Nixon likewise recognized a strong protection for the President’s confidential communications—a “presumptive privilege”—but it did not entirely exempt him from providing evidence in criminal proceedings. 418 U. S., at 708. Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. Indeed, if presumptive protection for the President is necessary to enable the “effective discharge” of his powers when a prosecutor merely seeks evidence of his official papers and communications, id. , at 711, it is certainly necessary when the prosecutor seeks to charge, try, and imprison the President himself for his official actions. At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald , 457 U. S., at 754. But as we explain below, the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. See Part III–B, infra . Because we need not decide that question today, we do not decide it. “[O]ne case” in more than “two centuries does not afford enough experience” to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution. Mazars , 591 U. S., at 871. C As for a President’s unofficial acts, there is no immunity. The principles we set out in Clinton v. Jones confirm as much. When Paula Jones brought a civil lawsuit against then-President Bill Clinton for acts he allegedly committed prior to his Presidency, we rejected his argument that he enjoyed temporary immunity from the lawsuit while serving as President. 520 U. S., at 684. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct. Id. , at 694, and n. 19. The “ ‘justifying purposes’ ” of the immunity we recognized in Fitzgerald , and the one we recognize today, are not that the President must be immune because he is the President; rather, they are to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressures or distortions. 520 U. S., at 694, and n. 19 (quoting Fitzgerald , 457 U. S., at 755). “[I]t [is] the nature of the function performed, not the identity of the actor who perform[s] it, that inform[s] our immunity analysis.” Forrester v. White , 484 U.S. 219 , 229 (1988). The separation of powers does not bar a prosecution predicated on the President’s unofficial acts.[ 2 ] III Determining whether a former President is entitled to immunity from a particular prosecution requires applying the principles we have laid out to his conduct at issue. The first step is to distinguish his official from unofficial actions. In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular. Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis. Because those courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial. Neither party has briefed that issue before us (though they discussed it at oral argument in response to questions). And like the underlying immunity question, that categorization raises multiple unprecedented and momentous questions about the powers of the President and the limits of his authority under the Constitution. As we have noted, there is little pertinent precedent on those subjects to guide our review of this case—a case that we too are deciding on an expedited basis, less than five months after we granted the Government’s request to construe Trump’s emergency application for a stay as a petition for certiorari, grant that petition, and answer the consequential immunity question. See 601 U. S., at ___. Given all these circumstances, it is particularly incumbent upon us to be mindful of our frequent admonition that “[o]urs is a court of final review and not first view.” Zivotofsky v. Clinton , 566 U.S. 189 , 201 (2012) (internal quotation marks omitted). Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how to do so with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct. We offer guidance on those issues below. Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance. A Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald , 457 U. S., at 757. Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action. But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id ., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii , 585 U.S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.” Blassingame v. Trump , 87 F. 4th 1, 13 (CADC 2023) (internal quotation marks omitted); see Fitzgerald , 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”). In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” Fitzgerald , 457 U. S., at 745 (quoting Spalding v. Vilas , 161 U.S. 483 , 498 (1896)). We thus rejected such inquiries in Fitzgerald . The plaintiff there contended that he was dismissed from the Air Force for retaliatory reasons. See 457 U. S., at 733–741, 756. The Air Force responded that the reorganization that led to Fitzgerald’s dismissal was undertaken to promote efficiency. Ibid. Because under Fitzgerald’s theory “an inquiry into the President’s motives could not be avoided,” we rejected the theory, observing that “[i]nquiries of this kind could be highly intrusive.” Id. , at 756. “[B]are allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.” Harlow v. Fitzgerald , 457 U.S. 800 , 817–818 (1982). Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For instance, when Fitzgerald contended that his dismissal violated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756 . Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid. B With these principles in mind, we turn to the conduct alleged in the indictment. 1 The indictment broadly alleges that Trump and his co-conspirators sought to “overturn the legitimate results of the 2020 presidential election.” App. 183, Indictment ¶7. It charges that they conspired to obstruct the January 6 congressional proceeding at which electoral votes are counted and certified, and the winner of the election is certified as President-elect. Id ., at 181–185, ¶¶4, 7, 9. As part of this conspiracy, Trump and his co-conspirators allegedly attempted to leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors. See id ., at 215–220, ¶¶70–85. According to the indictment, Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. See, e.g. , id. , at 217, 219–220, ¶¶77, 84. The indictment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him. See, e.g. , id ., at 216–217, ¶¶74, 77. The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id. , at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson , 487 U.S. 654 , 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon , 418 U. S., at 693; see United States v. Texas , 599 U.S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’ ” (quoting TransUnion LLC v. Ramirez , 594 U.S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’ ” Mitchell v. Forsyth , 472 U.S. 511 , 520 (1985) (quoting Art. II, §1, cl. 8). Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney , 470 U.S. 821 , 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers , 272 U. S., at 106, 176; see supra , at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald , 457 U. S., at 750 (internal quotation marks and alteration omitted). The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. 2 The indictment next alleges that Trump and his co-conspirators “attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Id ., at 187, ¶10(d). In particular, the indictment alleges several conversations in which Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back to state legislatures for review. See, e.g. , id ., at 222–224, 226, ¶¶90, 92–93, 97. The Government explained at oral argument that although it “has not yet had to come to grips with how [it] would analyze” Trump’s interactions with the Vice President, there is “support” to characterize that conduct as official. Tr. of Oral Arg. 128. Indeed, our constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President’s term in office. These two officials are the only ones “elected by the entire Nation.” Seila Law , 591 U. S., at 224; see Art. II, §1. The Constitution provides that “the Vice President shall become President” in the case of “the removal of the President from office or of his death or resignation.” Amdt. 25, §1. It also “empowers the Vice President, together with a majority of the ‘principal officers of the executive departments,’ to declare the President ‘unable to discharge the powers and duties of his office.’ ” Freytag v. Commissioner , 501 U.S. 868 , 886–887 (1991) (quoting Amdt. 25, §4). And Article I of course names the Vice President as President of the Senate and gives him a tiebreaking vote. §3, cl. 4. It is thus important for the President to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to advance the President’s agenda in Congress and beyond. The Vice President may in practice also serve as one of the President’s closest advisers. The Office of Legal Counsel has explained that within the Executive Branch, the Vice President’s “sole function [is] advising and assisting the President.” Whether the Office of the Vice President Is an ‘Agency’ for Purposes of the Freedom of Information Act, 18 Op. OLC 10 (1994). Indeed, the “ Twelfth Amendment was brought about” to avoid the “manifestly intolerable” situation that occurred “[d]uring the John Adams administration,” when “we had a President and Vice-President of different parties.” Ray v. Blair , 343 U.S. 214 , 224, n. 11 (1952). The President and Vice President together “are the senior officials of the Executive Branch of government” and therefore “must formulate, explain, advocate, and defend policies” of the President’s administration. Payment of Expenses Associated With Travel by the President and Vice President, 6 Op. OLC 214, 215 (1982). As the President’s second in command, the Vice President has historically performed important functions “at the will and as the representative of the President.” Participation of the Vice President in the Affairs of the Executive Branch, 1 Supp. Op. OLC 214, 220 (1961). President Woodrow Wilson’s Vice President, for instance, “presided over a few cabinet meetings while Wilson was in France negotiating” the Treaty of Versailles after World War I. H. Relyea, The Law: The Executive Office of the Vice President: Constitutional and Legal Considerations, 40 Presidential Studies Q. 327, 328 (2010). During President Franklin Roosevelt’s administration, the Vice President “became a regular participant in cabinet deliberations—a practice that was continued by each succeeding president.” Ibid. And when President Dwight Eisenhower “suffered three major illnesses while in office . . . Vice President Richard Nixon consulted with the Cabinet and developed a procedure for relaying important matters to the President.” Presidential Succession and Delegation in Case of Disability, 5 Op. OLC 91, 102 (1981). At the President’s discretion, “the Vice President may engage in activities ranging into the highest levels of diplomacy and negotiation and may do so anywhere in the world.” 1 Supp. Op. OLC, at 220. Domestically, he may act as the President’s delegate to perform any duties “co-extensive with the scope of the President’s power of delegation.” Ibid. Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct. The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g. , 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald , 457 U. S., at 754; see supra , at 14. At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions. It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch. 3 The indictment’s remaining allegations cover a broad range of conduct. Unlike the allegations describing Trump’s communications with the Justice Department and the Vice President, these remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public. Many of the remaining allegations, for instance, cover at great length events arising out of communications that Trump and his co-conspirators initiated with state legislators and election officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin regarding those States’ certification of electors. See App. 192–207, Indictment ¶¶13–52. Specifically, the indictment alleges that Trump and his co-conspirators attempted to convince those officials that election fraud had tainted the popular vote count in their States, and thus electoral votes for Trump’s opponent needed to be changed to electoral votes for Trump. See id ., at 185–186, ¶10(a). After Trump failed to convince those officials to alter their state processes, he and his co-conspirators allegedly developed a plan “to marshal individuals who would have served as [Trump’s] electors, had he won the popular vote” in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin, “and cause those individuals to make and send to the Vice President and Congress false certifications that they were legitimate electors.” Id ., at 208, ¶53. If the plan worked, “the submission of these fraudulent slates” would position the Vice President to “open and count the fraudulent votes” at the certification proceeding and set up “a fake controversy that would derail the proper certification of Biden as president-elect.” Id ., at 208–209, ¶¶53, 54(b). According to the indictment, Trump used his campaign staff to effectuate the plan. See, e.g. , id ., at 210, 212–213, ¶¶55, 63. On the same day that the legitimate electors met in their respective jurisdictions to cast their votes, the indictment alleges that Trump’s “fraudulent electors convened sham proceedings in the seven targeted states to cast fraudulent electoral ballots” in his favor. Id ., at 214, ¶66. Those ballots “were mailed to the President of the Senate, the Archivist of the United States, and others.” Ibid ., ¶67. At oral argument, Trump appeared to concede that at least some of these acts—those involving “private actors” who “helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding” at the direction of Trump and a co-conspirator—entail “private” conduct. Tr. of Oral Arg. 29–30. He later asserted, however, that asking “the chairwoman of the Republican National Committee . . . to gather electors” qualifies as official conduct because “the organization of alternate slates of electors is based on, for example, the historical example of President Grant as something that was done pursuant to and ancillary and preparatory to the exercise of ” a core Presidential power. Id. , at 37; see also id. , at 25 (discussing the “historical precedent . . . of President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified in those two cases, which delivered the election to Rutherford B. Hayes”). He also argued that it is “[a]bsolutely an official act for the president to communicate with state officials on . . . the integrity of a federal election.” Id. , at 38. The Government disagreed, contending that this alleged conduct does not qualify as “official conduct” but as “campaign conduct.” Id. , at 124–125. On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Cf. Hawaii , 585 U. S., at 701. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good. As the Government sees it, however, these allegations encompass nothing more than Trump’s “private scheme with private actors.” Brief for United States 44. In its view, Trump can point to no plausible source of authority enabling the President to not only organize alternate slates of electors but also cause those electors—unapproved by any state official—to transmit votes to the President of the Senate for counting at the certification proceeding, thus interfering with the votes of States’ properly appointed electors. Indeed, the Constitution commits to the States the power to “appoint” Presidential electors “in such Manner as the Legislature thereof may direct.” Art. II, §1, cl. 2; see Burroughs v. United States , 290 U.S. 534 , 544 (1934). “Article II, §1’s appointments power,” we have said, “gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.” Chiafalo v. Washington , 591 U.S. 578, 588–589 (2020). By contrast, the Federal Government’s role in appointing electors is limited. Congress may prescribe when the state-appointed electors shall meet, and it counts and certifies their votes. Art. II, §1, cls. 3, 4. The President, meanwhile, plays no direct role in the process, nor does he have authority to control the state officials who do. And the Framers, wary of “cabal, intrigue and corruption,” specifically excluded from service as electors “all those who from situation might be suspected of too great devotion to the president in office.” The Federalist No. 68, at 459 (A. Hamilton); see Art. II, §1, cl. 2. Determining whose characterization may be correct, and with respect to which conduct, requires a close analysis of the indictment’s extensive and interrelated allegations. See App. 192–215, Indictment ¶¶13–69. Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons. And the parties’ brief comments at oral argument indicate that they starkly disagree on the characterization of these allegations. The concerns we noted at the outset—the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties—thus become more prominent. We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial. 4 Finally, the indictment contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself. It alleges that leading up to the January 6 certification proceeding, Trump issued a series of Tweets (to his nearly 89 million followers) encouraging his supporters to travel to Washington, D. C., on that day. See, e.g. , App. 221, 225–227, Indictment ¶¶87–88, 96, 100. Trump and his co-conspirators addressed the gathered public that morning, asserting that certain States wanted to recertify their electoral votes and that the Vice President had the power to send those States’ ballots back for recertification. Id. , at 228–230, ¶¶103–104. Trump then allegedly “directed the crowd in front of him to go to the Capitol” to pressure the Vice President to do so at the certification proceeding. Id. , at 228–230, ¶104. When it became public that the Vice President would not use his role at the certification proceeding to determine which electoral votes should be counted, the crowd gathered at the Capitol “broke through barriers cordoning off the Capitol grounds” and eventually “broke into the building.” Id ., at 230–231, ¶¶107, 109. The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses “extraordinary power to speak to his fellow citizens and on their behalf.” Hawaii , 585 U. S., at 701; cf. Lindke v. Freed , 601 U.S. 187, 191 (2024). As the sole person charged by the Constitution with executing the laws of the United States, the President oversees—and thus will frequently speak publicly about—a vast array of activities that touch on nearly every aspect of American life. Indeed, a long-recognized aspect of Presidential power is using the office’s “bully pulpit” to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest. He is even expected to comment on those matters of public concern that may not directly implicate the activities of the Federal Government—for instance, to comfort the Nation in the wake of an emergency or tragedy. For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps , 562 U.S. 443 , 453 (2011) (internal quotation marks omitted). But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars , 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be challenging. The indictment reflects these challenges. It includes only select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context. See App. 228–230, Indictment ¶104. Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication. This necessarily factbound analysis is best performed initially by the District Court. We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial. C The essence of immunity “is its possessor’s entitlement not to have to answer for his conduct” in court. Mitchell , 472 U. S., at 525. Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution. As we have explained, the indictment here alleges at least some such conduct. See Part III–B–1, supra . On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. The Government does not dispute that if Trump is entitled to immunity for certain official acts, he may not “be held criminally liable” based on those acts. Brief for United States 46. But it nevertheless contends that a jury could “consider” evidence concerning the President’s official acts “for limited and specified purposes,” and that such evidence would “be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud claims.” Id. , at 46, 48. That proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge. But “[t]he Constitution deals with substance, not shadows.” Cummings v. Missouri , 4 Wall. 277, 325 (1867). And the Government’s position is untenable in light of the separation of powers principles we have outlined. If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. Fitzgerald , 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted. See Clinton , 520 U. S., at 694, n. 19. The Government asserts that these weighty concerns can be managed by the District Court through the use of “evidentiary rulings” and “jury instructions.” Brief for United States 46. But such tools are unlikely to protect adequately the President’s constitutional prerogatives. Presidential acts frequently deal with “matters likely to ‘arouse the most intense feelings.’  ” Fitzgerald , 457 U. S., at 752 (quoting Pierson , 386 U. S., at 554). Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Cf. Nixon , 418 U. S., at 706. Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency.[ 3 ] IV A Trump asserts a far broader immunity than the limited one we have recognized. He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. Brief for Petitioner 16. The text of the Clause provides little support for such an absolute immunity. It states that an impeachment judgment “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Art. I, §3, cl. 7. It then specifies that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Ibid . (emphasis added). The Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. Historical evidence likewise lends little support to Trump’s position. For example, Justice Story reasoned that without the Clause’s clarification that “Indictment, Trial, Judgment and Punishment” may nevertheless follow Senate conviction, “it might be matter of extreme doubt, whether . . . a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments.” 2 J. Story, Commentaries on the Constitution of the United States §780, p. 251 (1833). James Wilson, who served on the Committee that drafted the Clause and later as a Justice of this Court, similarly concluded that acquittal of impeachment charges posed no bar to subsequent prosecution. See 2 Documentary History of the Ratification of the Constitution 492 (M. Jensen ed. 1979). And contrary to Trump’s contention, Alexander Hamilton did not disagree. The Federalist Papers on which Trump relies, see Brief for Petitioner 17–18, concerned the checks available against a sitting President. Hamilton noted that unlike “the King of Great-Britain,” the President “would be liable to be impeached” and “removed from office,” and “would afterwards be liable to prosecution and punishment.” The Federalist No. 69, at 463; see also id ., No. 77, at 520 (explaining that the President is “at all times liable to impeachment, trial, dismission from office . . . and to the forfeiture of life and estate by subsequent prosecution”). Hamilton did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution. The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution. Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government. B The Government for its part takes a similarly broad view, contending that the President enjoys no immunity from criminal prosecution for any action. It maintains this view despite agreeing with much of our analysis. For instance, the Government does not dispute that Congress may not criminalize Presidential conduct within the President’s “conclusive and preclusive” constitutional authority. See Tr. of Oral Arg. 133 (“[C]ore powers . . . can’t be regulated at all, like the pardon power and veto.”); see also id. , at 84–85. And it too accords protection to Presidential conduct if subjecting that conduct to generally applicable laws would “raise serious constitutional questions regarding the President’s authority” or cause a “possible conflict with the President’s constitutional prerogatives.” Application of 28 U. S. C. §458 to Presidential Appointments of Federal Judges, 19 Op. OLC 350, 351–352 (1995); see Brief for United States 26–29; Tr. of Oral Arg. 78. Indeed, the Executive Branch has long held that view. The Office of Legal Counsel has recognized, for instance, that a federal statute generally prohibiting appointments to “ ‘any office or duty in any court’ ” of persons within certain degrees of consanguinity to the judges of such courts would, if applied to the President, infringe his power to appoint federal judges, thereby raising a serious constitutional question. 19 Op. OLC, at 350 (quoting 28 U. S. C. §458); see id. , at 350–352. So it viewed such a statute as not applying to the President. Likewise, it has narrowly construed a criminal prohibition on grassroots lobbying to avoid the constitutional issues that would otherwise arise, reasoning that the statute should not “be construed to prohibit the President or executive branch agencies from engaging in a general open dialogue with the public on the Administration’s programs and policies.” Constraints Imposed by 18 U. S. C. §1913 on Lobbying Efforts, 13 Op. OLC 300, 304 (1989); see id ., at 304–306. The Government thus broadly agrees that the President’s official acts are entitled to some degree of constitutional protection. And with respect to the allegations in the indictment before us, the Government agrees that at least some of the alleged conduct involves official acts. See Tr. of Oral Arg. 125; cf. id. , at 128. Yet the Government contends that the President should not be considered immune from prosecution for those official acts. See Brief for United States 9. On the Government’s view, as-applied challenges in the course of the trial suffice to protect Article II interests, and review of a district court’s decisions on such challenges should be deferred until after trial. See Tr. of Oral Arg. 69, 79–80, 154–158. If the President is instead immune from prosecution, a district court’s denial of immunity would be appealable before trial. See Mitchell , 472 U. S., at 524–530 (explaining that questions of immunity are reviewable before trial because the essence of immunity is the entitlement not to be subject to suit). The Government asserts that the “[r]obust safeguards” available in typical criminal proceedings alleviate the need for pretrial review. Brief for United States 20 (boldface and emphasis omitted). First, it points to the Justice Department’s “longstanding commitment to the impartial enforcement of the law,” id. , at 21, as well as the criminal justice system’s further protections: grand juries, a defendant’s procedural rights during trial, and the requirement that the Government prove its case beyond a reasonable doubt, id. , at 22. Next, it contends that “existing principles of statutory construction and as-applied constitutional challenges” adequately address the separation of powers concerns involved in applying generally applicable criminal laws to a President. Id. , at 29. Finally, the Government cites certain defenses that would be available to the President in a particular prosecution, such as the public-authority defense or the advice of the Attorney General. Id. , at 29–30; see Nardone v. United States , 302 U.S. 379 , 384 (1937); Tr. of Oral Arg. 107–108. These safeguards, though important, do not alleviate the need for pretrial review. They fail to address the fact that under our system of separated powers, criminal prohibitions cannot apply to certain Presidential conduct to begin with. As we have explained, when the President acts pursuant to his exclusive constitutional powers, Congress cannot—as a structural matter—regulate such actions, and courts cannot review them. See Part II–A, supra . And he is at least presumptively immune from prosecution for his other official actions. See Part II–B, supra . Questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding. Even if the President were ultimately not found liable for certain official actions, the possibility of an extended proceeding alone may render him “unduly cautious in the discharge of his official duties.” Fitzgerald , 457 U. S., at 752, n. 32. Vulnerability “ ‘to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute.’ ” Id. , at 752–753, n. 32 (quoting Gregoire v. Biddle , 177 F.2d 579, 581 (CA2 1949) (Hand, L., C. J.)). The Constitution does not tolerate such impediments to “the effective functioning of government.” Fitzgerald , 457 U. S., at 751. As for the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecutions from advancing in the first place, those assurances are available to every criminal defendant and fail to account for the President’s “unique position in the constitutional scheme.” Id. , at 749. We do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith. See United States v. Stevens , 559 U.S. 460 , 480 (2010) (“We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”). Nor do we do so today. C As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine “in the first instance” whether and to what extent Trump’s remaining alleged conduct is entitled to immunity. Supra , at 24, 28, 30. The principal dissent’s starting premise—that unlike Speech and Debate Clause immunity, no constitutional text supports Presidential immunity, see post , at 4–6 (opinion of Sotomayor, J.)—is one that the Court rejected decades ago as “unpersuasive.” Fitzgerald , 457 U. S., at 750, n. 31; see also Nixon , 418 U. S., at 705–706, n. 16 (rejecting unanimously a similar argument in the analogous executive privilege context). “[A] specific textual basis has not been considered a prerequisite to the recognition of immunity.” Fitzgerald , 457 U. S., at 750, n. 31. Nor is that premise correct. True, there is no “Presidential immunity clause” in the Constitution. But there is no “ ‘separation of powers clause’ ” either. Seila Law , 591 U. S., at 227. Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President. See ibid. And the Court’s prior decisions, such as Nixon and Fitzgerald , have long recognized that doctrine as mandating certain Presidential privileges and immunities, even though the Constitution contains no explicit “provision for immunity.” Post , at 4; see Part II–B–1, supra . Neither the dissents nor the Government disavow any of those prior decisions. See Tr. of Oral Arg. 76–77. The principal dissent then cites the Impeachment Judgment Clause, arguing that it “clearly contemplates that a former President may be subject to criminal prosecution.” Post , at 6. But that Clause does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular. See supra , at 32–33. And the assortment of historical sources the principal dissent cites are unhelpful for the same reason. See post , at 6–8. As the Court has previously noted, relevant historical evidence on the question of Presidential immunity is of a “fragmentary character.” Fitzgerald , 457 U. S., at 752, n. 31; see also Clinton , 520 U. S., at 696–697; cf. Youngstown , 343 U. S., at 634 (Jackson, J., concurring) (noting “the poverty of really useful and unambiguous authority applicable to concrete problems of executive power”). “[T]he most compelling arguments,” therefore, “arise from the Constitution’s separation of powers and the Judiciary’s historic understanding of that doctrine.” Fitzgerald , 457 U. S., at 752, n. 31 . The Court’s prior admonition is evident in the principal dissent’s citations. Some of its cherry-picked sources do not even discuss the President in particular. See, e.g. , post , at 7–8 (citing 2 Debates on the Constitution 177 (J. Elliot ed. 1836); 2 J. Story, Commentaries on the Constitution of the United States §780, pp. 250–251 (1833)). And none of them indicate whether he may be prosecuted for his official conduct. See, e.g. , post , at 6, 7, n. 2 (citing The Federalist No. 69; 4 Debates on the Constitution, at 109). The principal dissent’s most compelling piece of evidence consists of excerpted statements of Charles Pinckney from an 1800 Senate debate. See post , at 7. But those statements reflect only the now-discredited argument that any immunity not expressly mentioned in the Constitution must not exist. See 3 Records of the Federal Convention of 1787, pp. 384–385 (M. Farrand ed. 1911). And Pinckney is not exactly a reliable authority on the separation of powers: He went on to state on the same day that “it was wrong to give the nomination of Judges to the President”—an opinion expressly rejected by the Framers. Id. , at 385. Given the Framers’ desire for an energetic and vigorous President, the principal dissent’s view that the Constitution they designed allows all his actions to be subject to prosecution—even the exercise of powers it grants exclusively to him—defies credulity. Unable to muster any meaningful textual or historical support, the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Post , at 9. Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence. Coming up short on reasoning, the dissents repeatedly level variations of the accusation that the Court has rendered the President “above the law.” See, e.g. , post , at 1, 3, 11, 12, 21, 30 (opinion of Sotomayor, J.); post , at 9, 10, 11, 12, 13, 19 (opinion of Jackson, J.). As before, that “rhetorically chilling” contention is “wholly unjustified.” Fitzgerald , 457 U. S., at 758, n. 41. Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives. The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” Post , at 18 (opinion of Sotomayor, J.); see post , at 26, 29–30; post , at 8–9, 10, 12, 16, 20–21 (opinion of Jackson, J.). The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “ ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’ ” United States v. Johnson , 383 U.S. 169 , 172 (1966) (quoting Haas v. Henkel , 216 U.S. 462 , 479 (1910)). Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors. Finally, the principal dissent finds it “troubling” that the Court does not “designate any course of conduct alleged in the indictment as private.” Post , at 27. Despite the unprecedented nature of this case, the significant constitutional questions that it raises, its expedited treatment in the lower courts and in this Court, the lack of factual analysis in the lower courts, and the lack of briefing on how to categorize the conduct alleged, the principal dissent would go ahead and declare all of it unofficial. The other dissent, meanwhile, analyzes the case under comprehensive models and paradigms of its own concoction and accuses the Court of providing “no meaningful guidance about how to apply [the] new paradigm or how to categorize a President’s conduct.” Post , at 13 (opinion of Jackson, J.). It would have us exhaustively define every application of Presidential immunity. See post , at 13–14. Our dissenting colleagues exude an impressive infallibility. While their confidence may be inspiring, the Court adheres to time-tested practices instead—deciding what is required to dispose of this case and remanding after “revers[ing] on a threshold question,” Zivotofsky , 566 U. S., at 201, to obtain “guidance from the litigants [and] the court below,” Vidal v. Elster , 602 U.S. 286, 328 (2024) (Sotomayor, J., concurring in judgment). V This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic. Youngstown , 343 U. S., at 634 (Jackson, J., concurring). Our perspective must be more farsighted, for “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id. , at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id. , at 226. It is these enduring principles that guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party. The judgment of the Court of Appeals for the D. C. Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Trump contends that the indictment stretches Section 1512(c)(2) “far beyond its natural meaning.” Brief for Petitioner 39, n. 4. As we explained in Fischer v. United States , Section 1512(c)(2) covers acts that impair “the availability or integrity for use in an official proceeding of records, documents, objects, or . . . other things used in the proceeding.” 603 U. S. ___, ___ (2024) (slip op., at 16). If necessary, the District Court should determine in the first instance whether the Section 1512(c)(2) charges may proceed in light of our decision in Fischer . 2 Our decision in Clinton permitted claims alleging unofficial acts to proceed against the sitting President. See 520 U. S., at 684. In the criminal context, however, the Justice Department “has long recognized” that “the separation of powers precludes the criminal prosecution of a sitting President.” Brief for United States 9 (citing A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. OLC 222 (2000); emphasis deleted); see Tr. for Oral Arg. 78. 3 Justice Barrett disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post , at 6 (opinion concurring in part); cf. post , at 25–27 (opinion of Sotomayor, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald , 457 U. S., at 745, 756 (quoting Spalding v. Vilas , 161 U.S. 483 , 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance , 591 U.S. 786, 805 (2020). SUPREME COURT OF THE UNITED STATES _________________ No. 23–939 _________________ DONALD J. TRUMP, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the district of columbia circuit [July 1, 2024] Justice Thomas, concurring. Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts. Fortunately, the Constitution does not permit us to chart such a dangerous course. As the Court forcefully explains, the Framers “deemed an energetic executive essential to . . . the security of liberty,” and our “system of separated powers” accordingly insulates the President from prosecution for his official acts. Ante , at 10, 42 (internal quotation marks omitted). To conclude otherwise would hamstring the vigorous Executive that our Constitution envisions. “While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.” Morrison v. Olson , 487 U.S. 654 , 710–711 (1988) (Scalia, J., dissenting). I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding. I The Constitution sets forth how an office may be created and how it may be filled. The Appointments Clause provides: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.” Art. II, §2, cl. 2. The constitutional process for filling an office is plain from this text. The default manner for appointing “Officers of the United States” is nomination by the President and confirmation by the Senate. Ibid . “But the Clause provides a limited exception for the appointment of inferior officers: Congress may ‘by Law’ authorize” one of three specified actors “to appoint inferior officers without the advice and consent of the Senate.” NLRB v. SW General, Inc. , 580 U.S. 288, 312 (2017) (Thomas, J., concurring). As relevant here, a “Hea[d] of Department”—such as the Attorney General—is one such actor that Congress may authorize “by Law” to appoint inferior officers without senatorial confirmation. Art. II, §2, cl. 2. Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be “established by Law.”[ 1 ] The Constitution itself creates some offices, most obviously that of the President and Vice President. See §1. Although the Constitution contemplates that there will be “other Officers of the United States, whose Appointments are not herein otherwise provided for,” it clearly requires that those offices “shall be established by Law.” §2, cl. 2. And, “established by law” refers to an office that Congress creates “by statute.” Lucia v. SEC , 585 U.S. 237, 254 (2018) (Thomas, J., concurring); see also United States v. Maurice , 26 F. Cas. 1211, 1213 (No. 15,747) (CC Va. 1823) (Marshall, C. J.). The limitation on the President’s power to create offices grew out of the Founders’ experience with the English monarchy. The King could wield significant power by both creating and filling offices as he saw fit. He was “emphatically and truly styled the fountain of honor. He not only appoint[ed] to all offices, but [could] create offices.” The Federalist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W. Blackstone, Commentaries on the Laws of England 271 (T. Cooley ed. 1871) (“[A]s the king may create new titles, so may he create new offices”). That ability to create offices raised many “concerns about the King’s ability to amass too much power”; the King could both create a multitude of offices and then fill them with his supporters. J. Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 492 (2018) (Mascott); see also G. Wood, The Creation of the American Republic 1776–1787, p. 143 (1969) (describing “the power of appointment to offices” as “the most insidious and powerful weapon of eighteenth-century despotism”); T. Paine, Common Sense (1776), reprinted in The Great Works of Thomas Paine 11 (1877) (explaining that “the crown . . . derives its whole consequence merely from being the giver of places and pensions”). In fact, one of the grievances raised by the American colonists in declaring their independence was that the King “ha[d] erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Declaration of Independence ¶12. The Founders thus drafted the Constitution with “evidently a great inferiority in the power of the President, in this particular, to that of the British king.” The Federalist No. 69, at 421. The Founders broke from the monarchial model by giving the President the power to fill offices (with the Senate’s approval), but not the power to create offices. They did so by “imposing the constitutional requirement that new officer positions be ‘established by Law’ rather than through a King-like custom of the head magistrate unilaterally creating new offices.” Mascott 492–493 (footnote omitted); see also 1 Annals of Cong. 581–582 (1789) (“The powers relative to offices are partly Legislative and partly Executive. The Legislature creates the office, defines the powers, limits its duration, and annexes a compensation”); see also ibid . (describing the power to “designat[e] the man to fill the office” as “of an Executive nature”). The Constitution thus “giv[es] Congress broad authority to establish and organize the Executive Branch.” Seila Law LLC v. Consumer Financial Protection Bureau , 591 U.S. 197, 266 (2020) (Kagan, J., concurring in judgment in part and dissenting in part). By keeping the ability to create offices out of the President’s hands, the Founders ensured that no President could unilaterally create an army of officer positions to then fill with his supporters. Instead, our Constitution leaves it in the hands of the people’s elected representatives to determine whether new executive offices should exist. Longstanding practice from the founding to today comports with this original understanding that Congress must create offices by law. The First Congress, for instance, routinely and explicitly created offices by statute. See, e . g ., §35, 1Stat. 92–93 (creating the offices of Attorney General and U. S. Attorney for each district); see also §§1–2, id ., at 50 (creating offices of Secretary of War and his Chief Clerk); ch. 12, §1, id ., at 65 (creating offices within the Department of Treasury for Secretary of the Treasury, a Comptroller, Auditor, Treasurer, Register, and Assistant to the Secretary). Still today, Congress creates the offices that the Executive Branch may fill. For example, Congress has created several offices within the Department of Justice, including the offices of the Attorney General, Deputy Attorney General, Associate Attorney General, Solicitor General, and Assistant Attorneys General. See 28 U. S. C. §§503–506. For some agencies, Congress has also granted the agency head the power to “appoint such officers and employees . . . as are necessary to execute the functions vested in him.” 7 U. S. C. §610(a) (Department of Agriculture); see also, e . g ., 20 U. S. C. §3461 (Department of Education); 42 U. S. C. §913 (Department of Health and Human Services). In the past, Congress has at times expressly created offices similar to the position now occupied by the Special Counsel. Congress created an office for a “special counsel” to investigate the Teapot Dome Scandal and pursue prosecutions. See ch. 16, 43Stat. 6. And, a statute provided for “the appointment of an independent counsel” that we addressed in Morrison v. Olson . See 28 U. S. C. §592. That statute lapsed, and Congress has not since reauthorized the appointment of an independent counsel. See §599.[ 2 ] We cannot ignore the importance that the Constitution places on who creates a federal office. To guard against tyranny, the Founders required that a federal office be “established by Law.” As James Madison cautioned, “[i]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord. II It is difficult to see how the Special Counsel has an office “established by Law,” as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. See Dept. of Justice Order No. 5559–2022 (Nov. 18, 2022). Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have.[ 3 ] See supra , at 5. Instead, the Attorney General relied upon several statutes of a general nature. See Order No. 5559–2022 (citing 28 U. S. C. §§509, 510, 515, 533). None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose. See, e . g ., 43Stat. 6 (“[T]he President is further authorized and directed to appoint . . . special counsel who shall have charge and control of the prosecution of such litigation”). Sections 509 and 510 are generic provisions concerning the functions of the Attorney General and his ability to delegate authority to “any other officer, employee, or agency.” Section 515 contemplates an “attorney specially appointed by the Attorney General under law ,” thereby suggesting that such an attorney’s office must have already been created by some other law. (Emphasis added.) As for §533, it provides that “[t]he Attorney General may appoint officials . . . to detect and prosecute crimes against the United States.” (Emphasis added.) It is unclear whether an “official” is equivalent to an “officer” as used by the Constitution. See Lucia , 585 U. S., at 254–255 (opinion of Thomas, J.) (considering the meaning of “officer”). Regardless, this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel. It is placed in a chapter concerning the Federal Bureau of Investigation (§§531–540d), not the separate chapters concerning U. S. Attorneys (§§541–550) or the now-lapsed Independent Counsel (§§591–599).[ 4 ] To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon , 418 U.S. 683 , 694 (1974), but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so. Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid . So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.” Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison , 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it. *  *  * In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. The Constitution provides for “an energetic executive,” because such an Executive is “essential to . . . the security of liberty.” Ante , at 10 (internal quotation marks omitted). Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee. Notes 1 Although a Government official may also be a “nonofficer employe[e],” I set aside that category because it is difficult to see how an official exercising the Department of Justice’s duties to enforce the criminal law by leading a prosecution could be anything but an officer. Lucia v. SEC , 585 U.S. 237, 253, n. 1 (2018) (Thomas, J., concurring); see SW General , 580 U. S., at 314 (opinion of Thomas, J.). If the Special Counsel were a nonofficer employee, the constitutional problems with this prosecution would only be more serious. For now, I assume without deciding that the Special Counsel is an officer. 2 To be sure, a few Presidents have appointed “special prosecutors” without pointing to any express statutory authorization. See generally T. Eastland, Ethics, Politics and the Independent Counsel 8–9 (1989) (describing past uses of special prosecutors). But, this Court had no occasion to review the constitutionality of those prosecutors’ authority. 3 In fact, Congress gave the Attorney General the power to appoint “additional officers . . . as he deems necessary”—but, only for the Bureau of Prisons. 18 U. S. C. §4041. 4 Regulations remain on the books that contemplate an “outside” Special Counsel, 28 CFR §600.1 (2023), but I doubt a regulation can create a federal office without underlying statutory authority to do so. SUPREME COURT OF THE UNITED STATES _________________ No. 23–939 _________________ DONALD J. TRUMP, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the district of columbia circuit [July 1, 2024] Justice Barrett, concurring in part. For reasons I explain below, I do not join Part III–C of the Court’s opinion. The remainder of the opinion is consistent with my view that the Constitution prohibits Congress from criminalizing a President’s exercise of core Article II powers and closely related conduct. That said, I would have framed the underlying legal issues differently. The Court describes the President’s constitutional protection from certain prosecutions as an “immunity.” As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling. There appears to be substantial agreement on the first point. Like the Court, the dissenting Justices and the Special Counsel all accept that some prosecutions of a President’s official conduct may be unconstitutional. See post , at 16 (opinion of Sotomayor, J.); Brief for United States 24–30. As for interlocutory review, our precedent recognizes that resolving certain legal issues before trial is necessary to safeguard important constitutional interests—here, Executive Branch independence on matters that Article II assigns to the President’s discretion. Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. See ante , at 14. I would have answered it now. Though I agree that a President cannot be held criminally liable for conduct within his “conclusive and preclusive” authority and closely related acts, ante , at 8–9, the Constitution does not vest every exercise of executive power in the President’s sole discretion, Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 637 (1952) (Jackson, J., concurring).[ 1 ] Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute. Article II poses no barrier to prosecution in such cases. I would thus assess the validity of criminal charges predicated on most official acts— i.e. , those falling outside of the President’s core executive power—in two steps. The first question is whether the relevant criminal statute reaches the President’s official conduct. Not every broadly worded statute does. For example, §956 covers conspiracy to murder in a foreign country and does not expressly exclude the President’s decision to, say, order a hostage rescue mission abroad. 18 U. S. C. §956(a). The underlying murder statute, however, covers only “unlawful” killings. §1111. The Office of Legal Counsel has interpreted that phrase to reflect a public-authority exception for official acts involving the military and law enforcement. Memorandum from D. Barron, Acting Assistant Atty. Gen., to E. Holder, Atty. Gen., Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi 12–19 (July 16, 2010); see also Brief for United States 29–30; post , at 16, and n. 3 (Sotomayor, J., dissenting). I express no view about the merits of that interpretation, but it shows that the threshold question of statutory interpretation is a nontrivial step. If the statute covers the alleged official conduct, the prosecution may proceed only if applying it in the circumstances poses no “ ‘dange[r] of intrusion on the authority and functions of the Executive Branch.’ ” Ante , at 14 (quoting Nixon v. Fitzgerald , 457 U.S. 731 , 754 (1982)). On remand, the lower courts will have to apply that standard to various allegations involving the President’s official conduct.[ 2 ] Some of those allegations raise unsettled questions about the scope of Article II power, see ante , at 21–28, but others do not. For example, the indictment alleges that the President “asked the Arizona House Speaker to call the legislature into session to hold a hearing” about election fraud claims. App. 193. The President has no authority over state legislatures or their leadership, so it is hard to see how prose- cuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power. This two-step analysis—considering first whether the statute applies and then whether its application to the particular facts is constitutional—is similar to the approach that the Special Counsel presses in this Court. Brief for United States 24–30. It is also our usual approach to considering the validity of statutes in situations raising a constitutional question. See, e . g ., Seila Law LLC v. Consumer Financial Protection Bureau , 591 U.S. 197, 213, 229 (2020).[ 3 ] An important difference in this context is that the President is entitled to an interlocutory appeal of the trial court’s ruling. See ante , at 36. A criminal defendant in federal court normally must wait until after trial to seek review of the trial court’s refusal to dismiss charges. See United States v. MacDonald , 435 U.S. 850 , 853–854 (1978); see also 18 U. S. C. §3731. But where trial itself threatens certain constitutional interests, we have treated the trial court’s resolution of the issue as a “final decision” for purposes of appellate jurisdiction. MacDonald , 435 U. S., at 854–856; see 28 U. S. C. §1291; see also §1257. The present circumstances fall squarely within our precedent authorizing interlocutory review. When a President moves to dismiss an indictment on Article II grounds, he “makes no challenge whatsoever to the merits of the charge against him.” Abney v. United States , 431 U.S. 651 , 659 (1977) (allowing interlocutory appeal of rejection of double jeopardy defense). He instead contests whether the Constitution allows Congress to criminalize the alleged conduct, a question that is “collateral to, and separable from” his guilt or innocence. Ibid . Moreover, the President’s Executive Branch authority “would be significantly undermined if appellate review” of the constitutional challenge “were postponed until after conviction and sentence.” Id ., at 660; see also Helstoski v. Meanor , 442 U.S. 500 , 507 (1979) (allowing interlocutory appeal of refusal to dismiss an indictment on Speech or Debate Clause grounds). The prospect of a trial court erroneously allowing the prosecution to proceed poses a unique danger to the “independence of the Executive Branch.” Trump v. Vance , 591 U.S. 786, 800 (2020). As the Court explains, the possibility that the President will be made to defend his official conduct before a jury after he leaves office could distort his decisions while in office. Ante , at 13–14, 36. These Article II concerns do not insulate the President from prosecution. But they do justify interlocutory review of the trial court’s final decision on the President’s as-applied constitutional challenge. See Helstoski , 442 U. S., at 507–508; Abney , 431 U. S., at 659–661; see also Reply Brief for United States in No. 23–624, p. 5 (agreeing that the President “has a right to an interlocutory appeal from the district court’s rejection of his immunity defense”). I understand most of the Court’s opinion to be consistent with these views. I do not join Part III–C, however, which holds that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege. See ante , at 30–32. I disagree with that holding; on this score, I agree with the dissent. See post , at 25–27 (Sotomayor, J., dissenting). The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” 18 U. S. C. §201(c). The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. See Art. II, §4 (listing “Bribery” as an impeachable offense); see also Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 5 (Aug. 28, 1974) (suggesting that the federal bribery statute applies to the President). Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo , the jury must be allowed to hear about both the quid and the quo , even if the quo , standing alone, could not be a basis for the President’s criminal liability. I appreciate the Court’s concern that allowing into evidence official acts for which the President cannot be held criminally liable may prejudice the jury. Ante , at 31. But the rules of evidence are equipped to handle that concern on a case-by-case basis. Most importantly, a trial court can exclude evidence of the President’s protected conduct “if its probative value is substantially outweighed by a danger of . . . unfair prejudice” or “confusing the issues.” Fed. Rule Evid. 403; see also Rule 105 (requiring the court to “restrict the evidence to its proper scope and instruct the jury accordingly”). The balance is more likely to favor admitting evidence of an official act in a bribery prosecution, for instance, than one in which the protected conduct has little connection to the charged offense. And if the evidence comes in, the trial court can instruct the jury to consider it only for lawful purposes. See Richardson v. Marsh , 481 U.S. 200 , 206–207 (1987). I see no need to depart from that familiar and time-tested procedure here. *  *  * The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge. See, e . g ., Collins v. Yellen , 594 U.S. 220, 235–236 (2021); Zivotofsky v. Clinton , 566 U.S. 189 , 192–194 (2012); Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 487–488 (2010). A criminal statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial. Notes 1 Consistent with our separation of powers precedent, I agree with the Court that the supervision and removal of appointed, high ranking Justice Department officials falls within the President’s core executive power. See Seila Law LLC v. Consumer Financial Protection Bureau , 591 U.S. 197, 213–215 (2020); ante , at 19–21. I do not understand the Court to hold that all exercises of the Take Care power fall within the core executive power. Cf. post , at 24 (Sotomayor, J., dissenting). I agree with the dissent that the Constitution does not justify such an expansive view. Ibid. 2 This analysis is unnecessary for allegations involving the President’s private conduct because the Constitution offers no protection from prosecution of acts taken in a private capacity. Ante , at 15. Sorting private from official conduct sometimes will be difficult—but not always. Take the President’s alleged attempt to organize alternative slates of electors. See, e . g ., App. 208. In my view, that conduct is private and therefore not entitled to protection. See post , at 27–28 (Sotomayor, J., dissenting). The Constitution vests power to appoint Presidential electors in the States. Art. II, §1, cl. 2; see also Chiafalo v. Washington , 591 U.S. 578, 588–589 (2020). And while Congress has a limited role in that process, see Art. II, §1, cls. 3–4, the President has none. In short, a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct. 3 The Court has sometimes applied an avoidance canon when inter-preting a statute that would interfere with the President’s prerogatives. See, e.g. , Franklin v. Massachusetts , 505 U.S. 788 , 800–801 (1992); Public Citizen v. Dept. of Justice , 491 U.S. 440 , 465–467 (1989); see also Sale v. Haitian Centers Council, Inc. , 509 U.S. 155 , 188 (1993). The Office of Legal Counsel has advocated for a clear-statement rule if applying a statute would “raise serious constitutional questions relating to the President’s constitutional authority.” See Application of 28 U. S. C. §458 to Presidential Appointments of Federal Judges, 19 Op. OLC 350, 350–357 (1995). In my view, neither canon applies in this circumstance. Courts should instead determine the statute’s ordinary meaning and, if it covers the alleged official acts, assess whether prosecution would intrude on the President’s constitutional authority. See Public Citizen , 491 U. S., at 481–482 (Kennedy, J., concurring in judgment) (declining to apply the avoidance canon and concluding that the Federal Advisory Committee Act is unconstitutional as applied). SUPREME COURT OF THE UNITED STATES _________________ No. 23–939 _________________ DONALD J. TRUMP, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the district of columbia circuit [July 1, 2024] Justice Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting. Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent. I The indictment paints a stark portrait of a President desperate to stay in power. In the weeks leading up to January 6, 2021, then- President Trump allegedly “spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” App. 181, Indictment ¶2, despite being “notified repeatedly” by his closest advisers “that his claims were untrue,” id ., at 188, ¶11. When dozens of courts swiftly rejected these claims, Trump allegedly “pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors” in his favor. Id ., at 185–186, ¶10(a). It is alleged that he went so far as to threaten one state election official with criminal prosecution if the official did not “ ‘find’ 11,780 votes” Trump needed to change the election result in that state. Id ., at 202, ¶31(f ). When state officials repeatedly declined to act outside their legal authority and alter their state election processes, Trump and his co-conspirators purportedly developed a plan to disrupt and displace the legitimate election certification process by organizing fraudulent slates of electors. See id ., at 208–209, ¶¶53–54. As the date of the certification proceeding neared, Trump allegedly also sought to “use the power and authority of the Justice Department” to bolster his knowingly false claims of election fraud by initiating “sham election crime investigations” and sending official letters “falsely claim[ing] that the Justice Department had identified significant concerns that may have impacted the election outcome” while “falsely present[ing] the fraudulent electors as a valid alternative to the legitimate electors.” Id ., at 186–187, ¶10(c). When the Department refused to do as he asked, Trump turned to the Vice President. Initially, he sought to persuade the Vice President “to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Id ., at 187, ¶10(d). When persuasion failed, he purportedly “attempted to use a crowd of supporters that he had gathered in Washington, D. C., to pressure the Vice President to fraudulently alter the election results.” Id ., at 221, ¶86. Speaking to that crowd on January 6, Trump “falsely claimed that, based on fraud, the Vice President could alter the outcome of the election results.” Id ., at 229, ¶104(a). When this crowd then “violently attacked the Capitol and halted the proceeding,” id ., at 188, ¶10(e), Trump allegedly delayed in taking any step to rein in the chaos he had unleashed. Instead, in a last desperate ploy to hold onto power, he allegedly “attempted to exploit the violence and chaos at the Capitol” by pressuring lawmakers to delay the certification of the election and ultimately declare him the winner. Id ., at 233, ¶119. That is the backdrop against which this case comes to the Court. II The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law. The majority makes three moves that, in effect, completely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s exercise of “core constitutional powers.” Ante, at 6. This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].” Ante, at 14. Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. See ante, at 30–32. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical. Argument by argument, the majority invents immunity through brute force. Under scrutiny, its arguments crumble. To start, the majority’s broad “official acts” immunity is inconsistent with text, history, and established understandings of the President’s role. See Part III, infra . Moreover, it is deeply wrong, even on its own functionalist terms. See Part IV, infra . Next, the majority’s “core” immunity is both unnecessary and misguided. See Part V, infra . Furthermore, the majority’s illogical evidentiary holding is unprecedented. See Part VI, infra . Finally, this majority’s project will have disastrous consequences for the Presidency and for our democracy. See Part VII, infra . III The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is “at least . . . presumptive ,” and quite possibly “absolute.” Ante, at 14. Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him. This official-acts immunity has “no firm grounding in constitutional text, history, or precedent.” Dobbs v. Jackson Women’s Health Organization , 597 U.S. 215, 280 (2022). Indeed, those “standard grounds for constitutional decisionmaking,” id ., at 279, all point in the opposite direction. No matter how you look at it, the majority’s official-acts immunity is utterly indefensible. A The majority calls for a “careful assessment of the scope of Presidential power under the Constitution.” Ante, at 5. For the majority, that “careful assessment” does not involve the Constitution’s text. I would start there. The Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents. Of course, “the silence of the Constitution on this score is not dispositive.” United States v. Nixon , 418 U.S. 683 , 706, n. 16 (1974). Insofar as the majority rails against the notion that a “ ‘specific textual basis’ ” is required, ante, at 37 (quoting Nixon v. Fitzgerald , 457 U.S. 731 , 750, n. 31 (1982)), it is attacking an argument that has not been made here. The omission in the text of the Constitution is worth noting, however, for at least three reasons. First, the Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. See Art. I, §6, cl. 1 (“Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place”). They did not extend the same or similar immunity to Presidents. Second, “some state constitutions at the time of the Framing specifically provided ‘express criminal immunities’ to sitting governors.” Brief for Scholars of Constitutional Law as Amici Curiae 4 (quoting S. Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)). The Framers chose not to include similar language in the Constitution to immunize the President. If the Framers “had wanted to create some constitutional privilege to shield the President . . . from criminal indictment,” they could have done so. Memorandum from R. Rotunda to K. Starr re: Indictability of the President 18 (May 13, 1998). They did not. Third, insofar as the Constitution does speak to this question, it actually contemplates some form of criminal liability for former Presidents. The majority correctly rejects Trump’s argument that a former President cannot be prosecuted unless he has been impeached by the House and convicted by the Senate for the same conduct. See ante, at 32–34; Part IV–C, infra . The majority ignores, however, that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Art. I, §3, cl. 7 (emphasis added). That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as “Bribery,” Art. II, §4, which implicates official acts almost by definition.[ 1 ] B Aware of its lack of textual support, the majority points out that this Court has “recognized Presidential immunities and privileges ‘rooted in the constitutional tradition of the separation of powers and supported by our history.’ ” Ante , at 10 (quoting Fitzgerald , 457 U. S., at 749). That is true, as far as it goes. Nothing in our history, however, supports the majority’s entirely novel immunity from criminal prosecution for official acts. The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it. For instance, Alexander Hamilton wrote that former Presidents would be “liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, p. 452 (J. Harv. Lib. ed. 2009). For Hamilton, that was an important distinction between “the king of Great Britain,” who was “sacred and inviolable,” and the “President of the United States,” who “would be amenable to personal punishment and disgrace.” Id ., at 458. In contrast to the king, the President should be subject to “personal responsibility” for his actions, “stand[ing] upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware,” whose State Constitutions gave them some immunity. Id ., at 452. At the Constitutional Convention, James Madison, who was aware that some state constitutions provided governors immunity, proposed that the Convention “conside[r ] what privileges ought to be allowed to the Executive.” 2 Records of the Federal Convention of 1787, p. 503 (M. Farrand ed. 1911). There is no record of any such discussion. Ibid. Delegate Charles Pinckney later explained that “[t]he Convention which formed the Constitution well knew” that “no subject had been more abused than privilege,” and so it “determined to . . . limi[t] privilege to what was necessary, and no more.” 3 id. , at 385. “No privilege . . . was intended for [the] Executive.” Ibid. [ 2 ] Other commentators around the time of the Founding observed that federal officials had no immunity from prosecution, drawing no exception for the President. James Wilson recognized that federal officers who use their official powers to commit crimes “may be tried by their country; and if their criminality is established, the law will punish. A grand jury may present, a petty jury may convict, and the judges will pronounce the punishment.” 2 Debates on the Constitution 177 (J. Elliot ed. 1836). A few decades later, Justice Story evinced the same understanding. He explained that, when a federal official commits a crime in office, “it is indispensable, that provision should be made, that the common tribunals of justice should be at liberty to entertain jurisdiction of the offence, for the purpose of inflicting, the common punishment applicable to unofficial offenders.” 2 Commentaries on the Constitution of the United States §780, pp. 250–251 (1833). Without a criminal trial, he explained, “the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.” Id ., at 251. This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law. The majority fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is a wash. See ante, at 38–39. It claims that the Court previously has described the “relevant historical evidence on the question of Presidential immunity” as “ ‘fragmentary’ ” and not worthy of consideration. Ante, at 38 (quoting Fitzgerald , 457 U. S., at 752, n. 31). Yet the Court has described only the evidence regarding “the President’s immunity from damages liability ” as “fragmentary.” Fitzgerald , 457 U. S., at 751–752, n. 31 (emphasis added). Moreover, far from dismissing that evidence as irrelevant, the Fitzgerald Court was careful to note that “[t]he best historical evidence clearly support[ed]” the immunity from damages liability that it recognized, and it relied in part on that historical evidence to overcome the lack of any textual basis for its immunity. Id ., at 152, n. 31. The majority ignores this reliance. It seems history matters to this Court only when it is convenient. See, e . g ., New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U.S. 1 (2022); Dobbs , 597 U.S. 215. C Our country’s history also points to an established understanding, shared by both Presidents and the Justice Department, that former Presidents are answerable to the criminal law for their official acts. Cf. Chiafalo v. Washington , 591 U.S. 578, 592–593 (2020) (“ ‘Long settled and established practice’ may have ‘great weight in a proper interpretation of constitutional provisions’ ” (quoting The Pocket Veto Case , 279 U.S. 655 , 689 (1929))). Consider Watergate, for example. After the Watergate tapes revealed President Nixon’s misuse of official power to obstruct the Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s acceptance of the pardon necessarily “rested on the understanding that the former President faced potential criminal liability.” Brief for United States 15; see also Public Papers of the Presidents, Gerald R. Ford, Vol. 1, Sept. 8, 1974, p. 103 (1975) (granting former President Nixon a “full, free, and absolute pardon . . . for all offenses against the United States which he . . . has committed or may have committed or taken part in during” his Presidency); R. Nixon, Statement by Former President Richard Nixon to P. Buchen, Counsel to President Ford, p. 1 (Sept. 8, 1974) (accepting “full and absolute pardon for any charges which might be brought against me for actions taken during the time I was President of the United States”). Subsequent special counsel and independent counsel investigations have also operated on the assumption that the Government can criminally prosecute former Presidents for their official acts, where they violate the criminal law. See, e . g ., 1 L. Walsh, Final Report of the Independent Counsel for Iran/Contra Matters: Investigations and Prosecutions 445 (1993) (“[B]ecause a President, and certainly a past President, is subject to prosecution . . . the conduct of President Reagan in the Iran/contra matter was reviewed by Independent Counsel against the applicable statutes. It was concluded that [his] conduct fell well short of criminality which could be successfully prosecuted”). Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him “in any way above the law.” 2 Proceedings of the U. S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. 117–2, p. 144 (2021). They insisted that a former President “is like any other citizen and can be tried in a court of law.” Ibid. ; see also 1 id ., S. Doc. 117–3, at 339 (Trump’s impeachment counsel stating that “no former officeholder is immune” from the judicial process “for investigation, prosecution, and punishment”); id ., at 322–323 (Trump’s impeachment counsel stating: “If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense . . . [a]fter he is out of office, you go and arrest him”). Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated “like any other citizen” no longer seems so appealing. In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them. IV A Setting aside this evidence, the majority announces that former Presidents are “absolute[ly],” or “at least . . . presumptive[ly],” immune from criminal prosecution for all of their official acts. Ante, at 14 (emphasis omitted). The majority purports to keep us in suspense as to whether this immunity is absolute or presumptive, but it quickly gives up the game. It explains that, “[a]t a minimum, the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’ ” Ibid. (emphasis added). No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. Nor should that be the standard. Surely some intrusions on the Executive may be “justified by an overriding need to promote objectives within the constitutional authority of Congress.” Nixon v. Administrator of General Services , 433 U.S. 425 , 443 (1977). Other intrusions may be justified by the “primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” United States v. Nixon , 418 U.S. 683 , 707 (1974). According to the majority, however, any incursion on Executive power is too much. When presumptive immunity is this conclusive, the majority’s indecision as to “whether [official-acts] immunity must be absolute” or whether, instead, “presumptive immunity is sufficient,” ante, at 6, hardly matters. Maybe some future opinion of this Court will decide that presumptive immunity is “sufficient,” ibid. , and replace the majority’s ironclad presumption with one that makes the difference between presumptive and absolute immunity meaningful. Today’s Court, however, has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts. Quick on the heels of announcing this astonishingly broad official-acts immunity, the majority assures us that a former President can still be prosecuted for “unofficial acts.” Ante, at 15. Of course he can. No one has questioned the ability to prosecute a former President for unofficial (otherwise known as private) acts. Even Trump did not claim immunity for such acts and, as the majority acknowledges, such an immunity would be impossible to square with Clinton v. Jones , 520 U.S. 681 (1997). See ante , at 15. This unremarkable proposition is no real limit on today’s decision. It does not hide the majority’s embrace of the most far-reaching view of Presidential immunity on offer. In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “ ‘not manifestly or palpably beyond [his] authority,’ ” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump , 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18. It is one thing to say that motive is irrelevant to questions regarding the scope of civil liability, but it is quite another to make it irrelevant to questions regarding criminal liability. Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed “unofficial” is destined to be vanishingly small. Ultimately, the majority pays lip service to the idea that “[t]he President, charged with enforcing federal criminal laws, is not above them,” ante, at 13–14, but it then proceeds to place former Presidents beyond the reach of the federal criminal laws for any abuse of official power. B So how does the majority get to its rule? With text, history, and established understanding all weighing against it, the majority claims just one arrow in its quiver: the balancing test in Nixon v. Fitzgerald , 457 U.S. 731 (1983). Yet even that test cuts against it. The majority concludes that official-acts immunity “is required to safeguard the independence and effective functioning of the Executive Branch,” ante, at 14, by rejecting that Branch’s own protestations that such immunity is not at all required and would in fact be harmful, see Brief for United States 18–24, 29–30. In doing so, it decontextualizes Fitzgerald ’s language, ignores important qualifications, and reaches a result that the Fitzgerald Court never would have countenanced. In Fitzgerald , plaintiff A. Ernest Fitzgerald sued then-former President Nixon for money damages. He claimed that, while in office, Nixon had been involved in unlawfully firing him from his government job. See 457 U. S., at 733–741. The question for the Court was whether a former President had immunity from such a civil suit. The Court explained that it was “settled law that the separation-of- powers doctrine does not bar every exercise of jurisdiction over the President of the United States.” Id ., at 753–754. To determine whether a particular type of suit against a President (or former President) could be heard, a court “must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” Id ., at 754. The Court explained that, “[w]hen judicial action is needed to serve broad public interests—as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, or to vindicate the public interest in an ongoing criminal prosecution—the exercise of jurisdiction has been held warranted.” Ibid. (citations omitted). On the facts before it, the Court concluded that a “merely private suit for damages based on a President’s official acts” did not serve those interests. Ibid. The Court reasoned that the “visibility of [the President’s] office and the effect of his actions on countless people” made him an easy target for civil suits that “frequently could distract [him] from his public duties.” Id ., at 753. The public interest in such private civil suits, the Court concluded, was comparatively weak. See id ., at 754, n. 37 (“[T]here is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions”). Therefore, the Court held that a former President was immune from such suits. Ibid. In the context of a federal criminal prosecution of a former President, however, the danger to the functioning of the Executive Branch is much reduced. Further, as every member of the Fitzgerald Court acknowledged, see Part IV–B–2, infra , the public interest in a criminal prosecution is far weightier. Applying the Fitzgerald balancing here should yield the opposite result. Instead, the majority elides any difference between civil and criminal immunity, granting Trump the same immunity from criminal prosecution that Nixon enjoyed from an unlawful termination suit. That is plainly wrong. 1 The majority relies almost entirely on its view of the danger of intrusion on the Executive Branch, to the exclusion of the other side of the balancing test. Its analysis rests on a questionable conception of the President as incapable of navigating the difficult decisions his job requires while staying within the bounds of the law. It also ignores the fact that he receives robust legal advice on the lawfulness of his actions. The majority says that the danger “of intrusion on the authority and functions of the Executive Branch” posed by criminally prosecuting a former President for official conduct “is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” Ante, at 13 (quoting Fitzgerald , 457 U. S., at 745). It is of course important that the President be able to “ ‘ “deal fearlessly and impartially with” the duties of his office.’ ” Ante, at 10 (quoting Fitzgerald , 457 U. S., at 752). If every action the President takes exposes him personally to vexatious private litigation, the possibility of hamstringing Presidential decisionmaking is very real. Yet there are many facets of criminal liability, which the majority discounts, that make it less likely to chill Presidential action than the threat of civil litigation. First, in terms of probability, the threat of criminal liability is much smaller. In Fitzgerald , the threat of vexatious civil litigation loomed large. The Court observed that, given the “visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages.” Id ., at 753. Although “ ‘the effect of [the President’s] actions on countless people’ could result in untold numbers of private plaintiffs suing for damages based on any number of Presidential acts” in the civil context, the risk in the criminal context is “only that a former President may face one federal prosecution, in one jurisdiction, for each criminal offense allegedly committed while in office.” 2023 WL 8359833, *9 (DC, Dec. 1, 2023) (quoting Fitzgerald , 457 U. S., at 753). The majority’s bare assertion that the burden of exposure to federal criminal prosecution is more limiting to a President than the burden of exposure to civil suits does not make it true, and it is not persuasive. Second, federal criminal prosecutions require “robust procedural safeguards” not found in civil suits. 2023 WL 8359833, *10. The criminal justice system has layers of protections that “filter out insubstantial legal claims,” whereas civil litigation lacks “analogous checks.” Cheney v. United States Dist. Court for D. C. , 542 U.S. 367 , 386 (2004). To start, Justice Department policy requires scrupulous and impartial prosecution, founded on both the facts and the law. See generally Dept. of Justice, Justice Manual §9–27.000 (Principles of Federal Prosecution) (June 2023). The grand jury provides an additional check on felony prosecutions, acting as a “buffer or referee between the Government and the people,” to ensure that the charges are well-founded. United States v. Williams , 504 U.S. 36 , 47 (1992); see also Harlow v. Fitzgerald , 457 U.S. 800 , 826, n. 6 (1982) (Burger, C. J., dissenting) (“[A] criminal prosecution cannot be commenced absent careful consideration by a grand jury at the request of a prosecutor; the same check is not present with respect to the commencement of civil suits in which advocates are subject to no realistic accountability”). If the prosecution makes it past the grand jury, then the former President still has all the protections our system provides to criminal defendants. If the former President has an argument that a particular statute is unconstitutional as applied to him, then he can move to dismiss the charges on that ground. Indeed, a former President is likely to have legal arguments that would be unavailable to the average criminal defendant. For example, he may be able to rely on a public-authority exception from particular criminal laws,[ 3 ] or an advice-of-the-Attorney-General defense, see Tr. of Oral Arg. 107–108.[ 4 ] If the case nonetheless makes it to trial, the Government will bear the burden of proving every element of the alleged crime beyond a reasonable doubt to a unanimous jury of the former President’s fellow citizens. See United States v. Gaudin , 515 U.S. 506 , 510 (1995). If the Government manages to overcome even that significant hurdle, then the former President can appeal his conviction, and the appellate review of his claims will be “ ‘particularly meticulous.’ ” Trump v. Vance , 591 U.S. 786, 809 (2020) (quoting Nixon , 418 U. S., at 702). He can ultimately seek this Court’s review, and if past practice (including in this case) is any indication, he will receive it. In light of these considerable protections, the majority’s fear that “ ‘bare allegations of malice,’ ” ante, at 18 (alteration omitted), would expose former Presidents to trial and conviction is unfounded. Bare allegations of malice would not make it out of the starting gate. Although a private civil action may be brought based on little more than “ ‘intense feelings,’ ” ante, at 11 (quoting Fitzgerald , 457 U. S., at 752), a federal criminal prosecution is made of firmer stuff. Certainly there has been, on occasion, great feelings of animosity between incoming and outgoing Presidents over the course of our country’s history. Yet it took allegations as grave as those at the center of this case to have the first federal criminal prosecution of a former President. That restraint is telling. Third, because of longstanding interpretations by the Executive Branch, every sitting President has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office. The majority insists that the threat of criminal sanctions is “more likely to distort Presidential decisionmaking than the potential payment of civil damages.” Ante, at 13. If that is right, then that distortion has been shaping Presidential decisionmaking since the earliest days of the Republic. Although it makes sense to avoid “diversion of the President’s attention during the decisionmaking process” with “needless worry,” Clinton , 520 U. S., at 694, n. 19, one wonders why requiring some small amount of his attention (or his legal advisers’ attention) to go towards complying with federal criminal law is such a great burden. If the President follows the law that he must “take Care” to execute, Art. II, §3, he has not been rendered “ ‘unduly cautious,’ ” ante, at 10 (quoting Fitzgerald , 457 U. S., at 752, n. 32). Some amount of caution is necessary, after all. It is a far greater danger if the President feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity. I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law. So what exactly is the majority worried about deterring when it expresses great concern for the “deterrent” effect that “the threat of trial, judgment, and imprisonment” would pose? Ante, at 13. It cannot possibly be the deterrence of acts that are truly criminal. Nor does it make sense for the majority to wring its hands over the possibility that Presidents might stop and think carefully before taking action that borders on criminal. Instead, the majority’s main concern could be that Presidents will be deterred from taking necessary and lawful action by the fear that their successors might pin them with a baseless criminal prosecution—a prosecution that would almost certainly be doomed to fail, if it even made it out of the starting gate. See ante, at 40. The Court should not have so little faith in this Nation’s Presidents. As this Court has said before in the context of criminal proceedings, “ ‘[t]he chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice.’ ” Nixon , 418 U. S., at 712, n. 20 (quoting Clark v. United States , 289 U.S. 1 , 16 (1933)). The concern that countless (and baseless) civil suits would hamper the Executive may have been justified in Fitzgerald , but a well-founded federal criminal prosecution poses no comparable danger to the functioning of the Executive Branch. 2 At the same time, the public interest in a federal criminal prosecution of a former President is vastly greater than the public interest in a private individual’s civil suit. All nine Justices in Fitzgerald explicitly recognized that distinction. The five-Justice majority noted that there was a greater public interest “in criminal prosecutions” than in “actions for civil damages.” 457 U. S., at 754, n. 37. Chief Justice Burger’s concurrence accordingly emphasized that the majority’s immunity was “limited to civil damages claims,” rather than “ criminal prosecution.” Id ., at 759–760. The four dissenting Justices agreed that a “contention that the President is immune from criminal prosecution in the courts,” if ever made, would not “be credible.” Id ., at 780 (White, J., dissenting). At the very least, the Fitzgerald Court did not expect that its balancing test would lead to the same outcome in the criminal context. The public’s interest in prosecution is transparent: a federal prosecutor herself acts on behalf of the United States. Even the majority acknowledges that the “[f]ederal criminal laws seek to redress ‘a wrong to the public’ as a whole, not just ‘a wrong to the individual,’ ” ante, at 13 (quoting Huntington v. Attrill , 146 U.S. 657 , 668 (1892)), such that there is “a compelling ‘public interest in fair and effective law enforcement,’ ” ante, at 13 (quoting Vance , 591 U. S., at 808). Indeed, “our historic commitment to the rule of law” is “nowhere more profoundly manifest than in our view that . . . ‘guilt shall not escape or innocence suffer.’ ” Nixon , 418 U. S., at 708–709 (quoting Berger v. United States , 295 U.S. 78 , 88 (1935)). The public interest in criminal prosecution is particularly strong with regard to officials who are granted some degree of civil immunity because of their duties. It is in those cases where the public can see that officials exercising power under public trust remain on equal footing with their fellow citizens under the criminal law. See, e . g ., O’Shea v. Littleton , 414 U.S. 488 , 503 (1974) (“[W]e have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights”); Dennis v. Sparks , 449 U.S. 24 , 31 (1980) (“[J]udicial immunity was not designed to insulate the judiciary from all aspects of public accountability. Judges are immune from §1983 damages actions, but they are subject to criminal prosecutions as are other citizens”); Imbler v. Pachtman , 424 U.S. 409 , 428–429 (1976) (“We emphasize that the [civil] immunity of prosecutors . . . does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally”). The public interest in the federal criminal prosecution of a former President alleged to have used the powers of his office to commit crimes may be greater still. “[T]he President . . . represent[s] all the voters in the Nation,” and his powers are given by the people under our Constitution. Anderson v. Celebrezze , 460 U.S. 780 , 795 (1983). When Presidents use the powers of their office for personal gain or as part of a criminal scheme, every person in the country has an interest in that criminal prosecution. The majority overlooks that paramount interest entirely. Finally, the question of federal criminal immunity for a former President “involves a countervailing Article II consideration absent in Fitzgerald ”: recognizing such an immunity “would frustrate the Executive Branch’s enforcement of the criminal law.” Brief for United States 19. The President is, of course, entrusted with “ ‘supervisory and policy responsibilities of utmost discretion and sensitivity.’ ” Ante at 10 (quoting Fitzgerald , 457 U. S., at 750). One of the most important is “enforcement of federal law,” as “it is the President who is charged constitutionally to ‘take Care that the Laws be faithfully executed.’ ” Id. , at 750 (quoting Art. II, §3). The majority seems to think that allowing former Presidents to escape accountability for breaking the law while disabling the current Executive from prosecuting such violations somehow respects the independence of the Executive. It does not. Rather, it diminishes that independence, exalting occupants of the office over the office itself. There is a twisted irony in saying, as the majority does, that the person charged with “tak[ing] Care that the Laws be faithfully executed” can break them with impunity. In the case before us, the public interest and countervailing Article II interest are particularly stark. The public interest in this criminal prosecution implicates both “[t]he Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution” as well as “the voters’ interest in democratically selecting their President.” 91 F. 4th 1173, 1195 (CADC 2024) ( per curiam ). It also, of course, implicates Congress’s own interest in regulating conduct through the criminal law. Cf. Fitzgerald , 457 U. S., at 749, n. 27 (noting that the case did not involve “affirmative action by Congress”). Yet the majority believes that a President’s anxiety over prosecution overrides the public’s interest in accountability and negates the interests of the other branches in carrying out their constitutionally assigned functions. It is, in fact, the majority’s position that “boil[s] down to ignoring the Constitution’s separation of powers.” Ante, at 40. C Finally, in an attempt to put some distance between its official-acts immunity and Trump’s requested immunity, the majority insists that “Trump asserts a far broader immunity than the limited one [the majority has] recognized.” Ante , at 32. If anything, the opposite is true. The only part of Trump’s immunity argument that the majority rejects is the idea that “the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution.” Ibid. That argument is obviously wrong. See ante , at 32–34. Rejecting it, however, does not make the majority’s immunity narrower than Trump’s. Inherent in Trump’s Impeachment Judgment Clause argument is the idea that a former President who was impeached in the House and convicted in the Senate for crimes involving his official acts could then be prosecuted in court for those acts. See Brief for Petitioner 22 (“The Founders thus adopted a carefully balanced approach that permits the criminal prosecution of a former President for his official acts, but only if that President is first impeached by the House and convicted by the Senate”). By extinguishing that path to overcoming immunity, however nonsensical it might be, the majority arrives at an official-acts immunity even more expansive than the one Trump argued for. On the majority’s view (but not Trump’s), a former President whose abuse of power was so egregious and so offensive even to members of his own party that he was impeached in the House and convicted in the Senate still would be entitled to “at least presumptive” criminal immunity for those acts. V Separate from its official-acts immunity, the majority recognizes absolute immunity for “conduct within [the President’s] exclusive sphere of constitutional authority.” Ante, at 9. Feel free to skip over those pages of the majority’s opinion. With broad official-acts immunity covering the field, this ostensibly narrower immunity serves little purpose. In any event, this case simply does not turn on conduct within the President’s “exclusive sphere of constitutional authority,” and the majority’s attempt to apply a core immunity of its own making expands the concept of “core constitutional powers,” ante, at 6, beyond any recognizable bounds. The idea of a narrow core immunity might have some intuitive appeal, in a case that actually presented the issue. If the President’s power is “conclusive and preclusive” on a given subject, then Congress should not be able to “ac[t ] upon the subject.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 638 (1952) (Jackson, J., concurring). In his Youngstown concurrence, Justice Robert Jackson posited that the President’s “power of removal in executive agencies” seemed to fall within this narrow category. Ibid ., n. 4. Other decisions of this Court indicate that the pardon power also falls in this category, see United States v. Klein , 13 Wall. 128, 147 (1872) (“To the executive alone is intrusted the power of pardon; and it is granted without limit”), as does the power to recognize foreign countries, see Zivotofsky v. Kerry , 576 U.S. 1 , 32 (2015) (holding that the President has “exclusive power . . . to control recognition determinations”). In this case, however, the question whether a former President enjoys a narrow immunity for the “exercise of his core constitutional powers,” ante, at 6, has never been at issue, and for good reason: Trump was not criminally indicted for taking actions that the Constitution places in the unassailable core of Executive power. He was not charged, for example, with illegally wielding the Presidency’s pardon power or veto power or appointment power or even removal power. Instead, Trump was charged with a conspiracy to commit fraud to subvert the Presidential election. It is true that the detailed indictment in this case alleges that Trump threatened to remove an Acting Attorney General who would not carry out his scheme. See, e . g ., App. 216–217, Indictment ¶¶74, 77. Yet it is equally clear that the Government does not seek to “impose criminal liability on the [P]resident for exercising or talking about exercising the appointment and removal power.” Tr. of Oral Arg. 127. If that were the majority’s concern, it could simply have said that the Government cannot charge a President’s threatened use of the removal power as an overt act in the conspiracy. It says much more. The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of “conclusive and preclusive” powers that the Court previously has recognized. The first indication comes when the majority includes the President’s broad duty to “ ‘take Care that the Laws be faithfully executed’ ” among the core functions for which a former President supposedly enjoys absolute immunity. Ante, at 20 (quoting Art. II, §3). That expansive view of core power will effectively insulate all sorts of noncore conduct from criminal prosecution. Were there any question, consider how the majority applies its newly minted core immunity to the allegations in this case. It concludes that “Trump is . . . absolutely immune from prosecution for” any “conduct involving his discussions with Justice Department officials.” Ante, at 21. That conception of core immunity expands the “conclusive and preclusive” category beyond recognition, foreclosing the possibility of prosecution for broad swaths of conduct. Under that view of core powers, even fabricating evidence and insisting the Department use it in a criminal case could be covered. The majority’s conception of “core” immunity sweeps far more broadly than its logic, borrowed from Youngstown , should allow. The majority tries to assuage any concerns about its made-up core immunity by suggesting that the Government agrees with it. See ante, at 34. That suggestion will surprise the Government. To say, as the Government did, that a “small core of exclusive official acts” such as “the pardon power, the power to recognize foreign nations, the power to veto legislation, [and] the power to make appointments” cannot be regulated by Congress, see Tr. of Oral Arg. 85–87, does not suggest that the Government agrees with immunizing any and all conduct conceivably related to the majority’s broad array of supposedly “core” powers. The Government in fact advised this Court to “leav[e] potentially more difficult questions” about the scope of any immunity “that might arise on different facts for decision if they are ever presented.” Brief for United States 45. That would have made sense. The indictment here does not pose any threat of impermissibly criminalizing acts within the President’s “conclusive and preclusive” authority. Perhaps for this reason, even Trump discouraged consideration of “a narrower scope of immunity,” claiming that such an immunity “would be nearly impossible to fashion, and would certainly involve impractical line-drawing problems in every application.” Brief for Petitioner 43–44. When forced to wade into thorny separation-of-powers disputes, this Court’s usual practice is to “confine the opinion only to the very questions necessary to decision of the case.” Dames & Moore v. Regan , 453 U.S. 654 , 661 (1981). There is plenty of peril and little value in crafting a core immunity doctrine that Trump did not seek and that rightly has no application to this case. VI Not content simply to invent an expansive criminal immunity for former Presidents, the majority goes a dramatic and unprecedented step further. It says that acts for which the President is immune must be redacted from the narrative of even wholly private crimes committed while in office. They must play no role in proceedings regarding private criminal acts. See ante, at 30–32. Even though the majority’s immunity analysis purports to leave unofficial acts open to prosecution, its draconian approach to official-acts evidence deprives these prosecutions of any teeth. If the former President cannot be held criminally liable for his official acts, those acts should still be admissible to prove knowledge or intent in criminal prosecutions of unofficial acts. For instance, the majority struggles with classifying whether a President’s speech is in his capacity as President (official act) or as a candidate (unofficial act). Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.[ 5 ] The majority’s extraordinary rule has no basis in law. Consider the First Amendment context. Although the First Amendment prohibits criminalizing most speech, it “does not prohibit the evidentiary use of speech,” including its use “to prove motive or intent.” Wisconsin v. Mitchell , 508 U.S. 476 , 489 (1993). Evidentiary rulings and limiting instructions can ensure that evidence concerning official acts is “considered only for the proper purpose for which it was admitted.” Huddleston v. United States , 485 U.S. 681 , 691–692 (1988). The majority has no coherent explanation as to why these protections that are sufficient in every other context would be insufficient here. It simply asserts that it would be “untenable” and would deprive immunity of its “ ‘intended effect.’ ” Ante, at 31 (quoting Fitzgerald , 457 U. S., at 756). The majority hazards an explanation that the use of official-acts evidence will “raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office.” Ante, at 31. That “unique risk,” however, is not a product of introducing official-acts evidence. It is simply the risk involved in any suit against a former President, including the private-acts prosecutions the majority says it would allow. VII Today’s decision to grant former Presidents immunity for their official acts is deeply wrong. As troubling as this criminal immunity doctrine is in theory, the majority’s application of the doctrine to the indictment in this case is perhaps even more troubling. In the hands of the majority, this new official-acts immunity operates as a one-way ratchet. First, the majority declares all of the conduct involving the Justice Department and the Vice President to be official conduct, see ante, at 19–24, yet it refuses to designate any course of conduct alleged in the indictment as private, despite concessions from Trump’s counsel.[ 6 ] Trump’s counsel conceded, for example, that the allegation that Trump “turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results” “sounds private.” Tr. of Oral Arg. 29. He likewise conceded that the allegation that Trump “conspired with another private attorney who caused the filing in court of a verification signed by [Trump] that contained false allegations to support a challenge” “sounds private.” Ibid. ; see also id ., at 36–37 (Trump’s counsel explaining that it is not “disputed” that such conduct is “unofficial”). Again, when asked about allegations that “[t]hree private actors . . . helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and [Trump] and a co-conspirator attorney directed that effort,” Trump’s counsel conceded the alleged conduct was “private.” Id. , at 29–30. Only the majority thinks that organizing fraudulent slates of electors might qualify as an official act of the President, see ante, at 24–28, or at least an act so “interrelated” with other allegedly official acts that it might warrant protection, ante, at 28. If the majority’s sweeping conception of “official acts” has any real limits, the majority is unwilling to reveal them in today’s decision. Second, the majority designates certain conduct immune while refusing to recognize anything as prosecutable. It shields large swaths of conduct involving the Justice Department with immunity, see ante, at 19–21; see also Part V, supra , but it does not give an inch in the other direction. The majority admits that the Vice President’s responsibility “ ‘presiding over the Senate’ ” is “ ‘not an “executive branch” function,’ ” and it further admits that the President “plays no direct constitutional or statutory role” in the counting of electoral votes. Ante, at 23–24. Yet the majority refuses to conclude that Trump lacks immunity for his alleged attempts to “enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” App. 187, Indictment ¶10(d). Instead, it worries that a prosecution for this conduct might make it harder for the President to use the Vice President “to advance [his] agenda in Congress.” Ante, at 24. Such a prosecution, according to the majority, “may well hinder the President’s ability to perform his constitutional functions.” Ibid. Whether a prosecution for this conduct warrants immunity should have been an easy question, but the majority turns it into a debatable one. Remarkably, the majority goes further and declines to deny immunity even for the allegations that Trump organized fraudulent elector slates, pressured States to subvert the legitimate election results, and exploited violence at the Capitol to influence the certification proceedings. It is not conceivable that a prosecution for these alleged efforts to overturn a Presidential election, whether labeled official or unofficial under the majority’s test, would pose any “ ‘dangers of intrusion on the authority and functions of the Executive Branch,’ ” ante, at 14, and the majority could have said as much. Instead, it perseverates on a threshold question that should be immaterial. Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States , 323 U.S. 214 , 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law. *  *  * The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no. Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent. Notes 1 Article II, §4, provides: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” 2 To note, as the majority does, see ante , at 39, that this Court has recognized civil immunities arguably inconsistent with this view is not to say that Pinckney was wrong about what the Framers had “intended.” Indeed, Pinckney’s contemporaries shared the same view during the ratification debates. See, e.g. , 4 Debates on the Constitution 109 (J. Elliot ed. 1836) (J. Iredell) (“If the President does a single act by which the people are prejudiced, he is punishable himself. . . . If he commits any crime, he is punishable by the laws of his country”). 3 See Nardone v. United States , 302 U.S. 379 , 384 (1937) (explaining that public officers may be “impliedly excluded from [statutory] language embracing all persons” if reading the statute to include such officers “would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm”); see also Memorandum from D. Barron, Acting Assistant Atty. Gen., Office of Legal Counsel, to E. Holder, Atty. Gen., Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi 12 (July 16, 2010) (interpreting criminal statute prohibiting unlawful killings “to incorporate the public authority justification, which can render lethal action carried out by a government official lawful in some circumstances”). 4 Trump did not raise those defenses in this case, and the immunity that the majority has created likely will obviate the need to raise them in future cases. Yet those defenses would have protected former Presidents from unwarranted criminal prosecutions much more precisely than the blanket immunity the majority creates today. 5 The majority suggests, in a footnote, that a “prosecutor may point to the public record to show the fact that the President performed the official act,” so long as the prosecutor does not “invite the jury to inspect” the act in any way. Ante, at 32, n. 3. Whatever that suggestion is supposed to accomplish, it does not salvage the majority’s nonsensical evidentiary rule. 6 The majority protests that it is “adher[ing] to time-tested practices” by “deciding what is required to dispose of this case and remanding” to lower courts to sort out the details. Ante, at 41. Yet it implicitly acknowledges that it reaches far beyond what any lower court considered or any party briefed by designating certain conduct official in the first instance. See ibid. (noting “the lack of factual analysis in the lower courts, and the lack of briefing on how to categorize the conduct alleged”). In reaching out to shield some conduct as official while refusing to recognize any conduct as unofficial, the majority engages in judicial activism, not judicial restraint. SUPREME COURT OF THE UNITED STATES _________________ No. 23–939 _________________ DONALD J. TRUMP, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the district of columbia circuit [July 1, 2024] Justice Jackson, dissenting. Justice Sotomayor has thoroughly addressed the Court’s flawed reasoning and conclusion as a matter of history, tradition, law, and logic. I agree with every word of her powerful dissent. I write separately to explain, as succinctly as I can, the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States. I also address what that paradigm shift means for our Nation moving forward. I To fully appreciate the profound change the majority has wrought, one must first acknowledge what it means to have immunity from criminal prosecution. Put simply, immunity is “exemption” from the duties and liabilities imposed by law. Black’s Law Dictionary 898 (11th ed. 2019); see Hopkins v. Clemson , 221 U.S. 636 , 643 (1911) (explaining that immunity is “exemption from legal process”). In its purest form, the concept of immunity boils down to a maxim—“ ‘[t]he King can do no wrong’ ”—a notion that was firmly “rejected at the birth of [our] Republic.” Clinton v. Jones , 520 U.S. 681 , 697, n. 24 (1997) (quoting 1 W. Blackstone, Commentaries *246 (Blackstone)); see United States v. Burr , 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). To say that someone is immune from criminal prosecution is to say that, like a King, he “is not under the coercive power of the law,” which “will not suppose him capable of committing a folly, much less a crime.” 4 Blackstone *33. Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place. Conferring immunity therefore “create[s] a privileged class free from liability for wrongs inflicted or injuries threatened.” Hopkins , 221 U. S., at 643. It is indisputable that immunity from liability for wrongdoing is the exception rather than the rule in the American criminal justice system. That is entirely unsurprising, for the very idea of immunity stands in tension with foundational principles of our system of Government. It is a core tenet of our democracy that the People are the sovereign, and the Rule of Law is our first and final security. “[F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised.” United States v. Mine Workers , 330 U.S. 258 , 308 (1947) (Frankfurter, J., concurring in judgment). A corollary to that principle sets the terms for this case: “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee , 106 U.S. 196 , 220 (1882). We have long lived with the collective understanding that “[d]ecency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen,” for “[i]n a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously.” Olmstead v. United States , 277 U.S. 438 , 485 (1928) (Brandeis, J., dissenting). II A These foundational presuppositions are reflected in a procedural paradigm of rules and accountability that operates in the realm of criminal law—what I would call an individual accountability model. The basic contours of that model are familiar, because they manifest in every criminal case. Criminal law starts with an act of the legislature, which holds the power “to define a crime, and ordain its punishment.” United States v. Wiltberger , 5 Wheat. 76, 95 (1820); accord, Ohio v. Johnson , 467 U.S. 493 , 499 (1984). Criminal statutes are laws of general applicability that express “the assent of the people’s representatives” that certain conduct is off limits in our society. Wooden v. United States , 595 U.S. 360, 391 (2022) (Gorsuch, J., concurring in judgment). When the Federal Government believes that someone has run afoul of a criminal statute and decides to exercise its prosecutorial discretion to pursue punishment for that violation, it persuades a grand jury that there is probable cause to indict. U. S. Const., Amdt. 5. Then, the Government marshals evidence to prove beyond a reasonable doubt that the defendant engaged in the prohibited conduct and possessed the requisite state of mind. See United States v. Bailey , 444 U.S. 394 , 402 (1980) (observing that, to hold a person criminally liable, “the concurrence of . . . ‘an evil-meaning mind [and] an evil-doing hand’ ” must be proved (quoting Morissette v. United States , 342 U.S. 246 , 251 (1952))). For his part, the defendant “stands accused but is presumed innocent until conviction upon trial or guilty plea.” Betterman v. Montana , 578 U.S. 437, 441 (2016). Notably, criminal defendants have various constitutionally protected rights during the criminal-liability process, including the rights to a speedy and public trial, the right to have a jury decide guilt or innocence, the right to the assistance of counsel, and the right to confront the witnesses against him. Amdt. 6. The defendant also has at his disposal many means to defend himself against the criminal charge. He can, of course, seek to hold the Government to its burden of proof at trial. And even before trial, in a motion to dismiss the indictment, he might make any number of legal arguments; he can assert, for example, that the Government’s charging document does not give adequate notice of the charge against him or that the law he has been accused of violating is unconstitutionally vague. See Hamling v. United States , 418 U.S. 87 , 117 (1974); United States v. Davis , 588 U.S. 445, 451 (2019). He might further claim that the law is unconstitutional as applied to his particular conduct. See United States v. O’Brien , 391 U.S. 367 , 376 (1968). And he might maintain that his conduct, even if proved, does not violate the law at issue. See, e . g ., Fischer v. United States , 603 U. S. ___, ___ (2024) (slip op., at 2). The defendant may also raise, and attempt to prove, affirmative defenses that “excuse conduct that would otherwise be punishable.” Dixon v. United States , 548 U.S. 1 , 6 (2006). Generally speaking, affirmative defenses are determinations (often adopted by legislation) that certain conduct otherwise punishable by law is justified. This might be the case, for example, when the Legislature determines that, under specified circumstances, the societal harm particular conduct causes “is outweighed by the need to avoid an even greater harm.” 1 P. Robinson, Criminal Law Defenses §24(a) (1984) (Robinson). Importantly, a defense is not an immunity, even though a defense can likewise result in a person charged with a crime avoiding liability for his criminal conduct. Consistent with our foundational norms, the individual accountability model adheres to the presumption that the law applies to all and that everyone must follow it; yet, the model makes allowances for recognized defenses. One such defense is the special privilege that Government officials sometimes invoke when carrying out their official duties.[ 1 ] All of this is to say that our Government has long functioned under an accountability paradigm in which no one is above the law; an accused person is innocent until proven guilty; and criminal defendants may raise defenses, both legal and factual, tailored to their particular circumstances, whether they be Government officials or ordinary citizens. For over two centuries, our Nation has survived with these principles intact. B With that understanding of how our system of accountability for criminal acts ordinarily functions, it becomes much easier to see that the majority’s ruling in this case breaks new and dangerous ground. Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government. 1 So, how does this new Presidential accountability model work? An initial problem is the lack of clarity regarding what this new model entails. The majority announces only its most basic contours. See ante, at 6 (asserting that “the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office”). Instead of no immunity (the individual accountability model) or an unqualified grant of absolute immunity for “ all official acts,” Brief for Petitioner 44 (emphasis added), the majority purports to adopt something of a hybrid.[ 2 ] It holds that a former President may or may not be immune from criminal prosecution for conduct undertaken while in office, to be determined on a case-by-case basis. According to the majority, whether a former President is immune depends on how his criminal conduct is classified, as among three possible categories. First, with respect to any criminal conduct relating to a President’s “core constitutional powers”—those subjects “within his ‘conclusive and preclusive’ constitutional authority”—the President is entitled to absolute immunity from criminal prosecution. See ante , at 6, 8. Second, expanding outward from this “core,” regarding all other “acts within the outer perimeter of [the President’s] official responsibility,” the President is entitled to “at least a presumptive immunity from criminal prosecution.” Ante , at 14. Third, if the criminal conduct at issue comprises “unofficial acts, there is no immunity.” Ante , at 15.[ 3 ] Applying the majority’s new Presidential accountability model thus seems to involve bearing down on the indictment’s allegations and making a series of determinations about the nature of the conduct at issue. From the structure of the paradigm, it appears that the first decision point is whether the alleged criminal conduct involves one of the President’s “core” powers. If so (and apparently regardless of the degree to which the conduct implicates that core power), the President is absolutely immune from criminal liability for engaging in that criminal conduct. If not, then one must proceed to consider whether the conduct qualifies as an “official” act or “unofficial” act of that President. If the crime is an official act, the President is presumptively immune from criminal prosecution and punishment. But even then, immunity still hinges on whether there is any legal or factual basis for concluding that the presumption of immunity has been rebutted. Alternatively, if the charged conduct is an unofficial act (a determination that, incidentally, courts must make without considering the President’s motivations, ante, at 18), the President is not immune.[ 4 ] 2 The majority’s multilayered, multifaceted threshold parsing of the character of a President’s criminal conduct differs from the individual accountability model in several crucial respects. For one thing, it makes it next to impossible to know ex ante when and under what circumstances a President will be subject to accountability for his criminal acts. For every allegation, courts must run this gauntlet first—no matter how well documented or heinous the criminal act might be. Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably instigates an unsuccessful coup, id ., at 41–43, has a fair shot at getting immunity under the majority’s new Presidential accountability model. That is because whether a President’s conduct will subject him to criminal liability turns on the court’s evaluation of a variety of factors related to the character of that particular act—specifically, those characteristics that imbue an act with the status of “official” or “unofficial” conduct (minus motive). In the end, then, under the majority’s new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be: It depends. Under the individual accountability paradigm, the accountability analysis is markedly less convoluted, and leads to a more certain outcome. None of the same complications or consequences arise, because, as I have explained, there are no exemptions from the criminal law for any person, but every defendant can assert whatever legal arguments and defenses might be applicable under governing law. Since no one is above the law, everyone can focus on what the law demands and permits, and on what the defendant did or did not do; no one has to worry about characterizing any criminal conduct as official or unofficial in order to assess the applicability of an immunity at the outset. The majority’s new Presidential accountability model is also distinct insofar as it accepts as a basic starting premise that generally applicable criminal laws do not apply to everyone in our society. In the majority’s view, while all other citizens of the United States must do their jobs and live their lives within the confines of criminal prohibitions, the President cannot be made to do so; he must sometimes be exempt from the law’s dictates depending on the character of his conduct. Indeed, the majority holds that the President, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties. That point bears emphasizing. Immunity can issue for Presidents under the majority’s model even for unquestionably and intentionally egregious criminal behavior. Regardless of the nature or the impact of the President’s criminal conduct, so long as he is committing crimes “pursuant to the powers invested exclusively in him by the Constitution,” ante, at 7, or as needed “to carry out his constitutional duties without undue caution,” ante, at 14, he is likely to be deemed immune from prosecution.[ 5 ] Ultimately, the majority’s model simply sets the criminal law to one side when it comes to crimes allegedly committed by the President. Before accountability can be sought or rendered, the Judiciary serves as a newfound special gatekeeper, charged not merely with interpreting the law but with policing whether it applies to the President at all . Also, under the new Presidential accountability model, the starting presumption is that the criminal law does not apply to Presidents, no matter how obviously illegal, harmful, or unacceptable a President’s official behavior might be. Regardless of all that, courts must now ensure that a former President is not held accountable for any criminal conduct he engages in while he is on duty, unless his conduct consists primarily (and perhaps solely) of unofficial acts. 3 The structure and function of the two accountability paradigms are not the only differences—the models also assign different roles to participants in the criminal justice system, and they ultimately generate different relationships between the Presidency and the Rule of Law. Under the individual accountability model, duty-bound prosecutorial officers initially exercise their discretion to decide whether to seek punishment for alleged violations of criminal law (a determination that is made based on numerous factors). And even if prosecutors decide to bring a charge, a jury of the criminal defendant’s peers ultimately determines whether that defendant (including a former President) will actually be held to account for having engaged in unlawful conduct, after the court has resolved any legal challenges and has instructed the jury as to the requirements of the law. By contrast, under the majority’s new Presidential accountability paradigm, what a prosecutor or jury does may not even matter, since the courts take center stage once charges are brought against a former President, marshaling their resources to conduct a complex and amorphous threshold immunity evaluation. Whether a former President will be entirely exempted from the dictates of the law (such that the roles of other participants in the criminal justice process become irrelevant) requires a judicial assessment, in the first instance, of his criminal conduct and the circumstances under which he acted. Finally, and most importantly, recall that under the individual accountability model, an indicted former President can raise an affirmative defense just like any other criminal defendant. This means that the President remains answerable to the law, insofar as he must show that he was justified in committing a criminal act while in office under the given circumstances. In other words, while the President might indeed be privileged to commit a crime in the course of his official duties, any such privilege exists only when the People (acting either through their elected representatives or as members of a jury) determine that the former President’s conduct was in fact justified, notwithstanding the general criminal prohibition. Under the majority’s immunity regime, by contrast, the President can commit crimes in the course of his job even under circumstances in which no one thinks he has any excuse ; the law simply does not apply to him. Unlike a defendant who invokes an affirmative defense and relies on a legal determination that there was a good reason for his otherwise unlawful conduct, a former President invoking immunity relies on the premise that he can do whatever he wants, however he wants, so long as he uses his “ ‘official power’ ” in doing so. Ante, at 19. In the former paradigm, the President remains subject to law; in the latter, he is above it. III Justice Sotomayor has already warned of the dire consequences that are likely to follow from the majority’s decision in this case. Ante, at 29–30 (dissenting opinion). I have thus far endeavored merely to explain what today’s ruling amounts to on a theoretical level: the Court’s abandonment of the individual accountability model as applied to Presidents, and its introduction of a new Presidential accountability model that authorizes the Judiciary to exempt Presidents from punishment under law, depending on the official or unofficial character of the criminal conduct at issue. Here, I will highlight just two observations about the results that follow from this paradigm shift. First, by changing the accountability paradigm in this fashion, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority’s new Presidential accountability model undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all. A Consider the structural implications of today’s decision from the standpoint of the separation of powers. Until now, Congress’s laws, passed by the representatives of the People, bound the People and their elected officials just the same. Law, we have explained, “is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.” Lee , 106 U. S., at 220. With its adoption of a paradigm that sometimes exempts the President from the dictates of the law (when the Court says so), this Court has effectively snatched from the Legislature the authority to bind the President (or not) to Congress’s mandates, and it has also thereby substantially augmented the power of both the Office of the Presidency and itself. As to the former, it should go without saying that the Office of the Presidency, the apex of the Executive Branch, is made significantly more powerful when the constraints of the criminal law are lifted with respect to the exercise of a President’s official duties. After today’s ruling, the President must still “take Care that the Laws be faithfully executed,” Art. II, §3; yet, when acting in his official capacity, he has no obligation to follow those same laws himself. But whatever additional power the majority’s new Presidential accountability model gives to the Presidency, it gives doubly to the Court itself, for the majority provides no meaningful guidance about how to apply this new paradigm or how to categorize a President’s conduct. For instance, its opinion lists some examples of the “core” constitutional powers with respect to which the President is now entitled to absolute immunity—a list that apparently includes the removal power, the power to recognize foreign nations, and the pardon power. Ante, at 6–9. However, the majority does not—and likely cannot—supply any useful or administrable definition of the scope of that “core.” For what it’s worth, the Constitution’s text is no help either; Article II does not contain a Core Powers Clause.[ 6 ] So the actual metes and bounds of the “core” Presidential powers are really anyone’s guess. Nor does the majority explain how to consistently distinguish between official and unofficial acts. Quite the opposite, in fact. While acknowledging that this is a critical line that courts must draw in order for its new accountability model to work properly, the majority simultaneously cautions that making this distinction “can be difficult”—likely a gross understatement given the recognized “breadth of the President’s ‘discretionary responsibilities’ under the Constitution and laws of the United States.” Ante, at 17. The majority likewise provides no guidance as to when, how, or why the President’s “presumptive” immunity for noncore official acts might be rebutted, saying only that applying the criminal law to a President’s acts must pose “no ‘dangers of intrusion on the authority and functions of the Executive Branch.’ ” Ante, at 14 (quoting Nixon v. Fitzgerald , 457 U.S. 731 , 754 (1982)). At most, to distinguish official from unofficial conduct, the majority advises asking whether the former President’s conduct was “ ‘manifestly or palpably beyond [his] authority.’ ” Ante, at 17 (quoting Blassingame v. Trump , 87 F. 4th 1, 13 (CADC 2023)). But that test can be illusory, as is evidenced by the facts alleged in this very case. With respect to the indictment’s allegations concerning petitioner’s attempt to assemble false slates of electors in conjunction with the events of January 6, 2021, for example, the majority admits that the “alleged conduct cannot be neatly categorized,” and that “[t]he analysis therefore . . . may prove to be challenging.” Ante, at 28–29. With that, at least, I could not agree more. This much is clear: Before today, none of these kinds of inquiries was necessary for criminal liability to be fairly assessed with respect to persons accused of having engaged in criminal conduct. And, frankly, none is needed now—except as relates to the President under the new paradigm the majority has crafted. Perhaps even more troubling, while Congress (the branch of our Government most accountable to the People) is the entity our Constitution tasks with deciding, as a general matter, what conduct is on or off limits, the Court has now arrogated that power unto itself when that question pertains to the President. In essence, the Court has now imposed its own preclearance requirement on the application of Congress’s laws to a former President alleged to have committed crimes while in office. Who will be responsible for drawing the crucial “ ‘line between [the President’s] personal and official affairs’ ”? Ante, at 29. To ask the question is to know the answer. A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which Presidents, by labeling his various allegedly criminal acts as “core,” “official,” or “manifestly or palpably” beyond the President’s authority. Ironically, then, while purportedly seeking to transcend politics, see ante, at 41–42, the Court today displaces the independent judgments of the political branches about the circumstances under which the criminal law should apply. Effectively, the Court elbows out of the way both Congress and prosecutorial authorities within the Executive Branch, making itself the indispensable player in all future attempts to hold former Presidents accountable to generally applicable criminal laws. “The Framers, however, did not make the judiciary the overseer of our government.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 594 (1952) (Frankfurter, J., concurring). To be sure, this Court may sometimes “have to intervene in determining where authority lies as between the democratic forces in our scheme of government.” Id ., at 597. But it has long been understood that “we should be wary and humble” when doing so. Ibid . The majority displays no such caution or humility now. Instead, the Court today transfers from the political branches to itself the power to decide when the President can be held accountable. What is left in its wake is a greatly weakened Congress, which must stand idly by as the President disregards its criminal prohibitions and uses the powers of his office to push the envelope, while choosing to follow (or not) existing laws, as he sees fit. We also now have a greatly empowered Court, which can opt to allow Congress’s policy judgments criminalizing conduct to stand (or not) with respect to a former President, as a matter of its own prerogative. B If the structural consequences of today’s paradigm shift mark a step in the wrong direction, then the practical consequences are a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government. The majority shoos away this possibility. Ante, at 37 (accusing the dissents of “strik[ing] a tone of chilling doom that is wholly disproportionate to what the Court actually does today”). But Justice Sotomayor makes this point plain, see ante, at 29–30, and I will not belabor it. Here, I will merely observe that, from a theoretical perspective, philosophers have long considered deterrence to be a key justification for adopting and maintaining systems that ensure accountability for criminal conduct.[ 7 ] For that same reason, some commentators also maintain that decreasing the certainty of accountability for wrongful acts at least arguably reduces incentives to follow the law.[ 8 ] Under the individual accountability model, because everyone is subject to the law, the potential of criminal liability operates as a constraint on the actions and decisions of everyone, including the President. After today, that reality is no more. Consequently, our Nation has lost a substantial check on Presidents who would use their official powers to commit crimes with impunity while in office. So, one might ask, what remains of accountability for Presidents under law? With today’s paradigm shift, the majority leaves in place only the chance that this Court might someday determine that the criminal conduct in question was an “unofficial” act, or that the Government will somehow rebut the presumption of immunity that applies to a President’s official acts, such that criminal consequences might attach. But with the parameters of official and unofficial conduct unknown, I think it highly unlikely that a sitting President would feel constrained by these remote possibilities. All of this leads me to ponder why, exactly, has the majority concluded that an indeterminate “core”-versus-“official”-versus-“unofficial” line-drawing exercise is the better way to address potential criminal acts of a President? Could it be that the majority believes the obviously grave dangers of shifting from the individual accountability model to the Presidential accountability model might nevertheless be offset by the great benefits of doing so? Cf. J. Bentham, A Fragment on Government and an Introduction to the Principles of Morals and Legislation 3 (W. Harrison ed. 1948) (arguing that acts can be justified by the maxim that “it is the greatest happiness of the greatest number that is the measure of right and wrong” (emphasis deleted)). Some of the majority’s analysis suggests as much. As far as I can tell, the majority is mostly concerned that, without immunity, Presidents might “be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” Ante, at 13. The Court’s opinion candidly laments that application of the law to Presidents might not be evenhanded, and that, as a result, Presidents might be less “ ‘vigorous’ and ‘energetic’ ” as executive officers. Ante, at 10; accord, ante, at 39. But that concern ignores (or rejects) the foundational principles upon which the traditional individual accountability paradigm is based. Worse still, promoting more vigor from Presidents in exercising their official duties—and, presumably, less deliberation—invites breathtaking risks in terms of harm to the American people that, in my view, far outweigh the benefits. This is not to say that the majority is wrong when it perceives that it can be cumbersome for a President to have to follow the law while carrying out his duty to enforce it. It is certainly true that “[a] scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority.” Youngstown , 343 U. S., at 613 (Frankfurter, J., concurring). But any American who has studied history knows that “our government was designed to have such restrictions.” Ibid. (emphasis added). Our Constitution’s “separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but . . . to save the people from autocracy.” Myers v. United States , 272 U.S. 52 , 293 (1926) (Brandeis, J., dissenting). Having now cast the shadow of doubt over when—if ever—a former President will be subject to criminal liability for any criminal conduct he engages in while on duty, the majority incentivizes all future Presidents to cross the line of criminality while in office, knowing that unless they act “manifestly or palpably beyond [their] authority,” ante, at 17, they will be presumed above prosecution and punishment alike. But the majority also tells us not to worry, because “[l]ike everyone else, the President is subject to prosecution in his unofficial capacity.” Ante, at 40 (emphasis added). This attempted reassurance is cold comfort, even setting aside the fact that the Court has neglected to lay out a standard that reliably distinguishes between a President’s official and unofficial conduct. Why? Because there is still manifest inequity: Presidents alone are now free to commit crimes when they are on the job, while all other Americans must follow the law in all aspects of their lives, whether personal or professional. The official-versus-unofficial act distinction also seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a President are the only ones worthy of prosecution. Quite to the contrary, it is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire. So, the fact that, “unlike anyone else, the President is” vested with “sweeping powers and duties,” ibid. , actually underscores, rather than undermines, the grim stakes of setting the criminal law to the side when the President flexes those very powers. The vision John Adams enshrined in the Massachusetts Declaration of Rights—“ ‘a government of laws and not of men’ ”—speaks directly to this concept. Mine Workers , 330 U. S., at 307 (Frankfurter, J., concurring in judgment). Adams characterized that document as an homage to the Rule of Law; it reflected both a flat “rejection in positive terms of rule by fiat” and a solemn promise that “[e]very act of government may be challenged by an appeal to law.” Id ., at 308. Thanks to the majority, that vision and promise are likely to be fleeting in the future. From this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please—including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans. IV To the extent that the majority’s new accountability paradigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted. And, without a doubt, absolute power corrupts absolutely. “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” Id ., at 312. Likewise, “[i]f the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead , 277 U. S., at 485 (Brandeis, J., dissenting). I worry that, after today’s ruling, our Nation will reap what this Court has sown. Stated simply: The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself. As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision. For, like our democracy, our Constitution is “the creature of their will, and lives only by their will.” Cohens v. Virginia , 6 Wheat. 264, 389 (1821). For my part, I simply cannot abide the majority’s senseless discarding of a model of accountability for criminal acts that treats every citizen of this country as being equally subject to the law—as the Rule of Law requires. That core principle has long prevented our Nation from devolving into despotism. Yet the Court now opts to let down the guardrails of the law for one extremely powerful category of citizen: any future President who has the will to flout Congress’s established boundaries. In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction. Once self-regulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious. *  *  * The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent. Notes 1 See R. Perkins & R. Boyce, Criminal Law 1093 (3d ed. 1982) (“Deeds which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority”); see also 2 Robinson §141(a) (describing the public-authority defense, under which a defendant may escape liability if he “has been specifically authorized to engage in the conduct constituting the offense in order to protect or further a public interest”); Brief for United States 29–30, n. 11; ante, at 16, n. 3 (Sotomayor, J., dissenting) (citing Nardone v. United States , 302 U.S. 379 , 384 (1937)). 2 Its feigned judicial humility notwithstanding, see ante, at 41, the majority’s holding goes further— much further—than necessary to resolve this case. Petitioner’s argument in both the lower courts and this one was that a former President is categorically immune from federal criminal prosecution for “all” acts within the outer perimeter of his official duties. See Opening Brief for Defendant-Appellant in No. 23–3228 (CADC, Dec. 23, 2023), p. 23; 91 F. 4th 1173, 1188–1189, 1195, 1208 (CADC 2024) ( per curiam ); Brief for Petitioner 41–47 (arguing for absolute immunity for “all actions within the ‘outer perimeter’ ” of a President’s responsibilities, and imploring the Court not to adopt a “ ‘function-based’ approach”). Thus, it would have been enough for the Court simply to reject petitioner’s categorical claim and leave it at that. But the majority sua sponte rephrased the question presented, and it now takes full advantage of this opportunity to devise from whole cloth an entirely new legal framework for judicial evaluation of potential criminal immunity for former Presidents. 3 It is important to note that the majority reframes the immunity question presented here as a separation of powers concern that is compelled by Article II—as if what is being asked is whether Congress can criminalize executive prerogatives. See, e.g. , ante , at 6–7; see also ante, at 1–2 (Barrett, J., concurring in part). But that is not anywhere close to what is happening in this case. No one maintains that Congress has passed a law that specifically criminalizes the President’s use of any power that the Constitution vests exclusively in the Executive, much less that the Judiciary is being conscripted to adjudicate the propriety of such a statute. To the contrary, the indictment here invokes criminal statutes of general applicability that everyone is supposed to follow, both on and off the job. So, the real question is: Can the President, too, be held accountable for committing crimes while he is undertaking his official duties? The nature of his authority under Article II (whether conclusive and preclusive, or shared with Congress, or otherwise) is entirely beside the point. 4 Justice Barrett’s version of the Presidential accountability paradigm works slightly differently; she would have us ask, first, “whether the relevant criminal statute reaches the President’s official conduct.” Ante, at 2. But, again, what is at issue here are statutes of general applicability—they only “reach” the President’s conduct to the extent that he chooses to engage in the prohibited behavior. See n. 3, supra . Justice Barrett’s framing, thus, sidesteps the fact that, when immunity is being considered, what is actually at issue is whether the President is exempt from punishment if he opts to exercise his official duties using means that violate criminal law. 5 To fully appreciate the oddity of making the criminal immunity determination turn on the character of the President’s responsibilities, consider what the majority says is one of the President’s “conclusive and preclusive” prerogatives: “ ‘[t]he President’s power to remove . . . those who wield executive power on his behalf.’ ” Ante, at 8 (quoting Seila Law LLC v. Consumer Financial Protection Bureau , 591 U.S. 197, 204 (2020)). While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death. Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority. 6 Some of the powers the majority designates as “core” powers are, at best, implied from indefinite constitutional language. See, e . g ., Seila Law , 591 U. S., at 268–269 (Kagan, J., concurring in judgment with respect to severability and dissenting in part) (“Nowhere does the text say anything about the President’s power to remove subordinate officials at will”); Zivotofsky v. Kerry , 576 U.S. 1 , 11 (2015) (“[T]he Constitution does not use the term ‘recognition,’ either in Article II or elsewhere”); id ., at 63 (Roberts, C. J., dissenting) (calling the “asserted textual bases” for an exclusive Presidential recognition power “tenuous”). 7 See, e . g ., Plato, Laws 274 (B. Jowett transl. 2000) (“Not that he is punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice, or at any rate abate much of their evil-doing”); see also J. Bentham, The Rationale of Punishment 20 (1830) (“General prevention ought to be the chief end of punishment, as it is its real justification”); A. von Hirsch, Doing Justice: The Choice of Punishments 44 (1976) (“The threat and imposition of punishment is called for in order to secure compliance—not full compliance, but more compliance than there might be were there no legal penalties at all”). 8 See, e . g ., M. Ryan, Taking Another Look at Second-Look Sentencing, 81 Brooklyn L. Rev. 149, 156, and n. 37 (2015) (“[U]ndermining the . . . certainty of punishment . . . could undermine the deterrence value of punishment”).

The Supreme Court considered the case of Donald J. Trump, who was indicted on four counts related to his conduct as President after losing the 2020 election. The Court examined the scope of presidential immunity from criminal prosecution. The indictment alleged that Trump conspired to overturn the election results by spreading false claims of fraud and using various means to pressure officials and legislators to change the outcome. The Court discussed the President's exclusive powers and the extent to which they can be exercised without legal consequences. The majority opinion, written by Chief Justice Roberts, focused on the President's "core" powers and argued for a broad interpretation of presidential immunity. However, the dissent, written by Justice Barrett, countered that the President should not be above the law and that criminal laws should apply equally to everyone, including the President. The Court's decision has significant implications for presidential accountability and the balance of powers between the executive and judicial branches.

Antitrust

U.S. v. American Tobacco Co.

https://supreme.justia.com/cases/federal/us/221/106/

U.S. Supreme Court United States v. American Tobacco Co., 221 U.S. 106 (1911) United States v. American Tobacco Company Nos. 118, 119 Argued January 3, 4, 5, 6, 1910 R; restored to docket for reargument April 11, 1910 Reargued January 9, 10, 11, 12, 1911 Decided My 29, 1911 221 U.S. 106 APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus Standard Oil Co. v. United States, ante, p. 221 U. S. 1 , followed and reaffirmed as to the construction to be given to the Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209, and held that the combination in this case is one in restraint of trade and an attempt to monopolize the business of tobacco in interstate commerce within the prohibitions of the act. Page 221 U. S. 107 In order to meet such a situation as is presented by the record in this case and to afford the relief for the evils to be overcome, the Antitrust Act of 1890 must be given a more comprehensive application than affixed to it in any previous decision. In Standard Oil Co. v. United States, ante, p. 221 U. S. 1 , the words "restraint of trade" as used in § 1 of the Anti-Trust Act were properly construed by the resort to reason; the doctrine stated in that case was in accord with all previous decisions of this Court, despite the contrary view at times erroneously attributed to the expressions in United States v. Trans-Missouri Freight Association, 166 U. S. 290 , and United States v. Joint Traffic Association, 171 U. S. 505 . The Anti-Trust Act must have a reasonable construction, as there can scarcely be any agreement or contract among business men that does not directly or indirectly affect and possibly restrain commerce. United States v. Joint Traffic Association, 171 U. S. 505 , 171 U. S. 568 . The words "restraint of trade" at common law, and in the law of this country at the time of the adoption of the Anti-Trust Act, only embraced acts, contracts, agreements or combinations which operated to the prejudice of the public interests by unduly restricting competition or by unduly obstructing due course of trade, and Congress intended that those words as used in that act should have a like significance, and the ruling in Standard Oil Co. v. United States, ante, p. 221 U. S. 1 , to this effect is reexpressed and reaffirmed. The public policy manifested by the Anti-Trust Act is expressed in such general language that it embraces every conceivable act which can possibly come within the spirit of its prohibitions, and that policy cannot be frustrated by resort to disguise or subterfuge of any kind. The record in this case discloses a combination on the part of the defendants with the purpose of acquiring dominion and control of interstate commerce in tobacco by methods and manners clearly within the prohibition of the Anti-Trust Act, and the subject matters of the combination and the combination itself are not excluded from the scope of the act as being matters of intrastate commerce and subject to state control. In this case the combination in all its aspects, both as to stock ownership and as to the corporations independently, including foreign corporations to the extent that they became cooperators in the combination, come within the prohibition of the first and second sections of the Anti-Trust Act. In giving relief against an unlawful combination under the Anti-Trust Act, the court should give complete and efficacious effect to the Page 221 U. S. 108 prohibitions of the statute, accomplish this result with as little injury as possible to the interest of the general public, and have a proper regard for the vested property interests innocently acquired. In this case, the combination, in and of itself, and also all of its constituent elements, are decreed to be illegal, and the court below is directed to hear the parties and ascertain and determine a plan or method of dissolution and of recreating a condition in harmony with law, to be carried out within a reasonable period (in this case not to exceed eight months), and, if necessary, to effectuate this result either by injunction or receivership. Pending the achievement of the result decreed, all parties to the combination in this case should be restrained and enjoined from enlarging the power of the continuation by any means or device whatever. Where a case is remanded, as this one is, to the lower court with directions to grant the relief in a different manner from that decreed by it, the proper course is not to modify and affirm, but to reverse and remand with directions to enter a decree in conformity with the opinion and to carry out the directions of this Court, with costs to defendants. 164 F. 700 reversed and remanded with directions. The facts, which involve the construction of the Antitrust Act of July 2, 1890, and the question whether the Acts of the defendants amounted to a combination in restraint of interstate commerce in tobacco, are stated in the opinion. Page 221 U. S. 142 MR. CHIEF JUSTICE WHITE delivered the opinion of the Court. This suit was commenced on July 19, 1907, by the United States, to prevent the continuance of alleged violations of the first and second sections of the Anti-Trust Act of July 2, 1890. The defendants were twenty-nine individuals, name in the margin, [ Footnote 1 ] sixty-five American Page 221 U. S. 143 corporations, most of them created in the State of New Jersey, and two English corporations. For convenience of statement, we classify the corporate defendants, exclusive of the two foreign ones, which we shall hereafter separately refer to, as follows: The American Tobacco Company, a New Jersey corporation, because of its dominant relation to the subject matter of the controversy, as the primary defendant; five other New Jersey corporations ( viz., American Snuff Company, American Cigar Company, American Stogie Company, MacAndrews & Forbes Company, and Conley Foil Company), because of their relation to the controversy as the accessory, and the fifty-nine other American corporations as the subsidiary defendants. The ground of complaint against the American Tobacco Company rested not alone upon the nature and character of that corporation and the power which it exerted directly over the five accessory corporations and some of the subsidiary corporations by stock ownership in such corporations, but also upon the control which it exercised over the subsidiary companies by virtue of stock held in said companies by the accessory companies by stock ownership in which the American Tobacco Company exerted its power of control. The accessory companies were impleaded either because of their nature and character or because of the power exerted over them through stock ownership by the American Tobacco Company, and also because of the power which they in turn exerted by stock ownership over the subsidiary corporations, and finally the subsidiary corporations were impleaded either because of their nature, or because of the control to which they were subjected in and by virtue of the stock ownership above stated. We append in the margin a statement showing Page 221 U. S. 144 the stock control exercised by the principal defendant, the American Tobacco Company, over the five accessory corporations, and also the authority which it directly exercised over certain of the subsidiary corporations, and a list showing the control exercised over the subsidiary corporations as a result of the stock ownership in the accessory corporations, they being in turn controlled, as we have said, by the principal defendant, the American Tobacco Company. [ Footnote 2 ] Page 221 U. S. 145 The two foreign corporations were impleaded either because of their nature and character and the operation and effect of contracts or agreements with the American Tobacco Page 221 U. S. 146 Company, or the power which it exerted over their affairs by stock ownership. As we shall have occasion hereafter in referring to matters Page 221 U. S. 147 beyond dispute to set forth the main facts relied upon by the United States as giving rise to the cause of action alleged against all of the defendants, it suffices at this Page 221 U. S. 148 moment to say that the bill averred the origin and nature of the American Tobacco Company and the origin and nature of all the other defendant corporations, whether accessory or subsidiary, and the connection of the individual defendants with such corporations. In effect, the bill charged that the individual defendants and the defendant corporations were engaged in a conspiracy in restraint of interstate and foreign trade in tobacco and the products of tobacco, and constituted a combination in restraint of such trade, in violation of the first section of the act, and also were attempting to monopolize and were actually a monopolization of such trade, in violation of the second section. In support of these charges, general averments were made in the bill as to the wrongful purpose and intent with which acts were committed which it was alleged brought about the alleged wrongful result. The prayer of the bill was as follows: "Wherefore petitioner prays: " Page 221 U. S. 149 "1. That the contracts, combinations, and conspiracies in restraint of trade and commerce among the states and with foreign nations, together with the attempts to monopolize and the monopolies of the same hereinbefore described, be declared illegal and in violation of the act of Congress passed July 2, 1890, and subsequent acts, and that they be prevented and restrained by proper orders of the court." "2. That the agreements, contracts, combinations, and conspiracies entered into by the defendants on or about September 27, 1902, and thereafter, and evidenced, among other things, by the two written agreements of that date, Exhibits 1 and 2 hereto, be declared illegal, and that injunctions issue restraining and prohibiting defendants from doing anything in pursuance of or in furtherance of the same within the jurisdiction of the United States." "3. That the Imperial Tobacco Company, its officers, agents, and servants, be enjoined from engaging in interstate or foreign trade and commerce within the jurisdiction of the United States until it shall cease to observe or act in pursuance of said agreements, contracts, combinations, and conspiracies entered into by it and other defendants on or about September 27, 1902, and thereafter, and evidenced, among other things, by the contracts of that date, Exhibits 1 and 2 hereto." "4. That the British-American Tobacco Company be adjudged an unlawful instrumentality, created solely for carrying into effect the objects and purposes of said contract, combination, and conspiracy entered into on or about September 27, 1902, and thereafter, and that it be enjoined from engaging in interstate or foreign trade and commerce within the jurisdiction of the United States." "5. That the court adjudge the American Tobacco Company, the American Snuff Company, the American Cigar Company, the American Stogie Company, the MacAndrews & Forbes Company, and the Conley Foil Company is each a combination in restraint of interstate and Page 221 U. S. 150 foreign trade and commerce, and that each has attempted and is attempting to monopolize, is in combination and conspiracy with other persons and corporations to monopolize, and has monopolized, part of the trade and commerce among the several states and with foreign nations, and order and decree that each one of them be restrained from engaging in interstate or foreign commerce, or, if the court should be of opinion that the public interests will be better subserved thereby, that receivers be appointed to take possession of all property, assets, business, and affairs of said defendants and wind up the same, and otherwise take such course in regard thereto as will bring about conditions in trade and commerce among the states and with foreign nations in harmony with law." "6. That the holding of stock by one of the defendant corporations in another, under the circumstances shown, be declared illegal, and that each of them be enjoined from continuing to hold or own such shares in another, and from exercising any right in connection therewith." "7. That defendants, each and all, be enjoined from continuing to carry out the purposes of the above-described contracts, combinations, conspiracies, and attempts to monopolize by the means herein described, or by any other, and be required to desist and withdraw from all connection with the same." "8. That each of the defendants be enjoined from purchasing leaf tobacco or from selling and distributing its manufactured output as a part of interstate and foreign trade and commerce in conjunction or combination with any other defendant, and from taking part or being interested in any agreement or combination intended to destroy competition among them in reference to such purchases or sales." "9. That petitioner have such other, further, and general relief as may be proper." As to the answers, it suffices to say that all the individual Page 221 U. S. 151 and corporate defendants other than the foreign corporations denied the charges of wrongdoing and illegal combination, and the corporate defendants in particular in addition averred their right under state charters by virtue of which they existed to own and possess the property which they held, and further averred that they were engaged in manufacturing, and that any combination amongst them related only to that subject, and therefore was not within the antitrust act. The two foreign corporations asserted the validity of their corporate organization and of the assailed agreements, and denied any participation in the alleged wrongful combination. After the taking of much testimony before a special examiner, the case was heard before a court consisting of four judges, constituted under the expediting Act of February 11, 1903. In deciding the case in favor of the government, each of the four judges delivered an opinion. 164 F. 700. A final decree was entered on December 15, 1908. The petition was dismissed as to the English corporations, three of the subsidiary corporations, the United Cigar Stores Company, and all the individual defendants. It was decreed that the defendants other than those against whom the petition was dismissed had theretofore entered into and were parties to combinations in restraint of trade, etc., in violation of the antitrust act, and said defendants and each of them, their officers, agents, etc., were restrained and enjoined "from directing or indirectly doing any act or thing whatsoever in furtherance of the objects and purposes of said combinations, and from continuing as parties thereto." It specifically found that each of the defendants, "the American Tobacco Company, American Snuff Company, American Cigar Company, American Stogie Company, and MacAndrews & Forbes Company, constitutes and is itself a combination in violation of the said act of Congress." The corporations thus named, their officers, etc., were next restrained Page 221 U. S. 152 and enjoined "from further directly or indirectly engaging in interstate or foreign trade and commerce in leaf tobacco or the products manufactured therefrom, or articles necessary or useful in connection therewith. But if any of said last-named defendants can hereafter affirmatively show the restoration of reasonably competitive conditions, such defendant may apply to this Court for a modification, suspension, or dissolution of the injunction herein granted against it." The decree then enumerated the various corporations which it was found held or claimed to own some or all of the capital stock of other corporations, and particularly specified such other corporations, and then made the following restraining provisions: "Wherefore each and all of defendants, the American Tobacco Company, the American Snuff Company, the American Cigar Company, P. Lorillard Company, R. J. Reynolds Tobacco Company, Blackwell's Durham Tobacco Company, and Conley Foil Company, their officers, directors, agents, servants, and employees, are hereby restrained and enjoined from acquiring, by conveyance or otherwise, the plant or business of any such corporation wherein any one of them now holds or owns stock, and each and all of said defendant corporations so holding stock in other corporations, as above specified, their officers, directors, agents, servants, and employees, are further enjoined from voting or attempting to vote said stock at any meeting of the stockholders of the corporation issuing the same, and from exercising or attempting to exercise any control, direction, supervision, or influence whatsoever over the acts and doings of such corporation. And it is further ordered and decreed that each and every of the defendant corporations the stock of which is held by any other defendant corporation, as hereinbefore shown, their officers, directors, servants, and agents, be and that are hereby respectively and collectively restrained and enjoined from permitting the stock so held to be voted by any other defendant Page 221 U. S. 153 holding or claiming to own the same, or by its attorneys or agents at any corporate election for directors or officers, and from permitting or suffering any other defendant corporation claiming to own or hold stock therein, or its officers or agents, to exercise any control whatsoever over its corporate acts." Judgment for costs was given in favor of the petitioner and against the defendants as to whom the petition had not been dismissed, except the R. P. Richardson, Jr. & Company, a corporation which had consented to the decree. The decree also contained a provision that the defendants or any of them should not be prevented "from the institution, prosecution, or defense of any suit, action, or proceeding to prevent or restrain the infringement of a trademark used in interstate commerce, or otherwise assert or defend a claim to any property or rights." In the event of a taking of an appeal to this Court, the decree provided that the injunction which it directed "shall be suspended during the pendency of such appeal." The United States appealed, as did also the various defendants against whom the decree was entered. For the government, it is contended: 1. That the petition should not have been dismissed as to the individual defendants. 2. That it should not have been dismissed as to the two foreign corporations, the Imperial Tobacco Company and the British-American Tobacco Company, and the domestic corporations controlled by the latter, and that, on the contrary, the decree should have commanded the observance of the antitrust act by the foreign corporations so far as their dealings in the United States were concerned, and should have restrained those companies from doing any act in the United States in violation of the antitrust act, whether or not the right to do said acts was asserted to have arisen pursuant to the contracts made outside of or within the United States. 3. The petition should not have been dismissed as to the United Cigar Stores Page 221 U. S. 154 Company. 4. The final decree should have adjudged defendants parties to unlawful contracts and conspiracies. 5. The final decree should have adjudged that defendants were attempting to monopolize and had monopolized parts of commerce. More particularly, it is urged, it should have adjudged that the American Tobacco Company, American Snuff Company, American Cigar Company, American Stogie Company, MacAndrews & Forbes Company, the Conley Foil Company, and the British-American Tobacco Company were severally attempting to monopolize and had monopolized parts of commerce, and that appropriate remedies should have been applied. 6. The decree was not sufficiently specific, since it should have described with more particularity the methods which the defendants had followed in forming and carrying out their unlawful purpose, and should have prohibited the resort to similar methods. 7. The decree should have specified the shares in corporations disclosed by the evidence to be owned by the parties to the conspiracy, and should have enjoined those parties from exercising any control over the corporations in which such stock was held, and the latter, if made defendant, from permitting such control, and should have also enjoined the collecting of any dividends upon the stock. 8. The decree improperly provided that nothing therein should prevent defendants from prosecuting or defending suits; also improperly suspended the injunction pending appeal. The defendants, by their assignments of error, complain because the petition was not dismissed as to all, and more specifically, (a) because they were adjudged parties to a combination in restraint of interstate and foreign commerce, and enjoined accordingly; (b) because certain defendant corporations holding shares in others were enjoined from voting them or exercising control over the issuing company, and the latter from permitting this, and (c) because the American Tobacco Company, American Page 221 U. S. 155 Snuff Company, American Cigar Company, American Stogie Company, and the MacAndrews & Forbes Company were adjudged unlawful combinations, and restrained from engaging in interstate and foreign commerce. The elaborate arguments made by both sides at bar present in many forms of statement the conflicting contentions resulting from the nature and character of the suit and the defense thereto, the decree of the lower court, and the propositions assigned as error to which we have just referred. Insofar as all or any of these contentions, as many of them in fact do, involve a conflict as to the application and effect of §§ 1 and 2 of the Anti-Trust Act, their consideration has been greatly simplified by the analysis and review of that act and the construction affixed to the sections in question in the case of Standard Oil Co. v. United States, quite recently decided, ante, p. 221 U. S. 1 . Insofar as the contentions relate to the disputed propositions of fact, we think from the view which we take of the case they need not be referred to, since, in our opinion, the case can be disposed of by considering only those facts which are indisputable, and by applying to the inferences properly deducible from such facts the meaning and effect of the law as expounded in accordance with the previous decisions of this Court. We shall divide our investigation of the case into three subjects: first, the undisputed facts; second, the meaning of the antitrust law, and its application, as correctly construed, to the ultimate conclusions of fact deducible from the proof; third, the remedies to be applied. First. Undisputed facts. The matters to be considered under this heading we think can best be made clear by stating the merest outline of the condition of the tobacco industry prior to what is asserted to have been the initial movement in the combination which the suit assails, and in the light so afforded to briefly recite the history of the assailed acts and contracts. Page 221 U. S. 156 We shall divide the subject into two periods: (a) the one from the time of the organization of the first or old American Tobacco Company, in 1890, to the organization of the Continental Tobacco Company, and (b) from the date of such organization to the filing of the bill in this case. Summarizing in the broadest way the conditions which obtained prior to 1890 as to the production, manufacture, and distribution of tobacco, the following general facts are adequate to portray the situation. Tobacco was grown in many sections of the country having diversity of soil and climate, and therefore was subject to various vicissitudes resulting from the places of production, and consequently varied in quality. The great diversity of use to which tobacco was applied in manufacturing caused it to be that there was a demand for all the various qualities. The demand for all qualities was not local, but widespread, extending as well to domestic as to foreign trade, and therefore all the products were marketed under competitive conditions of a peculiarly advantageous nature. The manufacture of the product in this country in various forms was successfully carried on by many individuals or concerns scattered throughout the country, a larger number, perhaps, of the manufacturers being in the vicinage of production, and others being advantageously situated in or near the principal markets of distribution. Before January, 1890, five distinct concerns -- Allen & Ginter, with factory at Richmond, Virginia; W. Duke, Sons & Company, with factories at Durham, North Carolina, and New York city; Kinney Tobacco Company, with factory at New York City; W. S. Kimball & Company, with factory at Rochester, New York; Goodwin & Company, with factory at Brooklyn, New York -- manufactured, distributed, and sold in the United States and abroad 95 percent of all the domestic cigarette and less than 8 percent Page 221 U. S. 157 of the smoking tobacco produced in the United States. There is no doubt that these factories were competitors in the purchase of the raw product which they manufactured, and in the distribution and sale of the manufactured products. Indeed, it is shown that, prior to 1890, not only had normal and ordinary competition existed between the factories in question, but that the competition had been fierce and abnormal. In January, 1890, having agreed upon a capital stock of $25,000,000, all to be divided amongst them, and who should be directors, the concerns referred to organized the American Tobacco Company in New Jersey, "for trading and manufacturing," with broad powers, and conveyed to it the assets and businesses including goodwill and right to use the names of the old concerns, and thereafter this corporation carried on the business of all. The $25,000,000 of stock of the tobacco company was allotted to the charter members as follows: Allen & Ginter, $3,000,000 preferred, $4,500,000 common; W. Duke, Sons & Company, $3,000,000 preferred, $4,500,000 common; Kinney Tobacco Company, $2,000,000 preferred, $3,000,000, common; W. S. Kimball & Company, $1,000,000 preferred, $1,500,000 common, and Goodwin & Company, $1,000,000 preferred, $1,500,000 common. There is a charge that the valuation at which the respective properties were capitalized in the new corporation was enormously in excess of their actual value. We, however, put that subject aside, since we propose only to deal with facts which are not in controversy. Shortly after the formation of the new corporation, the Goodwin & Company factory was closed, and the directors ordered "that the manufacture of all tobacco cigarettes be concentrated at Richmond." The new corporation, in 1890, the first year of its operation, manufactured about two and one-half billion cigarettes -- that is, about 96 or 97 percent of the total domestic output, and about five and one-half million pounds of smoking tobacco out Page 221 U. S. 158 of a total domestic product of nearly seventy million pounds. In a little over a year after the organization of the company, it increased its capital stock by $10,000,000. The purpose of this increase is inferable from the considerations which we now state. There was a firm known as Pfingst, Doerhoefer & Company, consisting of a number of partners, who had been long and successfully carrying on the business of manufacturing plug tobacco in Louisville, Kentucky, and distributing it through the channels of interstate commerce. In January, 1891, this firm was converted into a corporation known as the National Tobacco Works, having a capital stock of $400,000, all of which was issued to the partners. Almost immediately thereafter, in the month of February, the American Tobacco Company became the purchaser of all the capital stock of the new corporation, paying $600,000 cash and $1,200,000 in stock of the American Tobacco Company. The members of the previously existing firm bound themselves by contract with the American Tobacco Company to enter its service and manage the business and property sold, and each further agreed that for ten years he would not engage in carrying on, directly or indirectly, or permit or suffer the use of his name in connection with the carrying on, of the tobacco business in any form. In April following, the American Tobacco Company bought out the business of Philip Whitlock, of Richmond, Virginia, who was engaged in the manufacture of cheroots and cigars, and with the exclusive right to use the name of Whitlock. The consideration for this purchase was $300,000, and Whitlock agreed to become an employee of the American Tobacco Company for a number of years, and not to engage for twenty years in the tobacco business. In the month of April, the American Tobacco Company also acquired the business of Marburg Brothers, a well known firm located at Baltimore, Maryland, and engaged Page 221 U. S. 159 in the manufacture and distribution of tobacco, principally smoking and snuff. The consideration was a cash payment of $164,637.65 and stock to the amount of $3,075,000. The members of the firm also conveyed the right to the use of the firm name, and agreed not to engage in the tobacco business for a lengthy period. Again, in the same month, the American Tobacco Company bought out a tobacco firm of old standing, also located in Baltimore, as G. W. Gail & Ax, engaged principally in manufacturing and selling smoking tobacco, buying with the business the exclusive right to use the name of the firm or the partners, and the members of the firm agreed not to engage in the tobacco business for a specified period. The consideration for this purchase was $77,582.66 in cash and stock to the amount of $1,760,000. The plant was abandoned soon after. The result of these purchases was manifested at once in the product of the company for the year 1891, as will appear from a note in the margin. [ Footnote 3 ] It will be seen that as to cheroots, smoking tobacco, fine cut tobacco, snuff and plug tobacco, the company had become a factor in all branches of the tobacco industry. Referring to the occurrences of the year 1891, as in all Page 221 U. S. 160 respects typical of the occurrences which took place in all the other years of the first period -- that is, during the years 1892, 1893, 1894, 1895, 1896, 1897, and 1898 -- we content ourselves with saying that it is undisputed that between February, 1891, and October, 1898, including the purchases which we have specifically referred to, the American Tobacco Company acquired fifteen going tobacco concerns doing business in the states of Kentucky, Louisiana, Maryland, Michigan, Missouri, New York, North Carolina, and Virginia. For ten of the plants, an all-cash consideration of $6,410,235.26 was paid, while the payments for the remaining five aggregated in cash $1,115,100.95 and in stock $4,123,000. It is worth noting that the last purchase, in October, 1898, was of the Drummond Tobacco Company, a Missouri corporation dealing principally in plug, for which a cash consideration was paid of $3,457,500. The corporations which were combined for the purpose of forming the American Tobacco Company produced a very small portion of plug tobacco. That an increase in this direction was contemplated is manifested by the almost immediate increase of the stock and its use for the purpose of acquiring, as we have indicated, in 1891 and 1892, the ownership and control of concerns manufacturing plug tobacco and the consequent increase in that branch of production. There is no dispute that, as early as 1893, the president of the American Tobacco Company, by authority of the corporation, approached leading manufacturers of plug tobacco and sought to bring about a combination of the plug tobacco interests, and upon the failure to accomplish this, ruinous competition, by lowering the price of plug below its cost, ensued. As a result of this warfare, which continued until 1898, the American Tobacco Company sustained severe losses aggregating more than four millions of dollars. The warfare produced its natural result not only because the company acquired Page 221 U. S. 161 during the last two years of the campaign, as we have stated, control of important plug tobacco concerns, but others engaged in that industry came to terms. We say this because, in 1898, in connection with several leading plug manufacturers, the American Tobacco Company organized a New Jersey corporation styled the Continental Tobacco Company for "trading and manufacturing," with a capital of $75,000,000, afterwards increased to $100,000,000. The new company issued its stock and took transfers to the plants, assets, and businesses of five large and successful competing plug manufacturers. [ Footnote 4 ] The American Tobacco Company also conveyed to this corporation at large valuations, the assets, brands, real estate, and goodwill pertaining to its plug tobacco business, including the National Tobacco Works, the James G. Butler Tobacco Company, Drummond Tobacco Company, and Brown Tobacco Company, receiving as consideration $30,274,200 of stock (one half common and one-half preferred), $300,000 cash, and an additional sum for losses sustained in the plug business during 1898, $840,035. Mr. Duke, the president of the American Tobacco Company, also became president of the Continental Company. Under the preliminary agreement which was made, looking to the formation of the Continental Tobacco Page 221 U. S. 162 Company, that company acquired from the holders all the $3,000,000 of the common stock of the P. Lorillard Company in exchange for $6,000,000 of its stock, and $1,581,300 of the $2,000,000 preferred in exchange for notes aggregating a sum considerably larger. The Lorillard Company, however, although it thus passed practically under the control of the American Tobacco Company by virtue of its ownership of stock in the Continental Company, was not liquidated, but its business continued to be conducted as a distinct corporation, its goods being marked and put upon the market just as if they were the manufacture of an independent concern. Following the organization of the Continental Tobacco Company, the American Tobacco Company increased its capital stock from thirty-five millions of dollars to seventy millions of dollars, and declared a stock dividend of 100 percent on its common stock -- that is, a stock dividend of $21,000,000. As the facts just stated bring us to the end of the first period which at the outset, we stated it was our purpose to review, it is well briefly to point out the increase in the power and control of the American Tobacco Company and the extension of its activities to all forms of tobacco products which had been accomplished just prior to the organization of the Continental Tobacco Company. Nothing could show it more clearly than the following: at the end of that time, the company was manufacturing eighty-six percent or thereabouts of all the cigarettes produced in the United States, above twenty-six percent of all the smoking tobacco, more than twenty-two percent of all plug tobacco, fifty-one percent of all little cigars, six percent each of all snuff and fine cut tobacco, and over two percent of all cigars and cheroots. A brief reference to the occurrences of the second period -- that is, from and after the organization of the Continental Tobacco Company up to the time of the bringing of this Page 221 U. S. 163 suit -- will serve to make evident that the transactions in their essence had all the characteristics of the occurrences of the first period. In the year 1899 and thereafter, either the American or Continental Companies, for cash or stock at an aggregate cost of fifty millions of dollars ($50,000,000), bought and closed up some thirty competing corporations and partnerships theretofore engaged in interstate and foreign commerce as manufacturers, sellers, and distributors of tobacco and related commodities, the interested parties covenanting not to engage in the business. Likewise the two corporations acquired for cash, by issuing stock, and otherwise, control of many competing corporations, now going concerns, with plants in various states, Cuba and Porto Rico, which manufactured, bought, sold, and distributed tobacco products or related articles throughout the United States and foreign countries, and took from the parties in interest covenants not to engage in the tobacco business. The plants thus acquired were operated until the merger in 1904, to which we shall hereafter refer, as a part of the general system of the American and Continental companies. The power resulting from and the purpose contemplated in making these acquisitions by the companies just referred to, however, may not be measured by considering alone the business of the company directly acquired, since some of those companies were made the vehicles as representing the American or Continental Company for acquiring and holding the stock of other and competing companies, thus amplifying the power resulting from the acquisitions directly made by the American or Continental Company, without ostensibly doing so. It is besides undisputed that in many instances the acquired corporations, with the subsidiary companies over which they had control through stock ownership, were carried on ostensibly as independent concerns, disconnected Page 221 U. S. 164 from either the American or the Continental Company, although they were controlled and owned by one or the other of these companies. Without going into details on these subjects, for the sake of brevity, we append in the margin a statement of the corporations thus acquired, with the mention of the competing concerns which such corporations acquired. [ Footnote 5 ] Page 221 U. S. 165 It is of the utmost importance to observe that the acquisitions made by the subsidiary corporations in some cases likewise show the remarkable fact stated above; that is, the disbursement of enormous amounts of money to Page 221 U. S. 166 acquire plants, which, on being purchased, were not utilized, but were immediately closed. It is also to be remarked that the facts stated in the memorandum in the margin show on their face a singular identity between the conceptions which governed the transactions of this latter period with those which evidently existed at the very birth of the original organization of the American Tobacco Company, as exemplified by the transactions in the first period. A statement of particular transactions outside of those previously referred to as having occurred during the period in question will serve additionally to make the situation clear. And to accomplish this purpose, we shall, as briefly as may be consistent with clarity, separately refer to the facts concerning the organization during the Page 221 U. S. 167 second period of the five corporations which were named as defendants in the bill, as heretofore stated, and which, for the purpose of designation, we have hitherto classified as accessory defendants, such corporations being the American Snuff Company, American Cigar Company, American Stogie Company, MacAndrews & Forbes Company (licorice), and Conley Foil Company. (1) The American Snuff Company. As we have seen, the American Tobacco Company at the commencement of the first period, produced a very small quantity of snuff. Its capacity, however, in that regard was augmented, owing particularly to the formation of the Continental Tobacco Company and the acquisition of the Lorillard Company, by which it came to be a serious factor as a snuff producer. There shortly ensued an aggressive competition in the snuff business between the American Tobacco Company, with the force acquired from the vantage ground resulting from the dominancy of its expanded organization, and others in the trade operating independently of that organization. The result was identical with that which had previously arisen from like conditions in the past. In March, 1900, there was organized in New Jersey a corporation known as the American Snuff Company, with a capital of $25,000,000, one-half preferred and one-half common, which took over the Snuff business of the P. Lorillard Company, Continental Company, and the American Tobacco Company, with that of a large competitor, viz.: the Atlantic Snuff Company. The stock of the new company was thus apportioned: Atlantic Snuff Company, preferred, $7,500,000, common, $25,000,000; P. Lorillard Company, preferred, $1,124,700, common, $3,459,400; the American Tobacco Company, preferred, $1,177,800, common, $3,227,500; Continental Tobacco Company, preferred, $197,500, common, $813,100. The stock issued to Continental Tobacco Company and the Page 221 U. S. 168 defendants P. Lorillard Company and the American Tobacco Company is still held by the latter, and they have at all times had a controlling interest in the snuff company. All the companies, together with their officers and directors, covenanted that they would not thereafter engage as competitors in the tobacco business or the manufacture, sale, or distribution of snuff. Among the assets transferred by the Atlantic Snuff Company to American Snuff Company were all the shares ($600,000) of W. E. Garrett & Sons, Inc., then and now one of the oldest and very largest producers of snuff, for a long time and still engaged at Yorkland, Delaware, in interstate and foreign commerce in tobacco and its products, and which controlled through stock ownership the Southern Snuff Company, Memphis, Tennessee, Dental Snuff Company, Lynchburg, Virginia, and Stewart-Ralph Snuff Company, Clarksville, Tennessee. The separate existence of W. E. Garrett & Sons, Inc., has been preserved and its business conducted under the corporate name. In March, 1900, the American Snuff Company acquired all the shares of George W. Helme Company, one of the oldest and largest producers of snuff and actively engaged at Helmetta, New Jersey, in interstate and foreign commerce in competition with defendants, by issuing in exchange therefore $2,000,000 preferred stock and $1,000,000 common, and it thereafter took a conveyance of all assets of the acquired company, and now operates the plant under its own name. As a result of the transaction just stated, it came to pass that the American Tobacco Company, which had at the end of the first period, only a very small percentage of the snuff manufacturing business, came virtually to have the dominant control as a manufacturer of that product. 2. Conley Foil Company -- manufacturers of tinfoil, an essential for packing tobacco products. In December, 1899, the American Tobacco Company secured control of the business of John Conley & Sons, a Page 221 U. S. 169 partnership of New York City. By agreement, the Conley Foil Company was incorporated in New York "for trading and manufacturing," etc., with $250,000 capital, ultimately increased to $825,000. The corporation took over the business and assets of the firm, and the American Tobacco Company became owner of a majority of the shares of stock. The Conley Foil Company has acquired all the shares of stock of the Johnson Tinfoil & Metal Company, of St. Louis, a leading competitor, and they supply under fixed contracts at remunerative prices the tinfoil used by the defendants, which constitutes the major part of the total production in the United States. 3. American Cigar Company. Prior to 1901, the American and Continental Tobacco Companies manufactured, sold, and distributed cigars, stogies, and cheroots. In the year stated, the companies determined to engage in the business upon a larger scale. Under agreement with Powell, Smith & Company, large manufacturers and dealers in cigars, they caused the incorporation in New Jersey of the American Cigar Company "for trading and manufacturing," etc., to which all three conveyed their said business, and it has since carried on the same. The American and Continental companies each acquired 46 1/2 percent of the shares, and Powell, Smith & Company 7 percent; the original capitalization was $1,000,000 (afterwards $20,000,000), and more than three-fourths is owned by the former. The cigar company acquired many competitors (partnerships and corporations) engaged in interstate and foreign commerce, taking the parties covenants against engaging in the tobacco business, and it has also procured the organization of controlled corporations which have acquired competing manufacturers, jobbers, and distributors in the United States, Cuba, and Porto Rico. It manufacturers, sells, and distributes a considerable percentage of domestic cigars; is the dominating factor in the tobacco business, Page 221 U. S. 170 foreign and domestic, in Cuba and Porto Rico, and is there engaged in tobacco planting. It also controls corporate jobbers in California, Alabama, Virginia, Pennsylvania, Georgia, Louisiana, New Jersey, and Tennessee. 4. The MacAndrews & Forbes Company -- manufacturers of licorice. There is no question that licorice paste is an essential ingredient in the manufacture of plug tobacco, and that one who is debarred from obtaining such paste would therefore be unable to engage in or carry on the manufacture of such product. The control over this article was thus secured: in May, 1902, the Continental Company secured control of MacAndrews and Forbes Company of Newark, New Jersey, and organized "for trading and manufacturing" a corporation known as the MacAndrews & Forbes Company, with a capital of $7,000,000, $4,000,000 preferred and $3,000,000 common, which took over the business of MacAndrews and Forbes and another large competitor. The Continental Company acquired two-thirds of the common stock by agreeing to purchase its supply of paste from the new company. The American Tobacco Company at the time of the filing the bill, was the owner of $2,112,900 of the common stock and $750,000 preferred. By various purchases and agreements, the MacAndrews & Forbes Company acquired substantially the business of all competitors. Thus, in June, 1902, it purchased the business of the Stamford Mfg. Company, of Stamford, Connecticut, and incorporated the National Licorice Company, which acquired the business of Young & Smylie and F. B. & V. P. Scudder, and the National Company agreed with MacAndrew & Forbes not to produce licorice for tobacco manufacturers. In 1906, all the stock in the J. S. Young Company, ($1,800,000), which had been organized to take over the business of the J. S. Young Company of Baltimore, Maryland, was acquired by the MacAndrews & Forbes Company. The MacAndrews & Forbes Company use in excess Page 221 U. S. 171 of 95 percent of the licorice root consumed in the United States. 5. American Stogie Company. In May, 1903, the American Cigar Company and the American and Continental Tobacco Companies caused the American Stogie Company to be incorporated in New Jersey, with $11,979,000 capital, which immediately took over the stogie and tobie business of the companies named in exchange for $8,206,275 stock, and then, in the usual ways, acquired the business of others in the manufacture, sale, and distribution of such products, with covenants not to compete. It acquired in exchange for $3,647,725 stock all shares of United States Cigar Company (which had previously acquired and owned the business of important competitors), and subsequently took the conveyance of the plant and assets. The majority shares always have been held by defendant, the American Cigar Company. As we think the legitimate inferences deducible from the undisputed facts which we have thus stated will be sufficient to dispose of the controversy, we do not deem it necessary to expand this statement so as to cause it to embrace a recital of the undisputed facts concerning the entry of the American Tobacco Company into the retail tobacco trade through the acquisition of a controlling interest in the stock of what is known as the United Cigar Stores Company, as well as to some other subjects which, for the sake of brevity, we likewise pass over, in order to come at once to a statement concerning the foreign companies. The English companies. In September, 1901, the American Tobacco Company purchased for $5,347,000 a Liverpool (England) corporation, known as Ogden's Limited, there engaged in manufacturing and distributing tobacco products. A trade conflict which at once ensued caused many of the English manufacturers to combine into an incorporation known as the Page 221 U. S. 172 Imperial Tobacco Company of Great Britain & Ireland, capital 15,000,000, afterwards increased to 18,000,000, pounds sterling. The trade war was continued between this corporation and the American Tobacco Company, with a result substantially identical with that which had hitherto, as we have seen, arisen from such a situation. In September, 1902, the Imperial and the American companies entered into contracts (executed in England) stipulating that the former should limit its business to the United Kingdom, except purchasing leaf in the United States (it buys 54,000,000 pounds annually); that the American companies should limit their business to the United States, its dependencies and Cuba, and that the British-American Tobacco Company, with capital of 6,000,000 pounds sterling apportioned between them, should be organized, take over the export business of both, and operate in other countries, etc. This arrangement was immediately put into effect, and has been observed. The Imperial Company holds one-third and the American Company two-thirds of the capital stock of the British American Tobacco Company, Limited. The latter company maintains a branch office in New York City, and the vice-president of the American Tobacco Company is a principal officer. This company uses large quantities of domestic leaf, partly exported to various plants abroad, and about half manufactured here and then exported. By agreement, all this is purchased through the American Tobacco Company. In addition to many plants abroad, it has warehouses in various states and plants at Petersburg, Virginia, and Durham, North Carolina, where tobacco is manufactured and then exported. The purchase of necessary leaf tobacco in the United States by the Imperial Company is now made through a resident general agent, and is exported as a part of foreign commerce. Not to break the continuity of the narrative of facts, we Page 221 U. S. 173 have omitted in the proper chronological order to state the facts relative to what was known as the Consolidated Tobacco Company. We now particularly refer to that subject. The Consolidated Tobacco Company. In June, 1901, parties largely interested in the American and Continental companies caused the incorporation in New Jersey of the Consolidated Tobacco Company, capital $30,000,000 (afterwards $40,000,000), with broad powers and perpetual existence, to do business throughout the world, and to guarantee securities of other companies, etc. A majority of shares was taken by a few individuals connected with the old concerns: A. N. Brady, J. B. Duke, A. H. Payne, Thomas Ryan, W. C. Whitney, and P. A. B. Widener. J. B. Duke, president of both the old companies, became president of the Consolidated. Largely in exchange for bonds, the new company acquired substantially all the shares of common stock of the old ones. Its business, of holding and financing, was continued until 1904, when, with the American and Continental Companies, it was merged into the present American Tobacco Company. By proceedings in New Jersey, October, 1904, the (old) American Tobacco Company, Continental Tobacco Company, and Consolidated Tobacco Company were merged into one corporation, under the name of the American Tobacco Company, the principal defendant here. The merged company, with perpetual existence, was capitalized at $180,000,000 ($80,000,000 preferred, ordinarily without power to vote). The powers conferred by the charter are stated in the margin. [ Footnote 6 ] Page 221 U. S. 174 Prior to the merger the Consolidated Tobacco Company, a majority of whose $40,000,000 share capital was held by J. B. Duke, Thomas F. Ryan, William C. Whitney, Anthony N. Brady, Peter A. B. Widener, and Oliver H. Payne, had acquired, as already stated, nearly all common shares of both old American and Continental Companies, and thereby control. The preferred shares, however, were held by many individuals. Through the method of distribution of the stock of the new company in exchange for shares in the old American and in the Continental Company, it resulted that the same six men in control of the combination through the Consolidated Tobacco Company continued that control by ownership of stock in the merged or new American Tobacco Company. The assets, property, etc., of the old Companies, passed to the American Tobacco Company (merged), which has since carried on the business. The record indisputably discloses that, after this merger, the same methods which were used from the beginning continued to be employed. Thus, it is beyond dispute first that, since the organization of the new American Tobacco Company, that company has acquired four large tobacco concerns, that restrictive covenants against engaging in the tobacco business were taken from the sellers, and that the plants were not continued in operation, but Page 221 U. S. 175 were at once abandoned. Second, that the new company has besides acquired control of eight additional concerns, the business of such concerns being now carried on by four separate corporations, all absolutely controlled by the American Tobacco Company, although the connection as to two of these companies with that corporation was long and persistently denied. Thus, reaching the end of the second period and coming to the time of the bringing of the suit, brevity prevents us from stopping to portray the difference between the condition in 1890 when the (old) American Tobacco Company was organized by the consolidation of five competing cigarette concerns and that which existed at the commencement of the suit. That situation and the vast power which the principal and accessory corporate defendants and the small number of individuals who own a majority of the common stock of the new American Tobacco Company exert over the marketing of tobacco as a raw product, its manufacture, its marketing when manufactured, and its consequent movement in the channels of interstate commerce, indeed, relatively, over foreign commerce, and the commerce of the whole world, in the raw and manufactured products, stand out in such bold relief from the undisputed facts which have been stated as to lead us to pass at once to the second fundamental proposition which we are required to consider -- that is, the construction of the Anti-Trust Act and the application of the act, as rightly construed, to the situation as proven in consequence of having determined the ultimate and final inferences properly deducible from the undisputed facts which we have stated. The construction and application of the Anti-Trust Act. If the antitrust law is applicable to the entire situation here presented, and is adequate to afford complete relief for the evils which the United States insists that situation presents, it can only be because that law will be given a Page 221 U. S. 176 more comprehensive application than has been affixed to it in any previous decision. This will be the case because the undisputed facts as we have stated them involve questions as to the operation of the antitrust law not hitherto presented in any case. Thus, even if the ownership of stock by the American Tobacco Company in the accessory and subsidiary companies, and the ownership of stock in any of those companies among themselves, were held, as was decided in the United States v. Standard Oil Co., to be a violation of the act, and all relations resulting from such stock ownership were therefore set aside, the question would yet remain whether the principal defendant, the American Tobacco Company, and the five accessory defendants, even when divested of their stock ownership in other corporations, by virtue of the power which they would continue to possess, even although thus stripped, would amount to a violation of both the first and second sections of the act. Again, if it were held that the corporation, the existence whereof was due to a combination between such companies and other companies, was a violation of the act, the question would remain whether such of the companies as did not owe their existence and power to combinations, but whose power alone arose from the exercise of the right to acquire and own property, would be amenable to the prohibitions of the act. Yet further: even if this proposition was held in the affirmative, the question would remain whether the principal defendant, the American Tobacco Company, when stripped of its stock ownership, would be, in and of itself, within the prohibitions of the act, although that company was organized and took being before the Anti-Trust Act was passed. Still further, the question would yet remain whether particular corporations which, when bereft of the power which they possessed as resulting from stock ownership, although they were not inherently possessed of a sufficient residuum of power to cause them to be, in Page 221 U. S. 177 and of themselves, either a restraint of trade or a monopolization or an attempt to monopolize, should nevertheless be restrained because of their intimate connection and association with other corporations found to be within the prohibitions of the act. The necessity of relief as to all these aspects, we think, seemed to the government so essential, and the difficulty of giving to the act such a comprehensive and coherent construction as would be adequate to enable it to meet the entire situation, led to what appears to us to be in their essence a resort to methods of construction not compatible one with the other. And the same apparent conflict is presented by the views of the act taken by the defendants when their contentions are accurately tested. Thus, the government, for the purpose of fixing the illegal character of the original combinations which organized the old American Tobacco Company, asserts that the illegal character of the combination is plainly shown because the combination was brought about to stay the progress of a flagrant and ruinous trade war. In other words, the contention is that, as the act forbids every contract and combination, it hence prohibits a reasonable and just agreement made for the purpose of ending a trade war. But, as thus construing the act by the rule of the letter which kills would necessarily operate to take out of the reach of the act some of the accessory and many subsidiary corporations, the existence of which depends not at all upon combination or agreement or contract, but upon mere purchasers of property, it is insisted in many forms of argument that the rule of construction to be applied must be the spirit and intent of the act, and therefore its prohibitions must be held to extend to acts even if not within the literal terms of the statute, if they are within its spirit, because done with an intent to bring about the harmful results which it was the purpose of the statute to prohibit. So as to the defendants. While it is argued on the one hand that the forms by which various properties Page 221 U. S. 178 were acquired, in view of the letter of the act, exclude many of the assailed transactions from condemnation, it is yet urged that, giving to the act the broad construction which it should rightfully receive, whatever may be the form, no condemnation should follow because, looking at the case as a whole, every act assailed is shown to have been but a legitimate and lawful result of the exertion of honest business methods, brought into play for the purpose of advancing trade, instead of with the object of obstructing and restraining the same. But the difficulties which arise from the complexity of the particular dealings which are here involved and the situation which they produce we think grows out of a plain misconception of both the letter and spirit of the Anti-Trust Act. We say of the letter because, while seeking by a narrow rule of the letter to include things which it is deemed would otherwise be excluded, the contention really destroys the great purpose of the act, since it renders it impossible to apply the law to a multitude of wrongful acts which would come within the scope of its remedial purposes by resort to a reasonable construction, although they would not be within its reach by a too narrow and unreasonable adherence to the strict letter. This must be the case unless it be possible in reason to say that, for the purpose of including one class of acts which would not otherwise be embraced, a literal construction, although in conflict with reason, must be applied, and for the purpose of including other acts which would not otherwise be embraced, a reasonable construction must be resorted to. That is to say, two conflicting rules of construction must at one and the same time be applied and adhered to. The obscurity and resulting uncertainty, however, are now but an abstraction, because it has been removed by the consideration which we have given quite recently to the construction of the Anti-Trust Act in the Standard Oil case. In that case, it was held, without departing from Page 221 U. S. 179 any previous decision of the Court, that, as the statute had not defined the words "restraint of trade," it became necessary to construe those words -- a duty which could only be discharged by a resort to reason. We say the doctrine thus stated was in accord with all the previous decisions of this Court despite the fact that the contrary view was sometimes erroneously attributed to some of the expressions used in two prior decisions (the Trans-Missouri Freight Association and Joint Traffic cases, 166 U. S. 166 U.S. 290, and 171 U. S. 171 U.S. 505). That such view was a mistaken one was fully pointed out in the Standard Oil case, and is additionally shown by a passage in the opinion in the Joint Traffic case, as follows (171 U.S. 171 U. S. 568 ): "The act of Congress must have a reasonable construction, or else there would scarcely be an agreement or contract among business men that could not be said to have, indirectly or remotely, some bearing upon interstate commerce, and possibly to restrain it." Applying the rule of reason to the construction of the statute, it was held in the Standard Oil case that, as the words "restraint of trade" at common law and in the law of this country at the time of the adoption of the Anti-Trust Act only embraced acts or contracts or agreements or combinations which operated to the prejudice of the public interests by unduly restricting competition, or unduly obstructing the due course of trade, or which, either because of their inherent nature or effect, or because of the evident purpose of the acts, etc., injuriously restrained trade, that the words as used in the statute were designed to have and did have but a like significance. It was therefore pointed out that the statute did not forbid or restrain the power to make normal and usual contracts to further trade by resorting to all normal methods, whether by agreement or otherwise, to accomplish such purpose. In other words, it was held not that acts which the statute prohibited could be removed from the control of its prohibitions by a finding Page 221 U. S. 180 that they were reasonable, but that the duty to interpret, which inevitably arose from the general character of the term "restraint of trade," required that the words "restraint of trade" should be given a meaning which would not destroy the individual right to contract, and render difficult, if not impossible, any movement of trade in the channels of interstate commerce -- the free movement of which it was the purpose of the statute to protect. The soundness of the rule that the statute should receive a reasonable construction, after further mature deliberation, we see no reason to doubt. Indeed, the necessity for not departing in this case from the standard of the rule of reason which is universal in its application is so plainly required in order to give effect to the remedial purposes which the act under consideration contemplates, and to prevent that act from destroying all liberty of contract and all substantial right to trade, and thus causing the act to be at war with itself by annihilating the fundamental right of freedom to trade which, on the very face of the act, it was enacted to preserve, is illustrated by the record before us. In truth, the plain demonstration which this record gives of the injury which would arise from, and the promotion of the wrongs which the statute was intended to guard against which would result from, giving to the statute a narrow, unreasoning, and unheard-of construction, as illustrated by the record before us, if possible serves to strengthen our conviction as to the correctness of the rule of construction -- the rule of reason -- which was applied in the Standard Oil case, the application of which rule to the statute we now, in the most unequivocal terms, reexpress and reaffirm. Coming, then, to apply to the case before us the act as interpreted in the Standard Oil and previous cases, all the difficulties suggested by the mere form in which the assailed transactions are clothed become of no moment. This follows because, although it was held in the Standard Page 221 U. S. 181 Oil case that, giving to the statute a reasonable construction, the words "restraint of trade" did not embrace all those normal and usual contracts essential to individual freedom, and the right to make which was necessary in order that the course of trade might be free, yet, as a result of the reasonable construction which was affixed to the statute, it was pointed out that the generic designation of the first and second sections of the law, when taken together, embraced every conceivable act which could possibly come within the spirit or purpose of the prohibitions of the law, without regard to the garb in which such acts were clothed. That is to say, it was held that, in view of the general language of the statute and the public policy which it manifested, there was no possibility of frustrating that policy by resorting to any disguise or subterfuge of form, since resort to reason rendered it impossible to escape, by any indirection, the prohibitions of the statute. Considering, then, the undisputed facts which we have previously stated, it remains only to determine whether they establish that the acts, contracts, agreements, combinations, etc., which were assailed were of such an unusual and wrongful character as to bring them within the prohibitions of the law. That they were, in our opinion so overwhelmingly results from the undisputed facts that it seems only necessary to refer to the facts as we have stated them to demonstrate the correctness of this conclusion. Indeed, the history of the combination is so replete with the doing of acts which it was the obvious purpose of the statute to forbid, so demonstrative of the existence from the beginning of a purpose to acquire dominion and control of the tobacco trade, not by the mere exertion of the ordinary right to contract and to trade, but by methods devised in order to monopolize the trade by driving competitors out of business, which were ruthlessly carried out upon the assumption that to work upon Page 221 U. S. 182 the fears or play upon the cupidity of competitors would make success possible. We say these conclusions are inevitable not because of the vast amount of property aggregated by the combination, not because, alone, of the many corporations which the proof shows were united by resort to one device or another. Again, not alone because of the dominion and control over the tobacco trade which actually exists, but because we think the conclusion of wrongful purpose and illegal combination is overwhelmingly established by the following considerations: (a) by the fact that the very first organization or combination was impelled by a previously existing fierce trade war, evidently inspired by one or more of the minds which brought about and became parties to that combination; (b) because, immediately after that combination and the increase of capital which followed, the acts which ensued justify the inference that the intention existed to use the power of the combination as a vantage ground to further monopolize the trade in tobacco by means of trade conflicts designed to injure others, either by driving competitors out of the business or compelling them to become parties to a combination -- a purpose whose execution was illustrated by the plug war which ensued and its results, by the snuff war which followed and its results, and by the conflict which immediately followed the entry of the combination in England, and the division of the world's business by the two foreign contracts which ensued; (c) by the ever-present manifestation which is exhibited of a conscious wrongdoing by the form in which the various transactions were embodied from the beginning, ever changing, but ever in substance the same. Now the organization of a new company, now the control exerted by the taking of stock in one or another or in several, so as to obscure the result actually attained, nevertheless uniform, in their manifestations of the purpose to restrain others and to monopolize and retain power in the hands of the Page 221 U. S. 183 few who, it would seem, from the beginning, contemplated the mastery of the trade which practically followed; (d) by the gradual absorption of control over all the elements essential to the successful manufacture of tobacco products, and placing such control in the hands of seemingly independent corporations serving as perpetual barriers to the entry of others into the tobacco trade; (e) by persistent expenditure of millions upon millions of dollars in buying out plants, not for the purpose of utilizing them, but in order to close them up and render them useless for the purposes of trade; (f) by the constantly recurring stipulations, whose legality, isolatedly viewed, we are not considering, by which numbers of persons, whether manufacturers, stockholders, or employees, were required to bind themselves, generally for long periods, not to compete in the future. Indeed, when the results of the undisputed proof which we have stated are fully apprehended, and the wrongful acts which they exhibit are considered, there comes inevitably to the mind the conviction that it was the danger which it was deemed would arise to individual liberty and the public wellbeing from acts like those which this record exhibits, which led the legislative mind to conceive and to enact the Anti-Trust Act -- considerations which also serve so clearly to demonstrate that the combination here assailed is within the law as to leave no doubt that it is our plain duty to apply its prohibitions. In stating summarily, as we have done, the conclusions which, in our opinion, are plainly deducible from the undisputed facts, we have not paused to give the reasons why we consider, after great consideration, that the elaborate arguments advanced to affix a different complexion to the case are wholly devoid of merit. We do not, for the sake of brevity, moreover, stop to examine and discuss the various propositions urged in the argument at bar for the purpose of demonstrating that the subject matter of the Page 221 U. S. 184 combination which we find to exist, and the combination itself, are not within the scope of the Anti-Trust Act, because, when rightly considered, they are merely matters of intrastate commerce, and therefore subject alone to state control. We have done this because the want of merit in all the arguments advanced on such subjects is so completely established by the prior decisions of this Court, as pointed out in the Standard Oil case, as not to require restatement. Leading as this does to the conclusion that the assailed combination in all its aspects -- that is to say, whether it be looked at from the point of view of stock ownership or from the standpoint of the principal corporation and the accessory or subsidiary corporations, viewed independently, including the foreign corporations insofar as by the contracts made by them they became cooperators in the combination -- comes within the prohibitions of the first and second sections of the Anti-Trust Act, it remains only finally to consider the remedy which it is our duty to apply to the situation thus found to exist. The remedy. Our conclusion being that the combination as a whole, involving all its cooperating or associated parts, in whatever form clothed, constitutes a restraint of trade within the first section, and an attempt to monopolize or a monopolization within the second section of the Anti-Trust Act, it follows that the relief which we are to afford must be wider than that awarded by the lower courts, since that court merely decided that certain of the corporate defendants constituted combinations in violation of the first section of the act, because of the fact that they were formed by the union of previously competing concerns, and that the other defendants not dismissed from the action were parties to such combinations or promoted their purposes. We, hence, in determining the relief proper to be given, may not model our action upon that granted by the court below, but, in order to enable us to Page 221 U. S. 185 award relief coterminous with the ultimate redress of the wrongs which we find to exist, we must approach the subject of relief from an original point of view. Such subject necessarily takes a two-fold aspect -- the character of the permanent relief required and the nature of the temporary relief essential to be applied pending the working out of permanent relief in the event that it be found that it is impossible, under the situation as it now exists, to at once rectify such existing wrongful condition. In considering the subject from both of these aspects, three dominant influences must guide our action: 1. The duty of giving complete and efficacious effect to the prohibitions of the statute; 2. the accomplishing of this result with as little injury as possible to the interest of the general public; and, 3. a proper regard for the vast interests of private property which may have become vested in many persons as a result of the acquisition, either by way of stock ownership or otherwise, of interests in the stock or securities of the combination without any guilty knowledge or intent in any way to become actors or participants in the wrongs which we find to have inspired and dominated the combination from the beginning. Mindful of these considerations, and to clear the way for their application, we say at the outset, without stopping to amplify the reasons which lead us to that conclusion, we think that the court below clearly erred in dismissing the individual defendants, the United Cigar Stores Company, and the foreign corporations and their subsidiary corporations. Looking at the situation, as we have hitherto pointed it out, it involves difficulties in the application of remedies greater than have been presented by any case involving the antitrust law which has been hitherto considered by this Court, first because, in this case, it is obvious that a mere decree forbidding stock ownership by one part of the combination in another part or entity thereof would afford no adequate measure of relief, since different Page 221 U. S. 186 ingredients of the combination would remain unaffected, and, by the very nature and character of their organization, would be able to continue the wrongful situation which it is our duty to destroy; second, because the methods of apparent ownership by which the wrongful intent was, in part, carried out, and the subtle devices which, as we have seen, were resorted to for the purpose of accomplishing the wrong contemplated by way of ownership or otherwise, are of such a character that it is difficult, if not impossible, to formulate a remedy which could restore in their entirety the prior lawful conditions; third, because the methods devised by which the various essential elements to the successful operation of the tobacco business from any particular aspect have been so separated under various subordinate combinations, yet, so unified by way of the control worked out by the scheme here condemned, are so involved that any specific form of relief which we might now order in substance and effect might operate really to injure the public, and, it may be, to perpetuate the wrong. Doubtless it was the presence of these difficulties which caused the United States, in its prayer for relief, to tentatively suggest, rather than to specifically demand, definite and precise remedies. We might at once resort to one or the other of two general remedies -- (a) the allowance of a permanent injunction restraining the combination as a universality, and all the individuals and corporations which form a part of or cooperate in it in any manner or form from continuing to engage in interstate commerce until the illegal situation be cured, a measure of relief which would accord in substantial effect with that awarded below to the extent that the court found illegal combinations to exist, or (b) to direct the appointment of a receiver to take charge of the assets and property in this country of the combination in all its ramifications, for the purpose of preventing a continued violation of the law, and thus working out, by a sale of the Page 221 U. S. 187 property of the combination or otherwise, a condition of things which would not be repugnant to the prohibitions of the act. But, having regard to the principles which we have said must control our action, we do not think we can now direct the immediate application of either of these remedies. We so consider as to the first because, in view of the extent of the combination, the vast field which it covers, the all-embracing character of its activities concerning tobacco and its products, to at once stay the movement in interstate commerce of the products which the combination or its cooperating forces produce or control might inflict infinite injury upon the public by leading to a stoppage of supply and a great enhancement of prices. The second because the extensive power which would result from at once resorting to a receivership might not only do grievous injury to the public, but also cause widespread and perhaps irreparable loss to many innocent people. Under these circumstances, taking into mind the complexity of the situation in all of its aspects and giving weight to the many-sided considerations which must control our judgment, we think, so far as the permanent relief to be awarded is concerned, we should decree as follows: 1st, that the combination, in and of itself, as well as each and all of the elements composing it, whether corporate or individual, whether considered collectively or separately, be decreed to be in restraint of trade and an attempt to monopolize and a monopolization within the first and second sections of the Anti-Trust Act; 2d, that the court below, in order to give effective force to our decree in this regard, be directed to hear the parties, by evidence or otherwise, as it may be deemed proper, for the purpose of ascertaining and determining upon some plan or method of dissolving the combination and of recreating, out of the elements now composing it, a new condition which shall be honestly in harmony with and not repugnant to the law; 3d, that for the accomplishment Page 221 U. S. 188 of these purposes, taking into view the difficulty of the situation, a period of six months is allowed from the receipt of our mandate, with leave, however, in the event, in the judgment of the court below, the necessities of the situation require, to extend such period to a further time not to exceed sixty days; 4th, that in the event, before the expiration of the period thus fixed, a condition of disintegration in harmony with the law is not brought about, either as the consequence of the action of the court in determining an issue on the subject, or in accepting a plan agreed upon, it shall be the duty of the court, either by way of an injunction restraining the movement of the products of the combination in the channels of interstate or foreign commerce, or by the appointment of a receiver, to give effect to the requirements of the statute. Pending the bringing about of the result just stated, each and all of the defendants, individuals as well as corporations, should be restrained from doing any act which might further extend or enlarge the power of the combination by any means or device whatsoever. In view of the considerations we have stated, we leave the matter to the court below to work out a compliance with the law without unnecessary injury to the public or the rights of private property. While in many substantial respects our conclusion is in accord with that reached by the court below, and while also the relief which we think should be awarded, in some respects, is coincident with that which the court granted, in order to prevent any complication, and to clearly define the situation, we think, instead of affirming and modifying, our decree, in view of the broad nature of our conclusions, should be one of reversal and remanding, with directions to the court below to enter a decree in conformity with this opinion, and to take such further steps as may be necessary to fully carry out the directions which we have given. And it is so ordered. Page 221 U. S. 189 [ Footnote 1 ] James B. Duke, C. Dula, Percival S. Hill, George Arents, Paul Brown, Robert B. Dula, George A. Helme, Robert D. Lewis, Thomas J. Maloney, Oliver H. Payne, Thomas F. Ryan, Robert K. Smith, George W. Watts, George G. Allen, John B. Cobb, William R. Harris, William H. McAlister, Anthony N. Brady, Benjamin N. Duke, H. M. Hanna, Herbert D. Kingsbury, Pierre Lorillard, Rufus L. Patterson, Frank H. Ray, Grant B. Schley, Charles N. Strotz, Peter A. B. Widener, Welford C. Reed (now deceased), and Williamson W. Fuller. [ Footnote 2 ] Extent of control of American Tobacco Company over the accessory corporations: American Snuff Company -- of 120,000 shares of preferred stock, owns 12,517 shares directly and 11,274 shares by reason of stock control of P. Lorillard Co.; in all, 23,764 shares; of 110,017 shares of common stock, owns 41,214 directly and 34,594 by reason of stock control of P. Lorillard Co.; in all, 75,808 shares. American Cigar Company -- of 100,000 shares of preferred stock owns 89,700 shares directly and 5,000 shares through control of American Snuff Co.; in all, 94,700 shares; of 100,000 shares of common stock, owns directly 77,451 shares. American Stogie Company -- of 108,790 shares of common stock, controls 73,072 3/4 shares through stock interest in American Snuff Company. The American Stogie Company owns all of the stock -- 12,500 -- of the Union American Cigar Company -- cigars and stogies. MacAndrews & Forbes Company -- of 37,583 shares of preferred stock (no voting power) owns 7,500 shares; of 30,000 shares of common stock, owns 21,129 shares directly and 983 shares through stock control of the R. J. Reynolds Co.; in all, 22,112 shares. The Conley Foil Company-of 8,250 shares of stock, directly owns 4,950 shares. The American Tobacco Company -- by stock ownership is the owner outright of the following defendant companies: S. Anargyros [The S. Anargyros Company owns all the capital stock (10 shares) of the London Cigarette Co.]; F. F. Adams Tobacco Co.; Blackwell's Durham Tobacco Co.; Crescent Cigar & Tobacco Co.; Day and Night Tobacco Co.; Luhrman & Wilbern Tobacco Co.; Nall & Williams Tobacco Co.; Nashville Tobacco Works; R. A. Patterson Tobacco Co.; Monopol Tobacco Works; Spalding & Merrick. The American Tobacco Co. also has the stock interest indicated in the following defendant corporations: British-American Tobacco Co. -- owns 1,200,000 shares of 1,500,000 shares of preferred stock, and 2,280,012 shares of 3,720,021 shares of common stock. The Imperial Tobacco Co., etc. -- owns 721,457 pounds sterling of 18,000,000 pounds sterling of stock. The John Bollman Co. -- of 2,000 shares of stock, owns 1,020 shares. F. R. Penn Tobacco Co. -- of 1,503 shares of stock, owns 1,002 shares (through Blackwell's Durham Tobacco Co.) R. P. Richardson, Jr. & Co., Inc. -- owns 600 out of 1,000 shares of stock, and $120,000 of $200,000 issue of bonds. R. J. Reynolds Tobacco Co. -- owns 50,000 out of 75,250 shares of stock. Pinkerton Tobacco Co. -- owns 775 out of 1,000 shares of stock. Reynolds Tobacco Co. (of Bristol, Tennessee) -- owns 1,449 shares out of 2,500 shares. J. W. Carroll Tobacco Co. -- owns 2,000 out of 3,000 shares. P. Lorillard Co. -- owns 15,813 out of 20,000 shares of preferred and all the common stock (30,000 shares). Kentucky Tobacco Product Co. -- owns 14 of 1,900 shares preferred, and owns directly 5,264, and, through the American Cigar Co., 355 out of 8, 100 shares of common stock. [The Kentucky Tobacco Product Co. owns all the capital stock (100 shares) of the Kentucky Tobacco Extract Co.] Porto Rican-American Tobacco Co. -- owns directly 6,578, and, through the American Cigar Co., 6,576 of 19,984 shares of stock. [The Porto Rican-American Tobacco Co. owns 190 of the 380 shares of preferred, and 300 of the 450 shares of common stock of Ind. Co. of Porto Rico; also owns 2,150 of the 5,000 shares of capital stock of the Porto Rico Leaf Tobacco Co.] The American Tobacco Company is also interested, as indicated, in the following defendants, supply or machinery companies: Golden Belt Manufacturing Co. (cotton bags) -- owns 6,521 of 7,000 shares. Mengel Box Co. (wooden boxes) -- British-American Tobacco Co. owns 3,637 of 5,000 shares of stock. [The Mengel Company owns all of the capital stock of the Columbia Box Company and of the Tyler Box Company,-respectively, 1,500 and 250 shares.] Amsterdam Supply Co. -- (agency to purchase supplies) -- owns majority of stock, and controls large part of remainder through subsidiary companies. Thomas Cusack Co. -- (bill posting) -- owns 1,000 out of 1,500 shares. Manhattan Briar Pipe Co. -- owns all of stock 3,500 shares. International Cigar Machinery Co. -- of 100,000 shares, owns 33,637 shares directly and 29,902 shares through American Cigar Co. -- in all 63,539 shares. The American Tobacco Company is also interested in the following companies, not named as defendants: American Machine & Foundry Co. -- owns 510 shares directly and remainder (490) through American Cigar Co. New Jersey Machine Co. -- owns 510 shares directly and remainder (490) through American Cigar Co. Standard Tobacco Stemmer Co. -- of 17,300 shares, owns 16,895 shares. Garson Vending Machine Co. -- of 500 shares, owns 250 shares. The American Snuff Company, in addition to stock, etc., interests in the American Tobacco Co., American Cigar Company, and the Amsterdam Supply Company, has stock interests in the following defendants: H. Bolander -- owns all of stock, 1,350 shares. De Voe Snuff Co. -- owns all of stock, 500 shares. [The De Voe Snuff Co. owns all the capital stock, 400 shares of Skinner & Co., snuff.] Standard Snuff Co. -- owns all of stock, 2,816 shares. The American Cigar Co., in addition to stock interests in the Amsterdam Supply Co., American Stogie Co., Porto Rican American Tobacco Co., Kentucky Tobacco Product Co., and International Cigar Machinery Co., has the stock interest indicated in the following defendants: R. D. Burnett Cigar Co. -- owns 77 out of 150 shares; M. Blaskower Co. -- owns 1,875 out of 2,500 shares pref. and 1,875 out of 2,500 shares of common. Cuban Land & Leaf Tobacco Co. -- owns all of stock, 1,000 shares. [The Cuban Land, etc., Co., owns 1,320 of the 1,890 shares of stock of the Vuelta Abajo S.S. Co.] Cliff Weil Cigar Co. -- owns 255 out of 500 shares. Dusel, Goodloe & Co. -- owns 510 out of 750 shares. Federal Cigar Real Estate Co. -- owns all stock, 6,000 shares. J. J. Goodrum Tobacco Co. -- owns 477 out of 600 shares. Havana-American Co. -- owns all stock, 2,500 shares. Havana Tobacco Co. -- owns 700 shares out of 47,038 preferred, 166,800 out of 297,912 common stock, and $3,500,000 of $7,500,000 bonds. Jordan Gibson & Baum Co., Inc. -- owns all preferred and common stock, 250 shares each. Louisiana Tobacco Co., Limited -- owns 375 out of 500 shares. The J. B. Moos Company -- owns all of stock, 2,000 shares. J. & B. Moos Company -- owns all of common stock, 1,000 shares. Porto Rican Leaf Tobacco Co. -- owns 2,500 out of 5,000 shares. The Smokers' Paradise Corporation -- owns all of common stock (250 shares) and 349 of 500 shares preferred. Havana Tobacco Co. has a stock interest in the following corporations: H. de Cabanis y Carbajal -- all of stock, 15,000 shares. Hy. Clay and Bock & Co., Lim. -- owns 9,749 out of 16,950 shares preferred and 14,687 out of 15,990 shares common. [The Hy. Clay, etc., Co., is owner of 16,667 shares of the ordinary capital stock of the Havana Cigar & Tobacco Factories, Limited, and also owns 64 shares of the 1,890 shares of the capital stock of the Vuelta Abajo S.S. Co.] Cuban Tobacco Co. -- owns all of stock, 50 shares. Havana Commercial Co. -- owns 55,562 out of 60,000 shares preferred and 124,718 out of 125,000 shares common. [The Havana Commercial Co. owns all of the capital stock -- 100 shares -- of the M. Valley Co. -- cigars.] Havana Cigar & Tobacco Factories, Lim. -- owns 6,774 out of 25,000 shares ordinary stock. J. S. Murgiasy Co. -- owns all of stock -- 7,500 shares. Blackwell's Durham Tobacco Co. -- in addition to a stock interest in the Amsterdam Supply Co., has the stock interest indicated, in the following defendant corporations: F. P. Penn Tobacco Co. -- owns 1,002 out of 1,500 shares. Scotten-Dillon Co. -- owns $10,000 out of $500,000 of stock. Wells-Whitehead Tobacco Co. -- owns all of stock-1,500 shares. Conley Foil Company -- owns all of the capital stock (3,000 shares) of the Johnson Tin Foil & Metal Co. P. Lorillard Company -- has a stock interest in the American Snuff Company and the Amsterdam Supply Co. R. J. Reynolds Tobacco Co. -- in addition to a stock interest in the Amsterdam Supply Company and the MacAndrews & Forbes Company, owns one third of the 5,000 shares of stock of the Lipfert Scales Co. The British-American Tobacco Co. -- in addition to a small interest in the Amsterdam Supply Company, has the following stock interest in certain defendants: David Dunlop -- plug -- owns 3,000 of 4,500 shares. W. S. Mathews & Sons -- smoking -- owns 3,637 out of 5,000 shares of stock. T.C. Williams Company -- plug -- owns all of stock, 4,000 shares. [ Footnote 3 ] The output of the American Tobacco Company for 1891 was: Number Pounds Cigarettes . . . . . . . . . . . . 2,788,778,000 ---------- Cheroots and little cigars . . . . 40,009,000 ---------- Smoking. . . . . . . . . . . . . . ---------- 13,813,355 Fine cut . . . . . . . . . . . . . ---------- 560,633 Snuff. . . . . . . . . . . . . . . ---------- 383,162 Plug . . . . . . . . . . . . . . . ---------- 4,442,774 Total output for the United States, 1891- Cigarettes . . . . . . . . . . . . 3,137,318,596 ---------- Smoking. . . . . . . . . . . . . . ---------- 76,708,300 Fine cut . . . . . . . . . . . . . ---------- 16,968,870 Plug and twist . . . . . . . . . . ---------- 166,177,915 Snuff. . . . . . . . . . . . . . . ---------- 10,674,241 [ Footnote 4 ] P. J. Sorg Co., having factory at Middletown, Ohio, who received preferred stock $4,350,000, common stock $4,525,000, and cash $224,375. John Finzer & Brothers, having factory at Louisville, Kentucky, who received preferred stock $2,250,000, common stock $3,050,000, and cash $550,000. Daniel Scotten & Co., having factory at Detroit, Michigan, who received preferred stock $1,911,100, and common stock $3,012,500. P. H. Mayo & Bros., having factory at Richmond, Va. who received preferred stock $1,250,000, common stock $1,925,000, and cash $66,125. John Wright Co., having factory at Richmond, Va. who received preferred stock $495,000, common stock $495,000, and cash $4,116.67. [ Footnote 5 ] Monopol Tobacco Works (New York, N.Y.) -- Capital $40,000 -- cigarettes and smoking tobacco. In 1899, the American Tobacco Co. acquired all the shares for $250,000, and it is now a selling agency. Luhrman & Wilbern Tobacco Company (Middletown, Ohio) -- Capital $900,000 -- scrap tobacco. This business was formerly carried on by a partnership. Mengel Box Company (Louisville, Ky.) -- Capital $2,000,000 -- boxes for packing tobacco. This company has acquired the stock ($150,000) of Columbia Box Company and of Tyler Box Company ($25,000), both at St. Louis. The Porto Rican-American Tobacco Company (Porto Rico) -- Capital $1,799,600. In 1899, the American Company caused the organization of the Porto Rican-American Tobacco Company, which took over the partnership business Rucabado y Portela -- manufacturer of cigars and cigarettes -- with covenants not to compete. The American Tobacco Company and American Cigar Company each hold $585,300 of the stock; the balance is in the hands of individuals. Kentucky Tobacco Product Company (Louisville, Ky.) -- Capital $1,000,000. In 1899, the Continental Company acquired control of the Louisville Spirit-Cured Tobacco Co., engaged in curing and treating tobacco and utilizing the stems for fertilizers. By agreement, the Kentucky Tobacco Product Company was organized in New Jersey, with $1,000,000 capital, $450,000 issued to the old stockholders, and $550,000 to Continental Company as consideration for agreement to supply stems. Golden Belt Manufacturing Company (North Carolina) -- Capital, $700,000 -- cotton bags and containers. In 1899, the American Tobacco Company acquired the business of this corporation, which was formed to take over a going business. The Conley Foil Company (New York) -- Tinfoil combination -- Capital, $825,000. In December, 1899, the American Tobacco Company secured control of the business of John Conley & Son (Partnership), New York, N.Y., manufacturers of tinfoil, an essential for packing tobacco products. By agreement, the Conley Foil Company was incorporated in New Jersey "for trading and manufacturing," etc., with $250,000 capital (afterwards $375,000 and $825,000) -- which took over the firm's business and assets, etc., and the American Tobacco Company became owner of the majority shares. The Conley Foil Company has acquired all the stock of the Johnson Tinfoil & Metal Company -- a defendant -- of St. Louis, a leading competitor, and they supply, under fixed contracts, the tinfoil used by defendants. R. J. Reynolds Tobacco Company (Winston-Salem, North Carolina). In 1899, the Continental Tobacco Company acquired control of the R. J. Reynolds Tobacco Company, one of the largest manufacturers of plug, output in 1898, 6,000,000 pounds. By agreement, a new corporation (with same name) was organized in New Jersey and capitalized at $5,000,000 (afterwards $7,525,000), which took over the business and assets of the old one. The Continental Company immediately acquired the majority shares, and the American Company now holds $5,000,000 of stock. The separate organization has been preserved. There was acquired in the name of the new Reynolds Company, with covenants against competition, the following plants: In 1900, T. L. Vaughn & Company, partnership, of Winston, N.C.; consideration, $90,506: Brown Brothers Company, a North Carolina corporation, Winston, N.C.; consideration, $67,615, and P. H. Hanes & Company and B. F. Hanes & Company, Winston, N.C. partnership; consideration, $671,950. In 1905, Rucker & Witten Tobacco Company, Martinsville, Va.; consideration, $512,898. In 1906, D. H. Spencer & Company, Martinsville, Va.; consideration, $314,255. (All of the foregoing plants were closed as soon as purchased.) A majority of the $400,000 capital stock in the Lipfert-Scales Company, of Winston, N.C. a corporation largely engaged in the manufacture of plug tobacco and interstate and foreign commerce in leaf tobacco and its products, was acquired by the Reynolds Company. The separate organization of the Lipfert-Scales Company is preserved and the business carried on under its corporate name. The R. J. Reynolds Tobacco Company also holds $98,300 of stock of the MacAndrews & Forbes Company and $9,600 of the Amsterdam Supply Company. Blackwell's Durham Tobacco Company (Durham, N.C.) -- capital, $1,000,000. In 1899, the American Tobacco Company procured for $4,000,000 all the stock of Blackwell's Durham Tobacco Company at Durham, N.C., manufacturer and distributor of tobacco products. Thereupon the Blackwell's Durham Tobacco Company, of New Jersey, capital, $1,000,000 all owned by the American, was organized and took over the assets of the old company, then under receivership. Its separate organization has been preserved. The Durham Company has acquired control of the following competitors -- Reynold's Tobacco Company; F. R. Penn Tobacco Company, and Wells-Whitehead Tobacco Company. The following companies came also under the control of the American Tobacco Company through acquired stock ownership: S. Anargyros -- capital $650,000 -- Turkish cigarettes. In 1890, the American Tobacco Company procured the organization of corporation of S. Anargyros, which took over that individual's going business and has since controlled it. Through this company, the business in Turkish cigarettes is largely conducted. The John Bollman Company (San Francisco) -- capital, $200,000 -- cigarettes. In 1900, the American Tobacco Company procured organization of the John Bollman Company, which took over the business of the former concern in exchange for stock. Its separate organization has been preserved. [ Footnote 6 ] "To buy, manufacture, sell, and otherwise deal in tobacco and the products of tobacco in any and all forms; . . . to guarantee dividends on any shares of the capital stock of any corporation in which said merged corporation has an interest as stockholder; . . . to carry on any business operations deemed by such merged corporation to be necessary or advisable in connection with any of the objects of its incorporation, or in furtherance of any thereof, or tending to increase the value of its property or stock; . . . to conduct business in all other states, territories, possessions, and dependencies of the United States of America, and in all foreign countries; . . . to purchase or otherwise acquire and hold, sell, assign, transfer, mortgage, pledge, or otherwise dispose of the shares of the capital stock or of any bonds, securities, or other evidences of indebtedness created by any other corporation or corporations of this or any other state or government, and to issue its own obligations in payment or exchange therefor. . . ." MR. JUSTICE Harlan concurred in part and dissented in part: I concur with many things said in the opinion just delivered for the Court, but it contains some observations from which I am compelled to withhold my assent. I agree most thoroughly with the Court in holding that the principal defendant, the American Tobacco Company, and its accessory and subsidiary corporations and companies, including the defendant English corporations, constitute a combination which "in and of itself, as well as each and all of the elements composing it, whether corporate or individual, whether considered collectively or separately," is illegal under the Anti-Trust Act of 1890, and should be decreed to be in restraint of interstate trade and an attempt to monopolize and a monopolization of part of such trade. The evidence in the record is, I think, abundant to enable the court to render a decree containing all necessary details for the suppression of the evils of the combination in question. But the case is sent back with directions further to hear the parties, by evidence or otherwise, "for the purpose of ascertaining and determining upon some plan or method of dissolving the combination, and of recreating out of the elements now composing it, a new condition" which shall not be repugnant to law. The Court, in its opinion, says of the present combination that its illegal purposes are overwhelmingly established by many facts; among others, "by the ever-present manifestation which is exhibited of a conscious wrongdoing by the form in which the various transactions were embodied from the beginning, ever changing, but ever in substance the same. Now the organization of a new company, now the control exerted by the taking of stock in one or another, or in several, so as to obscure the result actually attained, nevertheless uniform in their manifestations of the purpose to restrain Page 221 U. S. 190 others, and to monopolize and retain power in the hands of the few, who, it would seem, from the beginning contemplated the mastery of the trade which practically followed. By the gradual absorption of control over all the elements essential to the successful manufacture of tobacco products, and placing such control in the hands of seemingly independent corporations, serving as perpetual barriers to the entry of others into the tobacco trade." The Court further says of this combination and monopoly: "The history of the combination is so replete with the doing of acts which it was the obvious purpose of the statute to forbid, so demonstrative of the existence, from the beginning, of a purpose to acquire dominion and control of the tobacco trade, not by the mere exertion of the ordinary right to contract and to trade, but by methods devised in order to monopolize the trade, by driving competitors out of business, which were ruthlessly carried out, upon the assumption that to work upon the fears or play upon the cupidity of competitors would make success possible." But it seems that the course I have suggested is not to be pursued. The case is to go back to the circuit court in order that, out of the elements of the old combination, a new condition may be "re-created" that will not be in violation of the law. I confess my inability to find, in the history of this combination, anything to justify the wish that a new condition should be "re-created" out of the mischievous elements that compose the present combination, which, together with its component parts, have, without ceasing, pursued the vicious methods pointed out by the Court. If the proof before us -- as it undoubtedly does -- warrants the characterization which the Court has made of this monster combination, why cannot all necessary directions be now given as to the terms of the decree? In my judgment, there is enough in the record to enable this Court to formulate specific directions as to what the decree should contain. Such directions would Page 221 U. S. 191 not only end this litigation, but would serve to protect the public against any more conscious wrongdoing by those who have persistently and "ruthlessly," to use this Court's language, pursued illegal methods to defeat the Act of Congress. I will not say what, in my opinion, should be the form of the decree, nor speculate as to what the details ought to be. It will be time enough to speak on that subject when we have the decree before us. I will, however, say now that, in my opinion, the decree below should be affirmed as to the tobacco company and its accessory and subsidiary companies, and reversed on the cross-appeal of the government. But my objections have also reference to those parts of the Court's opinion reaffirming what it said recently in the Standard Oil case about the former decisions of this Court touching the Anti-Trust Act. We are again reminded, as we were in the Standard Oil case, of the necessity of applying the "rule of reason" in the construction of this act of Congress -- an act expressed, as I think, in language so clear and simple that there is no room whatever for construction. Congress, with full and exclusive power over the whole subject, has signified its purpose to forbid every restraint of interstate trade, in whatever form, or to whatever extent; but the Court has assumed to insert in the act, by construction merely, words which made Congress say that it means only to prohibit the "undue" restraint of trade. If I do not misapprehend the opinion just delivered, the Court insists that what was said in the opinion in the Standard Oil case was in accordance with our previous decisions in the Trans-Missouri and Joint Traffic cases, 166 U. S. 166 U.S. 290, 171 U. S. 171 U.S. 505, if we resort to reason. This statement surprises me quite as much as would a statement that black was white or white was black. It is scarcely just to the majority in those two cases for the Page 221 U. S. 192 Court at this late day to say or to intimate that they interpreted the Act of Congress without regard to the "rule of reason," or to assume, as the Court now does, that the act was, for the first time, in the Standard Oil case, interpreted in the "light of reason." One thing is certain, "rule of reason" to which the Court refers does not justify the perversion of the plain words of an act in order to defeat the will of Congress. By every conceivable form of expression, the majority, in the Trans-Missouri and Joint Traffic cases, adjudged that the Act of Congress did not allow restraint of interstate trade to any extent or in any form, and three times it expressly rejected the theory, which had been persistently advanced, that the act should be construed as if it had in it the word "unreasonable" or "undue." But now the Court, in accordance with what it denominates the "rule of reason," in effect inserts in the act the word "undue," which means the same as "unreasonable," and thereby makes Congress say what it did not say -- what, as I think, it plainly did not intend to say, and what, since the passage of the act, it has explicitly refused to say. It has steadily refused to amend the act so as to tolerate a restraint of interstate commerce even where such restraint could be said to be "reasonable" or "due." In short, the Court now, by judicial legislation, in effect amends an act of Congress relating to a subject over which that department of the government has exclusively cognizance. I beg to say that, in my judgment, the majority in the former cases were guided by the "rule of reason," for it may be assumed that they knew quite as well as others what the rules of reason require when a court seeks to ascertain the will of Congress as expressed in a statute. It is obvious from the opinions in the former cases that the majority did not grope about in darkness, but, in discharging the solemn duty put on them, they stood out in the full glare of the "light of reason," and felt and said, time and again, Page 221 U. S. 193 that the court could not, consistently with the Constitution, and would not, usurp the functions of Congress by indulging in judicial legislation. They said in express words, in the former cases, in response to the earnest contentions of counsel, that to insert by construction the word "unreasonable" or "undue" in the act of Congress would be judicial legislation. Let me say also that, as we all agree that the combination in question was illegal under any construction of the Anti-Trust Act, there was not the slightest necessity to enter upon an extended argument to show that the Act of Congress was to be read as if it contained the word "unreasonable" or "undue." All that is said in the court's opinion in support of that view is, I say with respect, obiter dicta, pure and simple. These views are fully discussed in the dissenting opinion delivered by me in the Standard Oil case. I will not repeat what is therein stated, but it may be well to cite an additional authority. In the Trade-Mark Cases, 100 U. S. 82 , the Court was asked to sustain the constitutionality of the statute there involved. But the statute could not have been sustained except by inserting in it words not put there by Congress. Mr. Justice Miller, delivering the unanimous judgment of the Court, said: "If we should, in the case before us, undertake to make by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do." This language was cited with approval in Employer's Liability Cases, 207 U. S. 463 , 207 U. S. 502 . I refer to my dissenting opinion in the Standard Oil case as containing a full statement of my views of this particular question. For the reasons stated, I concur in part with the court's opinion and dissent in part.

In United States v. American Tobacco Co., the Supreme Court applied a comprehensive interpretation of the Anti-Trust Act of 1890 to address the issue of a combination in restraint of trade in the tobacco industry. The Court reaffirmed its previous ruling in Standard Oil Co. v. United States, where it construed the phrase "restraint of trade" in the Anti-Trust Act reasonably, aligning with previous decisions. The Court emphasized that the Act must be reasonably construed as many agreements among businesses can indirectly affect interstate commerce. The Court clarified that "restraint of trade" referred to acts or contracts that unduly restricted competition or obstructed the course of trade, and Congress intended to prohibit such practices. The public policy expressed in the Act was broad, aiming to cover any conceivable act that could fall within its spirit. The Court found that the defendants in this case intended to acquire control of interstate commerce in tobacco through methods violating the Anti-Trust Act. However, Justice Harlan dissented in part, disagreeing with the majority's interpretation of the Act. He argued that the majority effectively amended the Act through judicial legislation by implying that "restraint" meant "unreasonable" or "undue," which he believed Congress did not intend. He emphasized that Congress had not amended the Act to include such qualifications and that previous majorities had refrained from such judicial interpretation.

Antitrust

Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs

https://supreme.justia.com/cases/federal/us/259/200/

U.S. Supreme Court Federal Baseball Club v. National League, 259 U.S. 200 (1922) Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs No. 204 Argued April 19, 1922 Decided May 29, 1922 259 U.S. 200 ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA Syllabus 1. The business of providing public baseball games for profit between clubs of professional baseball players in a league and between clubs of rival leagues, although necessarily involving the constantly repeated traveling of the players from one state to another, provided for, controlled, and disciplined by the organizations employing them, is not interstate commerce. P. 259 U. S. 208 . 2. Held that an action for triple damages under the Anti-Trust Acts could not be maintained by a baseball club against baseball leagues and their constituent clubs, joined with individuals, for an alleged conspiracy to monopolize the baseball business resulting injuriously to the plaintiff. P. 259 U. S. 209 . 269 F. 681, 50 App.D.C. 165, affirmed. Error to a judgment of the Court of Appeals of the District of Columbia reversing a judgment for triple damages under the Anti-Trust Acts recovered by the Page 259 U. S. 201 plaintiff in error in the Supreme Court of the District and directing that judgment be entered for the defendants. Page 259 U. S. 207 MR. JUSTICE HOLMES delivered the opinion of the Court. This is a suit for threefold damages brought by the plaintiff in error under the Anti-Trust Acts of July 2, 1890, c. 647, § 7, 26 Stat. 209, 210, and of October 15, 1914, c. 323, § 4, 38 Stat. 730, 731. The defendants are the National League of Professional Base Ball Clubs and the American League of Professional Base Ball Clubs, unincorporated associations, composed respectively of groups of eight incorporated baseball clubs, joined as defendants; the presidents of the two Leagues and a third person, constituting what is known as the National Commission, having considerable powers in carrying out an agreement between the two Leagues, and three other persons having powers in the Federal League of Professional Base Ball Clubs, the relation of which to this case will be explained. It is alleged that these defendants conspired to monopolize the baseball business, the means adopted being set forth with a detail which, in the view that we take, it is unnecessary to repeat. The plaintiff is a baseball club incorporated in Maryland, and, with seven other corporations, was a member of the Federal League of Professional Base Ball Players, a corporation under the laws of Indiana, that attempted to compete with the combined defendants. It alleges that the defendants destroyed the Federal League by buying up some of the constituent clubs and in one way or another inducing all those clubs except the plaintiff to leave their League, and that the three persons connected with the Federal League and named as defendants, one of them being the President of the League, took part in the conspiracy. Great damage to the plaintiff is alleged. The Page 259 U. S. 208 plaintiff obtained a verdict for $80,000 in the Supreme Court, and a judgment for treble the amount was entered, but the Court of Appeals, after an elaborate discussion, held that the defendants were not within the Sherman Act. The appellee, the plaintiff, elected to stand on the record in order to bring the case to this Court at once, and thereupon judgment was ordered for the defendants. National League of Professional Baseball Clubs v. Federal Baseball Club of Baltimore, 50 App.D.C. 165, 269 F. 681, 68. It is not argued that the plaintiff waived any rights by its course. Thomsen v. Cayser, 243 U. S. 66 . The decision of the Court of Appeals went to the root of the case, and, if correct, makes it unnecessary to consider other serious difficulties in the way of the plaintiff's recovery. A summary statement of the nature of the business involved will be enough to present the point. The clubs composing the Leagues are in different cities and for the most part in different states. The end of the elaborate organizations and sub-organizations that are described in the pleadings and evidence is that these clubs shall play against one another in public exhibitions for money, one or the other club crossing a state line in order to make the meeting possible. When, as the result of these contests, one club has won the pennant of its league and another club has won the pennant of the other league, there is a final competition for the world's championship between these two. Of course, the scheme requires constantly repeated traveling on the part of the clubs, which is provided for, controlled, and disciplined by the organizations, and this, it is said, means commerce among the states. But we are of opinion that the Court of Appeals was right. The business is giving exhibitions of baseball, which are purely state affairs. It is true that, in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and states. But the fact that, in order Page 259 U. S. 209 to give the exhibitions, the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, 155 U. S. 648 , 155 U. S. 655 , the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money, would not be called trade of commerce in the commonly accepted use of those words. As it is put by defendant, personal effort not related to production is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the states because the transportation that we have mentioned takes place. To repeat the illustrations given by the court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another state. If we are right, the plaintiff's business is to be described in the same way, and the restrictions by contract that prevented the plaintiff from getting players to break their bargains and the other conduct charged against the defendants were not an interference with commerce among the states. Judgment affirmed.

The Supreme Court ruled that the business of providing public baseball games for profit, despite involving travel across state lines, is not considered interstate commerce and therefore is not subject to federal antitrust laws. The Court characterized the business as providing entertainment exhibitions, which are purely state affairs, and distinguished it from activities that directly relate to the production of goods or services. This decision affirmed the judgment of the Court of Appeals and prevented the plaintiff, a baseball club, from recovering triple damages under the Anti-Trust Acts from rival baseball leagues and clubs for an alleged conspiracy to monopolize the baseball industry.